GPL 3: Will Someone Lose, No Matter What?

Whether or not the GPL 3’s controversial “grandfather” clause ever sees the light of day, it’s sure to carry impacts of one sort or another, not just on Novell and Microsoft, but also on competitors, business customers, and smaller Linux toolmakers. Just about any way you flip the coin, somebody’s bound to get short-changed (or to feel that way, anyhow).

If Novell does not get grandfathered into GPL 3 compliance, Novell’s SUSE Linux will turn into a “fork” of Linux, said Bruce Perens, primary author of the original GPL GNU software contract.

And not too surprisingly, many in the industry concur that the forking of SUSE could bode badly for customers, smaller developers, and Linux as a whole.

But what if the proposed clause does pass muster with members of the FSF (Free Software Foundation)? According to Brett Smith, licensing compliance engineer at the FSF, Microsoft would then be legally bound to distribute coupons for all Linux distributions, if it’s going to keep handing out coupons for SUSE.

Some other observers, though, question whether this kind of requirement on Microsoft would even be legally enforceable.

Released on March 28 and now open for comment, the third draft of the GPL version three proposes new changes to the GNU public license across a range of areas. Under one new proposal–meant to prevent so-called “Tivo-ization”–manufacturers that include open source software in consumer products would need to provide installation information for the software, along with the source.

The FSF has also tried to simplify license compatibility terms, in an effort to make them easier to comprehend and administer.

But many have criticized the document for being generally complicated and unwieldy, anyway. “This looks very much like the French trying to change their constitution once more,”quipped François Bancilhon, president and CEO of French-based Linux distributor Mandriva. “Let’s make the existing thing work and concentrate on the real issues: developing good technology and growing the market.”

But one part of the GPL 3–Section 11, which talks about patent terms–is emerging as an especially consternating conundrum. Originally, the FSF meant to use part of Section 11 to outlaw deals for Linux distribution such as the one agreed upon by Novell and Microsoft as part of their multi-pronged “interoperability” deal, first penned last fall.

Under this agreement, Novell and Microsoft are supposed to work together across areas that include software licensing, R&D, and support. The deal also encompasses a software patents provision meant to prevent Novell and Microsoft from suing each other’s customers for any possible infringements of the companies’ respective patents. Meanwhile, the two software vendors will pay each other hundreds of millions of dollars for both licensing and patent protection, with Novell raking in the lion’s share of the loot.

In the fifth paragraph of Section 11 of the GPL 3 third draft, the FSF would essentially prohibit any agreements along the lines of the Novell-Microsoft deal.

But close to the release of the latest draft, the authors added a bracketed sentence–now coming to be known as the “grandfathering clause”–which would exempt from Section 11 any agreements made before March 28 of this year.

At first glance, some of Novell’s rival Linux distributors took the grandfathering clause to be unfair–concluding that, if accepted into GPL 3, the clause would favor Novell by allowing its agreement with Microsoft.

“This would give Novell a huge advantage, because the only Linux that would ever work for the mainstream would be theirs,” said Kevin Carmony, president and CEO of Linspire, another Linux distribution company.

Since then, though, some open source advocates associated with the GPL have pointed to other motives behind the controversial clause.

In an e-mail exchange with LinuxPlanet, Perens said that, with the new clause, the GPL is looking at strengthening a patent defense that already began when Microsoft started issuing coupons good for current Novell SUSE software, which contains GPL 2-compliant components.

“Microsoft became involved in the distribution of that GPL software, and thus the GPL 2 patent terms now apply to them. So, Microsoft may have just given away the right for all GPL software to use any of their patents that are presently in GPL software distributed with SUSE,” according to Perens.

Meanwhile, Peter Brown, the FSF’s executive director, told LinuxPlanet that the FSF will take an especially proactive approach with the latest GPL 3 draft proposal, by posting blogs on its Web site and also by responding directly to comments received from the public.

In an initial blog for the FSF, Smith wrote that, although the new clause would “grandfather” Novell, the deal would still be impacted by a previous paragraph. Microsoft would thereby be forced to “offer its patent protection to everyone instead of just Novell’s customers,” he wrote.

When asked to elaborate on the contents of his blog earlier this week, Smith said that, in effect, the grandfathering clause would force Microsoft to distribute all flavors of the Linux OS, if it’s going to keep distributing SUSE.

In giving his take on the reason why, he referred back to the fourth paragraph of the section, which reads as follows: “If, pursuant to of in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of a covered work, and grant a patent license providing freedom to use, propagate, modify or convey a specific copy of the covered work to any of the parties receiving the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.”

