(A little patent humor. A very little, in fact. Sorry.)
So, some heat generated by my previous post. To take the responses one at a time.
1. Hitler and software patents aren’t the same thing! Don’t call me Hitler!
No. Of course not. Shame on Mark. Bad lawyer. No donut.
To be clear, though: Novell, he didn’t compare you with Hitler. He compared you with Neville Chamberlain. Not evil — the weak sister who proudly makes bad deals with evil, proclaiming the result to be “peace in our time”, only to end up at war with evil anyway, but on much less favorable terms. So in that respect, the metaphor seems quite apt to me. I think the technical word is “appeasement”.
But still, no, you’re quite right. Software is not war, and the Linux kernel is not the Sudetenland. Or Poland. Bad metaphor. Bad lawyer. No donut.
2. GPLv3 is more about revenge against Novell than it is about software patents.
No, it isn’t. This is spin, plain and simple. GPLv3 is about many things — but the particular clauses that pertain to the M$/Novell deal are about ensuring that the software commons cannot be divided and conquered by patent shenanigans. Which the folks at FSF make quite clear in the rationale document of the latest draft of GPLv3. And I quote, from section 3.4.3, “Discriminatory Patent Promises”:
“Novell and Microsoft have recently attempted a new way of using patents against our community, which involves a narrow and discriminatory promise by a patent holder not to sue customers of one particular distributor of a GPL-covered program. Such deals threaten our community in several ways, each of which may be regarded as de facto proprietization of the software. If users are frightened into paying that one distributor just to be safe from lawsuits, in effect they are paying for permission to use the program. They effectively deny even these customers the full and safe exercise of some of the freedoms granted by the GPL. And they make disfavored free software developers and distributors more vulnerable to attacks of patent aggression, by dividing them from another part of our community, the commercial users that might otherwise come to their defense.”
So, to those Gentle Readers who actually want to understand the FSF’s *actual* position, I strongly encourage you to read the rationale document. It’s awesome in its scope and clarity.
3. Efforts to cut off all of the free software developers who work for Novell from the community would be very bad for us all.
Absolutely true, if it comes to that — but whose choice is this, after all? There are lots and lots of good open source developers from lots and lots of companies, including some very big companies — Red Hat, IBM, Sun, Google — who are deliberately *not* playing this “divide and conquer” patent game. Because we *do* recognize *exactly* how damaging the patent game can be. And we’d all certainly rather to be able to take advantage of Novell’s innovations without having to worry about the patent consequences.
But what’s worse — punishing one vendor for making a discriminatory patent promise, or punishing all citizens of the software commons by allowing selective litigation against the wealthiest creators and users of free software?
Oracle, by taking all of our bits and making their own product out of them, are competing fairly. (They’re also further legitimizing us by choosing our product to emulate — good call, Larry. Patches welcome. But you do know that we’re always upstream for RHEL, right?) They are playing by the rules of the GPL, in both letter and spirit. And so are we, and so are Sun and IBM.
What Novell made clear with this bad and desperate deal is that playing fairly hasn’t worked for them — so now they’re playing unfairly. Trouble is, ultimately, they don’t own the playground. The open source community owns the playground, and the open source community sets the rules. And when Novell wiggles around the rules, the open source community comes together and adjusts the rules appropriately. It is altogether fitting and proper that we should do this.
4. The free software community should focus on abolishing software patents instead of messing around with patent language in its licenses.
We do try. We try all the time. One of the reasons that the illustrious Mr. Webbink has earned the right to his opinion (however strident it may be) is because he worked his ass off, in conjunction with lots of other legal brains from the free software community, to help ensure the defeat of software patents in Europe. (Just google “webbink europe” for his CV in this regard.)
Unfortunately, though, we do not live in the world as we wish it to be. We live in the world as it is. That means undermining the power of software patents by any means necessary, and free software licenses are as good a battleground as any.
Have I mentioned that anyone who cares about this stuff should read the latest GPLv3 rationale document? Oh, I did? Good.
Funny — all the comments were in my blog, not John Dragoon’s where I made my original response. No comments in his blog, since my comment there is still awaiting moderation. I guess he doesn’t work weekends like we do. Or maybe he’s got better sense than to troll his own blog all weekend. He’s clearly one up on me there. 😉