Microsoft/Novell deal violates GPL?

Microsoft and Novell have described their recent partnership as a historic effort to "bridge the divide" between open source and proprietary software. But is it legal? According to Eben Moglen of the Software Freedom Law Center, the deal between the two companies would not be compatible with the terms of the forthcoming GPL (GNU General Pubic License) version 3, and it might not be compatible with the current ve

Microsoft and Novell have described their recent partnership as a historic effort to "bridge the divide" between open source and proprietary software. But is it legal?

According to Eben Moglen of the Software Freedom Law Center, the deal between the two companies would not be compatible with the terms of the forthcoming GPL (GNU General Pubic License) version 3, and it might not be compatible with the current version.

All versions of the GPL require that anyone who distributes GPL-licensed software must grant the recipient all the rights offered under the GPL. Included in those rights is the right to redistribute the software. But if the patent license Microsoft has granted to Novell customers only extends to Novell customers, then Novell customers cannot redistribute the software freely. According to Moglen, this may violate the terms of the license.

As it turns out, this possibility was not lost on Novell, either. In a press release issued Tuesday, Novell made its case for compatibility with the open source license.

"Many people want to know whether this agreement is compatible with Novell's obligations under the GPL, especially section 7," Novell's general counsel is quoted as saying. "This was an important consideration for us as well. Under the patent cooperation agreement, Novell's customers receive directly from Microsoft a covenant not to sue. Novell does not receive a patent license or covenant not to sue from Microsoft, and we have not agreed with Microsoft to any condition that would contradict the conditions of the GPL. Our agreement does not affect the freedom that Novell or anyone else in the open source community, including developers, has under the GPL and does not impose any condition that would contradict the conditions of the GPL. Therefore, the agreement is fully compliant with the GPL."

Got that? Well, if it's not all that clear to you, you're not alone. Moglen isn't convinced either.

Thankfully, however, he'll get his chance to study the matter. Vnunet.com reports that Moglen has been granted permission to conduct a confidential audit to determine whether the Novell/Microsoft partnership is compatible with the GPL, version 2. He says he's open to the possibility that Novell has pulled it off, but adds, "They will not clear GPL3 by a millimeter."

Linus Torvalds has said in the past that the Linux kernel itself will not be moving to GPL3 when it is finalized, but a Linux distribution includes lots of other software besides the kernel. If GPL3 licensed code is inherently incompatible with an arrangement like Novell's, the Suse Linux distribution could be on shaky legal ground as open source projects begin to take up the new license.

Do you think Novell's partnership with Microsoft is in keeping with the spirit of open source? Are you more likely to choose Suse Linux now that it has the nod of support from Microsoft, or less? Talk back to us, below.

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