Eben Moglen, legal counsel to the Free Software Foundation, discussed the details of the draft General Public License Version 3 -- including its defenses against the Microsoft-Novell deal -- in an online seminar hosted by OpenLogic Inc. today. It was a timely discussion, given Microsoft's assertion earlier this week that Linux and other open-source programs violate 235 of its patents. (The GPL is the license under which many open-source programs are distributed.)
Moglen said the recent "saber-rattling" further illustrated the importance of protecting against Microsoft's attempts "to disrupt free software production through the inculcation of a large inventory of most-likely invalid patents."
In basic terms, as Moglen explained to the online audience, the new version of the license would make Microsoft subject to the GPL, because of its distribution of Novell Suse Enterprise Linux coupons. Under the language of the license, Microsoft would then be prevented from pursuing patent claims against the broader Linux community. Not just Novell's Linux users would be protected.
As reported by Fortune, Microsoft disputes the notion that its distribution of Novell coupons would make it subject to the GPL. See this earlier post for Microsoft's position and explanation of why it decided to go public with its patent claims.
The current draft of the GPL v. 3 also includes what Moglen described as the "dancing with wolves provision." It's meant to prevent other Linux distributors from striking deals similar to the one Novell made with Microsoft. (The companies agreed not to pursue patent claims against each other's customers.)
Here's how Moglen explained the provision: "If you make deals with a party having patents, to pay tribute to that party, in return for protecting some but not all of your customers ... you are violating the license, and you must stop distributing altogether."
Read on for an extended excerpt from Moglen's remarks:
"Novell's activity will be protected by the fact that it was complete as of the date in November, which is the effective date of their deal with Microsoft. [The GPL revisions won't be retroactive.] Microsoft's activity will begin to disperse patent defenses into the community. When GPL 3 goes into effect, every Microsoft coupon handed to somebody, which results in the shipment of a Novell Server Edition product to that coupon-holder, will result in a conveyance of broad patent defenses to parties throughout the community.
"The goal of this provision was to incent Microsoft to get out of the patent deal with Novell. Microsoft, which fully understands what we are doing and why we are doing it, has elected instead not to withdraw from the deal with Novell, but to throw coupons wholesale out of airplanes. You have been watching for months as Microsoft gave away these coupons -- which were supposed to be valuable to Microsoft, and for which it paid a lot of money -- as though the coupons themselves were hot, as indeed they are. All of this giving away coupons activity by Microsoft is meaningless and useless. The coupons have no expiration date, and Microsoft can be sure that some coupons will be turned into Novell in return for software after the effective date of GPL 3. Once that has happened, patent defenses will, under the license, have moved out into the broad community and be available to anybody who Microsoft should ever sue for infringement.
"Our goal, in other words, is to add one more layer of probable defense against the Microsoft patent aggression, which Microsoft has just been busy thumping its tub about this week. So, in summary, Novell will be protected for the long haul, and Microsoft will be endangered for the long haul by GPL 3, and that's as it should be."
Update, 3 p.m.: Microsoft declined to comment on Moglen's remarks. Patent lawyer Richard Wilder, intellectual property counsel to the Association for Competitive Technology (of which Microsoft is a member) disputed the assertion that Microsoft's distribution of Suse Linux service and support coupons makes it a Linux distributor.
"They're not distributing Linux," Wilder said. "They're providing somebody access to a service but they're not providing copies of Linux on a disk, and they're not providing somebody access to Linux for the purpose of download, and so they're not engaged in any distribution."