red hat/novell patent Q&A

Because people asked…

Q: will you be doing a Q&A on the Red Hat and Novell patents suits?

A: Are you crazy? :) I’ve worked for both companies and managed a team that may well have written or implemented the code at issue. I’m not touching that in public with a ten foot pole. :)

Q: but! but!

A: Go read Mark Radcliffe’s summary. Better starting place than I’m going to give you. :)

Q: any notes you might want to add?

A: the complaint clearly involves not one but three patents; make sure you take your news with a grain of salt and remove your tinfoil hats before reading. :)

Q: seriously? that’s it?

A: I’m sure I’ll end up chatting with SFLC about the whole thing and may at some point have some comments for GNOME, or at least the board. Unfortunately, given the circumstances, I wouldn’t look to me for much more than that, at least until SFLC as my lawyers tell me I should ;)

Novell playing the patent game and shifting the burden of proof

Dan Winship (who needs to blog more often ;) asked in a comment on my last post:

[W]hy is the implying-that-Linux-infringes-patents thing even controversial? I thought everyone agreed that because of the way the USPTO hands out software patents like candy, that basically every program larger than “Hello World” infringes more patents than there are atoms in the observable universe.

This after I said:

[There is a] sense that Novell is now competing on unfair terms; terms that amount to a tacit acceptance that “our” code is patent infringing (if opensuse isn’t infringing, why is Novell paying so much money?)…

Dan’s question is a fair one, because I didn’t explain myself. I think what is at issue is not that Novell tacitly admitted it, but in particular the way Novell admitted it.

Past tacit admissions have always come with one of three disclaimers: (1) this admission demonstrates that the system is insane and should be reformed (e.g., the European anti-software patent movement) (2) this tacit admission comes in the context of a Mutually Assured Destruction pact (e.g., OIN) (3) the tacit admission comes in the context of a discussion of monopoly power in the software industry being compounded by a competitor’s refusal to license patents (e.g., Microsoft’s patents on Office Open XML.) In each case, the disclaimer made it clear that the patent (and not the patent infringer!) was the real source of the problem.

Novell’s admission came with none of those disclaimers, and as a result looks like a tacit acceptance not just of the patents, but of the patent system and the monopolistic patent owner. It can even be read to weaken all of these disclaimers when the rest of us use them: (1) the patent system must be sane, after all, it led to protection of all these nice volunteers, in a nice market-oriented way (2) we don’t have enough weapons for MAD (3) MS is now reasonable and the onus is on commercial GPL users to cooperate.

[This last one, IMHO, is the most damaging one; it will absolutely come out the next time MS has discussions with EU antitrust regulators, and frankly, with justification. Once you grant the legitimacy of the patent system (which antitrust regulators must do), explaining why GPL users shouldn’t negotiate with MS is suddenly damn hard to do if MS is publicly willing to negotiate, no matter how false that willingness is.]

Using these disclaimers, free software potential patent infringers were effectively on the offensive- those counter arguments put the burden of proof was on MS and other large patent holders to prove that the patent system was reasonable. This move has potentially shifted the burden of proof- the question now may well be ‘why isn’t RH signing the same deal? After all, Novell did’. I suspect that MS did this deliberately (given how quickly after the deal they started discussing using this against others) but of course have no proof, and have no idea if Novell thought this through or just got caught unaware.
It will be months or years before we know if all this has actual concrete impact, or if it is just a temporary distraction. But it is there, and I suspect that a lot of people understand this, which accounts for a lot of the anger, even if they can’t fully articulate what it was that Novell ‘sold out’.
[Tangentially, you can argue that the patent system is overall valuable and correct, or at most needs to be corrected, and that hence all of these things are (overall) not a bad thing. This is certainly the position of some of erstwhile free software allies, like IBM. But the Novell agreement is still potentially a bad thing for them, too; but that’s another blog post (quite possibly a blog essay ;) and hence it’ll have to wait for another day.]

on joe on patents

patents!Some comments on joe’s post on Microsoft’s patents:

they’re unlikely to come after Linux distributors for the well-known “mutually assured destruction” reasons

Which is why they are going after Linux users, most of whom have no patents of their own to retaliate with. Besides the original Fortune article, check out this latest Ballmer quote, where he carefully points out that ‘people that use Red Hat’, rather than Red Hat, owe Microsoft money. (Of course, implicit in that is a threat against all Linux users who haven’t bought immunity from Novell.)

