Novell is of the opinion that their agreement with Microsoft conforms to the restrictions of GPLv2. Eben Moglen, who as legal representative for the FSF is not happy about the agreement, doesn't state explicitly that it isn't valid. However, by omission, he seems to concede that it does meet the requirements of GPLv2 as he describes how GPLv3 will be adapted to ensure that such an agreement will be impossible under the new license (from a Nov. 15, 2006 blog by Roger Parloff on CNN Money):
"It will surely violate GPL version 3," said Moglen, referring to the forthcoming version. Version 3 had been expected to be in place no later than March 15, 2007, though Moglen said he was uncertain whether the new circumstances would affect that schedule. "GPL version 3 will be adjusted so the effect of the current deal is that Microsoft will by giving away access to the very patents Microsoft is trying to assert."
This lays bare the difference between businesses that use Linux for practical reasons and many in the open source community who are motivated to contribute for other reasons:
The Microsoft-Novell pact had been welcomed by the chief technology officers of many Fortune 500 companies, who just want to be able to use free and proprietary software, to have them interoperate smoothly, and to not have to worry about incurring patent suits. Nevertheless, the free and open-source developer community--which produces such software--has generally received the deal with great suspicion and trepidation, if not outrage.
I think a decision by Microsoft to sue Linux would be phenomenally stupid. I compared it in a Talkback response to my last post as firing a gun that has a barrel that faces in both directions. I still think that, though the CEO of my company clearly doesn't agree.
Personally, I think Microsoft has more to gain by working to spread Microsoft technology across Linux in the form of .NET. I don't view patents as a particularly useful source of revenue for a company like Microsoft that makes ALL of its money from software, given that it leaves them open to huge numbers of countersuits from "small" companies like IBM. But, just as I'm not the US president capable of changing our foreign policy in directions I like, I'm a Microsoft employee pretty deep in the bowels of the ship. I have a big megaphone, but it doesn't mean people agree with what I am saying.
On that note, there needs to be a discussion of how open source is going to deal with the reality that software patents exist, and likely will for the foreseeable future. The FSF's approach seems to be to pretend they don't exist while creating a bunch of traps designed to disable people's ability to use GPLed product should they opt to enforce their legally-acquired patents. Like I've said, better not to use patents in this way, but there's no guarantee people won't, and the threat is NOT just from Microsoft. The biggest threat is from companies with no software of their own, a filing cabinet full of patent documents and an office full of lawyers. They couldn't care less if their ability to use Linux is curtailed by such a move.
Fortune 500 companies welcomed the Microsoft / Novell agreement because they just want to use Linux and like the assurances such a move gives them. If the FSF aims to block such agreements, it doesn't change the fact that companies want such assurances, nor the fact that they will get them from proprietary companies...which hands Microsoft a nice fat competitive advantage among the business pragmatists.
The free software development community seems to think that the Microsoft legal threat hiding in the closet has quadrupled in size as a result of this agreement. I fail to see why, as before, there were NO guarantees for ANY distribution.