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Groklaw Explains Microsoft and the GPLv3 349

Posted by kdawson from the those-pesky-vouchers dept.
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."
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Groklaw Explains Microsoft and the GPLv3 More

Groklaw Explains Microsoft and the GPLv3

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  • BOOM (Score:5, Funny)

    by gustolove ( 1029402 ) on Monday July 09, 2007 @11:23PM (#19809197) Journal
    HEADSHOT!

  • What matters is enforceability (Score:5, Insightful)

    by JordanL ( 886154 ) <jordan,ledoux&gmail,com> on Monday July 09, 2007 @11:27PM (#19809231) Homepage
    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.
    • 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 (Score:5, Insightful)

        by ozphx ( 1061292 ) on Monday July 09, 2007 @11:51PM (#19809419) Homepage
        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". ;)
        • 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 (Score:5, Informative)

          by VGPowerlord ( 621254 ) on Tuesday July 10, 2007 @12:42AM (#19809707)

          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: (Score:3, Interesting)

          by TheThiefMaster ( 992038 )
          Actually, that's the UK price, and includes 17.5% tax and import / export tax and "screw the British" tax (we always pay more for anything electronic or software/games).

          The French price is 339 ($461.04)
          Including 19.6% tax, or 283.45 ($385.49) without
          Amazon.co.uk page on european tax rates [amazon.co.uk]
    • Enforcement is a particularly interesting issue in the current political climate. MS basically got a pass on their anti-trust case, and that was a government case. Finding a company with the will and resources to battle MS on a GPL violation would be extremely difficult. While the FSF would certainly get as much help as the community could provide, I'm not sure it'd be enough.

      At least Europe has done a better job of sticking to their guns than we have.

      • Re:What matters is enforceability (Score:4, Insightful)

        by Cadallin ( 863437 ) on Monday July 09, 2007 @11:59PM (#19809453)
        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!

        • 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.

          • Re: (Score:3, Interesting)

            by AnyThingButWindows ( 939158 )
            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 e

    • Re: (Score:3, Informative)

      by 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: (Score:3, Informative)

        by The_Wilschon ( 782534 )
        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 infringm

        • Re:What matters is enforceability (Score:4, Interesting)

          by janrinok ( 846318 ) on Tuesday July 10, 2007 @03:11AM (#19810331)
          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 (Score:4, Insightful)

          by kripkenstein ( 913150 ) on Tuesday July 10, 2007 @04:23AM (#19810583) Homepage

          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 (Score:5, Interesting)

      by jkrise ( 535370 ) on Monday July 09, 2007 @11:48PM (#19809401) Journal

      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.

      • Re: (Score:3, Insightful)

        by RobBebop ( 947356 )

        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 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 vict

        • Re: (Score:2)

          by jkrise ( 535370 )

          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).

          Matter of fact, I didn't. I actually ponited out that they still have both strings - AIX AND Linux, and still speak as if AIX is an important part of their future. Which to me suggests they are playing fast and loose with Linux and Free Software.

          Lotus Notes on Linux is not Free Software - it is proprietary. And IBM has bought over many commercially successful s/w outfits - testing tools, version control, databases etc. - and ensured none of them went the Open Source route.

          Fortunately for the Free Software

    • "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 patent FUD card too strongly so that IBM's business is harmed it will become a concern to IBM.

      If someone with one of the Microsoft coupons waits until they are sure that Suse Linux comes with GPL V3 software and then gets that software using that coupon it will

    • 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.

      Introducing!... In the left corner... weighing in at 90 pounds, sporting a long scraggly beard, receding hairline, ponytail, awful breath and "hacker BO"...surrounded by idealistic and hungry lawyers...wearing the Gnu Shorts...

      ... The Free Software Foundation [fsf.org]

      Operators are standing by to take your on-line donation.

    • "who are we really expecting to take Microsoft to court? "

      My (naive) understanding is that this is not the issue. GPLv3 reduces the affect of MS's patent litigation threats, and represents another line of defence for Free Software. If MS sues, and they're bound by GPLv3, then they're in breach of copyright.

      Of course, whether MS is legally a distributor of GPLv3 code would likely need to be decided in court, which will probably only occur as a defence for a patent suit launched by MS, which will probably nev

      • Re: (Score:3, Interesting)

        by dilute ( 74234 )
        Yeah, the issue is more likely to come up defensively. If MS really trips over this (i.e., gets called on any of its vouchers), then any GPLv3 user that MS sues for patent infringement can defend on the basis that MS has licensed all users, including them, under every patent that was licensed to Novell, regardless of where the user got its copy of the software. So MS will try to put the best face on this, but these are probably not waters that MS would want to wade into. Do you think any such user would

  • What Microsoft said... (Score:2, Insightful)

    by Anonymous Coward
    Microsoft said that it doesn't apply to them (now).

