A Novellization clause for the next GPL

Forget about Tivoization. How about adding a clause to the next version of the GPL that counters Novellization? The clause would say (in proper legalese), that if any code infringes on intellectual property or patents held by third parties, and the third parties take legal action, the contributors of the offending code assume 100% liability. In short, if Novell injects Microsoft IP into open source and Microsoft wants to sue, it must sue Novell and nobody else, because Novell assumes liability under this new license. This would render any "promise not to sue the end customer" agreement with Novell meaningless.

One might think that this would strike fear into the hearts of individual contributors. But that's not usually the way the legal system works. People and companies sue for money. Unless you're a multi-millionaire who contributes code for fun, Microsoft lawyers are smart enough to know you won't be able to pay damages. At worst, Microsoft might litigate just to create more fear. In the end, you might be forces to remove the offending code and replace it. Big deal. Unless Microsoft really wants to be perceived as the ultimate evil empire, Microsoft is unlikely to go even that far, unless you contribute a blatant rip-off of their IP.



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andrickyoungman's picture

Microsoft lawyers are smart enough to know you won't be able to pay damages..
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Great issue

worldpeace254's picture

Great issue the you addressed here.

Nice to read some of the

Basteln's picture

Nice to read some of the posts. So you can see if we are evolving or standing still ;-)

cognitive article

Designplace's picture

Hello !!!
Excellent and cognitive article, I am glad that has come across it, has learned a lot of cognitive, thanks.
P.S.: I wait for same class articles from you.
Best Regarts, Designplace.


I had read somewhere else

Ben Stein's picture

I had read somewhere else that Linus was optimistic about the discussion draft of the GPL that became the final license, and that the disagreement over TiVo was a minor point. The TiVo language was the most important addition to the license, far above and beyond the sh1t about patents. If TiVo enjoyed the freedom to take advantage of free software to implement their devices, they must not remove that freedom from their downstream recipients by preventing their hardware from interoperating with user modifications. Free software is made and licensed by its authors because they want to make sure root is given to the user always, not to any single party! They so very easily could have and should have used or written their own fscking software for that purpose.

We are certainly going to

R M Stallman's picture

We are certainly going to design GPLv3 to block third-party patent
deals like Novell-Microsoft. We've been working on this for a long
time--see article 11 in the first GPLv3 draft. Novell-Microsoft has
showed us some new wrinkles, and the third draft will show text
designed to block them too.

The reference to "intellectual property" in your article introduces an
unnecessary element of confusion. The term refers to copyrights,
patents, trademarks, and several other kinds of legal privileges, with
the false presumption that they are similar. In fact, they have next
to nothing in common.

The GPLv3 draft (see gplv3.fsf.org) has clauses that deal with
copyright, and others that deal with patents; one clause even talks
about trademarks. But it deals with these three laws in totally
different ways, because they are completely different. There is no
room for vague generalizations such as "intellectual property" in
designing free software licenses.

If you use that term, it will lead you to confusion after confusion.
For instance, the original article says "intellectual property or
patents", which is redundant like "North America or Canada". But the
right thing to say there is simply "patents". The danger of the
Novell-Microsoft deal comes from the specifics of patent law; other
"intellectual property" laws such as copyright law and trademark law
don't create the opportunity for such deals, because they have little
in common with patent law.

One response tried to correct that confusion by saying that
"intellectual property" is "not the same thing as patents". That's
true, just as North America is not the same thing as Canada; but
readers could easil misunderstand it and think it means "intellectual
property" refers to something separate from patents.

In the hands of FUD mongers such as Microsoft, "intellectual property"
is a vague way of talking about patents today, or copyrights tomorrow,
without ever making it clear just what they do mean. The term is
tailor-made for intimidation purposes. That's why we should adamantly
reject its use. There is never a good reason to use the term, and if
it gives you a feeling of deeper understanding, that feeling indicates
it has warped your thinking.

The cure for this deliberate vagueness is precision. Never use the
term "intellectual property"; instead, say the specific law that you

See http://www.gnu.org/philosophy/not-ipr.xhtml for more explanation
about this issue.

