Re: [tlug] Novel embraces Microsoft

[stephen@example.com]

Jean-Christophe Helary writes:

 > It may have been mentioned before but there were remarks by Stallman  
 > (I think) about the fact that GPLed products could not be distributed  
 > with conditions other than those defined by the GPL.

The GPL says that if you receive code under the GPL, you may not add
any conditions.  That doesn't stop third parties from doing so.

 > Which means in the Novell/MS case that if Novell decides to provide
 > "extra protection" for GPL products it may loose the right to
 > simply distribute Linux etc... Or did I get something wrong ?

Yes, several things.  Zeroth, nothing Stallman says should be taken at
face value.  Everything he says is advocacy, and he does not hesitate
to use misleading language in a good cause.  In particular, you should
remember that there is NO case law concerning the GPL, but that much
of that license is written in terms that will have to be interpreted
by a court.  Any statements that Stallman makes about what it means
should be prefaced with "In His Unsupported Opinion".

First, if Novell violates the GPLv2 in any way regarding certain GPLed
products, Novell loses the right to distribute those products.  No
collateral damage to Linux distribution, etc., (unless they try to
impose additional conditions on their Linux distribution itself, of
course).  This is one of the things that GPLv3 tries to improve by
allowing "patent retaliation", but it's often restricted, usually to
cases where the software itself is being threatened by patents.

Second, it's quite unclear what would happen if Novell didn't receive
a formal patent license from Microsoft for claims related to SMB, but
Microsoft chose to sue Tridge et al, but not Novell.  That's
Microsoft's decision, and a court would just laugh at Tridge if he
tried to use that as a defense against patent infringement.  Assuming
Samba is GPL, Tridge could turn around and sue Novell under section 7,
but he'd have to show that Microsoft's failure to sue constituted
Novell obtaining a license.  (It might be that that is well-
established in law, but I suspect it is not.  Larry Rosen told me that
a "covenant not to assert claims" is NOT the same thing as a "license
to practice claims".  I don't know what that difference is, but that's
enough to support my suspicion.)

Furthermore, that whole section may be invalid, because of the truly
idiotic gloss in the last sentence.  Novell could argue that since
section 7 is only a clarification of what is implied by the rest of
the license, it has no force, and Tridge has to prove that it *is*
implied by the rest of the license.  The court might laugh at that, I
don't know.  If not, things become pretty difficult.

Third, it's not clear that distributing software under the GPL with a
disclaimer that you may need to obtain a patent license would actually
violate section 7, as long as the patentee had not prohibited
distribution without a license.

Fourth, if Novell does lose the right to distribute Samba, Microsoft
holds all the trumps.  They can stomp on Samba and at the same time
give Novell enough code and license to provide a "genuine Microsoft
implementation", leaving Novell as the only Linux vendor with a
decent, legally unencumbered SMB implementation, as long as they toe
the Microsoft line.

All of this assumes that Microsoft holds SMB-related patents that
Samba infringes, which may not be true.