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Groklaw Explains Microsoft and the GPLv3 349

A Groklaw Reader writes "After all the questions about how the GPLv3 will or won't apply to Microsoft following Microsoft's declaration that they weren't bound by it, PJ of Groklaw wrote this story about how and why the GPLv3 will apply to Microsoft. Specifically, it covers in what ways Microsoft would convey GPLv3 software under the Novell agreement, and how Microsoft's refusal to allow previously sold vouchers to be redeemed for GPLv3 software would impact that agreement. Given that Novell has said that they will distribute GPLv3 software, Microsoft may have had the tables turned on them already."
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Groklaw Explains Microsoft and the GPLv3

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  • 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.
  • 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.
  • by Vengance Daemon ( 946173 ) on Tuesday July 10, 2007 @12:04AM (#19809473)
    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?
  • by Enderandrew ( 866215 ) <.enderandrew. .at.> 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?
  • by sumdumass ( 711423 ) on Tuesday July 10, 2007 @12:16AM (#19809559) Journal
    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 any further restrictions on the exercise of the rights granted or affirmed under this License.means if you received the work in itself complete with all the abilities it implies. It doesn't preempt any legal holding a person or company might or would have if a third part placed your IP in the work and passed it off as theirs. In this case, the restrictions would be on the work before the license was applied (because of the law and the timeline) and the license would have to carry the restrictions or limitations because it is after the fact with regard to existing infringements when the license is put in place and when you would receive the work covered by the license.

    The other terms used are just as misinterpreted. the clause If you convey a covered work, knowingly relying on a patent license, and the Corresponding Source of the work is not available for anyone to copy, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means, then you must either (1) cause the Corresponding Source to be so available, or (2) arrange to deprive yourself of the benefit of the patent license for this particular work, or (3) arrange, in a manner consistent with the requirements of this License, to extend the patent license to downstream recipients. "Knowingly relying" means you have actual knowledge that, but for the patent license, your conveying the covered work in a country, or your recipient's use of the covered work in a country, would infringe one or more identifiable patents in that country that you have reason to believe are valid. specifically state that "if you convey a work knowingly relying on". This means you would have to know the exact contents of the disputed IP whether it is copyright claims or patent claim and distribute after adding this into the work. It wouldn't cover You distributing something not knowingly relying on your IP that I snuck into the work. In Microsoft's case, they would have to not only convey a work they claim violates something, but would have to have knowledge of the claimed violation before conveying it. Just distributing Samba updates under the GPLv3 would not invalidate any claims against KDE,, or the GNU C compiler. In fact, it wouldn't even invalidate claims against Samba unless those claims are known and in the update. The great misconception comes from where the license says of it is derived, it must carry the same license. It isn't a matter of being included in the original program. So an update to Samba wouldn't negate and claimed violations in samba unless the claimed violations were in the update and obvious to the owner when conveying or propagating the work.

    The terms If, pursuant to or in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of, a covered work, and grant a patent license to some of the parties receiving the covered work authorizing them to use, propagate, modify or convey a specific copy of the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it. says basically the same as above except that it is more in general. And again, it doesn't make a blanket claim as people are claiming.

    Now here if the clause most people are making not of,A patent license is "discriminatory" if it does not include within the scope of its coverage, prohibits the exercise of, or is conditioned on the non-exercise of one or more of the righ
  • by VGPowerlord ( 621254 ) on Tuesday July 10, 2007 @12:49AM (#19809741)
    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.
  • 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.
  • by dilute ( 74234 ) on Tuesday July 10, 2007 @01:02AM (#19809809)
    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 have a hard time coming up with a legal defense if sued by MS for patent infringement? I doubt that. So that's the "enforceability" right there. If MS can't find and destroy every last voucher before it is too late, they will be in a bad spot on this and their entire portfolio of patents will likely be impotent as regards any GPLv3 software.
  • by patio11 ( 857072 ) on Tuesday July 10, 2007 @01:20AM (#19809881)
    ... to RMS' frequent claims of being a tireless, persecuted martyr for freedom that they apply to, say, an American politican's frequent claims that any policy which they think is a good idea is justified by freedom. "Freedom" is not a magic word which forgives all sins and justifies all measures. Not for the politicians, not for the activists.

    And, yes, RMS is radical and radically wrong on some points. His definition of "freedom" involves having the government coerce people who disagree with him. Read the GNU Manifesto -- not just the fluffy "Oh, I'm going to give you tons of free goodies" bits but the hard core "I really desire a radical transformation of how EVERYONE, not just you and me, see software" bits. Actual quotes, emphasis is mine:

    "If programmers deserve to be rewarded for creating innovative programs, by the same token they DESERVE TO BE PUNISHED if they restrict the use of these programs"

    "Proprietary and secret software is the moral equivalent of runners in a fist fight. Sad to say, the only referee we've got does not seem to object to fights; he just regulates them ("For every ten yards you run, you can fire one shot"). He really ought to break them up, and penalize runners for even trying to fight." (This is a call for the government to *ban proprietary software*.)

