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."

Re:is it just me?

[Spinlock_1977]

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

Re:What matters is enforceability

[Enderandrew]

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

[Anonymous Coward]

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 - i.e. Microsoft have inadvertently indemnified everybody through their distribution deal with Novell. Nobody's looking to sue Microsoft.

Re:Microsoft Vouchers

[january05]

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.

Dream on M$ Bashers...

[nweaver]

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.

Re:Microsoft Vouchers

[Enderandrew]

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

Re:Coupons do not make for distribution

[jeevesbond]

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 the issue with GPLv3. That is a GPLv2 question, as I'll show you. GPLv3 talks about "propagating" and "conveying", not just distribution. Propagation includes anything, including distribution but not limited to it, that would make you directly *or secondarily* liable for infringement if you lack permission. Convey means "any kind of propagation" that enables another party to make or receive copies of a work. Like selling them the vouchers, perchance?

Had you bothered to read the article you would have know that too.

Re:What matters is enforceability

[VGPowerlord]

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).

Re:What matters is enforceability

[The_Wilschon]

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. So, in that case, we've got somebody needing to sue MS.

OTOH, maybe MS does like they've said they will, and doesn't ever sue anybody over these alleged patent infringements. Then we can probably expect them to continue throwing their FUD around about the patent infringment. This will continue to hurt corporate Linux adoption. If we want to avoid that, then somebody would have to sue MS for, I don't know, libel or slander or misrepresentation or something.

So, we have a couple of possibilities. In each possibility, either somebody sues MS, or somebody (FOSS adoption or some FOSS user(s)) suffers somehow. This doesn't seem to comport with "Nobody's looking to sue MS", unless MS voluntarily doesn't throw any more FUD over the patents, which seems unlikely.

Sheesh, have you forgotten?

[Xenographic]

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.

Re:Microsoft Vouchers

[Chandon Seldon]

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:Sacred horse

[Achromatic1978]

Actually, she was comparing Microsoft lawyers with Eben Moglen, not herself. Because he is the GPL specialist who has outlawyered Microsoft, it seems.

What, because, uhh, PJ, a non-legally qualified person, has decided he has, by virtue of her selective soundbiting? Scroll around this thread for many comprehensive examples of how she has twisted commonly and legally accepted definitions of concepts and phrasing.

This is all moot in the US

[VGPowerlord]

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.

Wrong! SLES vouchers were sold!

[Xenographic]

> 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!

Re:Microsoft Vouchers

[mr_matticus]

They absolutely can continue to distribute GPLv2 code as long as there are machines capable of running it. The GPL cannot bind you to unknown future revisions. What it can do, like the mistaken post further up about the clause about license changes to Microsoft software, is require that when upgrading, you accept the new license. Thus, SP2 might have a different license. If you choose to upgrade to SP2, you must accept that new license, which may be different from what shipped with your original XP software. They may change the licensing terms at any time and tie it into any systemwide software update. They cannot force you to accept new terms out of the blue, however.

Same with the GPL. You can't be forced to comply with GPLv3 requirements unless you distribute code that was given to you under the GPLv3 license. If you're using a current version of software, licensed to you under GPL 2.1, you can continue to use that software and abide by those terms forever. The mere existence of newer code with a newer license has no binding effect on you, period. The developers can smoke you out with protocol changes or authentication changes if it's a network service, or they can break compatibility with functions or let the GPL2 version die off, neglected...but they can't force you to accept a new license simply because it has come into existence (regardless of whether drafts of the future version were circulating at the time you entered into the agreement).

The "or later versions" line refers to end user choice, as the GPL is written to the "licensee" in keeping with the "consumer" slant. A developer can't retroactively apply a new license to old software distributed under an old license. The recipient of GPL2 software can, as of the launch of GPLv3, choose to use GPL2 OR GPL3. The provider of said GPL2 software cannot retroactively make it GPL3 software; they must introduce new software distinguishable in some way (even if just changing the version number). They can then pull the GPL2 files from their servers and distribute solely in GPL3 from that point on, but they must still provide the old GPL2 source as required by the GPL--for three years, to anyone who asks for it.

Enron

[Kadin2048]

At its peak in early 2001, right before the beginning of the end, Enron had a market cap of $48B USD. While that's big by normal people's standards, it's only enough to have gotten them to #77 on the top-100 list at the time. (Source, [fortboise.org] from April 2001.) Enron employed 21,000 people prior to its collapse.

Microsoft, during the same period, was #2 at $370B, and today it's still $281B, almost six times larger than Enron was; Microsoft employs 71,000, or about 3.5 times as many people. Given that Enron's collapse is frequently described using words like "unprecedented" and "disastrous," and led directly to the one of the biggest changes in corporate securities law since the 1930s (Sarbanes-Oxley), not to mention the dismantlement of one of the nation's largest accounting forms (Arthur Anderson), a Congressional investigation, and jail time for most of the people responsible (except for Kenneth Lay, who had the good fortune to die first, to much applause [gawker.com]), and speculation that its long-term effects would be greater than 9/11 [hbs.edu], I'm not sure I'd be so blasé.

Re:is it just me?

[HiThere]

I think you aren't understanding the situation.

If Novell is guilty of copyright violation in the distribution of GPL3 software, it will be because they software was covered by patents that they knew about, and didn't have the right to allow others to redistribute. If this is the case, then they knowingly exposed other people to legal danger, and therefore deserve to be punished.

If Novell is not guilty, then either they didn't know about the patents, or they had the right to distribute. Novell's claim is that they don't know of any valid MS patents that cover the GPL software that they distribute.

If MS is endangered by the GPL3, it will be because of some part of the MS-Novell agreement that isn't public knowledge. As such, they will deserve to lose any benefit from hidden patents.

My suspicion is that Novell is being honest, and that MS is engaged in a massive FUD project. Nevertheless, to protect myself I do not intend to purchase from Novell or MS, or to use any recent Novell software, including mono, until this is resolved. I hope that Novell got LOTS of money from MS, but I don't care enough to re-examine the public parts of the deal.