Novell speaks up on the latest GPLv3 draft

On Bruce Lowry’s blog (Bruce is the PR demi-god for Novell, and a great person) today he has Novell’s position on the latest draft of the GPL. From his post:

• We will continue to distribute Linux. Nothing in this new draft of GPL3 inhibits Novell’s ability to include GPL3 technologies in SUSE Linux Enterprise, openSUSE, and other Novell open source offerings, now and in the future. This is good news for our customers….
• We are firmly committed to continuing the partnership with Microsoft and, as we always have, fully complying with the terms of the licenses for the software that we ship, including software licensed under GPL3. If the final version of the GPL3 does potentially impact the agreement we have with Microsoft, we’ll address that with Microsoft.

Not earth shattering, but it does make me want to take a closer look at the draft’s implications for the Novell/Microsoft pact, as the pact is a primary reason for the draft’s delay (as the FSF was looking for ways to close the patent loophole Microsoft exploited).

For instance, Draft 3 has this provision, which seems to undercut what Bruce says above:

Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor’s essential patent claims in its contribution, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contribution.

For purposes of the following three paragraphs, a “patent license” means a patent license, a covenant not to bring suit for patent infringement, or any other express agreement or commitment, however denominated, not to enforce a patent.

How does this not undermine the Novell/Microsoft “covenant not to sue” deal? As I read this (IAAL, but not a very good one :-), the Novell/Microsoft covenant not to sue would have to apply to all downstream users of v3 software. So, while Novell and Microsoft could shake hands on a covenant not to sue over alleged patent violations in Linux, for example, they’d have to extend that same protection to all users of the software (or those who have a copy of the software).

Or is that what it says? Actually, it talks about this applying to contributors, and not necessarily to those selling support around the software itself. A contributor is defined thus:

A “contributor” is a party who licenses under this License a work on which the Program is based.

So maybe this just means that anyone who licenses their software under v3 would have to grant a patent license? Still need to think this through….

As you know, I’m an ardent critic of the pact, but I also don’t think GPLv3 will be well-served trying to eradicate the possibility that it, or similar circumventing agreements, will happen again. For that sort of governance, we have to rely on the community to speak up.