Thank you

Nicholas Petreley's picture

Thanks for the correction on the use of the term intellectual property. I'm going to leave the blog entry as-is or your response won't make sense to others.

Also, I'm glad to see that you're addressing this issue. I'll check article 11 in the draft of GPLv3.

Back to /etc/rant ?

Anonymous's picture

Your rants weren't useful then and aren't good now.

You do realize that you are suggesting that Novell wants to "inject" microsoft code into open source to somehow destroy FOSS. This, from a company that has fully staked it's future in Linux and spent over 250 million to acquire a linux distribution, etc, etc.

What strange/convulted/conspiracy theory brought you too this place?

code only

Anthony Ettinger's picture

I think it should only apply to code that was cut-n-pasted...I don't see any reason for infringing upon the right to improve a design or pattern - in essencin "building a better mousetrap".

Its not that simple

Anonymous's picture

You need to be careful here. Microsoft have been talking about IP in Linux and that is not the same thing as patents.

It is highly likely that there is MS, and others, IP in OSS applications already. Do you want to word the GPL to avoid that? That would be very difficult to avoid as the scope is too large.

Bruce Perens shot him down in my book by firing off before any details had emerged, so there is no way I'm going to be listening to him on this topic, he blinded by emotion. Maybe you are too Nick?


Another_nymous's picture

Making the developers endorse all liability for any patent infringement problem is an incredibly bad idea, it's overreacting.

It would seriously discourage people from contributing to developments, especially when they give their work for free, and it would surely kill a lot of projects.

A better idea would be making the developers fully responsible IF, AND ONLY IF THEY HAVE OR HAD ANY PATENT LICENSING AGREEMENT with the patent owner, former owner or a related company. This one would prevent situations like the one we have now, without putting at risk all the developers and contributors community.

Patent minefield

wvhillbilly's picture

I have been suggesting on Groklaw for some time that the open source community needs to set up some sort of cooperative where an attack on any member would be considered an attack on the entire community, and the entire community could combine their resources to fight off the attacker. There are so many patents on just about every aspect of software that it would be nearly impossible to write any software code without infringing on someone's patents. And there are patent trolls around who file overbroad patents on trivial functions with the sole intent of using them for litigation, and the USPTO is so loose on patents any more it is easy to slip such patents through. Writing software can be like walking through a minefield, you never know when you're going to step on something that's going to blow your legs off.

I believe making individual developers responsible for patent infringement, unless it (the infringement) is done deliberately and knowingly, is a very bad idea. This would give unscrupulous companies a license to pick off developers one by one and scare the rest into submission to whatever they want. Better, I think, is a clause that if patents are going to be licensed, they must be licensed royalty free for the life of the patent to the entire community, with no restrictions on sub-licensing. Any violation of this should be a violation of the GPL.

I see this agreement between Microsoft and Novell as an effort to divide the Free Software Community, but in the end I think Novell will end up cutting its own throat and the rest of the community will go on without Novell.


Nicholas Petreley's picture

I agree that it would be a disaster to create a GPL clause incorrectly. But "done deliberately and knowingly" is the issue, which is why the legalese would have to be precise.

I think it's a no-brainer that Excel VBA compatibility is potentially dangerous, and it's also a no-brainer that it is deliberate and knowing insertion of Microsoft IP into an open source project (except that I don't believe OO.org has actually accepted the patch yet). The question isn't whether or not Microsoft would win or lose a case with respect to this patch, but whether or not inserting Excel VBA compatibility invites the lawsuit. The right clause in the GPL would force Microsoft to sue Novell, not the OpenOffice.org team or OpenOffice.org users.

I think it's a no-brainer

Another_nymous's picture

I think it's a no-brainer that Excel VBA compatibility is potentially dangerous

Well, I don't think it is really more a no-brainer than any scripting technology applied to office applications, or any scripting language...

Ultimately, it is the choice of the end user to decide to use a software and to find out if using it is legal or not in his country, not the choice of the developers.

There is no point giving freedom to people if you don't give them the responsibilities.

As a developer, I see no point giving away my work if there is a real risk to be sued because community misused my work I gave for free and cowardly decided to point me as the responsible.