    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 /. and FOSS vs Closed Source companies... :(

    • Re: (Score:3, Insightful)

      by Anonymous Coward
      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 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

    • Does Groklaw actually think that Microsofts Army of Layers knows less than they do about law or something?

      That's exactly what they think:

      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.

    • Does Groklaw actually think that Microsofts Army of Layers knows less than they do about law or something?

      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 a

    • Re: (Score:3, Insightful)

      by Hal_Porter ( 817932 )
      There's a lot of wishful thinking going on here. People hate Microsoft and they like Open Source. They know that GPL3 would stop Microsoft using patents against OS. And then they post a load of outlandish legal arguments why this is necessary the case and then add IANAL at the end. And they get moderated up for it.

      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 j

  • Microsoft Vouchers (Score:5, Insightful)

    by Enderandrew ( 866215 ) <enderandrew@NOsPAM.gmail.com> on Monday July 09, 2007 @11:39PM (#19809323) Homepage Journal
    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 (Score:4, Informative)

      by january05 ( 1126057 ) on Monday July 09, 2007 @11:48PM (#19809393)
      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 (Score:4, Insightful)

        by DavidpFitz ( 136265 ) on Tuesday July 10, 2007 @04:32AM (#19810633) Homepage Journal

        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.

    • Re: (Score:2)

      by Danse ( 1026 )

      If Microsoft sold vouchers before the GPLv3, then they did so under the assumption that the vouchers covered GPLv2 software.
      Hope they have that in writing.

    • Re: (Score:3, Insightful)

      by Otter ( 3800 )
      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 screeching morons at Groklaw is concerned, damaging Microsoft is more important than anything else. But for real computer users, this seems like a huge step backwards.

      Besides, if it turns out that some convoluted trickery in the GPL really does wind up costing

    • Samba moved to GPLv3. [slashdot.org]
      So unless Microsoft wants to start it's own SMB/CIFS networking protocol from scratch in the Linux
      environment they have to sanction and help a GPLv3 project in the name of interoperability.
      Jeremy Allison is no ones fool.

    • Re: (Score:3, Interesting)

      by Vengance Daemon ( 946173 )
      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 Microsoft can make changes to their license at any time, why can't others do the same?

      • Re:Microsoft Vouchers (Score:4, Interesting)

        by Enderandrew ( 866215 ) <enderandrew@NOsPAM.gmail.com> on Tuesday July 10, 2007 @12:09AM (#19809507) Homepage Journal
        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 (Score:4, Informative)

          by Chandon Seldon ( 43083 ) on Tuesday July 10, 2007 @01:25AM (#19809897) Homepage

          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 (Score:5, Insightful)

            by mpcooke3 ( 306161 ) on Tuesday July 10, 2007 @04:46AM (#19810695) Homepage
            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!

      • Re: (Score:2, Interesting)

        by VGPowerlord ( 621254 )
        Now, the question becomes this: If you don't use Microsoft Office, but you offer to fix someone's computer that does, can Microsoft apply the terms of that EULA to you, even though you never agreed to it?

        'cause that's what the FSF is trying to do.
      • Which EULA would that be? I just read through the Windows Vista license and the Office 2007 license and neither included the clause you are describing. They mention in passing that updates to the software may require you to agree to an updated license, but that's different from changing their website (and I don't think anything that gets pushed out as an automatic update will include a revised license).

        • Re: (Score:3, Interesting)

          by The_Wilschon ( 782534 )

          updates to the software may require you to agree to an updated license

          And this is pretty much exactly what is happening with GPL3. Versions of projects which have been distributed under GPL2, if you can get your hands on them (from somebody distributing under GPL2), are still under GPL2. But, projects which are moving to GPL3 are basically saying "if you want updates, you have to agree to an updated license".

          Since it is practically (although not actually) impossible to forgo updates, you have to agree

          • Re: (Score:3, Insightful)

            by udippel ( 562132 )
            And this is pretty much exactly what is happening with GPL3. Versions of projects which have been distributed under GPL2, if you can get your hands on them (from somebody distributing under GPL2), are still under GPL2. But, projects which are moving to GPL3 are basically saying "if you want updates, you have to agree to an updated license".

