From: "David Schwartz" <davids@webmaster.com>
To: "Linux-Kernel@Vger. Kernel. Org" <linux-kernel@vger.kernel.org>
Subject: RE: Faustian Pact between Novell and Microsoft
Date: Tue, 7 Nov 2006 20:57:23 -0800
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> <snip>
>
> /"Microsoft made it clear that only SUSE users and developers, as well
> as unsalaried Linux developers, are protected. 'Let me be clear about
> one thing, we don't license our intellectual property to Linux because
> of the way Linux licensing GPL framework works, that's not really a
> possibility,' said Microsoft chief executive, Steve Ballmer. 'Novell is
> actually just a proxy for its customers, and it's only for its
> customers,' he added. 'This does not apply to any forms of Linux other
> than Novell's SUSE Linux. And if people want to have peace and
> interoperability, they'll look at Novell's SUSE Linux. If they make
> other choices, they have all of the compliance and intellectual property
> issues that are associated with that.'"
>
> </snip>
>
> And those lights are bright indeed ....

	Maybe I'm dense, but doesn't the GPL say:

  7. If, as a consequence of a court judgment or allegation of patent
infringement or for any other reason (not limited to patent issues),
conditions are imposed on you (whether by court order, agreement or
otherwise) that contradict the conditions of this License, they do not
excuse you from the conditions of this License.  If you cannot
distribute so as to satisfy simultaneously your obligations under this
License and any other pertinent obligations, then as a consequence you
may not distribute the Program at all.

	If SUSE Linux contains derivative works of GPL'd works that Novell wants to
distribute, they must ensure that their customers may engage in royalty-free
redistribution and that the recipients of the redistribution can lawfully
engage in the expected use.

	And of course:

    You must cause any work that you distribute or publish, that in
    whole or in part contains or is derived from the Program or any
    part thereof, to be licensed as a whole at no charge to all third
    parties under the terms of this License.

	How can they do that if licensing the work requires licensing patents that
Novell has no right to license?

	It seems absolutely 100% clear to me that you cannot distribute under the
GPL a work whose ordinary use requires obtaining a patent license that is
not freely avialable to anyone who possess the work. You cannot distribute a
GPL'd work with a non-shareable "right to use" that work. If that's not
precisely what section 7 is trying to say, what else could it possibly mean?

DS


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