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Lawyer Thinks Microsoft Can Evade GPL 3
Posted by
Zonk
on Sat Aug 04, 2007 12:35 PM
from the i-a-n-a-l dept.
from the i-a-n-a-l dept.
rs232 writes with a link about a disheartening observation on the GPLv3. Unless there's something more specific in the Novell agreement that would fall within the new version of the GPL, Microsoft should have no trouble slipping free of it. Silicon.com has a piece speaking with a leading intellectual property lawyer from Australia. She says, "'I would be very surprised to see this upheld. It was a nice try on the part of (the FSF), but at this stage, I'd say it's not going to be an effective strategy. It will be tough to hold up in court.' In this case, she said, Microsoft never acted — never 'entered' into the agreement, and the terms and conditions can only apply to new actions by Microsoft, not older ones. She said: 'Their actions so far are not enough to say that they are bound.'"
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A lawywer will tell you anything is possible. (Score:4, Informative)
Exactly. (Score:5, Informative)
If Microsoft does not follow the LICENSE then Microsoft cannot LEGALLY re-distribute the software. Doing so would put Microsoft in violation of basic copyright laws.
Which is why Microsoft quickly distanced itself from the GPLv3.
Parent
Re: (Score:2)
Re:Exactly. (Score:4, Insightful)
If Novel takes an action independent of MS that subjects them to the GPLv3 license, MS can claim a separability from that. And because of the differences in the GPLv3, MS's obligations would become frustrated and they likely wouldn't be held to obligations that were frustrated if they didn't take any actions to cause the frustration. What would happen is that you would have to sue them and they would win. If they sued you and you used the GPLv3 as a defense, MS could claims the frustration, cite a few specific article where people have claimed they were going to manipulate the GPL to trick MS out of rights and that defense would likely be lost real fast.
Further more, there are some question about the entire trapping them into being subject to the GPLv3 in the first place. It isn't as if once you distribute a GPLv3 covered work that you can never make a claim over IP or patents in a covered work, your limits only go to the work you distributed. So lets, say MS distributed GCC, They would have to both know that something was in it and violated their claims and distribute it after knowing this in order to not be able to go after patent claims on it. And this would have nothing to save Samba or any other project so if they avoid what that have issues and claims over, it still doesn't matter.
Parent
Re:Exactly. (Score:5, Insightful)
Right. In other words, Microsoft is only obligated to distribute GPL version 2 software.
Hold on there, buddy! What you seem to be implying is that MS could distribute GPL version 3 software with impunity (otherwise, how would it make sense to "[use] the GPLv3 as a defense"?). That doesn't make sense, because all Microsoft ever promised to do was distribute the software that existed at the time the agreement was made -- GPL version 2 software.
Nothing about the agreement gave (or even could give) the ability for Microsoft to ignore the license of code produced in the future, any more than the GPLv3 could give the ability to the FSF to condemn actions taken in the past!
Uh, no. All MS would have to do is willfully distribute it, whether it knew about patent violations or not.
Parent
Re: (Score:3, Insightful)
The problem is that MS isn't distributing anything. They are getting pulled into the coverage of the GPLv3 license by specific wording of the GPLv3 that includes conveying as well as distribution. This inclusion is not by any act of Microsoft but a change in an ancillary operations of a intentful license.
Lets put this into some more relative terms, If you are supporting your product and how a third party uses an unrelat
Re: (Score:3, Insightful)
This is a ludicrous assertion. Many magazines, newspapers, gas stations, and product boxes carry vouchers that are redeemable against a huge variety of items, but they aren't assumed by law to be distributors of those items, any more than I would be if I gave somebody some money to go to a store and buy said product for themselves. A voucher that entitles one to a fre
Re:The Shackles of Freedom (Score:5, Insightful)
First, Free Software under the GPL is certain free for you to use in any way. You can even embed GPL'd software in your embedded rocket flight control computer if you want. Microsoft can *use* GPL'd software in any way they see fit. In fact Microsoft has entire labs full of Linux machines (they believe that one should know one's enemy). Contrast this with Windows, which is not free for me to use in any way I see fit. I cannot run it under certain Virtual machines, I cannot install it on more than so many computers (as provided by the EULA). In contrast, GPL'd software has no EULA; there are *no* restrictions whatsoever on its use.
Second, there are restrictions on *redistribution* of the code, though, as there should be.
What you are saying is pretty silly. If I downloaded a copy of MS's source code from somewhere and tried to redistribute it, you wouldn't say that I am shackled when copyright law does not allow me to do so. GPL'd software is the same. Without the terms of the GPL I have no rights to modify and distribute the source code at all! How the GPL shackles my existing non-rights to distribute copyrighted code that I don't own, I will never know. For without the GPL, I cannot distribute the code to others, and others cannot distribute the code to me!
