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GNU is Not Unix Microsoft

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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  • by EveryNickIsTaken (1054794) on Tuesday August 28, 2007 @01:43PM (#20387951)
    Sounds like FSF just wanted to get in the news. Or on slashdot, or whatever. Reading the press release, they don't really SAY much... other than "We hate you Microsoft, neener neener neener."
  • by stinerman (812158) <nathan.stineNO@SPAMgmail.com> on Tuesday August 28, 2007 @01:50PM (#20388081) Homepage
    I'm at a loss there too.

    As we all know, the GPL relies on copyright for enforcement. If I distribute GPL'd software, and I do not accept the GPL, then I have committed a copyright violation as nothing but the GPL allows me to distribute the software.

    To be sued for copyright infringement, I must have actually made copes of and distributed GPL'd software, not "conveyed" or "propagated" or any other such language. Unless Microsoft has actually redistributed (not caused someone else to distribute, like Novell*) GPLv3 software without abiding by its terms, they are off the hook for copyright violations. They'd only be on the hook for a contract violation.

    Again as we all know Microsoft has not signed the GPLv3, so it is not a party to it and does not need to abide by it.

    *Unless my understanding of copyright law is wrong, one must make copies of a work and/or distribute them to be on the hook for infringement. The FSF might have a contributory copyright infringement case, but that would be much harder to prove, AFAIK. Of course, I'm an armchair lawyer, so hopefully someone who actually has a law degree will clear this up.
  • by EveryNickIsTaken (1054794) on Tuesday August 28, 2007 @01:55PM (#20388135)

    MS is obviously at least slightly worried or they wouldn't have issued the PR in the first place.
    FSF issued the press release, not MS.

    MS would argue that merely giving out the vouchers is not distribution but most people (the FSF included) see it differently.
    Sorry, but most people, (IANAL) including judges IMO, would not. If I buy a movie from blockbuster, and they give me a coupon for a free whopper from Burger King, would blockbuster be suddenly responsible for the conduct of the BK employees and the food service?
  • Re:Cool (Score:3, Insightful)

    by cp.tar (871488) <cp.tar.bz2@gmail.com> on Tuesday August 28, 2007 @01:56PM (#20388161) Journal

    What GPL copyrights is MS impinging upon? MS made a deal with a company that was distributing software with a GPL license, and then the FSF changed the license in an attempt to force MS to give away it's patents. It was a sleazy move by the FSF, and will fail in court, and is harmful to the whole open source movement.

    Well, the FSF didn't change the license radically - and it only affects two kinds of software: the software initially written under GPL 3 and the software including the GPL version x or any later.

    The software which was licensed under GPL x or later was so licensed even before the GPL 3. And the possibility of license change was plainly stated.

    Compare that to companies that reserve the right to drastically change their licensing at any time. Microsoft included.

  • Gross Speculation (Score:3, Insightful)

    by vthokie69 (549779) on Tuesday August 28, 2007 @01:58PM (#20388193)

    This isn't really news. It's just gross speculation. It's more the FSF equivalent to the FUD that MS spreads regularly. I sincerely doubt that either MS or the FSF wants to get into a major legal fight. It's extremely expensive and does neither side much benefit. Microsoft is going to go out of its way to avoid distributing any GPL3 code. Likewise, I don't see Microsoft abusing its patent library to extract cash out of anyone. If history is any indication, they primarily use their patent stash as a defensive mechanism much like all the other big companies like Sun, IBM, etc.

    All of this speculation is blown way out of proportion. The true threats patent-wise to both free software and Microsoft alike are the patent trolls that produce nothing and only receive revenue from patent royalties and litigation.

  • by m0nkyman (7101) on Tuesday August 28, 2007 @01:59PM (#20388201) Homepage Journal
    I'd say that because the distribution of the vouchers predates GPLV3, that MS has a leg to stand on here.
  • by DragonWriter (970822) on Tuesday August 28, 2007 @02:07PM (#20388311)

    IIRC the GPL3 would apply to MS as soon as someone redeems a SUSE voucher that they received from MS.


    This is inconsistent with the FSF's contention that the GPL is a copyright license but not a contract in which the licensee gives up pre-existing rights, since no rights under copyright are necessary to distribute the vouchers and therefore a pure license of the type the FSF claims the GPL is would be completely irrelevant.