The infighting amongst the community (*cough* with Novell) is counterproductive to the larger goal. We need to advocate for patent system reform…

Well, yes and no; reform is important, but Novell’s alliance with Microsoft actively undermines reform by making the current system seem more reasonable. From now on, on both antitrust and patent fronts, Microsoft gets to point to Novell and say ‘we came to an agreement with Novell, so the system works fine- the problem is that Those Linux People are irrational.’ This is probably the second most damaging part of the Novell-MS alliance (right behind the constant release of free-but-not-really code which MS can later use to threaten users with.)

We need to advocate for patent system reform — like getting involved with the peer review that the USPTO has recently launched

While I do agree that advocating for patent system reform is a good thing, Peer To Patent (P2P) is a mixed bag for open source. If P2P reaches its goals, Microsoft and other large players (including some of the trolls) will have fewer — but still plenty — of patents to use against consumers. And those patents will be issued faster and be harder to challenge in court. On balance, probably still a good thing for the industry, but far from a solution to open source’s problem.

Until then, sadly, we have to play the game and get as many defensive patents as possible…

Completely correct, except that there is no ‘until then’, unless by reform you mean ‘abolition of software patents’. Otherwise, likely everyone will always have to play the game; ‘reform’ by itself will not be sufficient to protect anyone, since trolls with a dozen strong patents will be just as threatening as trolls with hundreds of patents of unknown quality.

… while rebuffing Microsoft’s scare tactics at the same time.

Completely agreed. Novell’s deal compromises the community’s ability to do that, though.

Tangentially, if you want to see what the most advanced patent trolls are thinking, this paper (co-written by a brilliant stanford IP prof and Nathan Myhrvold of Intellectual Ventures, formerly Microsoft) is a really interesting read. It deserves much broader coverage and interest than it has received.

Also tangentially, this post is reaching its one year anniversary and is still the top Google hit for ‘Ubuntu patent policy.’ Compare top hit for ‘Novell patent policy‘ and ‘Red Hat patent policy.’ But hey, they throw good parties. :)

[NP: Radiohead, In Rainbows]

[Picture by Flickr user Ioan Samueli, used under a CC-BY-SA license.]

quick thoughts on novell, blogs as journalism, etc.

On patents and public slander(?) of distros:

  • Urgh. I have some beef with Novell’s agreement with Microsoft, but I tried to make all my posts on the subject constructive and fact-based. (If I failed, let me know.) Unecessarily and/or unjustly demonizing one of our largest contributors is damaging and counterproductive- it makes the people within Novell who should be on the community’s side defensive and angry, when that is the last thing the broader community needs. It is bad enough when it is clearly nutty hyperbole, but worse when it is just an outright misstatement of fact. Do I think Novell’s support of OOXML is very bad for ODF long-term? Absolutely, as it lends OOXML a legitimacy it didn’t previously have. But is it a fork? Is it actively malicious to provide a feature that customers will absolutely be demanding, whether we like it or not? Of coure not. Out of a sense of fairness, Groklaw should retract the assertion and apologize- air quotes around “fork” aren’t enough.
  • It is a shame that Groklaw’s credibility is now impaired- despite embarassing themselves here, they are still asking a lot of important questions, like what happens after the five year deal is up. A software patent contract expert I spoke to at the patent conference I was at last month said that they’d never previously seen a patent deal which wasn’t for the life of the patents involved, so asking about the five year term is completely fair. Hopefully Novell’s justified distaste for Groklaw won’t prevent them from anwering this question in their FAQ, and hopefully Groklaw will put down the egregious conspiracy theories and focus instead on the substantive issues like this one where they can do some constructive good.
  • Relatedly, after I asked ‘where is Ubuntu’s patent policy‘, someone who I respect a lot pointed out that as a journalist, I had a responsibility to ask Ubuntu first instead of blogging the question publicly. I don’t think of myself as a journalist, so I’m not sure I agree that I have obligation as a journalist per se. But clearly I have an audience, and that power probably brings responsibility. So his point has definitely made me think. Groklaw silliness about a ‘fork’, which could easily have been avoided, brought home the point- I’ll certainly think more before making such assertions in the future.
  • That post is now the first google hit for ‘ubuntu patents’ and many variations thereof. I’m glad Mark apparently thought the issue was important enough to address in IRC, and I’m sorry that I’ve been too busy with exams to actually attend the IRC session. Hopefully Canonical will post something that clarifies the situation so that my post drops off Google’s radar in favor of something that is more official, less speculative, and less ambiguous.


