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FSF Positioning To Sue Microsoft Over GPLv3? 369

Posted by kdawson
from the no-easy-out dept.
mjasay writes "Groklaw notes that the Free Software Foundation has decried Microsoft's attempts to distance itself from its obligations to abide by GPL Version 3 (press release here). Citing Microsoft's earlier declaration that they are not bound by GPLv3, the Free Software Foundation declared, 'Microsoft cannot by any act of anticipatory repudiation divest itself of its obligation to respect others' copyrights.' The press release implies that the Free Software Foundation may sue Microsoft over the issue."
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FSF Positioning To Sue Microsoft Over GPLv3?

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  • Clarification (Score:5, Informative)

    by DimGeo (694000) on Tuesday August 28, 2007 @02:39PM (#20387897) Homepage
    Microsoft said they are not distributing any GPLv3 software or code, so they are not bound by said code's license, namely the GPLv3. They never said they will not abide by the GPLv3 if they are bound by it by distributing any GPLv3 stuff.
  • by Anonymous Coward on Tuesday August 28, 2007 @02:50PM (#20388075)
    The Suse vouchers that MS handed out had no expiry date and nothing stating which version of Suse they were valid for.
    GPLv3 states that if you give rights to certain users, you must extend those same rights to ALL users without exception.
    If a single person uses a Suse/MS voucher to obtain software licensed under GPLv3, ALL users of that software are immune from lawsuits by MS.
  • Re:Cool (Score:5, Informative)

    by janrinok (846318) on Tuesday August 28, 2007 @02:55PM (#20388149)

    Not quite right there. The FSF have not changed the license under which Novell distributes its software. It was issued under the GPL2 and remains under that license. Microsoft have not infringed upon GPL2. However, if a significant number of developers move to the new GPL3 license then Novell have to make a choice. Either accept the new license conditions or do not accept the new software that is being developed under GPL3. If they do the former then Microsoft could well be accused of infringing GPL3 because their vouchers are a form of distribution - that might not be the correct legal term but I believe that you understand what I'm claiming. If Novell don't accept the new license conditions with the new software then they cannot include it in whatever they are offering. If sufficient elements of the new software are changed by their developers to GPL3 then Novell could find themselves stuck with an out-of-date distribution, or be forced to fork and update many elements of Gnu/Linux themselves in order to keep it under GPL2.

    It is by no means certain that your claim that it 'will fail in court' is correct. Many people who know far better than I seem to think that it will succeed.

  • by Bruce Perens (3872) * <bruce@perens.com> on Tuesday August 28, 2007 @03:33PM (#20388665) Homepage Journal
    Well, the theory is that since Microsoft is paying Novell - and has a contract with them - to distribute copies of SuSE to customers who have coupons. The coupons are not just like paying with dollars, since the coupons have no real cash value and there is a contract that says what they are for. So Microsoft is a party to that distribution because it has essentially contracted for someone else to distribute software for them. If you contracted for someone else to distribute bootleg copies of Britneyz new hit, do you think you would have much chance of convincing the court you aren't a party to her label's copyright license or otherwise an infringer?

    All of the software that gives "GPL 2 and any later version" as its license is now optionally under GPL3, and new versions of Samba, LIBC, etc., will be "GPL 3 and any later version" and will be included in SuSE. So, Microsoft is obligated under GPL3 if SuSE accepts one coupon for a distribution that contains "GPL3 and later" software. Possibly MS is obligated for "GPL2 and later" software, although that is less clear.

    Microsoft has the right to tell SuSE to stop honoring coupons now and keep the money, and then Microsoft would have to refund anyone who had outstanding coupons and eat crow in public. If Microsoft does not do that, it's going to be difficult to show that they didn't accept the license, since they had a way to escape from doing so.

    MS is obviously concerned, they would not be making noise if they were not. I suspect that they have lost their last chance to keep Free Software away from their patent portfolio by doing this. They gave up the chunk of rights that we would not have already had due to doctrine of laches, etc. And they will settle for that rather than go to court.

    Bruce

  • by pete-classic (75983) <hutnick@gmail.com> on Tuesday August 28, 2007 @03:37PM (#20388723) Homepage Journal

    They make no GPL software.


    I don't know who modded this up, but the question doesn't make any sense. People who make GPL software aren't bound by the GPL with regards to their own software.

    The GPL applies to anyone who distributes covered software and doesn't own the copyrights.

