Groklaw Explains Microsoft and the GPLv3

A Groklaw Reader writes "After all the questions about how the GPLv3 will or won't apply to Microsoft following Microsoft's declaration that they weren't bound by it, PJ of Groklaw wrote this story about how and why the GPLv3 will apply to Microsoft. Specifically, it covers in what ways Microsoft would convey GPLv3 software under the Novell agreement, and how Microsoft's refusal to allow previously sold vouchers to be redeemed for GPLv3 software would impact that agreement. Given that Novell has said that they will distribute GPLv3 software, Microsoft may have had the tables turned on them already."

BOOM

HEADSHOT!

What matters is enforceability

People are going back and forth about whether or not the GPLv3 will apply to Microsoft, but the real crux of the deal is that it won't matter if there is no one that both has the resources and the motivation to force Microsoft to comply.

How could it possibly stop Microsoft from doing anything they do as long as no one has the money or the reason to take them to court over it and see it through completion. IBM is the only company I can think of that would really have both, and Microsoft isn't stupid enough to violate any of IBM's licenses, nor is it strategically positive for IBM to place themselve directly against Microsoft right now either.

Otherwise, who are we really expecting to take Microsoft to court? Novell? The Free Software Foundation? Please... Microsoft has been stalling the sum total of *Europe* for almost half a decade, if you think Novell or the FSF is going to force Microsoft to comply witht eh GPL you're delusional.

Re:What matters is enforceability

Europe found Microsoft guilty of anti-trust violations and made Microsoft release a version of Windows without Media Player, to which they complied. The EU also made Microsoft pay a half-billion dollar fine, which hurts no matter who you are. They have had to pay further fines as the EU has declared Microsoft hasn't done enough for interoperability, and forced Microsoft to release source code.

It sure seems to me that the EU has been hitting Microsoft pretty hard.

Re:What matters is enforceability

US [amazon.com]: $214.99

Europe [amazon.co.uk]: £184.98 ($371.92)

Yup. The EU sure showed them!

Want to take a bet that MS is expecting to sell more than 3 million (1/2 billion / $150 delta) copies of Vista in Europe?

Heh. I'll take double or nothing on "this is inline with MS's estimates when they got involved in the legal process". ;)

Re:What matters is enforceability

And Linux has more users in Europe for reasons such as these.

Regardless, how many people buy these licenses as direct consumers?

Most people get their OS license on the cheap bundled directly with their hardware. If Dell was paying Microsoft more than $50 for the license of Windows on a $400 computer, I'd be shocked, yet people keep insisting that license costs over $200.

Re:What matters is enforceability

Items sold by Amazon.com LLC, or its subsidiaries, and shipped to destinations in the states of Kansas, Kentucky, North Dakota, or Washington are subject to tax.

-- Amazon.com [amazon.com]

The above line is there to note that, due to how taxes work in the US, the US Amazon site does not have tax as part of its item prices.

The "Our Price" amounts displayed for goods sold by Amazon.co.uk are inclusive of UK VAT. ...
For non-book items that are shipped to addresses within the UK (such as giftwrap, audio books, CDs, vinyl records, minidiscs, videos, DVDs, electrical and photographic items, toys, software and PC and video games) the UK VAT rate is 17.5%.

-- Amazon.co.uk [amazon.co.uk]

Whereas the UK site includes the UK VAT of 17.5% for software.

So... £184.98 = 1.175 x price... divide both sides by 1.175... the price is actually £157.43 ($317.32)

So, while the gap is still large (around $100), it's not nearly as large as you originally made it out to be (around $155).

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Otherwise, who are we really expecting to take Microsoft to court?

Isn't this the patent enforceability clause? Basically, this isn't about making Microsoft do anything, it's about defending people should Microsoft sue them for patent infringement -

Re:What matters is enforceability

That might be true under the US system but not necessarily elsewhere. There is much less sue/counter sue in Europe for example. And in the UK the loser pays the costs of both parties. Now the Groklaw explanation seems convinces me that Microsoft have realised that they have shot themselves in both feet and received powder burns to their hands. I wouldn't expect to see a European judge being unfairly biased towards Microsoft, particularly with their recent history over here, so I would be quietly confident about my position providing that at least one of the vouchers has been submitted and honoured. As many have been saying for a few months - the call would be "Go ahead, Microsoft, sue me".

