A Group Conversation with Eben Moglen, Part II - page 3
Software as Service and GPL 3
Question: Can you give some insights about the so-called proposed grandfather clause in the current draft of the GPL? And does that give Novell a disadvantage or too much of an advantage? What are your thoughts about that clause?
Moglen: If you are going to say to people: making a certain class of agreements violates the GPL, you'll have two fundamental problems. One problem is the question of the ethical fairness of retroactive application of the new rule. And the other is the possibility of substantial collateral damage arising from the unintended consequence of some general purpose language on deals that have been made in the past and already are sitting in file cabinets and can't get changed and they were made by people who could not have foreseen the application of newly made law to them when they made those deals.
Those are two very powerful reasons for not writing a ruling to GPL3 which would characterize as retrospectively violated conduct deals already in existence. Now you can say the deals don't become violated in the license until the new license goes into effect and therefore people have time to change before the license goes into effect. But that's only acceptable even if it's acceptable as an answer to question number one. It still doesn't do anything about question number two--what about the collateral effect on existing arrangements innocently entered into having innocent effect but which nonetheless formally fall within the purview of a provision that they could have been taking around if anybody had known it was coming.
So, on those two bases it is hard to find a case for the retroactive application of one particular provision in GPL3, the provision in which says people who make deals with someone else to provide limited patent assurance to their own customers--but limited assurance only to some customers for only some copies--and who are not themselves getting a license to anything (which is the situation in the Novell situation) to say to those people that they are violating GPL prospectively may be a useful deterrent to a certain bad anti-competitive practice. To apply it retroactively would in my judgment be to pay too high a price for that deterrent force. So I've give you I hope in the first part of my answer what I think is the Foundation's doctrine on the subject and in the second I've expressed my own opinion, which is that the degree of deterrence that would have been generated by the alternate outcome is not worth it. Now you asked me to comment on Novell's situation and I would prefer to leave Novell's situation to develop itself. I would say this; there's nobody in this room who thinks that the position of a company extremely close to Microsoft is an enviable position. And I don't think there's anybody at the upper regents of Novell who thinks that it is necessarily an enviable position, either. There is some stuff which for the benefit of their business, in their business judgment, they must do. But I don't think the question is whether we even want to scoop the pool or whether we have somehow forgiven the robbery of the Bank of England; the real question is have they made a wise decision or an unwise decision in going to work in an excessively dangerous place where almost nobody wants to wind up and where people have a bad history of winding up if they try to remain? I think we should leave Novell to work out what is not altogether a happy situation for itself, without pining too much on what has happened. I am satisfied, however, that this is not a matter of leaving somebody to digest large numbers of ill gotten gains. I think this is a narrow and deeply dangerous experiment that Novell is on and we'll see how it turns out.