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The FSF Can’t Ban Novell’s Linux Distribution Rights

Reuters injects some unnecessary fear into the Linux customer base with reports that the FSF could ban Novell's Linux distribution rights. They can't.

Reuters posted a story on Saturday morning, of all times, titled “FSF says Novell could be banned from selling Linux” that sent the blogosphere and several media outlines into a frenzy of activity. While some folks didn’t bite, many places on the web just repeated the story verbatim. It’s a fetching headline, but a bit misleading since the Free Software Foundation doesn’t really have that authority over Linux.

For starters, both Richard Stallman and the FSF’s attorney Eben Moglen have stated that the Microsoft-Novell patent agreement does not conflict with the GPLv2. What the FSF is trying to do now is drive a stake into the exclusive patent coverage with new language in the forthcoming GPLv3. The reason why the Reuters article jumped the gun on this is because while many of the GNU tools will move to the GPLv3 when released, Linus Torvalds has said that the Linux kernel will not make the jump and stay with the GPLv2 for its license.

What the Reuters article and the FSF’s comments illustrate is just how fearful the Linux community is of the Microsoft-Novell agreement. In general, the concern is that Microsoft or Novell will attempt to introduce patent-infringing code into Linux or some other large Open Source project, thus opening a large audience of developers and companies to legal assault.

At least we think that’s what everyone’s concerned about. No one that we’ve talked to has been able to cite a specific example how the agreement could break the GPL but everyone seems to feel that Microsoft is up to something. They probably are, but even then Section 7 of the current GPL may have them covered.

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.

I read that as you can’t inject source code that carries patent obligations into a GPL’d project. This however might be a hole to exploit since it’s using something of an honor system to police itself (“Just say, ‘No’,” so to speak). What the FSF is attempting to do is further expand on this section to say that if, for whatever reason, code that includes patent coverage through exclusive agreements is included in a GPLv3 project then that patent coverage will transfer to all users of the code. Users in this instance being developers as well as end-users.

Legally, this is probably doable but it feels more like a band-aid to solve a specific problem that would be better settled in the courts. I suspect that the draft of the GPLv3 that is out now is going to be given an even further going-over and we may see yet more patching. While this is proactive on the FSF’s part, not everyone is going to move to the GPLv3 when it is finally released. If MS is planning an assault on the GPL the FSF best start circling the wagons around v2 and Linux in order to get a favorable — and long-standing — ruling in the courts.

Furthermore, Mr. Moglen should probably stop using language that could be misrepresented as an attack on Novell. Getting everyone upset about the #2 commercial Linux distributor isn’t going to drive customers to Red Hat. It’s just going to drive them away from Linux in general.

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