            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 de

    • Re: (Score:3, Insightful)

      by jeevesbond ( 1066726 )

      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 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:

      It's a long shot

    • Re: (Score:3, Interesting)

      by sumdumass ( 711423 )
      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 licenses not in existence at the time of the agreement. This would survive the "no expiration date" on the vouchers.

      But more to the point, This license won't effect Microsoft because it doesn't do what people are claiming it to do. the terms You may not impose an

      • And to this point, I'm wondering if MS cannot claim ownership of the program because of the aledged IP violations. I mean it the program wouldn't have worked or been effective without their claimed IP, then it would seem like it would be their work making the program. But I guess that is a question for another time.

        And this is why the term "Intellectual Property" is much more confusing than it is helpful.

        Looking at it this way is much more likely to produce an accurate understanding of the legality: Peopl

    • Re: (Score:2)

      by Rolgar ( 556636 )
      But surely Microsoft's lawyers had been following the development of the GPL composition, and advising the executives and marketing departments of what was going on when they signed the agreement with Novell. They had to know that the companies they were signing contracts with do not have exclusive rights over the license of all software they distribute, and those companies are bound by the decisions of the software writers, and that the pending licence release would probably become the default license of

    • If Microsoft sold vouchers before the GPLv3, then they did so under the assumption that the vouchers covered GPLv2 software.

      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

    • Re: (Score:3, Insightful)

      by mgiuca ( 1040724 )
      Maybe it changes the situation a little bit given that they are distributing software which says "GPLv2 or any later version" (quite a good lot of GPL software, including the GNU stuff)? Just a thought.

      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.

  • Coupons do not make for distribution (Score:5, Insightful)

    by Excelcia ( 906188 ) <slashdot@excelcia.ca> on Monday July 09, 2007 @11:52PM (#19809421) Homepage Journal
    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.
    • Furthermore, Novell makes the coupons, which they sold to Microsoft, who then gives them to customers. So, even if distributing coupons that are redeemable for a copyrighted work counted as a distribution of that copyright work under copyright law (a position with no support in case law or statute that I've seen anyone cite), this particular distribution would be covered under the first sale doctrine.

      I would not be surprised if this turned out to be the reason that the deal was structured to use coupons.

    • Re: (Score:2)

      by QuantumG ( 50515 )
      Yep, right now you make a lot more sense than Groklaw.

      Copyright is about copying.. Novell are doing the copying, not Microsoft.

    • Re: (Score:3, Informative)

      by jeevesbond ( 1066726 )

      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 secondaril

      • Re: (Score:2)

        by QuantumG ( 50515 )
        Sounds like copyright abuse to me. Ya know, trying to obtain from a license more power than is granted under copyright law? Penalty: those portions of your license become void, and you might lose copyright protection all together - as happened in the Lexmark case.

        • IANAL, but the Lexmark case, IIRC, ruled that Lexmark's "lockout device" was just too trivial to be copyrightable and that the DMCA didn't protect it. I don't recall that they lost on the grounds of copyright misuse, although if you can find the ruling, I wouldn't mind rereading it.

          Anyhow, you can thank secondary liability under copyright law for the GPLv3 being able to cover that. The GPLv2 only cares about distribution, but that's not all a software license can cover, it's just that it usually doesn't m

      • Copying defined by law, not by GPLv3 (Score:4, Insightful)

        by Excelcia ( 906188 ) <slashdot@excelcia.ca> on Tuesday July 10, 2007 @01:22AM (#19809889) Homepage Journal
        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! (Score:5, Interesting)

      by Xenographic ( 557057 ) on Tuesday July 10, 2007 @01:01AM (#19809807) Journal
      > 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.

    • In shory, GPLv3 can say anything it wants, but it falls under copyright law, and if I don't copy, I can't infringe.

      If that were true, then a bittorrent tracker like The Pirate Bay would be obviously legal here in the USA. Such a tracker isn't legal because of a concept called contributory infringement - if you enable someone to infringe copyright, then you are also infringing copyright (unless you have some sort of copyright license). This appears to be the basis for the "vouchers are conveying" claim.

    • Re:Coupons do not make for distribution (Score:5, Insightful)

      by itsdapead ( 734413 ) on Tuesday July 10, 2007 @06:24AM (#19811083)

      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.

