The Microsoft-Novell patent deal and the GPL

by Sander Marechal

The news of the Microsoft-Novell deal is hard to miss in the Linux community. The reactions range from very negative to vaguely neutral. The most interesting bit of the agreement for me are the patent clauses.

You might think this is crazy, afterall the threat of patent litegation is just that-a threat. Or you might think that this is not very different from the indemnification that Red Hat offers. I think the issue runs deeper and that, after a first good look, either Microsoft or Novell has made a big mistake. You see, patent licenses and GPL software don't really mix.

From the Microsoft-Novell letter it looks like just a covenant not to sue, but it's not. After all, Novell does have to pay royalties to Microsoft. See the excerpt below that was posted on Groklaw:

Under the patent agreement, both companies will make up-front payments in exchange for a release from any potential liability for use of each others patented intellectual property, with a net balancing payment from Microsoft to Novell reflecting the larger applicable volume of Microsoft’s product shipments. Novell will also make running royalty payments based on a percentage of its revenues from open source products.

So it looks like a regular patent cross-licensing deal.It happens between proprietry vendors all the time. No problem if Novell licenses Microsoft's patents for it's own proprietry addons to Suse. So, what software is the patent covenant about? The Microsoft–Novell letter tells us:

  • Mono, OpenOffice and Samba
    • Under the patent agreement, customers will receive coverage for Mono, Samba, and OpenOffice as well as .NET and Windows Server.

Mono is a combined GPL/LGPL/MIT license. Samba is GPL and is LGPL. Also note how only Novell Suse Linux users are covered by the covenant not to sue.

Update: NZHeretic on Groklaw points out that a patent license is a covenant not to sue so it's irrelevant from a GPL point of view. What matters is that the covenant is targeted at Suse users only, not at the Linux community in general as are the Sun and IBM covenants.

Here's what the GPL has to say about restrictions (emphasize mine):

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

So, the patent license can never apply only to just Novell only. It has to apply to all their customers and they hve the exact same rights as Novell. Since anyone can get their hands on Novells software, this would in effect mean that anyone can get a free Microsoft patent license. Microsoft's IP would be worthless and Mono, Samba and would forever be free of the threat of litegation. But only if the patent licensing deal allows Novell to freely distribute and sublicense.

Now imagine the license not allowing Novell to freely distribute and sublicense the patents. Novell would be forced to stop distributing Mono, Samba and or they would break the copyright of the authors. Afterall, if Novells customers are not allowed to do it, the Novell isn't allowed to do it. That's the GPL for you. Novell could have signed their own death sentence with this deal.

It all hinges on the fact if it's a patent license or a covenant not to sue and wether Novell can sublicense and redistribute. Did Novell sign away it's future by mistake or did it cleverly safeguard the future of Mono, Samba and Or is just just another chapter in the FUD cloud that is the “Linux Litegation Threat”? Time will tell when we get to see the contents of the deal-if ever.

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