Restriction on distribution by Novell?

Hi Philippe,

No worries, this is Paragraph 5 in full (the whole document
only has 6 
paragraphs):

   "Upgrade Protection Benefits. The purchase of
Upgrade Protection for 
a specific installation of SUSE Linux entitles Customer to
install and 
use all Upgrades and Updates (see below) made commercially
available by 
Novell during the period covered by the Upgrade Protection,
up to the 
number of installations for which Customer has purchased
Upgrade 
Protection. Update means a fix or compilation of fixes
released by 
Novell to correct operational defects (program bugs) in the
SUSE Linux 
product. Upgrade means any new version of SUSE Linux which
bears the 
same product name, including version changes evidenced by a
number 
immediately to either the left or right of the decimal (e.g.
for SLES 
8.0 to 9.0). If a question arises as to whether a product
offering is an 
Upgrade or a new product, Novell's opinion will prevail,
provided that 
Novell treats the product offering the same for its end
users generally. 
If Novell commercially releases any Upgrades and/or Updates,
Novell will 
make such Upgrades and/or Updates available to Customer
within a 
reasonable period of time after they become commercially
available. 
Customer acknowledges that Novell cannot guarantee any
specific 
turnaround times and/or regular release intervals."

When I asked our Novell Territory Exec he directly said
we're only 
allowed to apply downloaded updates to SLES9 boxes we've
already bought 
licenses for (in line with the above).

This appears to be curtailing some of the freedoms expressed
in at least 
the GPL, and it appears to be occurring in Real World
practice as well.

All thoughts appreciated.

Regards and best wishes,

Justin Clift


Philippe Verdy wrote:
> Using the Novell's distribution services for updates
(i.e. direct connections to Novell's servers) may be
restricted to a few registered computers/users, but I don't
think that redistribution can be limited. So, downloaded
updates can't be restricted.
> 
> It would be smarter to include the full paragraph 5 to
see what it applies to, notably because the GPL clearly
states that redistribution is ALWAYS permitted, and accesses
to the sources must be given to all users by the
redistributors (so the redistribution right of sources must
be granted by the redistributor, who must then be able to
include the sources as well as the binary updates in its
redistribution).
> 
> I don't think however that Novell must provide the
sources (including sources modified by Novell to create the
updates) to those who have not licenced the software
directly from them, but Novell cannot limit their
redistribution by their licensees.
> 
> ----- Original Message ----- 
> From: <justinpostgresql.org>
> To: <license-discussopensource.org>
> Sent: Tuesday, September 26, 2006 8:58 AM
> Subject: Restriction on distribution by Novell?
> 
> 
>> Hi all,
>>
>> Just came across something interesting.  Although
Novell's SuSE Linux  
>> Enterprise Software (SLES) product allows for
unlimited use once  
>> purchased:
>>
>>   http:
//www.novell.com/licensing/eula/sles_9.pdf
>>
>>   "You may make and use unlimited copies of
the Software for Your  
>> distribution and use within Your
Organization."
>>
>> They have been clever with their terms for
receiving updates (Upgrade  
>> Protection).  They appear to restrict the number of
servers to which  
>> the updates can be applied:
>>
>>   http://www.novell.com/company/policies/suselinux/inde
x.html
>>
>>  (paragraph 5)  "... up to the number of
installations for which  
>> Customer has purchased Upgrade Protection."
>>
>> The updates in this case are software updates under
various OSI  
>> certified licenses (i.e. GPL, etc) which prohibit
restriction on  
>> distribution.
>>
>> Have I missed something here, or is Novell doing
the wrong thing?
> 


-- 
The Flame Project - Open Source GUI for animated SVG &
Flash
http://www.flameproject.o
rg

Red Hat has similar language in their RHEL licensing terms. 
I believe the 
reason this is supposedly compatible with the underlying
Open Source terms 
is that it is not restricting your right to redistribute
based on 
copyright terms, but as a function of their support
agreement.  That is, 
if you were to violate the agreement and redistribute the
patches more 
widely, then you might lose the right to call Novell for
support - at the 
very least for those unlicensed boxes, but perhaps even for
the ones 
you've paid for.  They might even be entitled to statutory
relief under 
contract law, if the contract laid out such terms.  But
Novell would not 
be entitled to statutory relief under copyright law.  
Thoughts?