  • Exams are scaring me deeply, so I’ve been mostly awol from everything. I think this post is the longest I’ve done anything that isn’t exams in about a week.
  • I got some bad news about my personal long-term plans today- I had an interview that I thought at the time didn’t go well, and, well, today I got the confirmation that it didn’t go well, I guess. Ah well- yet more incentive to kick ass on exams.
  • So I’m sort of in a crappy mood. Else I’d likely write more on the blog thing, particularly on a diarist’s journalist-like responsbilities.


  • Big congrats to Nat on the VARbusiness award– we’ve had our differences, but Nat’s energy and creative brilliance are really special and deserve to be recognized. If my next boss has 1/10th of his energy and charisma, and if I can learn to have 1/100th of it, I’ll be a happy man. (After some reflection last year, I’m trying hard to be more optimistic and constructive about everything in life, and Nat is nearly 100% the reason why. Quite literally inspirational.)

and ubuntu’s patent stand?

Seeing this (wherein the author leaves suse for kubuntu as a result of the recent hubbub) reminds me that Ubuntu still has no clear patent policy that I can find, nor are they (again, as far as I can tell) contributing to some of the anti-patent work being done by others. Compare to Red Hat’s strong patent policy, to Novell’s continued support of OIN, Red Hat’s support of, or IBM and Red Hat’s support of the patent peer review project. (Novell’s open letter gives a list of such steps they’ve taken; Red Hat has noted some caveats on some of Novell’s claims there. However you slice it, Novell has done more than Ubuntu/Canonical on this critical issue, even if you think their agreement with MS may make it a two steps forward/two steps back situation.)

Am I overlooking something, guys, gals? I’d like to think that the distro I’m using would take a clear stand on patents, and use some of their resources to make the situation better, but I’m not seeing it from Ubuntu/Canonical. I think that given Ubuntu’s position on mp3s, I’m pretty sure that Ubuntu, corporately, does have the right overall perspective on patents. But given where we are right now, it would be better if they came out and made it explicit, like Red Hat has done, instead of just implied by their codec packaging choices.

[Amusingly, or perhaps depressingly, the only page you get using the search tool that mentions patents is… a broken link.]

[Ed: again, I hate wordpress’s whitespace handling. Anyone who has a fix for it, please let me know.]

[Ed. later: As I’ve pointed out in discussing IBM’s patents, I can at least understand any company that is pro-patent. So if Ubuntu wants to come out in favor of patents, but against the current patent system, as IBM has done, that would be understandable. What I primarily want right now is transparency- I want to be able to judge Ubuntu one way or the other, instead of the current situation, where they’ve been given a free pass to say nothing.]

more thoughts on MS and Novell (with a dash of Oracle, Sun, and Ubuntu)

Havoc, slightly edited:

In proper open source, Novell (or anyone) is welcome to take my code and convince customers to buy support from them because they are a big company and I’m just some guy on the Internet. But Novell (or anyone) is not welcome to proprietarize my code. If I wanted them to take my code proprietary I’d choose a BSD license and not the GPL. I want them to compete with me on a level playing field by offering a better value.

