Groklaw Explains Microsoft and the GPLv3 349
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."
What matters is enforceability (Score:5, Insightful)
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.
What Microsoft said... (Score:2, Insightful)
Groklaw says it does apply to them (in the future).
There is no argument here, no discussion. Does Groklaw actually think that Microsofts Army of Layers knows less than they do about law or something?
This type of round robin arguing, where everyone is shouting about different scenarios yet equating them because they are "similar" is so typical of
Microsoft Vouchers (Score:5, Insightful)
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:What Microsoft said... (Score:3, Insightful)
In any case, they are NOT living up to the obligations they gave to the coupon buyers after they told them they would not sue (except, now, if they include GPLv3 code in SLES). Gee, I wonder how Walmart feels after being used by MSFT in the NOVL ploy; did they pay for nothing? Not to mention what happens if someone takes some GPLv2 or later version from SLES into GPLv3 in a derivative distro, and then asks NOVL for the patent covenant from MSFT.
[1] http://www.microsoft-watch.com/content/corporate/
"Microsoft has a long history of saying stuff (expecting people will believe) that wasn't true then or didn't turn out to be true in the future. I've grabbed some random examples:
Software Assurance: In its May 10, 2001, press release announcing the program, Microsoft claimed: "The improvements to Microsoft's volume licensing offerings are designed to match the current acquisition behavior of the majority of Microsoft's enterprise customers, and should result in a reduction or no change in licensing costs for approximately 80 percent of Microsoft volume licensing customers." In reality, based on research from Gartner and other analyst firms, only a minority of customersthose upgrading every two years or lesswould realize cost savings. The program raised most customers' software acquisition costs, as much as 107 percent, according to Gartner.
U.S. Antitrust Case: There are just so many examples, but I chose this one from a December 1998 Microsoft press release. Microsoft's lead attorney said in a statement: "The government may think they're winning on soundbites, but they are striking out when it comes to proving their case. The major elements of the government's lawsuit have already been discredited, and not a single Microsoft witness has even testified yet." The government went on to win the case, with the trial judge ordering the breakup of Microsoft as remedy.
Windows Vista: In August 2004, Microsoft "announced it will target broad availability of the Windows client operating system code-named 'Longhorn' in 2006." Here is a link to one of several slide shows kicking around Microsoft's Web site that clearly identifies the Longhorn (aka Vista) release as "Holiday 2006." Strange isn't that Microsoft set a delivery date and missed it. Strange is Microsoft later affirming that launching to businesses on Nov. 30, 2006, meant the company met its 2006 ship commitment.
A dozen examples would be easy, but hopefully three makes the point. Microsoft says lots of things that aren't necessarily true or ever going to be true. But the company behaves like if enough people believe what it says, then it's true enough. Saying doesn't make it so."
[1] http://www.groklaw.net/article.php?story=20070630
http://www.vcnet.com/bms/features/tale.shtml [vcnet.com] "A Tale of Two Press Releases"
"Good morning, class, and welcome to Microsoft Literature 101. Today, we will be examining a short story from the points of view of both the protagonist and the antagonist, and considering how these two characters in a story react to the same events, and what this may reveal about their personalities.
The protagonist in our narrative is a small software company called SCO, otherwise known as the Santa Cruz Operation. The antagonist is the software giant, Microsoft. First, we should sketch out the storyline."
Re:Microsoft Vouchers (Score:3, Insightful)
Besides, if it turns out that some convoluted trickery in the GPL really does wind up costing Microsoft some money, is that "innovation" worth taking pride in?
Re:What matters is enforceability (Score:5, Insightful)
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".
Coupons do not make for distribution (Score:5, Insightful)
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.
Re:is it just me? (Score:3, Insightful)
Re:Microsoft Vouchers (Score:5, Insightful)
Re:What matters is enforceability (Score:4, Insightful)
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!
Why does MS need GPL? (Score:3, Insightful)
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.
Re:Microsoft Vouchers (Score:3, Insightful)
Quite right, which is why it's so important that the vouchers they have been conveying have no expiry date. When, in the future, someone goes to Microsoft with a voucher and Microsoft conveys a copy of SLES with Samba [slashdot.org] (or some of the other projects [vnunet.com] who're switching) then the GPLv3 will apply:
No one, even the experts, get more than an opinion (Score:5, Insightful)
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.
