Novell Microsoft partnership faces GPL hurdle

Open source activist Eben Moglen believes that the Microsoft/Novell deal is unworkable

The patent cross licensing deal unveiled by Microsoft and Novell on 2 November will be incompatible with the GPL3 licence and is likely to be incompatible with the current GPL2 licence, according to law professor and open source activist Eben Moglen.  

Section seven of the current General Public Licence (GPL2) prohibits people or corporations from distributing the GPL code if they have entered into any agreements that contradict the conditions of the licence.

"If you cannot distribute so as to satisfy simultaneously your obligations under this licence and any other pertinent obligations, you may not distribute the program at all," the GPL licence states. 

The provision would prevent Novell from making it mandatory for users to pay a licence fee for its Linux distribution if Microsoft had required this as part of the patent agreement.

Microsoft and Novell unveiled a broad-ranging partnership around Novell's SuSE Linux distribution on 2 November.

The two companies have signed a patent cross licensing deal that will protect users and developers of SuSE against patent claims from Microsoft.

Both companies also vowed to work on interoperability between the two operating systems, and Microsoft will distribute up to 70,000 copies of SuSE to its customers through a coupon programme.

Moglen said in an interview with vnunet.com that Novell should explain in detail how it plans to honour the GPL while satisfying the terms of its licence agreement with Microsoft. 

"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," said Moglen.

Novell has not yet disclosed the exact details of its legal agreement with Microsoft. But company spokesman Bruce Lowry claimed that the partnership does not violate the GPL.

"The patent agreement signed by Novell and Microsoft was designed with the principles and obligations of the GPL in mind," Lowry told vnunet.com. 

He added that the company is working on a document that explains the deal in more detail and will provide a legal background.

But even if the deal is allowed by the current GPL, it will not meet the requirements of the forthcoming GPL3, of which Moglen is one of the authors. The licence is slated for release in the coming months.

Although the Linux kernel will stay under the GPL2, most of today's GPL applications are expected to switch to GPL3, including many parts that ship as part of Novell's SuSE Linux distribution.

The upcoming revision of the licence explicitly prohibits distributors from asserting any patent claims against open source developers.

The Microsoft-Novell agreement, meanwhile, limits its patent pledge to non-commercial developers and developers contributing to the OpenSuse.org project.

"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," said Moglen.

Many people in the open source community applauded the partnership because it eliminated the threat of Microsoft suing open source developers and vendors over patent infringement claims.

Stuart Cohen, chief executive of the Open Source Development Labs, told vnunet.com last week that Microsoft is "now saying that it is OK to run Linux".

Dave Dargo, chief technology officer at Ingres, wrote on his blog that the deal "will accelerate the adoption and, therefore, the success of open source within commercial enterprises". 

But Moglen insists that the deal will make the situation worse. By paying Microsoft a licence fee for each copy of SuSE Linux that is shipped, Novell is providing the firm with additional revenues.

But this will extend the life of a failed business model that is based on proprietary code, according to Moglen.

"This is giving Microsoft a new lease of life," he said. "Microsoft is about to suffer a company-ending defeat. The correct answer to Microsoft is to tell them: 'Your patents are worthless. Go away.'"

Moglen also said that Microsoft's forthcoming Windows Vista operating system will fail in the marketplace, and maintained that Microsoft's Office software is "dying".