In What if Linux does infringe Microsoft intellectual property, Adrian Kingsley-Hughes asks some pretty fundamental questions about how Microsoft might use the IP it claims Linux infringes.Â
It isÂ highly likely, given thatÂ Microsoft hasÂ been developing operating systems for nearly 30 years now, that their claim is true.Â So, let’s posit that Microsoft, in fact, does have patents that read on Linux.Â
- As a user or distributor of Linux, you could be liable for patent infringement.
- The mere allegation of patent infringement (in a court of law, of course) would prevent all distribution of Linux under the terms of the GPL.
In the first scenario, it’s highly unlikely that Microsoft would go after individual users.Â But, their actions vis a vis Novell seem to suggest that they’re open to using their patent muscle to get agreements from distributors.
The second scenario is a nuclear winter scenario.Â Having alleged patent infringement, who would Microsoft pursue for reparations?Â It would be easy enough to shut down the prominent distributors, but after that how would Microsoft go after the thousands of websites that would spring up to distribute Linux?Â It’s a bit like theÂ numbskullsÂ at the RIAAÂ trying to shut down bittorrent.Â And, having alleged infringement, how quickly would the open source teams at IBM, Novell, or RedHat produce non-infringing work-arounds?
The whole thing isÂ a legal poker game.Â Â If Microsoft doesn’t assert the rights granted, then it will lose them.Â Getting agreement from Novell to license the IP in question could be construed as an assertion of those rights, although Novell denies it.Â The more licensing deals they do, the stronger the claim becomes.Â The threat becomes more palpable each time.Â
Let’s construct a nightmare scenario:
- Microsoft successfully negotiates deals with several of the major Linux distributors for paid-up licenses, as they have done with Novell.
- Next, Microsoft announces a royalty program for all non-licensees.Â For a small, per unit royalty, you may have permission to use the IP in question.Â After all, they can’t negotiate paid-up licenses with every distributor of Linux out there. Or, perhaps they choose not to license the IP broadly.
The GNU Public License (GPL)Â permits all licensees to freely copy and distribute the software, subject to a couple of restrictions — namely that the source code accompanies the software, and that the software is licensed under the GPL to all recipients, allowing them once again to redistribute.
Clause 6 and 7 of the license are particularly pertinent.Â They read:
6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients’ exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.
7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.
Now, I’m no lawyer, but the way I read these two clauses, Novell would not be restricted from distributing Linux to its customers, but those customers would not be able to redistribute without negotiating a license with Microsoft.Â Effectively this scenario shuts down the viral distribution of Linux through the GPL.
Perhaps that’s Microsoft’s game.
11/26 8:33pm UPDATE:Â I’m not the only one who hasÂ spotted this gambit.Â In CBR Online, writer Matthew Aslett also identifies this hole and states that the Microsoft deal could leave Novell behind other Linux vendors, as the Free Software Foundation intends to license the libraries Linux is dependent on under the GPL v3 in the new year.Â Novell would be forced to choose between their agreement with Microsoft, andÂ the Linux libraries… ugly!Â In GPL v3 draft 2, the patent language now reads:
If you convey a covered work, knowingly relying on a non-sublicensable patent license that is not generally available to all, you must either (1) act to shield downstream users against the possible patent infringement claims from which your license protects you, or (2) ensure that anyone can copy the Corresponding Source of the covered work, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means.