  • wrongo (Score:3, Interesting)

    by Spazmania ( 174582 ) on Monday July 09, 2007 @11:55PM (#19809433) Homepage
    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? (Score:3, Insightful)

    by AvitarX ( 172628 ) <me&brandywinehundred,org> on Tuesday July 10, 2007 @12:04AM (#19809477) Journal
    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.
    • "always thought that the GPL functioned on the premise you needed copyrights to the software to do anything with it you wanted."

      no. the GPL's premise is that if you distribute gpl'd software you must also make the source code availible. In the end it's rather a moot point since nothing MS distributed is modified anyway and isn't out there on 1000 ftp servers to start with. I personally hope MS win this, because if they lose they will jump up and down and point at how viral the GPL is and how OSS is the de

    • You forgot just how broad copyright law is, didn't you? Before, the GPL only concerned itself with distribution, so that confusion is understandable, but the GPLv3 defined new terms to use more of that "void" between all activities covered by copyright law and mere distribution.

      If you read the Groklaw article, you'll see that there are fun secondary liabilities you can give rise to under copyright law. Yes, procuring the conveyance of a copyrighted work could be infringement under copyright law if I didn'

  • Dream on M$ Bashers... (Score:3, Informative)

    by nweaver ( 113078 ) on Tuesday July 10, 2007 @12:06AM (#19809485) Homepage
    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.

  • Goddamn it...just trying to read and reason through this argument makes my head hurt. This is like the old SCO orguments all over again. Both sides have lawyers trying to be clever by introducing more and more complexity. This is the diseased law system we now have, thanks to not only greedy show-off lawyers but people who are ready to accept them as necessary in their world. Software licenses should be pretty easy to understand - this goes for GPLv3 and everything else. Contracts between Microsoft and Nove

    • Re: (Score:3, Funny)

      by Ephemeriis ( 315124 )

      I wonder what would happen if we were to take a crack team of programmers and turn them lose to rewrite the legal code.
      At least the legal system has agreed on a single language... Imagine having to track down not just a lawyer, but one familiar with MS Visual Legal#++.
  • ...bug fixes and updates do not necessarily cover license upgrades without referring to this part of the agreement, quoted in the article as well,

    "If the final version of GPLv3 contains terms or conditions that interfere with our agreement with Microsoft or our ability to distribute GPLv3 code, Microsoft may cease to distribute SUSE Linux coupons in order to avoid the extension of its patent covenants to a broader range of GPLv3 software recipients, we may need to modify our relationship with Microsoft unde

    • Re: (Score:2)

      by Oswald ( 235719 )
      I don't think anyone would claim that relicensing qualifies as an upgrade. As long as Novell's customers are content with the last GPLv2 version of any software that subsequently relicenses to GPLv3, they have no problem. If, however, they wish to move forward along with the rest of us as that software is corrected and improved, that might create difficulties.

  • No one, even the experts, get more than an opinion (Score:5, Insightful)

    by nick_davison ( 217681 ) on Tuesday July 10, 2007 @12:12AM (#19809525)

    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 (Score:5, Insightful)

    by Achromatic1978 ( 916097 ) <robert.chromablue@net> on Tuesday July 10, 2007 @12:35AM (#19809665)
    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? (Score:5, Informative)

      by Xenographic ( 557057 ) on Tuesday July 10, 2007 @01:17AM (#19809871) Journal
      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 (Score:4, Informative)

    by VGPowerlord ( 621254 ) on Tuesday July 10, 2007 @01:45AM (#19809975)
    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. (Score:4, Funny)

    by Geek of Tech ( 678002 ) on Tuesday July 10, 2007 @02:01AM (#19810021) Homepage Journal
    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.

  • This article doesn't address Microsoft's claims (Score:3, Insightful)

    by Barraketh ( 630764 ) on Tuesday July 10, 2007 @02:12AM (#19810067)
    IANAL, but from reading the article, P.J. describes why what Microsoft is doing fits under the GPLv3 definitions of conveyance and propagation. However, this doesn't address Microsoft's assertion that it doesn't accept the GPLv3 license, and is thus unaffected by it. In general, a license such as the GPL is a license given by the copyright holder to do something that would otherwise be prohibited by the copyright law. In the case of the GPL, it gives third parties the right to distribute the copyrighted material - something which without the license would be copyright infringement. Microsoft asserts that what it is doing with their voucher system is not illegal distribution under the copyright law definitions. Thus the terms of the GPL license are completely irrelevant - there is no agreement between the copyright holders and Microsoft - Microsoft is doing what it's legally allowed to do with any copyrighted material.

    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.

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