In Novell’s world, if I write something and GPL it, Novell will try to convince customers to buy support from Novell instead of from me (the original author) because of some nebulous, unspecified, almost-certainly-bullshit “IP issues” hinted at by Microsoft and legitimized by Novell for the price of $348 million.

(emphasis mine)

Havoc buries this gem in the middle of his post, but he has nailed the core sentiment people have expressed- the sense that Novell is now competing on unfair terms; terms that amount to a tacit acceptance that “our” code is patent infringing (if opensuse isn’t infringing, why is Novell paying so much money?); terms which require other distributors to answer ‘when did you stop beating your wife?’‘when did you start infringing patents?’ if they want to get the same treatment. Is this a violation of our social contract? Who knows. It feels like one, though, and that is what matters when talking of trust and PR.

Are they actually license-violating? It isn’t really clear. Almost certainly it violates the spirit of GPL section 7, by creating the impression that Novell’s users are licensed and others are not. Given the complexity of the issue, though, and the inherently unsympathetic position a GPL enforcer would be cast in (effectively encouraging Novell to avoid patent laws) I’m skeptical that any judge would find that Novell has violated the GPL. Not to say it is impossible, and I’m sure very smart lawyers are looking hard at the problem, but the thing is vague enough, and the claims abstract enough, that it would probably be a crapshoot at best in court, depending on interpretations of Novell’s actions on one side and what is clearly a loophole in the GPL on the other side.

Some other notes:

  • It is instructive to compare and contrast the reaction to Oracle’s move- certainly a ripoff of RH’s hard work, but done within the context of our social contract, so people saw it as validation and fair competition. In contrast, Novell tried hard to present this as validation, but that message has been overwhelmed by the other questions raised.
  • Having done something very similar with OOo (arguably worse, given that it only covers the proprietary derivative and not the open source project), it takes incredible gall for Sun and Sun employees to criticize Novell on this issue. Pot, meet the kettle.
  • Red Hat has spoken clearly and forcefully on the patent issue, which is to their credit. If Ubuntu wants to be taken seriously as a competitor to Novell and Red Hat, they need to step up and also make their patent position clear- are they going to sidestep the issue, as they’ve done on driver freedom? Or are they going to stand with Red Hat, and perhaps start supporting OIN? Or some other path? Whatever you think of what Novell has done, they’ve clearly forced the patent issue front and center, and the Ubuntu community should demand clarity on the situation from Canonical.
  • It is clear that mature open source communities are going to have to come clearly to grips with patents, trademarks, and potentially other mechanisms of control in the near future. In the past, it has been enough to license our copyrights so as to prevent corporate defection, and hope that would be enough. If Novell’s actions force us to come completely to grips with the patent problem, and deal with it more explicitly in our licenses, they will have done us all a big favor.

novell and MS- some open questions

I wrote nearly 1500 words on Novell and MS earlier in the evening, but I think I’ll sit on most of them for now as I think them through some more. [Disclaimer: I spoke to Nat on the phone for a bit this evening, and I used to work for Novell, left on good terms, and still have lots of friends there.] Here are the open questions from the end of that post, though:

  • What will the exact terms of the patent non-assert be? (My guess: they’ll be good for individual hackers, and fixable in the future if need be- MS has nothing to fear from non-commercial hackers, and lots to gain politically by making nice with them. Whatever the terms are, it would be silly to act on them in any way until we see exactly what they are- basing action on a press release/FAQ would be insane. :)
  • How will the non-assert interact with the GPL v2, and specifically with GPL/LGPL code written by Novell? (My guess: It is hard to see how this could go well, but Novell has some very smart lawyers who I assume have been thinking about this for a long time, probably playing off the fact that this is technically a positive gift to some folks and not technically a restriction on others.)
  • Will MS extend similar agreements on fair, acceptable terms to everyone who seeks to commercialize open source? Or have they chosen to knight a single competitor in this space? (My guess: they will not make such an offer; this is a divide-and-hold-off tactic, seeking to put Novell on the same footing as Apple- present, with some market share, helping to hold off the antitrust crowd, but mainly harmless. Hard to blame Novell for taking the opportunity, though, even if it does establish precedent that they owe MS royalties on Linux.)
  • Will Novell continue to open the interoperability code they write (like the Evolution Exchange plugin)? (My guess: they’ll continue to open it, but the omnipresent threat of MS’s patents will substantially chill commercial uptake by other vendors.)
  • Does this commit MS to substantive work with ODF, or is Novell’s act of breaking ranks with Sun, IBM, etc. one-sided? (My guess: very hard to know until we see more details, but overall ODF has more to lose here- it must be seen as the choice of ‘everyone but MS’ to have a really good chance of succeeding, so this is damaging to ODF, even though it is clearly very good for Real Users.)

