Bonum Certa Men Certa

GPL Section 7 vs. Brad Smith

The GNU General Public License, Version 2, is the license that applies to redistribution of a great many Free Software projects, many of which are included in Novell's Linux offerings. I would like to contrast some aspects of the GPL 2 and the words of Brad Smith, Senior Vice President and General Counsel, Microsoft Corporation at the news conference.



The GNU GPL is a license that covers copying, redistribution, and modification - it is not an End User License Agreement, there is no restriction on your use of GPL software ever, but there are rules for redistribution. Of particular note in reference to the Novell-Microsoft deal is Section 7 (emphasis 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.

If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances.

It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims; this section has the sole purpose of protecting the integrity of the free software distribution system, which is implemented by public license practices. Many people have made generous contributions to the wide range of software distributed through that system in reliance on consistent application of that system; it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice.

This section is intended to make thoroughly clear what is believed to be a consequence of the rest of this License.
Now, here are some of Brad Smith's words from the day of the deal, particularly in reference to the Patent aspects of the agreement and Novell's payment of royalties on their Open Source Software offerings:
To do that one of the things we fashioned was an approach that will ensure, for example, that every customer who purchases a subscription, for example, for SUSE Enterprise Linux, will get not only service and support from Novell, but will get as part of that, in effect, a patent covenant from Microsoft. We knew that this was something we had to figure out a way to accomplish, because that was the number one thing that customers were telling us. Customers told us that they wanted us to find a way to address the patent issues directly among ourselves in the industry, so they wouldn't have to figure out how to deal with these things instead.

By fashioning this covenant we've been able to do that. Today Novell is the only company in our industry that is able to provide a customer not only with the code to run Linux, not only the service and support for it, but the patent, a patent covenant that runs for Microsoft Corporation, and that we think is very important, again, as you heard from Ron, for all of the customers in the industry.

There is, of course, a little bit of economics involved, as they always are, and you'll see in the press release some references to this, although you'll also see that we're not announcing any numbers today. But, as you'll see in the press release it makes clear that on the patent side, we dealt with both of these sides of the equation. We dealt with the need for an up-front balancing payment, a balancing payment that runs from Microsoft to Novell, reflecting among other things the large relevant volume of the products that we have shipped. And you'll see, as well, an economic commitment from Novell to Microsoft that involves a running royalty, a percentage of revenue on open source software shipped under the agreement.
The terms of Microsoft's Patent Pledges are restrictive and discriminatory, not allowing for any redistribution of code outside of contributing to OpenSUSE.org (for Novell's benefit), and not allowing commercial interests any rights.

If Novell has entered into this "Patent Covenant", agreeing to paying royalties in return for these Microsoft license terms for their users, therefore allowing its partner Microsoft to limit their user's redistribution rights, are they violating the GPL? Or, is it the brilliance of this deal that now Novell customers would be violating the GPL if they redistribute, since they are the ones with the rights which cannot be passed on?

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