Re:What matters is enforceability (Score:5, Insightful)
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:Microsoft Vouchers (Score:1, Insightful)
Nobody's really going to go that far. (Score:5, Insightful)
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.
Re:What matters is enforceability (Score:3, Insightful)
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 professional organizations that IBM sells them too.
No, IBM alone won't sue Microsoft. Nor will Sun or Red Hat. And as long as Microsoft keeps its code closed... you'll never see anything but the remenants of old BSD code packaged with Windows...
The victory will be declared when people wake up and realize the folly in using Windows and the advantages of Linux (and Open Source, as a whole). Unfortunately... there are a lot of software engineers and developers who still don't see this - so it will be a while before "everybody else" can be expected to understand.
Sacred horse (Score:5, Insightful)
"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.
Re:is it just me? (Score:3, Insightful)
Microsoft can do what they want (Score:3, Insightful)
The fact is, they sold a contract to support software that is being released under a licence they didn't control. Software that is developed by people who are hostile to their interests. And that left them open to being unable to meet their obligations. They should have known that the GPLv3 could have specifically said "M$ is teh evil, you cannot run this software and theirs in the same company" and had provisions in their support contract to deal with it. Did they really think Stillman et al would just let it slide? It's absurd.
Here is where I don't understand all the "Microsoft is screwed" talk though. If they refuse to honour the contracts, the worst a court can do is make them refund the money paid to them, and possibly a bit more for damages. I don't think Microsoft is loosing sleep over this.
If Wal-Mart ends up feeling burned by being left with unsupported Linux installs, and wants a bit of money, does Microsoft really need to feel all that bad about it? If just proves their point that running Linux can leave you out in the cold.
Copying defined by law, not by GPLv3 (Score:4, Insightful)
I would love it to be the case as much as anyone, but that doesn't make it so.
That's not the lawyer's job! (Score:3, Insightful)
You seem to forget that it's not the job of "Microsofts Army of Layers" (is it just me or .... ?) to tell the world about the implications of law. It's their job to spin the story long enough to convince some judges. Given the U.S. case law, they may prevail in the end. OTOH the SCO case demonstrates that spin doctors don't always succeed.
That being said, the GPLv3 does apply to everyone - as soon as they distribute GPLv3 software. If Microsoft doesn't do that today, fine (pretty improbable because AFAIK there has not been any project releasing GPLv3'd code yet). If they do that in the future, they had better watch out. The GPLv3 as a software license is as valid as any other software license, like the M$ EULA (which has proven not be valid in certain judiciary systems).
And by the way the M$ EULA does not apply to me either.
Re:What matters is enforceability (Score:1, Insightful)
That is because a EULA and the GPL are very different things. The GPL is based 100% on tried and tested COPYRIGHT law and that law is very well understood. EULA is tested under contract law, something very, very different.
Thence the GPL does not have to be tested in a court to have 100% strength in the eyes of the law. Too many people fail to realise just how solid the GPL's basis truly is.... except copyright lawyers. Oh they know very well how strong the GPL's legal strength truly is.
This article doesn't address Microsoft's claims (Score:3, Insightful)
Whether or not Microsoft's voucher system is legal under copyright law is a matter for the courts (should it get that far), but this point is in no way addressed by the Groklaw article. From first glance, it might actually be legit, since they are buying a voucher from Novell, and then reselling it, which should be covered by first-sale doctrine.
Re:BOOM (Score:3, Insightful)
Cheers.
Re:Microsoft Vouchers (Score:3, Insightful)
This is for all the lonely people in this thread who don't seem to understand basic legal principles:
Once you license your software v2.4 under licence A, that's a done deal. You can't retroactively change that licence for this software, v2.4. This is why Samba is under GPLv2; until 3.0.X. They can't change that and you may use Samba 'till the end of time under the rules of GPLv2. Now they change to GPLv3, and move the numbering to 3.2.X. Meaning, Samba 3.2.X from now on is governed by GPLv3.
Even the mighty Microsoft is bound by these rules. When you accept the EULA at boot of your latest and greatest PC, that binds both sides. The cheat is now, that Microshit wants you to accept another EULA when you update or install another program. That's not quite fair, but probably legal (it does display a business practice that in itself convinces me to never do business with them). As long as you do without updates (or additional installs), your original EULA governs your use of your PC.