“The fourth paragraph [of section 11] has no grandfathering clause,” Smith told LinuxPlanet.

But would these legal prohibitions against Microsoft hold much weight in the real world? Some express a lot of doubt.

Linspire’s Carmony, for example, believes that Microsoft does, in fact, hold intellectual property (IP) in Linux, a possibility publicly brandished last fall by Microsoft CEO Steve Ballmer. Carmony said that Microsoft might be able to exert legal clout, as a result.

“Microsoft has a zillion patents. More than likely some number, likely in the hundreds, of these patents are being infringed [on] in Linux and Linux applications,” he told LinuxPlanet.

“The current laws and court system (particularly in the US) support Microsoft’s right to have patents and not only their right to protect their IP, but their obligation to do so.”

At the same time, Novell is also taking a blogging route. Right after the third version left the gate, Bruce Lowry, a Novell spokesperson, told LinuxPlanet that Novell is happy about the draft, because “there’s nothing in the draft right now which would impede us from selling Linux.”

Lowry added, however, that the document is just a draft for public comment. “And it’s still in motion. If there is something in the final agreement which requires us to work with Microsoft around changing our agreement with Microsoft, we’ll do that,” he said.

When asked later for Novell’s response to Smith’s statements, Lowry said that Novell will have no further comment on the GPL 3. Instead, he referred LinuxPlanet to the “Novell PR” blogs on Novell’s Web site.

In a Novell PR blog this week, for instance, Lowry tried to downplay the significance of the patent indemnification part of the Novell-Microsoft deal.

“If the patent agreement with Microsoft means a few more customers than before are willing to take the plunge with Linux, that’s a good thing. But we don’t think patent concerns are driving Linux adoption one way or the other.The deal with Microsoft simply removes the issue from the table for customers,” he wrote.

Novell’s bloggers, too, are responding directly to comments–although in these instances, the comments are being raised by the readers of the Novell blogs.

In response to Lowry’s first blog on the GPL 3 topic, one reader brought up another possible reason behind the FSF’s proposed grandfather clause.

“As much as FSF would have liked to create rules aimed at undermining Novell-Microsoft, it couldn’t really do so due to legal concerns,” the reader wrote.

“How can you argue against Novell-Microsoft’s stated objectives to improve interoperability and cross-service each other’s clients without the appearance of intentionally harming a specific competitor’s business?”

Beyond this particular set of legal issues, and regardless of their feelings about Novell, some other observers think it would be just plain wrong to leave Novell out of GPL 3.

“I don’t think it’s very smart to change the GPL to try to hurt Novell. They sold their soul to Microsoft, which is fine. (At least we know the price of their soul.) But trying to get them out by changing the GPL does not make any sense,” according to Bancilhon.

The FSF has given the public 60 days to comment on the third draft, starting March 28.. After that 60-day period, the FSF plans to release a “last call” draft, to be followed by another 30 days of discussion before approval of the final text by the FSF’s board of directors.

But what will happen if, instead of accepting the proposed “grandfather clause,” the GPL opts to reject it? Forking is a true possibility, agree many observers.

“The fear is that Novell will be forced to fork code. It’s in everyone’s interests that Novell is not forced to fork. Let’s hope it doesn’t come to that. It’d be reminiscent of what happened with Unix,” said Raven Zachary, an analyst at The 451 Group.

If a SUSE Linux fork does transpire, Novell customers will certainly be affected, and some third-party ISVs are likely to feel the pain, too.

The FSF’s Brown told LinuxPlanet that, if Novell does not attain GPL 3 compliance, “this would represent a certain burden, because other projects in the GPL tool chain have already announced that they are moving to GNU 3.”

Explaining later, Smith said that, without the grandfather clause in place, Novell wouldn’t be able to ship either a Novell SUSE Linux distro or third-party components compliant with GPL 3.

“But whether [these third-party tools] would work with SUSE Linux is a much broader question,” he told LinuxPlanet.

Perens ventured that, in the case of a fork, manufacturers would need to produce SUSE-specific versions of their software in order for it to work on SUSE.

“If a manufacturer does not want to have a Novell-specific build of their software, that would be a problem,” he noted.

On the other hand, however, The 451 Group’s Zachary suggested that perhaps Novell will be able to achieve binary compatibility with other Linux distros by working with industry organizations such as the Linux Foundation

“There are some opportunities to stay in sync, even in a fork,” according to the analyst.

This article was first published on LinuxPlanet. To read the full article, click here.