There is a lot to mull over here. I do think Novell’s intent here is positive, and some people are clearly overreacting. But we have to approach it with deep skepticism- any move which privileges one vendor above all others is not MS showing love for Linux, but MS showing love for a single Linux vendor, which is a very, very different thing, and we should keep that in mind. It is clearly good for Novell and MS; likely good (short term) for most users; likely ambiguously good for individual volunteer developers; very ambiguous for the free software community (if you define it to include all of our commercial partners); likely (long term) bad for users who should prefer open standards; likely ambiguously bad for Novell’s competitors. However you want to look at it, it will take a while to sort through all the ramifications, even once we have all the details that are still currently lacking.

[Later: I’ve seen a lot of responses; most of them lacking substance and perspective. Matt Asay’s response seems to be the best of the bunch so far- says sane and substantive things about the business part of it, and doesn’t go into the tricky community-impact minefield that no one is doing a good job of addressing of yet.]

Simon Phipps and Moonlight give me an excuse to post a cool picture

About 10 minutes after I posted yesterday, I found a great picture that I wanted to use to illustrate the post, but I’d already posted and I was lazy. Thankfully, today Simon Phipps gave me a great excuse to post the image anyway. Simon says:

[Miguel is] the lure for someone else’s trap.

The image I wanted to post was this one:

Sky Strike, under NC-ND

Sky Strike” by Damgaard; used under the CC-NC-ND license.

Remember kids, the copyright license says ‘you can use it without restrictions…’ but the patent license says ‘… as long as you get it from Novell.‘ If you or your company can live with that sort of uncertainty, or can use other legal techniques to mitigate that uncertainty, use Moonlight; if you can’t, well, you consult your local legal counsel.

quick pondering on artificial scarcity

This deserves to be developed more fully, but perhaps the thread that ties together my irritation with the MS-Novell deal, my irritation with the Mozilla TM licensing, and what worries me about the push against copylefted DB data, is the creation of (or in the DB case, allows the creation of) artificial scarcity. I’m OK with charging for things that really are scarce- cars, service, etc., but creating artificial scarcity, either through the use of patents, copyrights, or trademarks, or by allowing others to use trade secret and SaaS tactics to take data from the commons and then proprietarize it, seems problematic.

(This is hardly an original thought; I just wanted to get it out and searchable later, since I’m wrestling with the trademark demon again.)

GPL v3, the Q&A: part 3- companies

Shiny Happy Copyleft Holding Hands(Before going further, you should (at the minimum) read the disclaimer on Monday’s post and (ideally) make sure you’ve read all of the past two posts. (first, second.))

Q: Companies hate this! The sky is falling if the GPL is adopted!

A: Find your calm place. There is no doubt that the new license will create new uncertainty, which companies hate, and that the license seeks to place rights more firmly in the hands of users, which many companies (though not all) hate. So companies have reason to be nervous.

But the license was created with input from an extensive range of companies who both produce and use free software-based products, so I think you’ll find that it really isn’t that bad for companies who are playing by the rules- that is, for 95% of companies, 95% of the time. Remember, this license is (for most purposes) much more evolutionary than revolutionary, so it gives the same rights, sometimes clothed in different languages, in most circumstances. Most companies will not be affected by the tivo-ization and DRM clauses, and will actually appreciate the additional protections of the new license. Especially once companies have had time to digest the license, and to realize that none of the early adopters have turned into a newt, most companies should be fine with the license most of the time.