Re:What matters is enforceability

Well, let's see. If MS does decide to sue somebody (say, a major customer of Red Hat) for infringement of a patent because of some piece of software which Novell is distributing under GPL3, then what? Somebody would have to countersue.

Assuming this is a patent relevant to the Microsoft-Novell deal and the GPL3 code Novell distributes, there is no need to countersue. The GPL3 would be a defense in the lawsuit Microsoft brings.

But there would be countersuits. That is what OIN is for.

Re:What matters is enforceability

People are going back and forth about whether or not the GPLv3 will apply to Microsoft, but the real crux of the deal is that it won't matter if there is no one that both has the resources and the motivation to force Microsoft to comply.

To my knowledge, very few cases have enforced Microsoft's EULAs in a court of law, even though most of their clauses may not be legally tenable. Likewise the GPL has rarely been tested in a court of law, but that does not mean it is any less effective. Nobody is holding any gun to developer's heads, and yet, GPL is one of the most widely used licenses for software development, if not the most common one.

It is all about mindshare, not compliance or enforcement - and GPL is clearly winning the mindshare battle.

How could it possibly stop Microsoft from doing anything they do as long as no one has the money or the reason to take them to court over it and see it through completion. IBM is the only company I can think of that would really have both, and Microsoft isn't stupid enough to violate any of IBM's licenses, nor is it strategically positive for IBM to place themselve directly against Microsoft right now either.

IBM is not Microsoft's only enemy by any stretch. Had it been so, SCO vs IBM should've ensured the death of Linux. IBM still maintains both strings to it's bow - Linux AND AIX. But the marketplace and MORE IMPORTANTLY the Developer community have adopted Linux and GPL in a big way. Visual Studio Express and free editions of many other s/w offerings indicates the growing mindshare of Free Software as a viable commercial model for developing and distributing software; and proprietary firms' changing tactics to counter this onslaught.

Otherwise, who are we really expecting to take Microsoft to court? Novell? The Free Software Foundation? Please... Microsoft has been stalling the sum total of *Europe* for almost half a decade, if you think Novell or the FSF is going to force Microsoft to comply witht eh GPL you're delusional.

Going to a court of law to ensure antitrust compliance or even standards compliance is so '90s. The customer has already voted with his dollars for Free Software solutions, and even companies like Dell have woken up to this fact. Companies offering standards compliant, open source s/w under less restrictive licenses are growing in number as well as stature. GPL3 removes the threat of the patent sword hanging over customer's heads as well.

All in all, recent moves have clearly indicated that the GPL is really working, and achieving the stated objectives of the FSF. Kudos to Stallman, Moglen and co.

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IBM is not Microsoft's only enemy by any stretch.

And don't applaud IBM to loudly, either. They have a strong set of their own proprietary software tools (Rational comes to mind, and I think they just bought Telelogic).

These brands have tools which put comparable Open Source tools to shame in the pro

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"IBM is the only company I can think of that would really have both, and Microsoft isn't stupid enough to violate any of IBM's licenses..."

What I see is Microsoft beating the patent war drums. If Microsoft is foolish enough to sue ANYONE or play the paten

Re:What matters is enforceability

That issue interests me greatly. Remember how that case went? Remember how the judge recommended that Microsoft be broken up? Can you even imagine how devastating that would be to Microsoft today? With the number of divisions (particularly Microsoft Entertainment, that they're supporting Billion dollar/year losses with Office/Windows sales?)

Now, here's where I'm going to get really crazy into progressive fantasy. Suppose a major shake-up happens in the '08 elections. Conservatives get crucified left and right. Bush has been impeached for Obstruction of Justice (which he just did again today, when he invoked "Executive Privilege" to prevent White House Aides from testifying under Oath). Both the house and senate see major shake-ups, and some lefty, like Edwards or (dare to dream) Gore, is sitting in the Oval Office.