 	Brian

On Tue, 26 Sep 2006, Justin Clift wrote:
> Hi Philippe,
>
> No worries, this is Paragraph 5 in full (the whole
document only has 6 
> paragraphs):
>
>  "Upgrade Protection Benefits. The purchase of
Upgrade Protection for a 
> specific installation of SUSE Linux entitles Customer
to install and use all 
> Upgrades and Updates (see below) made commercially
available by Novell during 
> the period covered by the Upgrade Protection, up to the
number of 
> installations for which Customer has purchased Upgrade
Protection. Update 
> means a fix or compilation of fixes released by Novell
to correct operational 
> defects (program bugs) in the SUSE Linux product.
Upgrade means any new 
> version of SUSE Linux which bears the same product
name, including version 
> changes evidenced by a number immediately to either the
left or right of the 
> decimal (e.g. for SLES 8.0 to 9.0). If a question
arises as to whether a 
> product offering is an Upgrade or a new product,
Novell's opinion will 
> prevail, provided that Novell treats the product
offering the same for its 
> end users generally. If Novell commercially releases
any Upgrades and/or 
> Updates, Novell will make such Upgrades and/or Updates
available to Customer 
> within a reasonable period of time after they become
commercially available. 
> Customer acknowledges that Novell cannot guarantee any
specific turnaround 
> times and/or regular release intervals."
>
> When I asked our Novell Territory Exec he directly said
we're only allowed to 
> apply downloaded updates to SLES9 boxes we've already
bought licenses for (in 
> line with the above).
>
> This appears to be curtailing some of the freedoms
expressed in at least the 
> GPL, and it appears to be occurring in Real World
practice as well.
>
> All thoughts appreciated.
>
> Regards and best wishes,
>
> Justin Clift
>
>
> Philippe Verdy wrote:
>> Using the Novell's distribution services for
updates (i.e. direct 
>> connections to Novell's servers) may be restricted
to a few registered 
>> computers/users, but I don't think that
redistribution can be limited. So, 
>> downloaded updates can't be restricted.
>> 
>> It would be smarter to include the full paragraph 5
to see what it applies 
>> to, notably because the GPL clearly states that
redistribution is ALWAYS 
>> permitted, and accesses to the sources must be
given to all users by the 
>> redistributors (so the redistribution right of
sources must be granted by 
>> the redistributor, who must then be able to include
the sources as well as 
>> the binary updates in its redistribution).
>> 
>> I don't think however that Novell must provide the
sources (including 
>> sources modified by Novell to create the updates)
to those who have not 
>> licenced the software directly from them, but
Novell cannot limit their 
>> redistribution by their licensees.
>> 
>> ----- Original Message ----- From: <justinpostgresql.org>
>> To: <license-discussopensource.org>
>> Sent: Tuesday, September 26, 2006 8:58 AM
>> Subject: Restriction on distribution by Novell?
>> 
>> 
>>> Hi all,
>>> 
>>> Just came across something interesting. 
Although Novell's SuSE Linux 
>>> Enterprise Software (SLES) product allows for
unlimited use once 
>>> purchased:
>>>
>>>   http:
//www.novell.com/licensing/eula/sles_9.pdf
>>>
>>>   "You may make and use unlimited copies
of the Software for Your 
>>> distribution and use within Your
Organization."
>>> 
>>> They have been clever with their terms for
receiving updates (Upgrade 
>>> Protection).  They appear to restrict the
number of servers to which  the 
>>> updates can be applied:
>>>
>>>   http://www.novell.com/company/policies/suselinux/inde
x.html
>>>
>>>  (paragraph 5)  "... up to the number of
installations for which  Customer 
>>> has purchased Upgrade Protection."
>>> 
>>> The updates in this case are software updates
under various OSI  certified 
>>> licenses (i.e. GPL, etc) which prohibit
restriction on  distribution.
>>> 
>>> Have I missed something here, or is Novell
doing the wrong thing?
>> 
>
>
>

On 9/26/06, Brian Behlendorf <briancollab.net> wrote:
>
> Red Hat has similar language in their RHEL licensing
terms.  I believe the
> reason this is supposedly compatible with the
underlying Open Source terms
> is that it is not restricting your right to
redistribute based on
> copyright terms, but as a function of their support
agreement.  That is,
> if you were to violate the agreement and redistribute
the patches more
> widely, then you might lose the right to call Novell
for support - at the
> very least for those unlicensed boxes, but perhaps even
for the ones
> you've paid for.  They might even be entitled to
statutory relief under
> contract law, if the contract laid out such terms.  But
Novell would not
> be entitled to statutory relief under copyright law.  
Thoughts?

