Novell and Microsoft's covenant not to sue each other over patents looks suspiciously similar to a patent licence agreement. That's the opinion of Bruce Perens, former leader of the Debian Linux project and author of the Open Source Institute agreement definition.
"I don't see that this is any different from a licence, and I don't see that a judge would be swayed that a covenant in this context is any different from a licence," said Perens.
Under the terms of the GNU General Public Licence (GPL), which applies to the majority of Linux code that Novell and Microsoft want to distribute together, patent-encumbered code may not be redistributed and patent royalties may not be demanded for redistribution. If a court were to find that Novell and Microsoft were licensing patents from each other with respect to Linux in all but name, Novell could be forbidden from redistributing SUSE Linux by the copyright holders.
"Now, we have to watch what the Free Software Foundation does," he added. "It owns the C library that literally every program on Novell Linux uses. It has a reasonably strong case to enjoin Novell from distributing it, which would kill SUSE entirely, and they have Red Hat to pay for the lawsuit."
Novell and Microsoft's filing to the Securities and Exchanges Commission says: "Under the Patent Co-operation Agreement, Microsoft commits to a covenant not to assert its patents against Novell's end-user customers for their use of Novell products and services for which Novell receives revenue directly or indirectly from such customers, with certain exceptions, while Novell commits to a covenant not to assert its patents against Microsoft's end-user customers for their use of Microsoft products and services for which Microsoft receives revenue directly or indirectly from such customers, with certain exceptions."
"Certainly, there is clear documented intent to structure the deal as covenants rather than a licence with the sole intent of circumventing the GPL," says Perens. "You can show that to a judge and make a pretty good case that the companies are licensing each other and going through circumlocutions with covenants with the sole intent of 'welshing' out of a licence's obligations. Then, you ask the judge to consider the result for what it really is."
Perens' comments appeared on tech news site Slashdot.org and are quoted with permission.
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