MSFT to Novell: We come in peace (wink…hold laughter in..wink)

Microsoft and Novell have entered into a 5 year agreement that will see:

  1. Microsoft will recommend and sell support contracts for Novell SUSE Linux Enterprise Server & SUSE Linux Enterprise Desktop
  2. Microsoft & Novell agree to provide each other’s customers with safety from patent infringement issues for their respective products
  3. Microsoft pays Novell a one time upfront fee (which is rumored to be payment for Microsoft infringing a Novell patent) and Novell will pay Microsoft a royalty for each open source product (SUPPORT contract) sold
  4. Microsoft pledging not to assert patents against individual developers working on open source. Developers working on behalf of Novell or Microsoft are also protected.
  5. Microsoft & Novell work together on virtualization, web services management & document format compatibility

Bruce Perns points out that this is likely a first step towards Microsoft going after “unlicensed Linux” and companies whose developers are paid to contribute to OSS projects.

Bruce also asks whether it’s legal to provide patent protection for a subset of customers (i.e. Novell customers). The GPL says you must license the patent for everyone’s use of not license it at all.

Eben Moglen points out that the GPL does not allow for a requirement of royalties for the right to redistribute GPL software. “Section 7 of the GPL requires that you have, and pass along to everybody, the right to distribute software freely and without additional permission.”

<IANAL>I’m wondering if the trick here is that Novell is going to offer this patent protection to customers of their support offering, and not associate the protection with the product itself. So it’s like saying Savio Inc. is distributing SUSE under the GPL to all customers and is not providing any patent protection. But if a customer wants patent coverage of some sort, they can pay a little extra for that from Barclay’s Insurance. Except in this case, Savio Inc & Barclay’s Insurance is replaced with Novell & a Novell SLES support contract.

This would also apply to the royalty payments going to Microsoft. Novell could suggest that they’re paying a royalty on SLES support contracts, not on the GPL software. </IANAL>

[UPDATE: 2006-11-03 @ 10:20 AM ET]

At the very end of this article about the deal, Brad Smith, Microsoft’s chief legal counsel, says:

“Every customer who purchases a subscription for SUSE Linux Enterprise will get not only service and support from Novell but a patent covenant from Microsoft”

Again, IANAL, but sounds like you have to buy (and keep current) a subscription to get the protection.