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No Good Deed Goes Unpunished

There are at least two sides to every story. Those science fiction fans among you might remember Larry Niven's Gripping Hand, a tale of aliens with two smallish arms on the right side and one large, um, gripping hand on the left. This led to a certain way of thinking about tradeoffs involving three sides. Rather than the two hands upon which we look at the sides of an issue, there were two considerations of note, but one additional and overriding factor upon which every good decision was based.

Well, the story last week of Microsoft and Novell teaming to add a level of legal assurance to Linux may not be a good deed in the pure sense of the term, but it did succeed for a brief time in providing a measure of comfort to enterprise CIOs who would like to employ Linux but are afraid to do so because of patent or other intellectual property (IP) implications. As we learned in the still-ongoing SCO case, users of disputed IP can also be pulled into a legal no-win situation as easily as the vendor.

Now Eben Moglen, the general counsel of the Free Software Foundation, has announced that the next version of the GPL will specifically forbid such deals ( The FSF believes that the fact that it gives the Novell SuSE distro an advantage not available to other distributions makes the agreement untenable. And with ownership of the license verbiage, the FSF has the ability to do just that, even after the fact.

I admire Richard Stallman. I don't necessarily agree with him, but I do admire his single-minded pursuit of a radical ideal over the course of more than twenty years, and the eventual acceptance of the salient parts of that ideal by the industry mainstream (though one of his original precepts in the GNU Manifesto, that software developers should be paid through a tax on hardware, remains a nonstarter for good reason).

However, the vast majority of Linux advocates and users (or GNU/Linux, as Stallman insists) are not license purists. They have jobs to do, and Linux provides a reasonable way of doing their jobs. By and large, the GPL in and of itself has not been a deal-killer in many enterprises. But IP issues are different, and even if enterprises have accepted that risk, surely it keeps some CIOs up at night.

According to Moglen, GPL version 3 will be adjusted so the effect of the current deal is that Microsoft will by giving away access to the very patents Microsoft is trying to assert. It will be interesting to see if the GPL can legally make that assertion, seeing as Microsoft is not a party to the GPL and does not license any of its own software using that license. So for enterprise IT shops looking for legal guidance on open source in general and Linux in particular, the uncertainty continues. This uncertainty may become the gripping hand that prevents further acceptance of Linux by mainstream organizations.

Posted by Peter Varhol on 11/15/2006

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