[clug] Mono in Linux

[tridge at samba.org]

Hi Chris,

 > Exactly. Novell is protected by the Microsoft patents because of their
 > agreement, but no-one else is. 

not quite. If they had been as blatant as that then the FSF/SFLC would
be suing Novell right now.

>From what we know of the agreement, what Novell got from Microsoft is
a "covenant not to sue Novell's customers or Novell's subsidiaries
customers". See

  http://www.microsoft.com/interop/msnovellcollab/patent_agreement.mspx

for the details.

This subtle difference is how Microsoft/Novell thought to avoid the
obligations of GPLv2. In particular Microsoft does not covenant not to
sue Novell itself, only Novell's customers. The relevent part of GPLv2
is this:

  "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."

Microsoft/Novell claim that the "patent license" is to Novell's
customers, not Novell, and they thus argue that Novell itself is not
in breach of the above section of GPLv2. They also argue that a
"covenant not to sue" is not a "patent license". 

Personally I think they are still in breach of the above part of GPLv2
and the above arguments are a load of rubbish. Unfortunately it isn't
certain enough to take (very expensive) legal action.

It is an amazing risk that Novell took in signing this agreement. If
anyone ever did prove in court that the above is a GPLv2 breach then
they would lose all GPL rights forever. Their business would be
dead. That is a measure of how desperate they were for the cash
injection from Microsoft.

The fact that Novell management did this without consulting with the
SFLC, FSF or any other community body is a measure of the contempt
that Novell's senior management holds for the free software community.

Cheers, Tridge