Now, seems to me that because of their previous conviction, some nasty complaints to a newly empowered FTC could result in a review of Microsoft's behavior following their conviction. What if they found it necessary to enact the judges original recommendation? Can you imagine the shock-waves? Early '09 "Microsoft Busted," "Microsoft Split into 5 Separate Companies" I'm not saying it's even possible, but just the scenario gives me the shivers!

Nobody's really going to go that far.

Right, because lefties aren't influenced by money? Microsoft has billions of dollars in cash, more than enough to buy whatever politicians happen to be in power.

Corruption isn't just a conservative phenomenon. By the time you get to the White House, unless you end up there by mistake, you're already crooked. The process of getting there guarantees it. I'm sure Microsoft slathers its campaign contributions around so that no matter who wins, they owe Redmond a few favors.

The only reason any politician would ever break up Microsoft would be if they thought they could somehow capitalize on its demise, and I don't see any reason why that's possible. You don't win votes by torpedoing one of the crown jewels of the U.S. economy and its economic dominance, even if you're a leftist. There might be some saber-rattling, but it's not going to be anything serious.

Your faith in one batch of weasels over another is cute, but ultimately I think you're just setting yourself up for disappointment.

Follow the money and the votes.

And, on the topic on hand, a Democratic government is *significantly* more likely to break up MS than a Republican government. The notion that this isn't so is extraordinarily absurd.

I'm not sure what you mean by "significantly," given that I think the odds of either party doing it are so vanishingly close to zero that it's hardly worth pretending that it's on the table.

You couldn't disassemble Microsoft, in the current climate (monoculture and dependence), without risking a huge upset in the tech sector. If Redmond catches a cold, the entire economy would feel it. And "it's the economy, stupid." Being 'pro-consumer' doesn't count for much if you're perceived to be bringing on the next dot-bomb.

If anything, Democrats depend far more on the high-tech sector of the economy than Republicans do for support, particularly corporate support. In recent years, Microsoft (and its employees) has been a major Democratic donor (#30 overall -- even bigger than the NRA and just beneath the AFL-CIO); in both '04 and '06 they gave the majority of their donations to Democrats.* Their employees are overwhelmingly Democratic donors and voters as well. Not to mention, Microsoft is also deeply in bed with the entertainment industry, another Democratic stalwart.

The political philosophy of either of the major parties is basically irrelevant; their actions are virtually always predictable by looking solely at their sources of funding and votes. Democrats are funded by the high tech industry, and many of their core constituencies are people who work in the tech industry, or are from areas (major urban centers) that depend on high-tech industries. They're not going to wreck that gravy train.

* Source is here [opensecrets.org] although I'm not sure the deeplink will work. You can just search Opensecrets for Microsoft Corp.

Re:Follow the money and the votes.

If Microsoft vanished tomorrow do you have any idea how big a hit that much money disappearing from the economy would have. I am not just talking about Microsoft's sales and assets. This would also include all the people who are invested in MS. I am not sure what MS market capitalization is, but I know it is big enough that the amount of money that would be dropped out of the economy by it disappearing would cause a recession.

Microsoft Vouchers

Look, I think M$ is evil as much as the next /.er, however, let me be clear.

I don't think you should ever be held accountable for past actions under a new license. If Microsoft sold vouchers before the GPLv3, then they did so under the assumption that the vouchers covered GPLv2 software. Furthermore, much of this whole argument assumes that all this software is definitely moving to GPLv3, and while I expect many of the GNU tools to do exactly that, I haven't seen that many official GPLv3 announcements just yet. The kernel is certainly not moving to GPLv3 anytime soon.

Re:Microsoft Vouchers

Except for all the software in SLES that was "GPLv2 or any later version"; except the fact that the FSF already had GPLv3 Draft 2 printed up? Except for the fact the contract at Groklaw and the coupons refer to a product known as "SLES" and _updates_ for the software, and that the coupons MSFT sold and got revenue from have no expiry date? Yes, it is certainly negligence on the part. Best scenario: MSFT renounces the patent deal and LEAVES the GNU/Linux revenue stream as long as they don't want to comply with the GPL. That will certainly get them into compliance. Anyway you're wrong about GPLv3 btw, Samba's already GPLv3, GNU tools, several other Linux apps, etc.