The real problem with Novell is more the fact they made a deal that not only gives them an exclusivity that is in perfect contradiction with the spirit and the rules of GPL, and is also some kind of implicit acceptation that you have to have an agreement with Microsoft in order to sell a GNU/Linux distribution.

Developers vs. User responsibility

Nicholas Petreley's picture

It's up to the courts to decide with respect to VBA whether or not Microsoft has the right to sue for IP/patent infringement.

However, if you, as a developer, knowingly and intentionally code a copy of a company's work (such as VBA) into an open source project, and your copy turns out to be a liability, it's your fault for not doing your homework before you started writing your code. It's not the end user's fault because he used your code. You're the one who injected the liability, not the end user. The burden is upon you to make sure you're not infringing on another's intellectual property or patents when you sit down to code. It's not the burden of the end user to figure out whether or not you did so.

Even though I think Mono crosses the line and begs for trouble, even Miguel De Icaza agrees with me on this philosophy. He claims to have been careful to copy only what is established by the ECMA as an open API, not the proprietary parts that belong to Microsoft. Whether or not Mono actually infringes upon patents is another issue - he agrees that it is his responsibility to copy only what is legal and legitimate to copy.

You're just helping linux distributors to wash their hands.

Anonymous's picture

As a hobbyist I don't think I have to do any "homework" and pay a lawyer, which is the only way to do it the right way, to cover my unpaid hobbyist ass.

If there are legal risks about my code, it is upon the people making money by distributing it to check if it is legal or not, they have a legal department, I don't.

Licenses that forces hobbyist developpers to endorse liability about what they give for free to community are bad, period. No hobbyist contributor should ever touch such license even with a 8 feet stick.

Why not make free software developers also liable in case of damages caused by software failures?

And let's not forget we are not living in a world where every country recognize software patents. Such license could create liabilities for developers that never infringed patents in their own country.

Anyway, I think it is upon law to point responsibilities in case legal problems, not a fear-driven license.

Sorry, I don't buy it

Nicholas Petreley's picture

"As a hobbyist I don't think I have to do any "homework" and pay a lawyer, which is the only way to do it the right way, to cover my unpaid hobbyist ass."

I understand you perfectly if you're talking about ACCIDENTALLY infringing upon a patent. I'm not talking about that. In fact, you really have no reason to fear BECAUSE you are a hobbyist. Lawyers don't sue for fun, they do it for money. Big money. They'd have to demonstrate that you made big money on your infringement and then collect damages, so they wouldn't go after you except maybe to remove the code.

That's why Microsoft's deal involves customers, not coders. They want to be able to go after the big corporate customers who actually use the code, because that's where the money is.

Regardless, as I said, I'm not talking about accidental infringement by a hobbyist. I'm talking about deliberately introducing features that are meant to duplicate the functionality of another work that is owned by a commercial company with possible exclusive rights to that work. Mono is a perfect example, and VBA for Excel is another perfect example. I know Miguel's argument is that what they duplicated is supposedly "open", but IMNSHO (in my not-so-humble opinion) I don't know of any case where Microsoft REALLY opened anything without reserving for itself the ability to slam the door shut if a copy turns out to be a threat.

There's a big difference. You might write a program or contribute to a project and accidentally step on someone's patent. In that case, I'm sure all you'd be required to do is remove the offending code. But if you set out with the intention to duplicate something Microsoft created and owns, then you deserve to be the one who gets hammered if you get in trouble.

The bottom line is that if Novell wants to introduce what it knows is Microsoft IP into open source projects, then Microsoft should be forced to sue Novell, not Novell's customers. Novell has the money to pay damages, so they'd be more than happy to sue Novell. That's the kind of language I'd like to see in the GPL.

Lawyers don't sue for fun,

Anonymous's picture

Lawyers don't sue for fun, they do it for money. Big money.
Company appointed lawyers often sue to disrupt competition, more than for money.

What you propose will NEVER shield end users against lawsuits, it will just give sued companies ground to easily turn against the developers.

Anyway, you still miss the point, just as if you discovered the software patents issue last week:

the problem with software patents, accidentally or deliberately introduced into free code, is not a new problem, and free software community was perfectly able to deal with it for years.

