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Moglen: How we'll kill the Microsoft Novell deal

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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.

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