Re:Microsoft Vouchers

Except for all the software in SLES that was "GPLv2 or any later version"

Let's get over this one now. The "later version" thing in the GPLv2 allows the USER/CONSUMER (corportation, or individual etc.) choose which license to use. You obviously (at least I hope everyone can see it's obvious) can't legally bind someone to a future version of your license, it can only allow them to choose between the version distributed with the software and a future one.

If you could retrospectively apply the terms of a license which didn't exist at the time of distribution, you could put anything you like in the new version. That'd be plain silly, because by the drop of a hat the FSF could gain massive riches by making GPLv4 say that the price of the software you downloaded a few years ago has changed from free to a million dollars per copy. Hey, you're bound by "or later versions", aren't you? Erm, no. You're not.

D.

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Furthermore, to the degree that one wants to see major players support Linux, inventing ways to use changes in the GPL to screw Microsoft for peripheral involvement in Linux support seems completely counterproductive. Obviously, as far as the army of scree

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Hmmmm - So when I use Microsoft software with their EULA that states quite clearly that they can changes the terms of the license at any time by simply posting the change on their web site, why can't others move their software from GPL2 to GPL3. When Micr

Re:Microsoft Vouchers

Because that is evil, and stupid.

If Microsoft posted on their website tomorrow new terms to their license that I give them full rights to do anything on my box, or that I owe them whatever, if people really fought it in court, the people would win. You can't hold people responsible for terms that they didn't initially sign up for.

The FSF is claiming to be the good guys here, so why should they do something so underhanded as to claim a new license alters previous agreements retro-actively?

Re:Microsoft Vouchers

The FSF is claiming to be the good guys here, so why should they do something so underhanded as to claim a new license alters previous agreements retro-actively?

The FSF is doing no such thing.

GPLv3 is simply new terms on distributing FSF software in the future. There may be no way for Microsoft to honor the vouchers they've distributed, avoid the new GPLv3 terms, *and* not infringe copyright - but that doesn't mean the FSF is altering any agreements retroactively, they're simply changing the terms of the license that they are offering their future work under. Microsoft shouldn't have assumed that the FSF would continue to offer their new software under GPLv2.

Re:Microsoft Vouchers

Microsoft shouldn't have assumed that the FSF would continue to offer their new software under GPLv2.

Very true.
Exploiting a loophole in the GPL2 to try and split the free software community over supposed "secret" patents is underhand.
Updating the GPL for new software to prevent this scam was just common sense - although it was a lot of work!

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I don't think you should ever be held accountable for past actions under a new license. [...] Furthermore, much of this whole argument assumes that all this software is definitely moving to GPLv3

Quite right, which is why it's so important that the vou

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Well, I don't think you could legally change something to force another party of a separate contract into an obligation that didn't exist in the first place. It just won't hold up. If anything MS could refuse to extend the terms of the agreement to license

Re:Microsoft Vouchers

You have to be a little crazy to stand for freedom in today's world.

Re:Microsoft Vouchers

Microsoft only has to bundle 3.0.xx releases which aren't GPLv3. Are the 3.2 GPLv3 releases even out yet?

Coupons do not make for distribution

The whole point that PJ has been going on about are Microsoft's little coupons. She is under the impression that issuing a coupon is the same thing as distributing - that if any of Microsoft's coupons are redeemed for a GPLv3-licensed product, that Microsoft has then distributed it. This is an extremely tenuous position, for the simple fact that Microsoft hasn't copied anything. A coupon is a method for a third party to step in and facilitate payment between a seller and a buyer. In this case, the seller (Novell) is the one doing the copying, and the buyer (the one turning in the coupon) is the one who is getting a license and will be bound by it.

In shory, GPLv3 can say anything it wants, but it falls under copyright law, and if I don't copy, I can't infringe. No version of the GPL can define what constitutes making a copy - only the law can do that.