If that is their rationale, I think this would be a
violation of the
GPL V2.  As item 6 says, "You may not impose further
restrictions on
the recipients' exercise of the rights granted herein."
 Attempting to
impose further restrictions based on a contract would
clearly violate
that.

IANAL, this is not legal advice, etc.

Cheers,
Ben

On Sep 26, 06 11:21:02 -0700, Ben Tilly wrote:
> On 9/26/06, Brian Behlendorf <briancollab.net> wrote:
> >
> >Red Hat has similar language in their RHEL
licensing terms.  I believe the
> >reason this is supposedly compatible with the
underlying Open Source terms
> >is that it is not restricting your right to
redistribute based on
> >copyright terms, but as a function of their support
agreement.  That is,
> >if you were to violate the agreement and
redistribute the patches more
> >widely, then you might lose the right to call
Novell for support - at the
> >very least for those unlicensed boxes, but perhaps
even for the ones
> >you've paid for.  They might even be entitled to
statutory relief under
> >contract law, if the contract laid out such terms. 
But Novell would not
> >be entitled to statutory relief under copyright
law.   Thoughts?

I guess, Brian is right.

> If that is their rationale, I think this would be a
violation of the
> GPL V2.  As item 6 says, "You may not impose
further restrictions on
> the recipients' exercise of the rights granted
herein."  Attempting to
> impose further restrictions based on a contract would
clearly violate
> that.

The GPL does not grant any support. 
Novell can restrict support, without violating the GPL. No?

        cheers,
                Jw.

-- 
 o   Juergen Weigert  paint it green! __/ _=======.=======_
<V> | jwsuse.de       wide open suse_/       
_---|____________/
   | 0911 74053-508         (tm)__/          (____/        
   /
(/) | __________________________/             _/ _ vim:set
sw=2 wm=8

Juergen Weigert wrote:
> On Sep 26, 06 11:21:02 -0700, Ben Tilly wrote:
>> On 9/26/06, Brian Behlendorf <briancollab.net> wrote:
>>> Red Hat has similar language in their RHEL
licensing terms.  I believe the
>>> reason this is supposedly compatible with the
underlying Open Source terms
>>> is that it is not restricting your right to
redistribute based on
>>> copyright terms, but as a function of their
support agreement.  That is,
>>> if you were to violate the agreement and
redistribute the patches more
>>> widely, then you might lose the right to call
Novell for support - at the
>>> very least for those unlicensed boxes, but
perhaps even for the ones
>>> you've paid for.  They might even be entitled
to statutory relief under
>>> contract law, if the contract laid out such
terms.  But Novell would not
>>> be entitled to statutory relief under copyright
law.   Thoughts?

What's in the patch?

If the patch contains binary code derived from GPL'ed
software which Novell is 
redistributing, then no, Novell may not impose additional
restrictions on any 
GPL-licensed software per GPL clause #6, exactly as Ben
writes:

>> If that is their rationale, I think this would be a
violation of the
>> GPL V2.  As item 6 says, "You may not impose
further restrictions on
>> the recipients' exercise of the rights granted
herein."  Attempting to
>> impose further restrictions based on a contract
would clearly violate
>> that.
> 
> The GPL does not grant any support.
> Novell can restrict support, without violating the GPL.
No?

Novell can restrict or deny support if someone violates the
terms of their 
support contract.

However, if there is GPLed software in the patches which
Novell is 
redistributing, then: "Each time you redistribute the
Program (or any work 
based on the Program), the recipient automatically receives
a license from the 
original licensor to copy, distribute or modify the Program
subject to these 
terms and conditions."

By redistributing GPL'ed software, Novell has granted the
recipients the right 
to likewise redistribute that software to others.  Claiming
that the 
recipients have violated the terms of a support contract by
exercising a right 
that Novell has granted them is non-sensical.

-- 
-Chuck

Chuck Swiger wrote:
> By redistributing GPL'ed software, Novell has granted
the recipients the 
> right to likewise redistribute that software to others.
 Claiming that the 
> recipients have violated the terms of a support
contract by exercising a 
> right that Novell has granted them is non-sensical.