    That contention aside, even viewing the GPL as a contract (or, rather, a contract offer), the argument seems to fail since there is no evidence of agreement by Microsoft to be bound by the contract, and thus no contract formed that is binding on Microsoft in the first place.
  • by nweaver (113078) on Tuesday August 28, 2007 @02:30PM (#20388593) Homepage
    Microsoft will be "exempt" from the GPLv3 simply because they will never distribute or pay others to distribute GPLv3 code: since the FSF foundation has made clear they believe that paying others counts as distribution, the Novell deal will not encompass any GPLv3 stuff.

    So for all those who hope that Microsoft will somehow get caught with their hand in the GPL cookie-jar/trap, forget about it. They are already very careful, and GPLv3 makes them even more careful.

    Rather, what the GPLv3 does is make a large amount of future open-source development unavailable to Apple. Apple, unlike Microsoft, ships a large amount of GPL based software: GCC, emacs, a lot of random utilities, etc.

    And Apple's solution is to buy up the copyright when possible (CUPS), replace (I've heard talk about replacing gcc), and/or fork at the last GPLv2 version.

    The GPLv3 is designed to be unpalitable to many companies: TiVo, Apple, Google, etc, and they will sooner forgoe anything released under GPLv3 than deal with the liscence. This is a feature of the GPLv3, not a bug.

    But it is a feature that will only be noticed by its absence: large companies avoiding GPLv3 code except for internal use.

    -Nicholas Weaver

  • by Doctor-Optimal (975263) on Tuesday August 28, 2007 @02:30PM (#20388603)

    This was a reaction to a statement by MS. They would not have made that statement if they were not worried.
    And if MS had let this pass without a statement the slashtards would (still) be channeling Neil Patrick Harris and yelling "It's scared!". When you are an ideologue all evidence points to your favored conclusion.
  • by Aim Here (765712) on Tuesday August 28, 2007 @02:40PM (#20388767)
    Don't think 'copyright violation'. Think along the lines of estoppel.

    The threat here isn't that the FSF sues Microsoft for a GPLv3 breach; the FSF is making clear that there's a defence to a patent infringement lawsuit, namely that Microsoft aided and abetted the distribution of software under GPLv3 terms. If Microsoft sues RedHat over some FSF code, Eben puts on his cape, leaps into the courtroom and shouts "Aha! But you helped everyone distribute that code. Under the GPL. And because of the intricacies of the voucher system, under GPLv3. And the patent provisions of GPLv3 make clear under what conditions this software is allowed to be distributed. Novell gave EVERYONE permission to use every patentable idea in this software, and by helping Novell do that, you gave everyone permission too"

    I reckon that's roughly the scenario that the FSF is hinting at here. It's obviously not a straightforward 'you distributed our software' copyright lawsuit.
  • by Bruce Perens (3872) * <bruce@perens.com> on Tuesday August 28, 2007 @02:44PM (#20388841) Homepage Journal
    Well, for analogy, consider that I contract with someone to distribute bootleg copies of a CD for me, in return for coupons. I then claim to the judge that I owe nothing to the record label, since the license of the CD was not a contract and did not compel me to give up my pre-existing funds. :-)

    I don't think it's relevant that the GPL is a license rather than a contract, since MS has the right to tell Novell to stop honoring those coupons, and thus to stop joining Microsoft to the license.

    Bruce

  • by mhall119 (1035984) on Tuesday August 28, 2007 @02:45PM (#20388857) Homepage Journal

    If I buy a movie from blockbuster, and they give me a coupon for a free whopper from Burger King, would blockbuster be suddenly responsible for the conduct of the BK employees and the food service?
    Good analogy, but I would take it one step further. If Burger King decided that the name "whopper" would from now on refer to a beer (perfectly legal), would Blockbuster then be required to have a liquor license? Would Burger King even be required to allow the coupon to be redeemed against the new "whopper" product instead of the old "whopper" product they made when the coupon was issued? I think in both cases the courts would rule no.
  • by vthokie69 (549779) on Tuesday August 28, 2007 @02:47PM (#20388885)

    I have absolutely no problem with copyright holders enforcing their copyrights regardless of who it is. The problem I have is with the methods that the RIAA and MPAA have used in enforcing copyrights. For starters, the RIAA and the MPAA don't even hold the copyrights, their member organizations do. The actual copyright holders are farming out the dirty work to the RIAA and MPAA. Second, they have been using potentially illegal tactics (Computer Fraud and Abuse Act violations?) to obtain information. Third, they frequently end up suing or bullying people into settling regardless of guilt or innocence. They are effectively attacking regular folks who also happen to be their customers instead of focusing on the large operations that are wholesale distributing their media and profiting from it. For the small time file sharing, a simple cease and desist order would be sufficient to take care of the problem.