Seems to me that the GPL ensures freedom in a couple of ways. It ensures that I can use the code freely for any purpose, even without agreeing to the terms of the license at all! Also it ensure that as the author of GPL'd code, my code will never be stolen from me against my will, and sold back to me with restrictions on its use.
So let's stop right now with this nonsense about the GPL shackling freedom.
Parent
Re: (Score:3, Insightful)
I want you to give us all this irony-free-freedom you are talking about, now that I got freedom I will use my freedom to lock you into a room and not let you go out ever again.
Or ... we could implement true freedom which would prevent anyone from removing freedom from others.
Beancounters do not consult court verdicts (Score:3, Interesting)
Re: (Score:2)
Re: (Score:2)
There are some serious problems left in the GPLv3 that will hamper this idea of people wanting to use free software over proprietary. Maybe in a fantasy world, but up till now, real life has shown more support for proprietary software then GPLed works.
Re: (Score:2)
gowen wrote:
Will they kick you out of the United States if you share something?
If Company A cuts a deal with Company B to split the costs on something and share the resource, does that mean they've ceased to be capitalists?
If I share the Xerox
Uhhh... so? (Score:3, Informative)
Pretty sure I've read that the FSFs intention was to address future deals, not this specific existing one (though some have tried to think of ways it could apply anyhow. You know, non-expiring vouchers and what not)
A waste of time and effort! (Score:2, Insightful)
Many top developers, including Linus, have wasted many an hour discussing (or arguing) the merits of the GPLv3. But while that was happening, they weren't coding. Spread over a large number of OSS developers, that's a major waste of time and effort.
Re:Uhhh... so? (Score:5, Insightful)
Parent
Car Analogy (Score:5, Funny)
A legal arms race? (Score:2)
Since the legal code is really just like software for running courts, the same sort of evolution will continue indefinitely between free software and proprietary software vendors. What happens in this situation is the lawyers will profit greatly.
The most effective tool in this battle is
Software Freedom Day (Score:2)
I picked January 11 because that was the day
that IBM threw down the gauntlet regarding software patents
to counter the Microsoft FUD.
Plus 1-11 has that nice binary look.
Anyway, every day is Software Freedom Day when you
kick the Microsoft software addiction.
Did any of you actually believe they would be ? (Score:5, Insightful)
Licenses aren't changing after the fact (Score:2)
The problem Microsoft (potentially) faces isn't that it suddenly won't be able to distribute certain software; that very "or any later version" ensures that Microsoft can continue to apply GPL2 to their distribution of the software, no matter how much the author might wish otherwise. The problem occurs when new versions of such software are released, because with a new version, the author can change the license freely (since nobody has a copy of it yet). Once this happens, at least according to the GPL3-o
Re: (Score:3, Insightful)
The license will apply to GPL v3 licensed components of (say) Linux (like the GNU utils or tools) that will be caused to be conveyed by Microsoft because they issued these coupons that don't have a expiry date. However that gives people like Novell the choice of either forking and duplicating a lot of work on keeping the GPL v2 bugfixed and working. Or distributing the newer GPL v3 components that everyone else is using.
It doesn't apply to current GPL v2 software.
The GPL v3 distri
Re: (Score:3, Insightful)
Courts will reject ambush tactics (Score:3, Insightful)
C//
Obviously MS hasn't violated* the GPLv3... (Score:2)
...yet.
This is because it, as far as I know, haven't distributed (or "conveyed") any GPLv3 code to anyone redeeming a voucher. It's plain common sense that the GPLv3 doesn't apply to any vouchers redeemed for GPLv2 code.
However, what the license does prevent is Microsoft "conveying" any GPLv3 code for those vouchers in the future -- an action which Microsoft has full control over. When people talking about the FSF screwing over Microsoft, they're talking about the fact that Microsoft is forced to do one
Re: (Score:2)
I wasn't under the impression that Microsoft currently conveys, or plans to convey, any GPL based code at all. Are you saying they do? If so, I agree with your analysis.
If you're not saying that they do, I disagree with you. Microsoft has no agreement with any GPL holder, and the GPL3 cannot come back to haunt them, except to prevent them from distributing GPLv3 software.
Now, the GPLv3 can haunt Suse very easily. That's a different matter.
C//
Good try? (Score:2)
But when the FSF tries it, we moan. It's even "a nice try." Because, you know, it's the FSF and it's Microsoft. The particular situation doesn't matter as much as the companies involved. Situational ethics.
Instead of bemoaning this, we should be cheering. I expect the FSF itsel
Re: (Score:2)
The power of wishful thinking is stronger than I ever imagined.