The new problem is the deal between Novell and Microsoft enabling the former to circumvent free software rules and retain exclusivity on some functionalities, somehow jeopardizing the competition.

GPL states the patent must be licensed for all or not used at all.
So, GPl should be edited to make sure that if a company distributes GPLed work having a patent license not covering ALL users, this company SHOULD BE FORCED to offer protection and be liable for ALL the users not covered by the deal.

With such rule, a company like Novell would be forced to protect anyone using a GPLed software against any Microsoft attack if the infringing code is covered by the IP deal.

GPLv3 Suggestion Box

Anonymous's picture

May I suggest that you add this comment to the GPLv3 draft? You will find it at the following address:




Nicholas Petreley's picture

I sent in the suggestion by mail, because it's easier (it doesn't require me to create an account).

too blunt of an intstrument

Anonymous's picture

Imagine you're some guy who pitches in. You add some code that uses a method that someone claims infringes on some patent. You can't afford to defend it. So you lose your house.

I think this would really discourage community involvement.

one other thing

Anonymous's picture

Sorry to follow up my own comment... but I wanted to add to my point.

The lawsuits wouldn't be aimed at collecting damages. They'd try to harass people and end their participation in community projects.

Imagine MS could make a list of the top 100 contributors, and harass them in court. That would be a catastrophe.

SCO shows that we can get hit with baseless suits, too. So even if the cases wouldn't have merit, they'd still be effective as harassment.

Privity of Contract Vs M$

Christopher Knott's picture

Correct me if i am wrong, but end users have no contract between Me and Microsoft. I run Ubuntu, and if M$ wants to add code to Linux, great. If i get my updates from Ubuntu, and Microsoft wants to sue me, they cant because there is no existing relationship between M$ and Me.

In other words, Privity of Contract ensures that M$ cant touch me.

How right / wrong is my understanding of this?


Dean Pannell (aka dinotrac)'s picture

>Privity of Contract ensures that M$ cant touch me.


If Microsoft submits code to the Linux kernel via the normal process, then it's ok. That code has to be GPL'd which means Microsoft licenses it's use to everyone under the GPL's terms. Too bad Micrsoft isn't in the 7th circuit, whose judges are very good and very blunt. I would love to see them stand up there and explain why they are suing for stuff they licensed.

But.. If the code does not come from Microsoft with a GPL-like grant of rights, nothing can protect you because federal copyright or patent law will supercede the contract.

No way to bind Microsoft to terms of GPL

Anonymous's picture

"end users have no contract between Me and Microsoft." - not sure what you mean by this, but there is no contract between Microsoft and the End User, or even Microsoft and the Open Source Developer. If the Developer adds some code that infringes one of Microsoft's patents, then the Developer has infringed the patent by distributing the code. If User uses the code under the license suggested above, then there is contract between the Developer and the User. You are correct that there is no contract between User and Microsoft, and User will be infringing the patent because of the use.

What you have backwards is that the lack of privity does not bind Microsoft, that they cannot be forced to look to the developer for relief. Microsoft most definitely can sue User.

Contract vs. patent/copyright

jamonation's picture

As pointed out already, though I think contract will supersede copright/patent laws, that doesn't mean M$ wouldn't try anyways. It's the threat that's the deterrent in this hypothetical case I think.


Nicholas Petreley's picture

That's what I meant by it doesn't matter whether or not Microsoft would actually take action (and it would probably lose anyway). The threat alone is enough to damage FOSS. And, as I pointed out in another blog entry, it's tantamount to racketeering on the part of MS. "We promise your customers' warehouses won't burn down due to a mysterious fire if you pay use $$$."

Wrong - kinda

anonymous's picture

How about this. M$ team up with Novell with the knowledge that the community would go mad and start taken pot shots at each other. Then they guess that some troll(s) will come along and start saying that is safer to stop using Novell supplied OSS software. This then kills off OpenOffice, mono, Evolution and so on with nothing to fill the void. M$ then become then only supplier of half(maybe quarter)-decent desktop software.

Then these same trolls state that we can't use the Linux kernel as Novell have contributed to it as have IBM and SGI and so on (other far larger patent holders) and Linux goes to the wall.