The probably most famous example are the Microsoft TrueType Fonts. They used to be available from the Microsoft site and were governed by a licence that permitted re-distribution as long as they were kept in some original format. That's why they remain available until this day.
OT: Ron Paul (Score:2, Insightful)
I don't think that he'll ever make it to the White House, though, so I'm pretty sure my theory is safe. Both the electoral system and national expectations are stacked against someone who's up-front and honest about their beliefs and philosophy, and who isn't reading from a prompter fed by the latest Gallup poll.
But I'm still planning on voting for him in the primary.
Re:What Microsoft said... (Score:3, Insightful)
It's like some kind of new slashdot fallacy, argumentum ad happyendium perhaps, assuming that in the end the bad guys will get their just deserts and the good guys will be triumphant. But that's just a Hollywood convention, not something which always applies in the real world.
Re:What matters is enforceability (Score:3, Insightful)
Follow the money and the votes. (Score:5, Insightful)
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:What matters is enforceability (Score:4, Insightful)
But there would be countersuits. That is what OIN is for.
Re:What matters is enforceability (Score:1, Insightful)
It may have escaped your attention, but this is clearly nothing like toothpaste.
The core problem is that Microsoft try to ensure that everyone depends on them. Then they abuse that dependency to insert themselves into the other layers of the system and exclude others. That isn't a free market, it is an abuse of a monopoly. Which is exactly what both the US and EU have convicted them of.
Re:Microsoft Vouchers (Score:4, Insightful)
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.
Re:Microsoft Vouchers (Score:5, Insightful)
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!
Re:is it just me? (Score:3, Insightful)
Re:Coupons do not make for distribution (Score:5, Insightful)
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:Microsoft Vouchers (Score:3, Insightful)
At any rate, it doesn't matter what their private deals with Novell state. If you agree to two licenses which contradict each other, that's your own fault, and doesn't mean you can break one of them. If MS start distributing GPLv3 software then they must comply to its terms, irrelevant of its other deals.
Re:is it just me? (Score:5, Insightful)
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.
Re:is it just me? (Score:2, Insightful)
Re:No one, even the experts, get more than an opin (Score:3, Insightful)
And, of course, PJ is NAL. She is not licensed in any jurisdiction to practice law...
Re:Follow the money and the votes. (Score:4, Insightful)
facilitating propagating distributing .. (Score:2, Insightful)
"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"
No, there is no 'impression' here, the issue is that GPL 3 specifically refers to propagating and conveying not just distributing, as such it most certainly applies to MS coupons.
"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"
It is most certainly a tenuous position, but only for Microsoft. Lets read what GPL 3 actually says about propagate and convey:
'To "propagate" a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law, except executing it on a computer or modifying a private copy. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well'
'To "convey" a work means any kind of propagation that enables other parties to make or receive copies. Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying'
"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"
But if YOU use GPL code then YOU are bound by the license, regardless of what a MS lawyer might say.
was: Coupons do not make for distribution (Score:3, Insightful)
Re:What matters is enforceability (Score:3, Insightful)
Re:is it just me? (Score:1, Insightful)
Yeah, I can't understand why anyone would want to deal with Novell either.
BTW, doesn't it seem kind of lame and pathetic that the entire point of GPL3 was to "get" Microsoft? Seems like the FOSSies need to concern themselves more with what they are doing, and less with what Microsoft is doing. But I guess maybe the idea is that maybe, just maybe, rather than having to catch up to Microsofts tail lights, they can slow down Microsoft enough that it gives Lunix the illusion of catching up.
Lots of luck on that one, guys. Lunix still hasn't caught up to Windows 95, and MS hasn't exactly been doing nothing for the last 12 years.
Re:What matters is enforceability (Score:3, Insightful)
it's a pr statement to spin it all even further. again, eu definitely _did not_ request releasing of source code. to quote that article, "The Windows source code is the ultimate documentation of Windows Server technologies."
this is like "we can't document shit, and we see a chance to do a pr spin as if this was requested".
also, notice article heading : "Microsoft Goes Beyond EU Decision"