Re: (Score:3, Insightful)
Wording is also a problem (Score:2)
...You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work...
So all Microsoft has to do is give the patents to a proxy company that is not in the business of distributing software, ie. a patent troll, and the proxy company can do the Proxy-Novel deals for them, even over GPLv3 software, without Novel being in violation of the GPLv3.
And if you are thinking of removing the "that is in the business of distributing software" part for your project, think again. Your license would have additional re
Then the patent troll sues microsoft? (Score:2)
If msft had some sort of contract with the patent troll, then it could be argued the the the patent troll doesn't really own the patent.
Re: (Score:2)
The Patent troll does not have to own the patent. For example, Microsoft can grant them a license that allows the patent troll to do these deal and then forward the money to Microsoft with a small percentage staying with the patent troll.
Heck, Microsoft can create another company just for this purpose. It would not be hard to get around the GPLv3 with that language.
Leave aside Microsoft for a minute. The GPLv3 does nothing to protect against future threats, as long as the threatening companies does
how odd... (Score:4, Insightful)
Microsoft doesn't distribute GPL software so of course they will not be bound by the GPL.
And secondly, I though the MS Novell deal was grandfathered in anyway. The only reference I can find for that though is this line: "Among other things, the released version grandfathers in the Novell deal so that Microsoft's SLES coupons will undermine their patent threats" from the GPL ver. 3 release posting. link [slashdot.org]
Re: (Score:2)
In this case, she said, Microsoft never acted - never 'entered' into the agreement, and the terms and conditions can only apply to new actions by Microsoft, not older ones. She said: "Their actions so far are not enough to say that they are bound."
The original ZDNet article is here: http://www.zdnet.com.au/news/software/soa/Microsof t-is-not-bound-by-GPLv3-Lawyer/0,130061733,3392804 77,00.htm?referral=dynamicbusiness [zdnet.com.au]
Ms. Lam-Bettie made her statements on AusCERT 2007, which was held from the 20th to the 25th of _May_ 2007.
Apparently here statements where in reaction to Free Software Foundation's Brett Smith, who appears to have said:
[Under GPLv3,] if you arrange to provide patent protection to some of the people who get the software from you, that protection is automatically extended to everyone who receives the software, (...) This means that the patent protection Microsoft has extended to Novell's customers would be extended to everyone who uses any software Novell distributes under GPLv3, ...
Emphas
Yeah, I don't get what their point is either. (Score:2)
I thought this was intentional? (Score:2)
huh? (Score:2)
For later agreements, the lawyer is missing the point. If Company X distributes under the GPLv3, they are bound by its terms. If Company X later enters into an agreement with Company Y, they need to make sure that they are complying with their obligations under the GPLv3 in that agreement, and that may include imposing conditions on Company Y. If they fail to do so, then they lose the right to dist
good new for MS users (Score:3, Insightful)
Aren't GPL3 patent changes aimed more at Novell? (Score:2)
Or did I miss something?
I'm still not affected (Score:2)
Microsoft would never be caught up in this anyway (Score:2)
Re:Microsoft would never be caught up in this anyw (Score:2)
Fill me in. I'm not up to date on this stuff.
The license as a sword for an opponent (Score:4, Insightful)
More of a shield than a sword (Score:2)
read the gpl! (Score:2)
What's the big deal ? (Score:2)
What does it say Microsoft would have to do, that Microsoft doesn't want to do ?
how absolutely silly this lawyer is,,,, (Score:2)
MS is certainly bound by it, in the event they use it.
There is no sort of entrapment as MS most certainly had the same opportunity to know what was developing with version 3 of the GPL as everybody else. Its not like t happened over night. It was a rather long process.
If there was an argument to be had, and there is not, that MS was being entrapped by this change then it could as well be argued that MS intentionally sought agreem
AUSSIE LAWYER HAS NOT READ THE BLEEDING GPL3! (Score:3, Informative)
Yes. That's correct. So what? WE ALREADY KNOW THIS. That's why the GPL3 contains THIS language: "You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a discriminatory patent license (a) in connection with copies of the covered work conveyed by you (or copies made from those copies), or (b) primarily for and in connection with specific products or compilations that contain the covered work, unless you entered into that arrangement, or that patent license was granted, prior to 28 March 2007."
Not only that, but the GPL3 doesn't actually cover any of the software that Novell is currently shipping... it's all GPL2.
The "great insight" here is that the GPLs can't do something that it explicitly does not try and do, regarding software it doesn't even cover!
Sheesh.
Re: (Score:2)
The real question is one of wheteher or n
Re:This may betray some sort of ignorance on my pa (Score:3, Funny)