Various news stories have appeared lately about the eligibility of GPL and other copyleft licenses for use on apps in the Windows Marketplace for Mobile (which carries apps for Windows Mobile phones). The Application Provider Agreement containing terms excluding copyleft licensed material from apps has been in place for months, but the press has only recently turned its attention to the issue. The relevant terms disallow inclusion in apps of material covered by any “Excluded License” — a term of art long ago promulgated by Microsoft in its agreements. This term includes GPLv3 and its variants, but also any other copyleft license.
One point of contention is whether GPLv2 is a “valid end user license agreement.” If so, then the App Store license does not apply. Apple’s App store terms say, “Your license to each App Store Product that you obtain through the App Store Service is subject to your prior acceptance of this Licensed Application End User License Agreement, and you agree that the terms of this Licensed Application End User License Agreement will apply to each App Store Product that you license through the App Store Service, unless that App Store Product is covered by a valid end user license agreement between you and the Licensor of that App Store Product, in which case the terms of that separate end user license agreement will govern.” Apparently some claim that the GPL is not an end user license — but that is elevating rhetoric over the plain meaning of language. Apple’s language obviously is intended to provide for licensing terms where the developer has not offered any. This default licensing mechanism protects both Apple and the developer from a lack of licensing terms, which might subject either of them to unexpected warranty claims. In fact, the GPL does grant the right to use, at least elliptically. It also grants rights to distribute and modify, but that does not mean it does not grant rights to use. Most lawyers interpreting Apple’s terms would say the GPL is a valid end user license, but the term “end user license” is anathema to free software philosophy.
The issue of a “valid end user license” is probably a red herring, though. The more interesting question is whether the requirement for a user to agree to Apple store terms and conditions, including its various restrictions (number of devices etc.), violates the “no further restrictions” clause of the GPL. (Section 6 of GPLv2 says, “You may not impose any further restrictions on the recipients’ exercise of the rights granted herein.”) However, this confounds the exercise of the GPL license with the terms for the service provided by Apple. If I download a free GPL app, request the source code and receive it, clearly my exercise of GPL rights is not restricted by the app store terms. I could, for instance, use the code to build a new app — for Apple platform or otherwise. It seems excessively narrow to interpret the Apple terms to supersede GPL in such a case.
In the real world of technology licensing, there are conflicts between upstream and downstream terms all the time. They need to be resolved sensibly, not as an ideological war. In an ideological war, the general public loses while the combatants lob missiles over their heads. Apple clearly will not change its way of conducting business to satisfy the requirements — actual or perceived — of GPL. Apple has made a decision to implement its store in a particular fashion, and while some may argue with that fashion, Apple has the right to provide the service as it chooses. Those who disagree with the closed system approach can help develop competing platforms. In the meantime, free apps under GPL continue to be removed from the app store, a result that probably benefits no one — except of course the purveyors of competing, non-free apps.
In December, the Open Source Initiative wrote a letter to the German Federal Cartel Office (FCO) asking it to investigate the Novell patent sale previously reported in this blog.
“[T]he proposed CPTN transaction represents a potentially new and unprecedented threat against open source software.” The OSI goes on to raise concerns about whether the CPTN patent deal could be used to reduce open market competition and spread more patent fear, uncertainty and doubt (FUD).” The OSI Position Statement is here.
ZdNet reports that CPTN Holdings, the newly formed entity that purchased a patent portfolio in connection with the acquisition of Novell by Attachmate, previously reported in this blog on November 29, is owned by Microsoft, EMC, Oracle, and Apple.
In an opinion recently handed down by the Ninth Circuit, the court assessed whether violation of license terms constitutes infringement or breach of contract, and came to the opposite conclusion from the court in Jacobsen v. Katzer.
The court wrote that this question turned on whether the violated terms were “conditions,” which limit a license’s scope, or “covenants,” which are contractual promises. The court wrote that state law (in this case, Delaware) governed this question. Accordingly, the breach of a condition could constitute infringement, whereas violation of a covenant would only be a breach of contract. “[F]or a licensee’s violation of a contract to constitute copyright infringement, there must be a nexus between the condition and the licensor’s exclusive rights of copyright.” The court noted that conditions precedent are generally disfavored under law, because they “tend to work forfeitures.”
On face, this is a different conclusion from Jacobsen v. Katzer, which concluded that attribution requirements in the Artistic License were conditions, supporting a claim of copyright infringement. (The court there did not foreclose the possibility of violating those requirements also being a contract claim.)