Ok, that is all a bit unlikely but you see the point. You are being far too simplistic here and in other rants and the logic is flawed. I strongly advise waiting to see what the FSF position is before making any rash and emotive comments/suggestions.

about law

werner's picture

Such an clausula would be senseless and useless.

1) When any N makes a damage to any W, and by any law C would be co-responsable, then its irrelevant that W 'assumes' - before or after - the only and exclusive responsibility: anyway C would continue co-responsable in a sue by N.

Other example: When A lends money to (or get thieved by) B , B lends/pass it to C (which could be poor and spend/sell it quickly), A want back his thing from B, then its irrelevant that B claims he gave it to C.

Generally, a credor dont need to accept a transference of a credit to others.

2) On the current, however, its doubtful that the customer owe something to Microsoft at all, inclusive when Novell would have violated any patent right.

a)The legislations of more and more countries follows the 'objective, solidaric/collective responsibility' of the conjoint of the producers in front of the customer. The customer dont need to enter in the game of 'division of rights and acumulation of obligations' by the producers, or know/proof the (easily fakeable) distribution of responsibilities and faults among them. For any objective defect of product or service, the customer can sue any, some or all of the firmas contributing anyhow on the process of production or profits. And its problem of them afterwards regress them among them sukcessively in the same manner. And anywhom who claims patent rights, is automatically within the conjoint of producers, because he claims any contribution and profit on the object/service.

From this its completely clear, that any defect of the product (such like, patent rights) have to be cleared among the producers and not with the customer.

b) Microsoft dont have any patent or copyright on Linux code. This one can say clearly, until they proofs the contrary. Inclusive, because of the presumption of the inoccency. In opposite, the claimings by M. could be - depending on what country - mobbing, calunia, difamation.

c) Parts of the informatics, especially an operation system, are nowadays Public Service, unpatentable, earlier patents ressolve them. Linux is the official, public OP sistem; Microsoft in sensus strictus illegal and need a concession.
Certain constitutional and basical rights defined by the International Law defin the international public order. Any people has only right to peace, souvereignity, state when it respects the Int. Right and its objects. Thus its an obligation and a right of every state to maintain this basical functions. These are the public services, intimely connected with the souvereignity. The state can concess such services to privates, however, always completely under its rules and disponibility.
i) The public service of each country has the right, and also do, to perform autonomy in the administration, ensign etc. Almost all countries, by means of their universities, administration, financied by public money (salaries; subvention) etc. contribute to open source projects, nowadays mainly Linux. Thus, open source programs are a public service and a souvereingity function which cannot be limited by other countries or their 'firmas'. The products belongs, moreover, to the public domain.
ii) The international right (f.ex. UNO Res. 2200A) includes the right of each person to participate on the tecnical progress. This includes nowadays the use of computers, inclusive in ensign; thus, its delivery by the state is a public service. Children f.ex. in Africa cannot use computers because/when there is a privat OS. It may be a 'problem' of the state to warrant this right - this however dont mean that then the state would have to pay some foreigner firma to buy these things, in contrary, to adquire autonomy by own forces.

Microsoft passed all limits. The only adequade is now, denuncion and penal persection, IN SO MANY COUNTRIES AS POSSIBLE, by diffamation, extorsion etc of the Linux users; attentat against the use of a public service (users); attentat against publical functions (administration, universities to contribute on Linux); usurpation of a publical function (sell without concession Windows); because of the faked agreement with Novell, fraude, inclusive fraudulent preparation of documents and proofs for administration and justice (trying to establish with Novell a 'recognize' that Microsoft have patent rights on Linux)

About Law

Killa K's picture

I love the fact that your explanation was easy to follow and gave me and others obvious insight in to the law concerning such an agreement, but for those of us who can't really understand what you wrote could you put it in layman's terms?

The FSF appears to be

kahf's picture

The FSF appears to be becoming more and more paranoid. Microsoft wanted some cash for their patents and they got it. If they are to sue the developers or distributors of Linux, they can do so any time with or without the agreement with Novell. If Linux code infringes on Microsoft patents, the Novell deal does not change that fact either.