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By | Andrew Orlowski 20th November 2006 18:30

Moglen: How we'll kill the Microsoft Novell deal

We'll fight them on the breaches...

Interview If Microsoft is aiming for a courtroom collision with the world of free software, it may be disappointed.

Novell's decision to enter an agreement with Redmond that covers the mutual exchange of intellectual property - including a "covenant not to sue" [*]won't prompt a litigation offensive, we learn. Instead it's adopting the stealthier strategy of changing the licensing terms under which Novell, which uses the community's code, receives the materials for its commercial product.

The Free Software Foundation's attorney Eben Moglen has been reticent since the deal was announced - until now. He told us, when we caught up with him this weekend in his office at Software Freedom Law Center, that he couldn't be drawn on specifics and was subject to NDAs. But he argued instead that a strengthening of the General Public License that governs software libre would make such litigation unnecessary.

"Our strategy is to use GPL 3 against the deal - we're not going to vary that strategy," he told us.

"We're going to make the deal not tenable and we urge Microsoft to back away as gracefully and as quickly as possible from a deal that won't work."

The tool chain required to build so much free software, including the Linux kernel, will almost certainly adopt GPL 3. While the Linux kernel is licensed under GPL 2, and Linus Torvalds has indicated his personal intention to stay with the older version, it's difficult to envisage a licensee such as Novell being able to distribute a product it can't build in binary form.

And while the GPL 3 has been characterized by its critics as a long laundry list of grievances, Moglen suggested that consensus on the important elements is at hand.

"Our further strategy is to finish GPL 3 in a way which gives us, in the free world, what we must have, and which is otherwise respectful of the needs of people who use the free world's products in whatever legitimate way they do them.

"We believe agreement on all the major issues is now within reach. We're going to publish a last-call draft very soon, that will show agreement has been reached with most of the major parties on all the major issues, and now it's time to finish the license and put it in place, and get the benefit of the protection that it accords us - at a time when the protection is really needed."

So how will adopting GPL 3 torpedo the Novell-Microsoft agreement?

Moglen told us:

"Suppose GPL3 says something like, 'if you distribute (or procure the distribution), of a program (or parts of a program) - and if you make patent promises partially to some subset of the distributees of the program - then under this license you have given the same promise or license at no cost in royalties or other obligations to all persons to whom the program is distributed'."

"If GPL 3 goes into effect with these terms in it, Novell will suddenly becomes a patent laundry; the minute Microsoft realizes the laundry is under construction it will withdraw."

But why use a contract upgrade rather than filing a lawsuit to scupper the deal, which might produce a clearer result in the long term? Moglen himself couldn't be drawn on specifics, but the view amongst free (rather than open) strategists suggests that elements of the deal make litigation undesirable - even if it is legally justified.

The Novell-Microsoft deal certainly shows Redmond's desire to draw a line between the "free"and "open" communities. In an interview on Friday, Bill Gates was effusive in his praise for the "purity" of Richard Stallman, the original author of the GPL.

Did the term "Open Source" mean anything, any longer?

"They're going to have to co-opt a new vocabulary," thought Moglen, "because the old vocabulary just died on them."

"I agree with you. This was the week 'Open Source' ceased to be a useful phrase because it denoted everything up to and including Microsoft's attempts to destroy free. Language is subject to this problem. Since the beginning of time uprising movements have taken pleasure in perverting the language of criticism used against them by the ancien regime - the 'brave beggars' of the Netherlands, and Yankee Doodle, and the Whigs and the Tories - it's all the same terms of dis-endearment turned into a weapon. But the game is also played by modern propaganda in the other direction - by turning language into the property of the guy on top: Fox News "Fair & Balanced (tm)".

"What Microsoft did to 'Open Source' was what Stallman always said could be done to it: first you take the politics out, and when the veal has been bleached absolutely white, you can cover it with any sauce you like. And that's what Microsoft did, and 'Open Source' became the sauce on top of Microsoft proprietarianism. And once that process has been completed they have to go after the next vocabulary."

And now?

"So now they're going to try the hard work of cracking 'Freedom'. Free, well that means stuff you don't pay for..."

Microsoft had always been very astute in its analysis, we suggested. While the press focused on the open, or distributed nature of the production process, Redmond identified the fact that the GPL was viral as the real attack. "That's right. They understood the copyleft problem well - and understood the GPL well. But they didn't want to talk about the enemy because of the rule in American political campaigns that you don't say the name of your opponent in case people remember it. They don't do that anymore. They've dropped the mask," he suggested.

"What's happened is that "Open Source" has died as a useful phrase - Free Software, the GPL, the FSF - all have become major stakeholders in the industry in Microsoft's verbiage."

"Once you're a major stakeholder you don't go back to being a minor stakeholder unless you go bankrupt - and we can never go bankrupt because we have no business to lose.

"So if we're a major stakeholder now we stay that way until the end of the chapter, and that's a problem for Microsoft." ®

[ Bootnote: Novell points out, "More money flows to Novell under the patent agreement to provide patent protection to Microsoft products than to Microsoft to cover Novell's products (both open source and proprietary). . The money around patents was $108 million to Novell, $40 million to Microsoft - a net of $68 million to Novell. Most of that flowed to Novell for a patent agreement covering Novell's proprietary products, not to Microsoft to cover Novell's products (both open source and proprietary). The quoted figure of $348m lumps $240 million of pre-paid SUSE Linux Enterprise Server subscriptions into the patent money, making the whole deal sound like a patent deal. Patents were a relatively minor part of this deal."

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