  • Re:Clarification (Score:5, Insightful)

    by Bruce Perens (3872) * <bruce@perens.com> on Tuesday August 28, 2007 @02:52PM (#20388963) Homepage Journal
    Oh, you think Microsoft was not playing games when it cross licensed Novell's customers instead of Novell to avoid the patent terms of the GPL? They were just doing business, right? Well, this is payback.

    Bruce

  • Re:Clarification (Score:3, Insightful)

    by samkass (174571) on Tuesday August 28, 2007 @03:08PM (#20389233) Homepage Journal
    So does this mean MS is hoping to splinter FS development, into GPL 2 and 3?

    The FOSS community doesn't need Microsoft for that one. The FSF managed it all on their own.

    isn't it a forgone conclusion that everything will (some day) be GPL v3?

    Definitely not. There are a lot of people, including Linus Torvalds, who consider GPLv2 a much preferable license to GPLv3. In addition, some of these developer did not sign away all their rights to FSF by putting "or later" into their license. So no, all that happened with GPLv3 is that there's now yet another FOSS license that will co-exist with GPLv2, BSD, Apache, and others indefinitely.

    I am confused what this means for all those that signed on with MS?

    It means nothing. I'm no fan of MS, but the FSF is blowing hot air here. There's no way any judge is going to make anything of the voucher situation with regards to a license that was released after the deal was made... and the FSF has a very good chance of weakening the GPL legally by trying these tricks of legal technicality.

    So all in all, the FSF seems to be playing right into Microsoft's hands lately.
  • by uglydog (944971) on Tuesday August 28, 2007 @03:11PM (#20389279)
    My guess is when it isn't exactly offtopic, and not really flamebait, but you just don't like it.
  • by arth1 (260657) on Tuesday August 28, 2007 @03:20PM (#20389419) Homepage Journal

    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.

    Of all people, I though you'd be careful to say GNU LIBC or glibc when you meant the GNU implementation only, cause plain libc is not subject to GPL -- there are implementations under various licenses.
    (And even if you meant glibc, that's LGPL, and not GPL.)
  • by HermMunster (972336) on Tuesday August 28, 2007 @03:39PM (#20389727)
    If Novell does not include any GPL v3 products in their SuSE and people then redeem them Microsoft is not bound. But if Novell does decide to include a GPL v3 product and someone redeems then the license applies to Microsoft (just as the GPL v2 would apply). Novell could refuse to accept the redeemed coupons in order to protect the agreement between themselves and Microsoft and then the redeemer could then go back to Microsoft and ask for a refund. This essentially freezes the SuSE product--and Linxpire and Xandros too. But to say that a product that is covered by the GPL v3 that becomes included in the SuSE products it does make at least Novell bound to the GPL v3. The question as to whether Microsoft knew the GPL could change (as it did from v1 to v2) and that Licenses often change (as their EULA states clearly that they are subject to change) would certainly play into whether Microsoft is really bound by the agreement even if it were not stated up front.

    What some are trying to say is that Microsoft is not bound by the GPL v2 either. They are trying to say that only Novell is. What the FSF is saying is that Microsoft is as much bound by the GPL as anyone is. It would be completely wrong to allow for agreements between two parties for the purpose of allowing them the benefits of the software developed under the GPL without that company being bound by the terms of the GPL. That's what's wrong with the Novell-Microsfot agreement. That's why the GPL v3 was created. It was created to protect the developers to keep companies such as Microsoft from stealing their work.

    If the agreement between Microsoft and Novell excluded any GPL V3 product as a possibility, well, that's one thing. But if they didn't include a clause or two regarding that in their agreement then certainly this is a matter for the courts. Either way, it would be a matter for the courts.

    Certainly Microsoft has the right to cease selling the the vouchers (in the event that there is no clause (or two)).