You can summarize this kind of agreement as: 
"Here is some software, licensed under the GNU GPL. We
will give you
support for this software. You are free to exercise all
rights the GPL
grants you for this software. However, if you exercise your
right to
redistribute the software, your right to support stops
automatically."

I don't think this violates the GPL, since nothing restricts
the
exercise of the rights granted under it. You lose an
additional
benefit, but one that's not provided by the GPL.

Arnoud

-- 
Arnoud Engelfriet, Dutch & European patent attorney -
Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/

> The GPL does not grant any support. 

True, except in as much as supplying the source at
distribution
cost could be called support.

> Novell can restrict support, without violating the GPL.
No?

The argument is not about Novell supporting users who
haven't paid
for it, but about users who have paid being allowed to
support
non-customers of Novell.

On 9/26/06, Juergen Weigert <jwsuse.de> wrote:
> On Sep 26, 06 11:21:02 -0700, Ben Tilly wrote:
> > On 9/26/06, Brian Behlendorf <briancollab.net> wrote:
[...]
> > If that is their rationale, I think this would be
a violation of the
> > GPL V2.  As item 6 says, "You may not impose
further restrictions on
> > the recipients' exercise of the rights granted
herein."  Attempting to
> > impose further restrictions based on a contract
would clearly violate
> > that.
>
> The GPL does not grant any support.
> Novell can restrict support, without violating the GPL.
No?

That seems to me to be a grey area.  I suspect you're right,
but
wouldn't want to bet either way.  In particular the question
is
whether, "We'll take away something you were paying us
for" isn't an
attempt to impose restrictions.  Sure, they COULD still use
the
rights, but at what cost?

Let's modify the example to demonstrate why this is
problematic.  If
what you're describing is OK under the GPL, then can I sign
a contract
with you saying that if you exercise your rights under the
GPL, you
owe me a million dollars?  Again I can argue that I am not
really
FORCING you to not exercise your rights, but I wouldn't want
to bet
that a judge would see things that way.

In any case if Novell doesn't ship source with the software
the entire
point is moot.  Because Novell is obligated to give source
to any
third party who wants it.

Cheers,
Ben

Juergen Weigert wrote:
<snip>
> The GPL does not grant any support. 
> Novell can restrict support, without violating the GPL.
No?

As a Real World thought, the place I'm working for has a
"Master License 
Agreement" with Novell, with "Premium
Service" technical support.

It's a bit different from buying technical support for x
number of 
boxes, as a Premium Service support contract covers
"all novell products 
throughout your enterprise" (my wording).  No counting
of boxes necessary.

(My understanding is it's supposed to ensure we have 24x7
response if 
any Novell product anywhere in our business has issues).

The terms we're discussing are for their SLES9 Update
Protection 
service.  So their ceasing to supply the service would mean
they 
wouldn't provide updates, even though they would (in our
case) still 
have a contract in place for providing Technical Support:

   "Any unauthorized use of Upgrade Protection will be
treated as a 
material breach of this Agreement."

That's from Paragraph 4 of their terms (here in full):

   "Reporting. Customer acknowledges that the
completeness and accuracy 
of the information Customer provides to Novell may affect
Novell's 
ability and desire to provide Upgrade Protection services.
The Upgrade 
Protection purchased by Customer is intended for use only
for the 
benefit of Customer and only for the specific installations
of the SUSE 
Linux product covered by Upgrade Protection. If Customer
purchases 
Upgrade Protection, it must purchase Upgrade Protection for
all copies 
of the SUSE Linux product(s) installed. For those SUSE Linux
products on 
which Upgrade Protection (or Maintenance) is sold via
Novell's price 
lists on a per-server basis, each copy must be installed on
a machine 
corresponding to the Upgrade Protection sku or part number
describing 
such product (e.g., a 2-cpu annual SUSE Linux Enterprise
Server Upgrade 
Protection sku cannot be used to cover a copy installed on
an 8-cpu 
machine). Any unauthorized use of Upgrade Protection will be
treated as 
a material breach of this Agreement. If Customer wishes to
increase the 
number of copies of the SUSE Linux product installed,
Customer must 
purchase from Novell or its authorized reseller Upgrade
Protection for 
each additional copy installed. Upon renewal, Customer's
submission of a 
purchase order or payment of Upgrade Protection fees will be
deemed a 
representation of the number of copies of the SUSE Linux
product 
receiving Upgrade Protection benefits. During the term of
this Agreement 
and for two years after its expiration or termination,
Novell will have 
the right, at its expense and upon no fewer than three (3)
working days 
prior written notice, to verify Customer's purchase and use
of Upgrade 
Protection benefits and related records and payments. If
Customer has 
underpaid amounts owing, Customer must immediately purchase
from Novell 
or its authorized reseller sufficient units or subscriptions
of Upgrade 
Protection to support the actual number of copies installed
and pay all 
amounts owing."