    -Peter
  • Re:Cool (Score:3, Informative)

    by janrinok (846318) on Tuesday August 28, 2007 @04:00PM (#20389099)
    It could mean just that - although that is not seen as a likely option. Novell has already stated that it intends to include GPL3 software in future releases. But, if Novell do not want to be bound by GPL3 then they must only distribute software that is GPL2 or earlier. Which might mean that they have a lot more work maintaining software for which they previously relied upon other contributors to provide. Still early days......
  • Re:Followup (Score:5, Informative)

    by bzipitidoo (647217) <bzipitidoo@yahoo.com> on Tuesday August 28, 2007 @04:32PM (#20389641) Journal

    No need for a lawyer, just use common sense. Yeah, sense still works-- our legal system isn't yet that messed up. So let's run through the facts:

    1. MS claims GNU/Linux violates 235 of their patents. MS refuses to reveal anything to substantiate these claims, knowing that every last one of their claims will probably be worked around or invalidated. (In any case, should never have allowed the patenting of software.) MS is also not saying whether they will sue.
    2. MS cuts a deal with Novell about their Linux distribution. The main item of this deal is that MS promises not to sue Novell customers for any alleged violations of MS's patents. Complete details of this deal remain unknown to the public.
    3. The FSF, which happened to be in the process of revising the GPL to deal with "Tivoization" and was therefore luckily in a good position to respond swiftly to this threat, does respond. They add language saying you can't promise not to sue some users of GPL software over patent violations. You can't discriminate among recipients. All or none get the protection.

    It's pretty clear what MS could do had things gone according to their plan, but I'll spell it out. MS would be in position to collect protection money from every GNU/Linux user in the world. And it wouldn't be a one time payment either. Same thing SCO tried. Just like that, the entire free software world would no longer be free. Have to pay for MS's blessing to do anything. And you know, given that cost maybe Windows would be (or look like) a better deal. Plus, Windows would have a big advantage if development on GNU/Linux software slowed way down because developers constantly have to work out deals with MS, and check whether any changes have newly violated any of the MS patents that were blessed. Not saying MS would do such despicable things, but if you believe that, I've got this bridge in Brooklyn....

    But we're safe. The FSF has defused this threat. The bullies are afraid to take these issues to court. No need to be worried about technical violations. The spirit of the GPL is most certainly violated by such schemes. Yes, even the spirit of GPL 2. Courts do look at intent when considering cases. But good to have it spelled out in GPL 3, to avoid confusion.

  • by notamisfit (995619) on Tuesday August 28, 2007 @04:45PM (#20389827)
    Which is why their patent attacks haven't addressed the toolchain or gcc but rather the Linux kernel, GNOME/KDE, and OO.o (ie, stuff they *DON'T* distribute).
  • by Anonymous Coward on Tuesday August 28, 2007 @05:01PM (#20390035)
    OK, but what if I distribute vouchers to purchase legitimate copies of Britneyz new hit, and the distributor decides instead to distribute bootleg copies? Am I in violation of the copyright? I entered into a contract with my distributor in good faith. They changed the rules after the fact.

    That is the wrong analogy - the decision to go GPLv3 was by the Samba authors, not by Novell.

    It is MS's problem that they promised something, profited from it, but now they decided that they dont like the current price of fulfilling that promise. It's like contracting to provide technical support and terminating the support agreement once the customer files a critical bug. "We did not know it was going to be that expensive for us to fix that! The customer's bugreport increased the cost of the contract after we entered into the contract, so it is null and void!"

    Claiming that they did not know that the GPLv3 was coming along is disingenious at best. It is like claiming that they did not know that by building in San Francisco they might be affected by earthquakes. MS could have contracted in a way to eliminate the "risks" from the GPLv3 but they apparently failed to cover all bases - and that was their own doing. With their size of a legal department they certainly cannot claim incompetent legal representation :-)

    Even though MS stopped distributing new vouchers, fact is that MS profits from hundreds of millions of lines of GPL-ed SuSE code right now (which code was written by tens of thousands of authors and is worth billions of dollars or more), by selling Windows alongside the SuSE vouchers to customers, and they contracted Novell/SuSE to distribute that code with no time limit on the vouchers.

    That means that MS profits from the vouchers here and now . (as customers rely on MS's promise that Novell would be willing to honor the vouchers, and those same customers are paying for MS's services as we speak, partly encouraged by the availability of the vouchers)

    And the law is fortunately not on the side of companies that try to circumvent obligations put on them by copyright licenses. Judges also have a dim view on the concept of profiting from other people's works without their authorization.

    The largest software company on Earth profited tens or hundreds of millions of dollars from code written by others for free, and they now claim that the license is null and void and that they want to preserve the right to threaten with patent-lawsuits, which threats both the GPLv2 and the GPLv3 explicitly forbids? They also claim that the Novell contract is null and void because they were unfairly out-foxed by a single pro-bono university law professor who made the patent language in the GPLv2 match the original intention of the GPL even more? Try to go before a jury with those kinds of arguments, I definitely want a front-row ticket for that show :-)

  • by Bruce Perens (3872) * <bruce@perens.com> on Tuesday August 28, 2007 @07:18PM (#20391665) Homepage Journal

    OK, but what if I distribute vouchers to purchase legitimate copies of Britneyz new hit, and the distributor decides instead to distribute bootleg copies? Am I in violation of the copyright? I entered into a contract with my distributor in good faith. They changed the rules after the fact.

    It seems to me that Novell can't possibly have guaranteed to Microsoft that it either party would continue to have the right to distribute under Microsoft's contract terms, or that the licenses on the software would stay the same. There are a great many third parties who are copyright holders of the distributed software and were not party to the deal. They can not arbitrarily terminate the licenses on old versions of software that are under the GPL, according to the GPL's own terms. But they don't owe Microsoft any obligation to keep their license the same on any subsequent versions, and Novell can't stick with old versions if they want their distribution to be marketable.