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She is under the impression that issuing a coupon is the same thing as distributing - that if any of Microsoft's coupons are redeemed for a GPLv3-licensed product, that Microsoft has then distributed it.

From the article:

First, "distribution" isn't th

Copying defined by law, not by GPLv3

Had you read what I wrote, I addressed this. No matter what PJ might want to have be the case, the GPLv3 cannot define what constitutes its own invocation if the party doesn't cross the line given in national copyright laws. I can write a license that says anything. I can write one that says if you blow your nose, then you become subject to the license on my project. Does that mean the next time you blow your nose you're violating the license? This is ludicrous. GPLv3 cannot define a stricter interpretation of what constitutes copying than the underlying copyright law people are bound by. Which means that it is the law's definition that counts, not GPLv3's. And the reality is, since Microsoft isn't doing anything that constitutes copying according to the law, there's nothing the GPLv3 can do to impose any licensing conditions on them.

I would love it to be the case as much as anyone, but that doesn't make it so.

But *copyright law* still covers them!

> She is under the impression that issuing a coupon is the same thing as distributing

No, no she's not. The GPLv2 limited itself to distribution, but copyright law has fun theories of secondary liability, etc. The GPLv3 expands the scope that it covers to something close to the full scope of what's covered by copyright law.

Did everyone but me forget just how BROAD copyright law is? It covers loads of crap. Just like I can't sell warez vouchers for Joe'z Warez Sitez which happen to be hosted in a copyright-hostile country and claim no liability, you can't "procure the conveyance" of GPLv3 software as a license dodge any more. Yes, you COULD dodge like that under the GPLv2, but only because the GPLv2 said you didn't need permission for anything but distribution. But not any more, because the GPLv3 forbids it and copyright law says you need permission.

The rules have changed, folks. The GPLv3 is stronger, because it takes advantage of the ridiculously strong copyright laws that are so prevalent. But it really shouldn't matter much unless you dislike things like compatibility with the Apache license or planned to undermine people with weird software patent threats.

Re:Coupons do not make for distribution

The whole point that PJ has been going on about are Microsoft's little coupons. She is under the impression that issuing a coupon is the same thing as distributing - that if any of Microsoft's coupons are redeemed for a GPLv3-licensed product, that Microsoft has then distributed it.

More than that, there are two amazing memes developing on Groklaw. Meme 1 - simply because a lot of GPLv2 software contains the clause that says the recipient may (at their option) choose to copy/modify/redistribute under the terms of a later version of the GPL - loads of GPLv2 software automagically morphed into GPLv3 overnight. Apparently, as soon as Mrs Trellis of Wales decides she is going to give her son a copy under the terms of GPLv3 that decision (with all the extra obligations and restrictions) ripples back down the chain of people who gave her the software... Yeah, right.

Meme 2: if you enter into a promise/agreement/contract (e.g. the vouchers) and then something changes that makes it illegal for you to carry out that promise (e.g. if/when GPLv3 code shows up in SUSE) then not only are you obliged to follow through with the promise and break the law, but the mere existence of the promise becomes a violation of the new law... I mean, does anybody think that Microsoft is going to lose sleep over having to give a few bucks in compensation to voucher holders? Is a future court not only going to back the vouchers=distribution theory, but find that compelling/blatent enough to tell Microsoft that all its patents are now belong to the world when it could just issue a fine and an injunction to stop distributing?

While PJ and the FSF people haven't said this in so many words, its implicit in the "spin" of their postings and they haven't stepped in to correct the IANALs who do express this view. TFA is a typical example of trying to open the box with the crowbar found inside (the GPLv3 re-definition of distribution).

Don't get me wrong - I don't want to see MS get away with their datstardly scheme to take over the world and hope that - as authors choose to adopt GPLv3, it will help. But the GPL is just a software license, not a magical time-travelling IP-law-re-writing superhero - if it has a few drinks, pulls on some blue and red lycra and throws itself the top of a tall building it will just destroy its own credibility.

Re:Coupons do not make for distribution

Clearly, Microsoft doesn't want this -- that's why they stopped selling them.

If true, that is a very interesting point.