However, there were two obvious differences. First, WoW was not distributed software, and its “conditions” were actually an acceptable use policy. The court’s opinion turned on the fact that the prohibited conduct had more to do with the use of the service than an exercise of copyright. Second, the court treated the question of license versus covenant was a question of state law. State law governs contract claims, whereas federal law governs copyright claims. So if it is a state law question, it is likely to follow the contract rules, disfavoring conditions.
What does this mean for open source? Condition versus covenant is a big issue in open source licensing. Open source licenses, say some, are conditional licenses and not contracts — though not every lawyer agrees with this premise. The difference is one of remedies. Copyright claims can more easily result in injunctive relief, and are grounds for statutory damages even when there is no economic harm.
The Register has reported that Oracle is claiming rights in the Hudson trademark, and that those developers forking the project, which is a software build and monitoring solution developed by Sun Microsystems, have no right to use the name.
This points up yet again the complex issues surrounging trademarks in open soruce projects. The Register article claims that Oracle does not own the mark, which it calls “nonexistent,” but in fact that seems less than clear; in the US, trademark rights arise from use rather than registration, and thus the lack of a registration does not necessarily mean no ownership.
The fork happened recently. “Hudson users had moved big parts of the project off of the Java.net servers owned by Oracle. The mailing list archive and the live mailing list had gone to Google Groups and Nabble while source code had moved to GitHub.”
This follows on the heels of the Open Office parting of ways in Septmber, previously reported in this blog.
Novell announced last week that it will be acquired by Attachmate for $2.2 billion. Novell has been on the auction block for a while and had been entertaining bids by multiple parties, including financial investors and a rumored look by VMWare. A previous offer share offer was Elliott Management, and investment firm that was one of Novell’s largest shareholders. The acquisition by Attachmate is a strategic one; Attachmate operates an existing business in the terminal emulation, fraud detection software business. Here is Novell’s 8K filing on the merger. Novell announced that it would continue to be the owner of its copyrights to Unix following the merger. The rights were the subject of a lawsuit with the SCO Group over who owned those rights, which was decided in Novell’s favor earlier in 2010.
Of more interest to the open source world is the fact that Novell will separately sell 882 patents to CPTN Holdings, a technology consortium led by Microsoft and other unnamed members, for $450 million. Initial speculation was that Microsoft’s consortium might succeed to core Novell SuSe Linux patents, patents associated with Mono (the Novell-led open source runtime for deploying .Net apps on Linux), or Moonlight, the open source runtime for Silverlight apps. Microsoft has not volunteered details. Whether the transaction bodes a patent threat to Linux depends on exactly what patents an involved and what they cover. However, at least one source reports that “A quick look through the U.S. Patent Office database finds 461 patents that listed Novell under the assignee name.” — suggesting that all of Novell’s issued patents were sold, plus many applications in process (which presumably would account for the significant excess).
However, it may be difficult for a purchaser to use those patents to pursue distributors of Linux. Novell was a founding member of the Open Invention Network (see here for a statement from Novell motivated by Novell’s last deal with Microsoft), which would have made its patents subject to OIN’s patent policies. OIN is essentially a patent commons for Linux; members agree to enter into cross-licenses of their patents to cover Linux, as defined broadly by OIN. OIN’s current license agreement generally provides that any patent licenses survive a change of control — which is to be expected for such a license. (Novell, however, probably agreed to an earlier version.)
Also, I am curious about the fate of the Novell patent pledge.
Novell will use its patent portfolio to protect itself against claims made against the Linux kernel or open source programs included in Novell’s offerings, as dictated by the actions of others….In the event of a patent claim against a Novell open source product, Novell would respond using the same measures generally used to defend proprietary software products accused of patent infringement. Among other things, Novell would seek to address the claim by identifying prior art that could invalidate the patent; demonstrating that the product does not infringe the patent; redesigning the product to avoid infringement; or pursuing a license with the patent owner.
Does this pledge now inure to Attachmate, or can Attachmate withdraw it? Now that the ownership of the patents and company have diverged, are the patents no longer in Novell’s patent portfolio? The pledge does not call out patent counterclaims specifically, but that is the usual way of using a patent portfolio to defend oneself. If Attachmate breaches the pledge, is there a remedy? Can users of SuSe Linux rely on the pledge, even if they did not buy anything from Novell? Does the pledge encumber the rights of CPTN, as a license would, or does it evaporate with the transfer, as a covenant might? Inquiring minds want to know.