Q: OK. A little calmer now. My company makes products based on open source components. What are my new risks?

A: Have you burned the boats? If you’ve truly burned the boats, you’re fine- the patent provisions and installation provisions of the license only help you get closer to your customers and differentiate you from competitors and free-riders.

On the other hand, if you or your customers are still relying on some form of proprietary lockin, the picture is much less clear. You have new responsibilities that you may not have previously had. In particular, if you contribute to GPL v3 projects, you have to open up your patent portfolio to those projects and their users, and if you distribute GPL v3 code, you have to give your users the ability to reinstall code that they modify with very few restrictions. These may not be dealbreakers, but if your business model depends on users who are somehow kept under lock and key, you will have to deeply examine the new license, and may have to reconsider basing your business on GPL’d code.

Q: Do I get any benefits to go with those risks?

A: Like everyone else, you should get greater certainty about patents, and greater legal certainty in general as a result of the improved language. The same clauses that protect your customers from you will also protect you from competitors who seek to use some sort of patent or device lockin to compete unfairly against you, so even they aren’t all bad.

You’ll also get more control over trademark as part of the compatibility with the APL- you can explicitly ban use of the trademark by derivatives, among other things. Most community projects are not overly concerned by trademark, but this is clearly important to companies who are trying to build a brand, and more explicitly spelled out now as an optional addition to the license.

You also get the ability to transmit code to contractors without being considered to have ‘conveyed’ the code, allowing you to use consultants and outsourcers to modify your private code forks without accidentally freeing your work. If you sell non-consumer products (IBM S390 servers, for example, or medical devices which might be under government regulation) you are now even allowed to prevent modification/reinstallation by those who you sold servers to.

If you’re using patents or hardware to lock in your customers, none of these things are going to be much solace. But for everyone else, they should be useful compensations which make up for the short-term uncertainty.

Q: Why is Sun seemingly so excited about this? Should I share their enthusiasm?

A: Maybe. Sun is in a fairly unique situation. They badly want to win developer mindshare away from Linux, so becoming More FSF-Free than Linux is a big PR win for them- more so than it might be for most companies who aren’t competing with one of the poster children of open source and with the ghosts of their own proprietary past. In addition, some of the license features which are problematic for many people may be a benefit to Sun. For example, most people will look at v3’s incompatibility with v2 and think ‘what a pain’. Sun, in contrast, might think of that as a benefit, since that would continue to prevent Sun code from being used in the Linux kernel- who have to be seen as a significant competitor for them. Similarly, the new clauses which make embedding and DRM difficult may be seen as a detriment by many developers, but they play very well into Sun’s business model for Java, which is based on licensing into the embedded market. Anything that encumbers Free Java helps drive embedded market revenue for them, so GPL v3 may be preferable to v2 from that perspective.

All that said, we should probably give Sun some of the benefit of the doubt at this point- they’ve freed a lot of code, and by all accounts are trying hard to become a more open company. If they really wanted incompatibility and embedded revenue, they could just stick to the CDDL or a proprietary license. GPL would be a huge step for them, and is a step that the Free Software community should welcome with open arms, even if their motives are not 100% pure.

Q: Should Novell be quaking in their boots?

A: Hard to say. With their recent joint announcement with the EFF1 they appear to have started the process of really burning the boats. A company fully committed to competing on the basis of quality and service, and willing to say no to customers who ask for bad things, should have very little to fear from GPL v3, and it seems like (belatedly) Novell may finally be headed in that direction.

Q: But Novell are on the hook for the MS deal, right?