    So, in analogy, if Britneyz label decided to change the terms on their license to prohibit distribution under the coupons, the distributor and you would not have any right to continue distribution. You would not be able to show in court any reasonable expectation that the terms would stay the same because the label would not be party to your deal at all.

    Some of the copyright holders are disgruntled over the loophole around the patent terms in their licenses that Novell and Microsoft attempted to engineer, and would consider this move on Microsoft to be pay-back or fair-play.

    Thanks

    Bruce

  • by volpe (58112) on Tuesday August 28, 2007 @11:06PM (#20393761)
    Bruce, I've been reading your posts for a long while now, and with all due respect, I think you're misinterpreting the "and any later version" verbiage. (And if it were anybody other than you, I wouldn't even have this twinge of doubt in my mind about that.) The idea is pretty darn clear: MICROSOFT wants to redistribute the software. MICROSOFT needs a license to do so in order to avoid copyright infringement. The copyright owner has granted to the public (and therefore to MICROSOFT in particular) a license to do so, under GPL2. The fact that the copyright holder has proclaimed in advance that they intend to ALSO release the software under GPL3 does not, and in fact *can* not, constitute a revocation of the existing GPL2 license to redistribute. Thus, MICROSOFT can continue to redistribute the software to someone else (the "Recipient") under the GPL2 license. Once the Recipient has received the software from Microsoft, anything the Recipient does with it is between him and the copyright holder. The copyright holder has released the software under GPL2 and GPL3. If the Recipient wishes to redistribute the software, he may decide whether the terms of GPL2 or GPL3 are preferable to him. His choice to do something with the copyright holder's software, under terms provided by the copyright holder, has no bearing on Microsoft and cannot be construed as imposing any ex-post-facto constraint on Microsoft.

    IANAL, but I really think this is just common sense, isn't it?
  • by WhiteWolf666 (145211) <sherwin AT amiran DOT us> on Wednesday August 29, 2007 @12:28AM (#20394311) Homepage Journal
    (i.e. you distribute it in unmodified form - the law allows you to pass on any copyrighted work you currently possess without an explicit license from the copyright owner).

    Pray tell;

    Where did you get a copy of Linux without agreeing to the GPL? What gave you the right to acquire said copy?

    Is it legal for me to distribute Windows without agreeing to Microsoft's license agreements? If, and only if, every "copy" I acquire is legally acquired.

    It is _copyright infringement_ to distribute Linux without agreeing to the terms of the GPL. Period. Nothing gives you the right to generate copies, other than the GPL. Specifically:
    Conveying under any other circumstances is permitted solely under
    the conditions stated below. Sublicensing is not allowed; section 10
    makes it unnecessary.


    You cannot make copies of Windows without Microsoft's explicit permission. Anything else is considered piracy.

    Similarly, you must gain the permission of "Linux" authors in order to make copies. Anything else is considered piracy; and the _only_ way to gain this permission is by agreeing to the terms of the GPL.

    There is nothing that permits you owning, distributing, or modifying GPL'd software other than the GPL. You cannot acquire GPL'd software without agreeing to it; everything else is infringement.

    What of that isn't clear? Luckily, you're not a lawyer.
  • by Wordsmith (183749) on Wednesday August 29, 2007 @02:22AM (#20395005) Homepage
    And all it governs is distribution. The end-user doesn't need a license to USE the software - only to become a distributor himself.
  • by Kalriath (849904) on Wednesday August 29, 2007 @05:53PM (#20404911)
    And thank whatever deity the readers believe in that YOU are not a lawyer.

    It is 100% legal for you to distribute MS Windows without agreeing to the EULA, provided that you did not need to make copies to do so (so therefore you simply transferred the physical product - remember, the physical media does not need a license, the license only becomes valid when you attempt to use the software within)

    Where did I get a copy of Linux without agreeing to the GPL? Simple. I walked to my local computer store and bought a copy (around here you can get a Linux CD for $6 in the countries largest chain of computer stores) and/or bought a copy of PC World with Linux on the CD. In both cases, I did not need to agree to the GPL because the GPL expressly disclaims any binding for pure usage. And because I did not need to make copies, the GPL explicitly states that I am not bound by it.

    Please do note that also means that I may choose to sell those copies onward, still without agreeing to the GPL!

    Don't throw me that bullshit about conveyance. In a real court, those particular sections aren't valid anyway - the FSF does not have delegated authority to alter definitions created by common law, or to bind parties to a license when they do not take any action to invoke the requirement for a license under copyright law. Microsoft does not require a license under copyright law, because they are not distributing GNU+Linux. They are merely paying Novell for access to the software on your behalf so that you do not have to. Your argument is akin to binding a finance company to the GPL because they allowed you to get a machine with GNU+Linux on hire purchase - it doesn't happen.

    You say that you cannot acquire GPL software without agreeing to the GPL, which is completely false. As well, the first paragraph of the GPL says that as long as I do not redistribute it it does not apply to me anyway!

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