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Lawyer Thinks Microsoft Can Evade GPL 3 266

Posted by Zonk 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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Lawyer Thinks Microsoft Can Evade GPL 3 More

Lawyer Thinks Microsoft Can Evade GPL 3

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  • A lawywer will tell you anything is possible. (Score:4, Informative)

    by cs02rm0 ( 654673 ) on Saturday August 04, 2007 @01:41PM (#20114351)
    For a fee

    • Exactly. (Score:5, Informative)

      by khasim ( 1285 ) <brandioch.conner@gmail.com> on Saturday August 04, 2007 @02:01PM (#20114531)
      IANAL ... but the GPLv3 is a LICENSE not a CONTRACT.

      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.
      • Clearly YANAL. If you were, you'd know that a software license (like GPLv3) is a type of contract.

        • wrong (Score:2)

          by doug ( 926 )
          A license is not a type of contract, at least not in the USA. I'm not sure where you've gotten your legal training, but it doesn't apply here. If you live in a different country with a different legal tradition, you statement might be correct. I can't comment on that.

          Here in the US, if you don't sign something, it isn't a contract (yes, dramatically simplified). A contract is a legal agreement between two or more parties. Each side agrees to do (or not do) certain things and legally bind themselves to

          • Re: (Score:2)

            by nomadic ( 141991 )
            Here in the US, if you don't sign something, it isn't a contract (yes, dramatically simplified).

            That's absolutely wrong. A contract means, basically, a legally enforceable agreement. It can be oral or written, express or implied.

          • You have to follow the rules of the GPL

            "The GPL" doesn't exist. It's GPLV2 or GPLV3—two different licenses that happen to have similar names and were both developed by the Wil E. Coyote of the software world.

            Microsoft appears to be involved in distributing software that includes code encumbered with GPLV2 and appears to have complied with that license. This in no way binds them to anything in GPLV3 and, in fact, they have said clearly that they will not have anything to do with code licensed with

          • Here in the US, if you don't sign something, it isn't a contract (yes, dramatically simplified)

            Dramatically simplified to the point of having little connection with the law. For starters, just consider the effects of promissory estoppel. The vast majority of legal contracts in the US do not involve a signature.

            Go visit http://www.groklaw.net/ [groklaw.net] if you want to research the differences between contracts and licenses. It has lots of the basics, and targets the geek community

            Groklaw often has great legal adv

      • 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.

        Microsoft isn't re-distributing the software. They are giving out certificates that were bought from Novell. The way the press releases are worded, it sounds like they received a batch of N certificates.

        And if by some big stretch someone argues that distributing a certificate that is redeemable at another company for a copy of software cou

  • Beancounters do not consult court verdicts (Score:3, Interesting)

    by jkrise ( 535370 ) on Saturday August 04, 2007 @01:46PM (#20114387) Journal
    And so while Microsoft might well get away in a court battle, the market has already made up it's mind when MS made it clear they will have nothing to do with GPL3. While existing customers might not implicate MS into GPL3 obligations; they may not have ANY future customers. And so, it is still a win for the FSF, without any need to go in to court.

  • Uhhh... so? (Score:3, Informative)

    by Anonymous Coward on Saturday August 04, 2007 @01:49PM (#20114409)

    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)

      by Anonymous Coward
      Regardless of the FSF's intent, this whole GPLv3 episode has been very disruptive within the OSS community.

      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)

      by physicsnick ( 1031656 ) on Saturday August 04, 2007 @02:22PM (#20114667)
      Exactly. The point was not to punish Novell and MS, but to stop it from happening again. It would be very chilling for the spread of the GPLv3 if the FSF set a precedent of retroactively damaging companies who fully abide by the letter of the GPL, but do things the FSF considers to be immoral.
      • No, the point was to punish novell. This is clear with the public statements made at the time it was happening by RMS and people around him including Perrens and such. There was even a discussion at the FSF involved in letting the community decide whether to exclude Novell or not by changing the effective dates.

        And it is interesting that you think "It would be very chilling for the spread of the GPLv3 if the FSF set a precedent of retroactively damaging companies who fully abide by the letter of the GPL, bu
    • Could the FSF possibly have done better than they did?

      I'm not sure we'd want them to have it retroactively apply, but for her to say "it's not going to be an effective strategy" sort of implies that there might be an effective strategy somewhere.

  • Car Analogy (Score:5, Funny)

    by An Anonymous Coward ( 236011 ) on Saturday August 04, 2007 @01:50PM (#20114419)

    She said: "An easy analogy is a car park with a sign that says you are bound to a given contract if you enter into that car park. Anybody can enter, but you have to accept the terms, and the signal of you accepting those terms is when you enter. You have to do something positive to accept the terms - you have to act."
    That lawyer obviously reads Slashdot, she went straight for the largely irrelevant car analogy.
  • Seems to me this is a lot like the software security situation. Virus makers make a virus. It gets fingerprinted and blocked. The virus maker evolves the virus around the AV software and the game continues indefinitely.