One interesting aspect here is that it seems to say that if
we get 
Upgrade Protection for our servers, we *have* to install the
product on 
all our servers even though we don't want to (i.e. live
update of 
Production servers? that's insane):

   "For those SUSE Linux products on which Upgrade
Protection (or 
Maintenance) is sold via Novell's price lists on a
per-server basis, 
each copy must be installed on a machine corresponding to
the Upgrade 
Protection sku or part number describing such product
..."

Pretty sure that's an unintended meaning though, as they're
trying to 
differentiate their pricing for the product based on the
power of 
people's servers.  i.e. pricing for SLES is different for a
16 processor 
box than for a 2 processor box.  They want to ensure people
buy a 16 
processor version (expensive) for a more-than-2-cpu box,
rather than a 2 
processor version (even though it would work).

Regards and best wishes,

Justin Clift


>         cheers,
>                 Jw.
> 


-- 
The Flame Project - Open Source GUI for animated SVG &
Flash
http://www.flameproject.o
rg

On 9/26/06, Justin Clift <justinpostgresql.org> wrote:
> Juergen Weigert wrote:
> <snip>
> > The GPL does not grant any support.
> > Novell can restrict support, without violating the
GPL. No?
>
> As a Real World thought, the place I'm working for has
a "Master License
> Agreement" with Novell, with "Premium
Service" technical support.
>
> It's a bit different from buying technical support for
x number of
> boxes, as a Premium Service support contract covers
"all novell products
> throughout your enterprise" (my wording).  No
counting of boxes necessary.
>
> (My understanding is it's supposed to ensure we have
24x7 response if
> any Novell product anywhere in our business has
issues).
>
> The terms we're discussing are for their SLES9 Update
Protection
> service.  So their ceasing to supply the service would
mean they
> wouldn't provide updates, even though they would (in
our case) still
> have a contract in place for providing Technical
Support:
>
>    "Any unauthorized use of Upgrade Protection
will be treated as a
> material breach of this Agreement."
>
> That's from Paragraph 4 of their terms (here in full):

The full license is at
http://www.novell.com/company/policies/suselinux/ind
ex.html.

My reading says that Paragraph 4 is superceeded by Paragraph
3 but
*only* for the individual pieces of software which are
covered under
more generous licenses.  So if you wished to, you could have
one
machine updated by their update protection, and then copy
updates to
GPLed software to as many other machines as you wanted. 
However you
*can't* just copy _everything_ from the updated machine
over, because
eventually you'll wind up copying something that you have no
permission to copy.  And you also *can't* just make as many
installations of Suse as you want without telling them about
it
because, again, in making an installation you are making
copies of
some proprietary bits.

I don't see any GPL violation in that.

[ section 4 of license snipped - anyone who wants can see
the link]

> One interesting aspect here is that it seems to say
that if we get
> Upgrade Protection for our servers, we *have* to
install the product on
> all our servers even though we don't want to (i.e. live
update of
> Production servers? that's insane):

Pretty close.  It says that you must purchase that many
copies.  It
doesn't say you must install them all.

However it says that for services where update protection is
sold per
server, each copy must be installed on a machine meeting the
specifications of the machine that copy is for.  Unless
you're allowed
to install 2 copies of update protection on one machine,
this will
result in every server having it installed.

So for some services the effect is what you describe.

>    "For those SUSE Linux products on which Upgrade
Protection (or
> Maintenance) is sold via Novell's price lists on a
per-server basis,
> each copy must be installed on a machine corresponding
to the Upgrade
> Protection sku or part number describing such product
..."
>
> Pretty sure that's an unintended meaning though, as
they're trying to
> differentiate their pricing for the product based on
the power of
> people's servers.  i.e. pricing for SLES is different
for a 16 processor
> box than for a 2 processor box.  They want to ensure
people buy a 16
> processor version (expensive) for a more-than-2-cpu
box, rather than a 2
> processor version (even though it would work).

I agree that looks like an unintended side effect.

Cheers,
Ben