Suse, You Got Some E'splainin' To DoSuse, You Got Some E'splainin' To Do

The most interesting thing about the Microsoft-Novell deal last week may be the possibility that by signing a patent cross-licensing agreement that covers its customers, Novell may be putting itself in violation of the GPL and other open source licenses under which it distributes its products. Predictably, there have been calls for a boycott of Novell, but emotional outcries have been balanced in the blogosphere by a lot of "let's wait and see" posts. As Eben Moglen, Columbia Law School professor and general counsel of the Free Software Foundation, keeper of the GPL flame, said on the issue, "Novell needs to show affirmatively that the terms of its arrangement with Microsoft do not impact on the freedoms that they must be able to pass along under the GPL."A Novell spokesman was quick to claim the deal was crafted to avoid conflict with the GPL, but a joint open letter to the open source community (see it here on Novell's Web site) doesn't do much to explain anything.

The argument against Novell rests on the GPL's prohibition against using patent licenses to produce proprietary versions of software distributed under the GPL. It says in Section 7, "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."

There may be wiggle room for Microsoft and Novell to claim that their patent cross-licensing doesn't affect software covered by the GPL, just customers for Novell's services. Even Moglen seems to lean this way: "Maybe it will turn out that [Novell and Microsoft] have cleared the barrier by a millimetre. But they will not clear GPL3 by a millimetre," he told a VNUnet.com writer.

Implicit in Moglen's argument is the idea that when GPL3 is finalized, Novell, because of its contract with Microsoft, will be out of the Linux business, unable to distribute future versions covered by GPL3 (but that, in turn, presumes that future versions of Linux will be distributed under GPL3--not necessarily a slam dunk, given the wrangling between Linus Torvalds and Richard Stallman over GPL3).

On the other hand, it might also be possible for a judge to decide that Microsoft, having signed a patent licensing agreement for products covered by the GPL, had in effect agreed to the GPL's terms and licensed its patents to the entire Linux community. Wouldn't that be fun?

In any case, Moglen is absolutely right about one thing: Novell chief executive Ron Hovsepian has a lot of explaining to do. He's going to have to talk really fast to the open source community to explain why Novell shouldn't be thrown out of the club. (If Moglen is right about GPL3 stopping deals like this one, that may be all it takes to push the new version to adoption.)

Hovsepian also has to talk pretty fast to his customers because I suspect it won't be boycotts that stop this deal. It will be defections by customers who decide they don't need protection from Microsoft suits nearly as much as they need great service, low prices, and the best technology--and Novell was already losing the competitive battle with Red Hat on those differentiators.

Microsoft is going to have to actually sue a Red Hat customer for patent violations and win before this deal is going to do Novell any good. But for Microsoft, the public relations costs of suing its own customers--because every company is a Microsoft customer--make that seem unlikely.