    There's another bit where he proposes funding software development by creating a transnational agency to tax all computer hardware, and then fund deserving projects. "The total tax rate could be decided by a vote of the payers of the tax, weighted according to the amount they will be taxed on." Quite aside from the fact that your Dell is now 30% or 300% more expensive than it was yesterday, do you really want ALL money flowing into software to be allocated on the basis of the priorities of the US business community, who will ALWAYS win the "election" for determining development priorities because they spend vastly more money on hardware than anyone else? For that matter, does the idea of any government agency determining how much money needs to be allocated to WoW relative to Office appeal to you?
  • by The_Wilschon ( 782534 ) on Tuesday July 10, 2007 @01:31AM (#19809927) Homepage

    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 to a new license or run some pretty big risks.
  • by AnyThingButWindows ( 939158 ) on Tuesday July 10, 2007 @02:27AM (#19810143) Homepage
    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.

    Oh yea? I beg to differ. []

    His fund just passed McCain's because of the people, not Fuck 500 companies, and big government, NWO, globalists.
  • by TheThiefMaster ( 992038 ) on Tuesday July 10, 2007 @02:54AM (#19810259)
    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 page on european tax rates []
  • by Jah-Wren Ryel ( 80510 ) on Tuesday July 10, 2007 @03:11AM (#19810329)

    Clearly, Microsoft doesn't want this -- that's why they stopped selling them.
    If true, that is a very interesting point.

    For all the wailing that distributing vouchers doesn't give MS any liability, if MS stopped distributing those vouchers prematurely, and not just prematurely, but about the time that this supposed liability became public knowledge, then that says one of two things:
    1. Random corporate shit happened and it caused a halt to the voucher distribution, or...
    2. Microsoft's lawyers believe that the vouchers DO have the potential to put enough liability on MS to really fuck them up.
    My money is on #2. And I find it very humorous to think that the extremely expensive and super effective with the sneaky-tactics lawyering team at MS missed the problem in the first place and OKed the whole SuSE voucher sneakiness. They were trying to pull a dirty-tricks campaign by manipulating SuSE and they ended up hoist by their own petard. It's just amazing that MS would make that big of a tactical blunder.
  • 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:is it just me? (Score:4, Interesting)

    by _Sprocket_ ( 42527 ) on Tuesday July 10, 2007 @04:11AM (#19810541)

    Is it just me or is anyone else hoping Microsoft drags Novell down into the muck? This would be a good lesson to anyone else considering getting in bed with them.
    I'd be more amused if Novell ends up having brokered a deal that lands a major blow against Microsoft's hold on the Industry. There would be a certain symmetry to it.
  • by Excelcia ( 906188 ) <> on Tuesday July 10, 2007 @04:18AM (#19810569) Homepage Journal
    Ok, think of it this way: Let's say I run a cafe that is close to a bookstore. To drum up business, I enter into an agreement with that nearby bookstore. I pay the bookstore for 500 copies of the new Harry Potter and the bookstore issues me 500 coupons that allow the bearer to get a free copy. I then run a promotion - come to my cafe and order so many meals and get a coupon. A customer takes advantage of this and turns in the coupon for the book. The customer is the buyer, the bookstore is the seller, and my cafe is doing nothing but paying the purchase price.

    Now, saying that Microsoft is at all liable for anything under GPLv3 is like saying that J.K Rowling could claim the cafe is violating her copyright. I don't need J.K. Rowling's permission to give out coupons for her book, because my cafe didn't copy it. The publisher/bookseller (I'm lumping them together to make the analogy simpler) copied it. The publisher/bookseller is is the party that needs permission to copy the book, not me. I'm just acting as a mediator to bring together someone who is licensed to sell the book with people who want the book.

    Now, if the bookstore was making bootleg copies of the book, and I knew this and got some sort of a discount on their coupons because of it, then a case could be made that my coupons facilitated copyright violations. This is where facilitation clauses in copyright law come in - but this doesn't apply in the Microsoft deal. There is no inherent copyright violation in Novell's distributing of Linux, so Microsoft giving out coupons for it doesn't count like that. Microsoft is not facilitating copyright violations with their coupons, because Novell is licensed (by the GPL) to hand out Linux. If Novell was violating the GPL in some way, and Microsoft knew about this and was using the coupons as a way of facilitating that violation, then they could be said to be liable under copyright law. That isn't the case, so Microsoft has nothing to fear. Microsoft doesn't need the GPL's permission to do what they are doing, because they aren't copying.

    The GPL is not keeping anyone from suing Microsoft over this deal, because the GPL doesn't apply to Microsoft in this deal. Microsoft isn't copying the work. They are bound by nothing, just as my cafe isn't subject to any copyright laws for distributing harry potter coupons.
  • Re:is it just me? (Score:4, Interesting)

    by Ephemeriis ( 315124 ) on Tuesday July 10, 2007 @08:27AM (#19811695)

    Is it just me or is anyone else hoping Microsoft drags Novell down into the muck? This would be a good lesson to anyone else considering getting in bed with them., I don't hope anything bad happens to Novell or Microsoft.

    Yeah, I pretty much hate Microsoft's OS...and their business practices really suck...but their stranglehold on the industry is finally weakening.

    What I'd really like to see happen is that Microsoft actually starts legitimately competing to hold onto its market share... Starts turning out a quality product... Makes Windows less of a headache to deal with... Makes Office appealing for reasons other than "we have to buy it because everything is in Word format."

    Unlikely, I know... But anyone who can help point them towards the light deserves credit.
  • by Anonymous Coward on Tuesday July 10, 2007 @09:01AM (#19811983)
    How would that defense work?

    I ask because I can't see how the software license for Linux can be used as a defense against violating Microsoft's patent.

"I don't believe in sweeping social change being manifested by one person, unless he has an atomic weapon." -- Howard Chaykin