    Clearly it is an issue the courts could answer. I don't know the law in that regard but companies such as Microsoft have tried to enforce this sort of thing in their favor in the past. So, I think there are some pretty clear cases representing this position.

    Really it is the responsibility of Microsoft to do more than declare they are not bound. They must, at least, attempt to recover the vouchers and then in turn get them back from Novell or work to ensure that Novell does not make them bound by the GPL v3 by intentionally including GPL v3 software in their distribution.

    The GPL v3 is doing what it is supposed to do. It is keeping Microsoft from thwarting the purpose of the GPL to begin with, which is to protect the developers. To even attempt to thwart it is a knife in the back of anyone giving their resources to create a product they want others to enjoy for free.

    I could personally care less about whether Microsoft's proprietary software becomes less popular (or any company's software for that matter). It isn't up to the people that are part of the FOSS to protect Microsoft's markets. If they choose to make something and give it away for free then that's their business. It is really sad when company owned by the "once richest man in the world" thwarts the intended purpose of a license to keep competition under their thumbs.

    There is nothing in the world that says that free and open software is bad for anything, including the economy. I venture to say that in fact it is more beneficial to the economy because the money from the sale of the proprietary software generally go into small group of people's pockets and sits in bank accounts, etc. What happens when those that would have to pay for that software can use that money for something else (e.g., eduction, dental bills, clothes for their children, or repairs to their cars, etc), is certainly more beneficial to the economy.
  • Jeez (Score:3, Insightful)

    by trifish (826353) on Tuesday August 28, 2007 @03:57PM (#20389997)
    From the press release made by the FSF:
    Microsoft has said that it expects respect for its so-called "intellectual property"--a propaganda term designed to confuse patent law with copyright and other unrelated laws

    To FSF: "intellectual property" is not a "propaganda term" and the term is not designed "to confuse patent law with copyright and other unrelated laws".

    In standard English, the term "intellectual property" term collectively refers to any or all of the following:

    - Copyrights
    - Trademarks (or service mark)
    - Patents

    Sometimes also to:
    - Trade secrets
    - Trade names

    I stopped reading the press release after reading that sentence...
  • Re:Cool (Score:3, Insightful)

    by SL Baur (19540) <steve@xemacs.org> on Tuesday August 28, 2007 @04:39PM (#20390549) Homepage Journal
    The only patents Microsoft would be giving away are among the mythical 235 patents they say Linux plus distro cover. Microsoft's patent portfolio is not threatened, only their ability to sling FUD at the open source community over alleged patent infringements. (And if some of those mythical 235 patents only apply to the Linux kernel, whether Microsoft is bound by the GPL v3 or not, they are not affected because the Linux kernel is GPL v2).

    Clear now?
  • by coryking (104614) on Tuesday August 28, 2007 @04:54PM (#20390745) Homepage Journal

    But it is a feature that will only be noticed by its absence: large companies
    avoiding GPLv3 code except for internal use.
    "internal use" usually means web applications. RMS already thinks such people violate the "spirit" of his license. Soon enough he'll be bitching about "Googleization" and you'll see something about it in GPLv4 (they already tried to do this in a draft GPLv3).

    Sorry. The GPL party is over. Everybody but the zealots are now quietly gutting every drop of GPL from their application stack.

    In the next few years I predict (read: hope) you'll see a BSD renaissance as all the companies and contractors who got burnt spend their time building up *BSD. Hopefully they'll discover what I already found - the two big BSD camps crank out a *much* friendlier, far more stable platform to develop on. Hell, both are *complete* operating systems. The userland tools, the manuals and the kernel all come from the same source tree. Good stuff.

    So come on over and join the party. The water is nice and the people are friendly. Just don't invite any zealot losers. The day RMS starts trying to politicize FreeBSD is the day I switch professions...
  • by DragonWriter (970822) on Tuesday August 28, 2007 @06:02PM (#20391489)

    Don't think 'copyright violation'. Think along the lines of estoppel.


    Yeah, it doesn't work under those terms, either.

    The threat here isn't that the FSF sues Microsoft for a GPLv3 breach; the FSF is making clear that there's a defence to a patent infringement lawsuit, namely that Microsoft aided and abetted the distribution of software under GPLv3 terms.


    Except that, well, they didn't. They issued vouchers when SUSE was (as it still is) distributed under GPLv2 terms, under an agreement with Novell, with very specific limitations on where the patent guarantee applies that are inconsistent with the GPLv3 (which didn't, IIRC, exist at the time the agreement was made.)