For all the wailing that distributing vouchers doesn't give MS any liability, if MS stopped distributing those vouchers prematurely, and not just prematurely, but about the time that this supposed liability became public knowledge, then that says one of two things:

1. Random corporate shit happened and it caused a halt to the voucher distribution, or...
2. Microsoft's lawyers believe that the vouchers DO have the potential to put enough liability on MS to really fuck them up.

My money is on #2. And I find it very humorous to think that the extremely expensive and super effective with the sneaky-tactics lawyering team at MS missed the problem in the first place and OKed the whole SuSE voucher sneakiness. They were trying to pull a dirty-tricks campaign by manipulating SuSE and they ended up hoist by their own petard. It's just amazing that MS would make that big of a tactical blunder.

Think of it like a book...

Ok, think of it this way: Let's say I run a cafe that is close to a bookstore. To drum up business, I enter into an agreement with that nearby bookstore. I pay the bookstore for 500 copies of the new Harry Potter and the bookstore issues me 500 coupons that allow the bearer to get a free copy. I then run a promotion - come to my cafe and order so many meals and get a coupon. A customer takes advantage of this and turns in the coupon for the book. The customer is the buyer, the bookstore is the seller, and my cafe is doing nothing but paying the purchase price.

Now, saying that Microsoft is at all liable for anything under GPLv3 is like saying that J.K Rowling could claim the cafe is violating her copyright. I don't need J.K. Rowling's permission to give out coupons for her book, because my cafe didn't copy it. The publisher/bookseller (I'm lumping them together to make the analogy simpler) copied it. The publisher/bookseller is is the party that needs permission to copy the book, not me. I'm just acting as a mediator to bring together someone who is licensed to sell the book with people who want the book.

Now, if the bookstore was making bootleg copies of the book, and I knew this and got some sort of a discount on their coupons because of it, then a case could be made that my coupons facilitated copyright violations. This is where facilitation clauses in copyright law come in - but this doesn't apply in the Microsoft deal. There is no inherent copyright violation in Novell's distributing of Linux, so Microsoft giving out coupons for it doesn't count like that. Microsoft is not facilitating copyright violations with their coupons, because Novell is licensed (by the GPL) to hand out Linux. If Novell was violating the GPL in some way, and Microsoft knew about this and was using the coupons as a way of facilitating that violation, then they could be said to be liable under copyright law. That isn't the case, so Microsoft has nothing to fear. Microsoft doesn't need the GPL's permission to do what they are doing, because they aren't copying.

The GPL is not keeping anyone from suing Microsoft over this deal, because the GPL doesn't apply to Microsoft in this deal. Microsoft isn't copying the work. They are bound by nothing, just as my cafe isn't subject to any copyright laws for distributing harry potter coupons.

wrongo

So now Microsoft has modified what you get with the vouchers, or tried to. Novell won't agree not to provide support for GPLv3 software, though, so that blunts the effectiveness of Microsoft's announcement and I must say thank you to Novell for that. I doubt Microsoft realistically thought Novell would stop supporting the software it sells. Microsoft just wanted to say, "Hey, it's not us doing that. We don't authorize or approve. We tried to stop it." And since Eben Moglen has pointed out that the vouchers have no cutoff date, Microsoft, by my analysis, still has to face what it will mean for them if even one such voucher is turned in after Novell begins to offer GPLv3 software.

This analysis is wrong. If Novell chooses to provide software and services beyond what is required by the voucher, Novell is free to do so. That choice is not in any way binding on Microsoft. This is no different than saying that a grocery store may choose to give me a free box of cereal in exchange for a 35 cent coupon. That store's choice does not in any way compel Kellogg's to give me more free Froot Loops.

Why does MS need GPL?

I always thought that the GPL functioned on the premise you needed copyrights to the software to do anything with it you wanted. It therefore was a way to get those copyrights in exchange for giving them to those you gave copies to.

MS is not making copies, they are giving away coupons, from someone else. I don't see how they can possibly be held to the GPL. It makes about as much sense as me saying clipper magazine employees must where there shirt because I used there coupon at an eatery.