A: Yes and no. While a deal like the Microsoft-Novell deal, which induces a third party to grant a non-assert agreement, older deals got grandfathered in- the FSF appears to believe that it is better to have Novell tentatively on our side than actively using their large warchest to fork everything that goes v3.2 But it seems unlikely that MS can continue to uphold their part of the deal without licensing their entire patent portfolio to some key technologies like gcc and libc. So MS has a strong incentive to get the deal voided, and even if not, it will expire in the not too far future. (Remember, they negotiated a license which only covers five years of twenty year patents.) If they do renegotiate, the new deal will almost certainly look like the Xandros and Linspire deal, where MS offers indemnification to individual users instead of to all users. This will be acceptable under the new GPL language.

Q: So can we break out the champagne? Is the MS patent threat over?

A: Definitely not. MS can, of course, cease giving out coupons, and try to induce Novell to adjust the deal. Moreover, because of the complexity of the patent language, there is almost certainly another loophole for them to exploit, though it is hard to see what it migh be at this time. They could, for example, offer indemnification directly to customers- which appears to be the route announced in the Xandros and Linspire deals.3 Even if they do continue the relationship with Novell, lots of very big chunks of code that aren’t GPL v3, like the kernel and Open Office, will not be protected. So we’re still dead in their sights, no matter what.

Q: What does MS think, anyway?

A: They are gearing up their FUD machine, of course. Expect the old reliables: GPL is anti-American, GPL will steal your rights, GPL will eat your babies. Expect some new favorites too- lots of talk about how MS ‘builds bridges’, and about how the GPL hates interoperability. Of course, no mention will be made of the tolls that MS wants to charge on those bridges, or of the tons of GPL licensed code which builds bridges both to open standards and (despite the difficulties) to MS ‘standards.’

Q: What about the little guys in the embedded/consulting space? Opened Hand, Fluendo, etc.?

A: Each will have their own sets of problems and evaluations of the license. The new LGPL should allow Fluendo to continue down the mixed proprietary/open path they have chosen. Perhaps a more difficult question is what this will mean for those who are thriving in the embedded phone/handheld device space, like Opened Hand, OpenMoko, etc. The new license would appear to require that they allow modification, even for things like phones- which may be very problematic for networks (despite the out for network service providers included in the license, which allows you to withdraw services from modified devices if the modifications cause problems.) It will be interesting to see what openmoko’s lawyers say- they appear committed to resolving the problems between a locked down network and an open device, but this may be too much even for them to overcome. 4

Q: What about Google and other SaaS companies?

A: Nothing here that impacts them; they can continue business as usual. There is a new Affero GPL, which closes the SaaS loophole, but the FSF has made it clear that for now they will use moral persuasion rather than licensing to encourage code to migrate out from behind the closed Google doors. You might call this ‘picking your battles.’

Q: what is the bottom line for companies and the GPL?

A: For most? Simple. If you just use GPL-licensed code (for example, as a server or desktop), you have no worries. If you contribute code to GPL projects, you’re OK, as long as you feel comfortable granting your patents to the version of the project you’re contributing to. If you distribute GPL code as part of a device, you’re also OK, as long as you allow users to modify their devices. These categories cover the vast majority of corporate participants in the existing GPL community.

Despite that, this won’t be a license for everyone; some companies may prefer to stick with v2 or perhaps even use other alternatives instead. Like the choice for developers, the choice will require a case-by-case analysis of the costs and benefits. I do look forward to the day when we have a new license, representing a new and appealing business model which makes these kinds of choices easy, but for right now we’re stuck doing the hard and sometimes unpleasant work of protecting more user rights, and that means compromise and muddiness, not clear wins. Sorry about that…

[see all parts: part 1, part 2, part 3, part 4.]

  1. which I’m embarrassed I haven’t covered in more detail- it was a bold move by Novell, given their conservative history, and the announcement deserved more attention than it has gotten []
  2. This clause also prevents Sun and IBM from having to review every patent licensing deal they’ve ever conducted- which is probably a good thing, since given a choice between ‘pay lawyers to audit and renegotiate potential tens of thousands of contracts’ and ‘skip the GPL v3 party’, they would almost certainly chose to skip the party. []
  3. FSF appears to be OK with this, since that route does not break away a chunk of supporters. []
  4. Perhaps we’ll have to wait for voip over wimax to get truly open wireless devices. :/ []