    And the patent provisions of GPLv3 make clear under what conditions this software is allowed to be distributed.


    Yeah, they do. And, under the terms of the GPLv3, Novell is not permitted to distribute software under the GPLv3 with only the guarantees Microsoft has provided, which are not as broad as the GPLv3 requires. The result is not that Microsoft's guarantees would be legally treated as broader than they are if Novell changed the licensing on SUSE, the result is that (1) if Novell choose freely (because the software was GPLv2 or later and they wanted to use v3) to use the GPLv3, Novell may be liable to downstream redistributors and users not protected by Microsoft's guarantee for implicit or explicit misrepresentations, particularly if they induced the decision to spend money on SUSE, or (2) if Novell incorporated some else's GPLv3 software into SUSE and thus was compelled to distribute it only under the GPLv3, Novell would be prohibited from honoring the SUSE vouchers and would be liable to Microsoft for breach of contract and/or to the voucher holders as third-party beneficiaries, or, if they chose to distribute despite the terms of the GPLv3, would themselves be in violation of the GPLv3 and liable for copyright infringement.

    Most likely, though, what it really means is that Novell doesn't move SUSE to GPLv3 until and unless the vouchers aren't a substantial issue and they are willing to absorb the costs associated with doing so, and if they want to put out a GPLv3 Linux product in the meantime, they do it under a different name, and don't make it eligible for the vouchers.
  • by Aim Here (765712) on Tuesday August 28, 2007 @06:21PM (#20391695)
    "Except that, well, they didn't. They issued vouchers when SUSE was (as it still is) distributed under GPLv2 terms, under an agreement with Novell, with very specific limitations on where the patent guarantee applies that are inconsistent with the GPLv3 (which didn't, IIRC, exist at the time the agreement was made.)"

    Now there's two things here that give the FSF leverage. One is that Microsoft agreed that Novell should release software under a 'GPLv2 or later' license. The other is that the SuSE vouchers did NOT have an expiration date. Meaning if someone has one of those vouchers, they can wait until GPLv12 to cash it in. There's no way that Microsoft can plead ignorance of the 'GPLv2 or later' language in the code it was distributing, there's no way it can complain about the lack of the expiration date, since it clearly agreed to the voucher system, and Microsoft must surely have been aware that the GPLv3 was being drafted. How can Microsoft suddenly be surprised that it was going to help supply the world with GPLv3 software?

    "ah, they do. And, under the terms of the GPLv3, Novell is not permitted to distribute software under the GPLv3 with only the guarantees Microsoft has provided, which are not as broad as the GPLv3 requires."

    Except that Novell has confirmed that it's going to go ahead and distribute GPLv3 software anyway. If Alice comes along with a voucher, supplied to her by Microsoft, and gets GPLv3 software from SuSE, and then reads her GPL, happily offers that software to Bob, who gets sued by Microsoft for patent infringement, who is at fault? Bob isn't, he took his GPL at face value. Alice isn't, she took her GPL at face value AND Microsoft helped Alice get this software, with full knowledge that it was going to contain a GPL license. The answer is that both Novell and Microsoft are at fault. Microsoft can't sue Bob, because Microsoft helped Bob (via Alice) get his software with all the GPL guarantees and whatnot. And if Microsoft DOES have the right to sue, then Novell is guilty of copyright infringement for not providing a secure enough GPLv3 guarantee along with the code it supplied.

    "Most likely, though, what it really means is that Novell doesn't move SUSE to GPLv3 until and unless the vouchers aren't a substantial issue"

    Novell ARE [novell.com] distributing GPLv3 software. The FSF DOES [nwsource.com] believe the vouchers are a substantial issue, and made that clear as soon as they spotted that the SuSE vouchers had no expiration date. Your 'most likely' scenario is already in the bin.
  • by nmx (63250) <nmx@fr o m t h e s hadows.net> on Tuesday August 28, 2007 @08:53PM (#20393199) Homepage
    No, it doesn't work that way. If the copyright notice says "version 2 or later" it's up to the person who distributes the work to decide which version to distribute it under. That would be Microsoft. In that case they could just distribute it under GPLv2. However, if the notice said "version 3", then Microsoft *would* be bound by it, if they chose to distribute it.

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