The only way I can possibly see it applying is if MS also chooses to directly distribute GPL3 software, because then they would have agreed to the concept that handing out a coupon is distributing, but without agreeing to that I hope that they can't be forced into it.

I also imagine it is possible for the GPL3 to force Novell not to sell any coupons to GPL3 software without getting the purchasers agreement to abide by the terms, in a sense attaching the restrictive (perhaps in a good way, but still restrictive) parts of the GPL to any coupon.

It could also force the "conveying" party not to convey its copy unless all parties involved in propagating and conveying agree to GPL3 terms, but I didn't read it that way at all, it clearly puts pressure on the propagating party, which does not need any permission from the GPL at all to act. I really think the GPL3 as it is written, and being interpreted is worse than a standard EULA in enforcability. It is trying to capture parties not involved at all (book sellers, box stores, ect) and bind them into a contract that they need no part of to carry on (thus undercutting the defense that the GPL is granting you rights you didn't already have).

It is a shame that the ideals that I bought into were sold out to stick it to the man, it makes me feel silly for defending the GPL vs BSD.

Wrong! SLES vouchers were sold!

> Microsoft aren't selling "Download Credits". They are selling patent licenses for patents that might (Your Interpretation May Vary) otherwise be infringed by the Linux.

No, that's exactly what they've sold! The SLES vouchers are redeemed for Suse Linux and a year of support / updates per the article.

And thanks to the grandfather clause in the GPLv3, Novell is allowed to distribute the software, but Microsoft can no longer be discriminatory in who it sues with its software patents.

So my analogy was correct, you just don't understand the situation. Not that I expect anyone to read TFA around here, but it does make that clear, you know!

Dream on M$ Bashers...

Microsoft will do NOTHING involving anything with GPLv3. THey already view the GPL as a dangerous virus and are quite particular about keeping that contamination out of their ecology.

Those "unexpiring" vouchers won't cover GPLv3 stuff, and even if it DID, it is highly unlikely a court would enforce the patent covenants.

So when Microsoft says it is unaffected by the GPLv3, that is perfectly correct, they will have NOTHING to do with it, and anything otherwise is wishful dreaming.

No one, even the experts, get more than an opinion

PJ of Groklaw wrote this story about how and why the GPLv3 will apply to Microsoft.

There's the classic acronym IANAL. Even when two lawyers are involved, the moment they're from different sides, they too have different interpretations. They may be certain their personal interpretation is correct and is exactly how things will pan out but the same still holds true...

The judge you get on the day, the jury, how well the lawyers convince the jury to see things their way, what the judge allows and disallows, what the various appeals processes rule, the politicians you buy to change the law at the last moment, all of those change it from absolute certainty to something much hazier.

In that haze, Microsoft's PR, lawyers, management, etc. can all state, "The GPLv3 won't stand up in court." Groklaw can state, "This is how it will go..." and we on Slashdot can argue, "Ha, we've got them now!" or "Microsoft will wriggle out of it somehow, like they always do." to our heart's content. The one certainty is that those are opinions, not absolutes for how it'll work out.

PJ's welcome to an opinion. More accurately however, the title should be "PJ from Groklaw has an opinion about how GPLv3 and Microsoft will work out." What it isn't, and can't be until it's gone through every last legal wrangling, is an absolute what "will" happen.

Sacred horse

I know PJ is a sacred horse around here, and all that, and am prepared to be modded accordingly, but geez, the ego:

One can't help but wonder how well Microsoft understands the GPL even now. They have brilliant lawyers, no doubt about it, but they are not GPL specialists, and law is a profession of specialization, as you have just witnessed.

"Marvel, marvel at my adroit dissection! Pay no heed to the fact that my dissection is nothing more than occasionally witty, subjective hypothesizing by someone without a law degree, enjoy the fact that I'm ragging on Microsoft!"

Bah.

Sheesh, have you forgotten?

You forget that Eben Moglen, a professor of law at Columbia University and general counsel for the FSF read the Novell / Microsoft agreements and drafted the GPLv3 with them in mind with the intent to undo the damage the discriminatory software patent agreements cause.

Given that he believes Microsoft is in trouble and that Microsoft *actually took notice* of the GPLv3 enough to issue an announcement, I'll have to say that while it's probably a thorny legal question, it's nowhere near as one-sided as you make it out to be.

Eben, BTW, is pretty much the foremost legal expert on the GPL. You know, having helped draft it and all. And it's not like PJ doesn't talk with lawyers about her posts. You know, like Eben...

But what the hell do I know? I just post snarky comments on Slashdot... like you do.

This is all moot in the US

Under US copyright law, Microsoft can buy Linux CD/DVDs from any legal distributor (in this case, Novell) and sell it to others without ever agreeing to the GPL3.

See: Title 17 Section 109 [copyright.gov] Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord.

This just in.

In other news, SCO has announced that as a linux company, Microsoft is actively participating in the infringement of 294 items of SCO's intellectual property. The Free Software Foundation immediately came to Microsoft's aide, going as far as to offer legal council in the event that Microsoft could not afford it. RMS was unavailable for comment.

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MSFT's army of lawyers have said no such thing. They've said that in a press release, but as Microsoft Watch said, they have lied about many things in their press releases.[1]

In any case, they are NOT living up to the obligations they gave to the coupon b

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I hope Novell escapes from this wiser and embraces freedom-based principles more. They have a lot of good employees and industry power, so the work they do can really make a difference in a struggle like this. They've chosen to be used as a counter-example

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I'm hoping Novell survives this, and furthermore takes every opportunity to deride Microsoft and counter their FUD, within the limits of their contract.

Re:is it just me?

Is it just me or is anyone else hoping Microsoft drags Novell down into the muck? This would be a good lesson to anyone else considering getting in bed with them.

I'd be more amused if Novell ends up having brokered a deal that lands a major blow against Microsoft's hold on the Industry. There would be a certain symmetry to it.

Re:is it just me?

Is it just me or is anyone else hoping Microsoft drags Novell down into the muck? This would be a good lesson to anyone else considering getting in bed with them.

Honestly...no, I don't hope anything bad happens to Novell or Microsoft.

Yeah, I pretty much hate Microsoft's OS...and their business practices really suck...but their stranglehold on the industry is finally weakening.

What I'd really like to see happen is that Microsoft actually starts legitimately competing to hold onto its market share... Starts turning out a quality product... Makes Windows less of a headache to deal with... Makes Office appealing for reasons other than "we have to buy it because everything is in Word format."

Unlikely, I know... But anyone who can help point them towards the light deserves credit.

Re:is it just me?

You're completely alone in that feeling, as I'm sure a significant number of slashdot'ers are about to confirm.

Well, I certainly wish Novell no ill, what with all their contributions, both technical and otherwise (they probably will be the ones that finally crush SCO, before IBM gets a chance from that judge).

But it seems PJ and many people here is hoping Microsoft will be found to have distributed copyrighted works on account of those vouchers. As I see things, the only possible way one could argue the vouchers are distribution would be under some sort of contributory infringement theory---the kind of liability you would have if, for instance, you distribute coupons that some pal of yours will redeem for pirated software. You're liable even if you're not distributing, because you're contributing to the infringement by your pirate friend.

Under US law, contributory infringement requires direct infringement by some other party. So, in this case I think Microsoft can only be held liable is Novell is liable too. The direct infringement would be Novell's, and Microsoft would be contributing to it. That sounds like an awfully weak theory to me, but never mind that, my point is that hoping Microsoft will be infringing copyright implies that Novell will be in an even worse position. Which is effectively "hoping Microsoft drags Novell down into the muck", as the GP said.

Now, I don't give a rat's ass about Microsoft patents, so Novell taking some millions from them to "license" those to their customers is perfectly fine with me. More power to them, who cares. But people here seems to be implying that Novell's covenant was a big fucking sin, so ugly and despicable that we shouldn't feel any kind of gratitude for them, that there's nothing morally wrong if they get hurt, backstabbed by the very community that Novell is protecting from SCO.

I think that is disgusting. But hey, this is probably just me.