    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
    • I wonder how they picked September 15th?

      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)

    by jfclavette ( 961511 ) on Saturday August 04, 2007 @01:52PM (#20114443)
    Please. It would be a horrible, horrible legal precedent for a party to be bound by a license which was changed after the agreement, even if there's the 'or any later version' bit in the text of said license. I mean, could the FSF just add "The blood of their first born child should also be splattered over a paper copy of the source code." ?

    • 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:2)

      by neomunk ( 913773 )
      Oh, no. See, you're forgetting something.... Many of you are actually...

      The GPLv2 has a clause in it (a clause AGREED to apparently) that lets the author upgrade the license at will to a greater version of the GPL, like, say, some GPLv3 that might come along some day.

      It's in the license they agreed to, there's nothing 'retroactive' about this switch to GPLv3, it's stated right in the text, this isn't some inference from some archaic legal concept.

      They are UNDENIABLY bound to the GPLv2, even the part that b

      • Re: (Score:3, Insightful)

        by mce ( 509 )
        Sorry, but you need to go back to law school (or to reading comprehension class). They are bound to v2, but v2 does not at all imply v3. If they don't like v3, they just keep using v2. If a package author changes his or her distribution license to v3 (or later), this does not affect copies previousy distributed under other licneses in any way. Not even if there is not a single other change in the package.

        • Re: (Score:2)

          by neomunk ( 913773 )
          right, but any and all further versions (and all new code therein) are bound by the NEW license, right? So no updates without a license update, right? Or am I mistaken...

          I think I might be wrong in my assumption about MS's problem here. I know that GPL2 code doesn't automagically turn into GPL3 code until it's redistributed as such, I though the problem was with new GPL3 code being implemented, like in package updates.

    • Re: (Score:2, Informative)

      by slashqwerty ( 1099091 )
      Microsoft entered into a contract with Novell. They allowed Novell to distribute software that utilizes Microsoft patents and to do so with software licensed under the GPL. This included software licensed under GPLv2 or any later version. Microsoft had already had access to draft versions of GPLv3 which clearly had patent restrictions on it. They were well aware of what GPLv3 had in store.

      The Microsoft-Novell contract has not been made public so I don't know exactly what it says. However, Eben Moglan

      • owever, Eben Moglan (lawyer and one of the key architects of the GPL) has read it and he says Microsoft is bound by GPLv3.

        I'm not sure I would put all that much stock into what he says. Besides the fact that he is biased and pushing a particular point of view, you can see some of his work in the GPLv3 and frankly it is sketchy at best.

        The GPLv3 license doesn't do what ti claims to do except in a very limited set if circumstances. In most cases, it doesn't do much more then the GPLv2 did yet it attempts t

    • This idea that the GPL3 is designed to attack any existing deals is a fabrication. I don't know if the person who posted this article is incompetent to practice law or trying to FUD the GPL... but if even someone like me who thinks we'd be better off without the GPL can see through it, it's pretty poor FUD.

    • Re: (Score:3, Insightful)

      by kgp ( 172015 )
      Please keep up at the back.

      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

  • Courts will reject ambush tactics (Score:3, Insightful)

    by Courageous ( 228506 ) on Saturday August 04, 2007 @01:55PM (#20114497)
    I find the whole "Look at all these clever circumstances in our new GPL3 situation that means that we've fucked M$ good an proper" just to be amusing. The Courts uniformly reject these sorts of attempts to ambush someone by contract into unintended consequences. Will never be upheld. The idea fails on not just one but many doctrines of contract interpretation. You can forget it.

    C//

    • ...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


      • 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//

        • Re: (Score:2)

          by jbengt ( 874751 )
          The sale of vouchers for Novell software is conveying and/or propagating the software, and under US law may be considered as distribution. There's a good chance that MS has already, under GPL2, waived their right to sue Gnu/Linux users over patents covering Gnu/Linux.
  • Most slashdot readers would agree that evil lawyering is... well, evil. It's bad to get people bound to something they didn't actually agree to. Frequently we hear about scummy cellphone or cable operators pulling something like this.

    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
    • I agree that GPLv3 applying to Microsoft's past actions is a perverse legal theory, and from what I've seen I think the majority /. posters do as well. Where this has a lot of support is Groklaw, where PJ herself is the chief cheerleader. People there with arguments similar to the ones in the article are labeled as MS shills.

      The power of wishful thinking is stronger than I ever imagined.

      • Re: (Score:2)

        by Trillan ( 597339 )
        Yes, I think I allowed the submitter's spin on the story to color my perception of other peoples' reactions.
    • I really don't get this position of yours. The FSF hasn't done anything to Microsoft. Novell has. Microsoft entered into a deal with Novell which in light of recent license changes is clearly unfair. Microsoft can renegotiate the deal with Novell.
      The deal with Novell was that Microsoft would distribute and indemnify Novells customers in return for cash + a other less relevant terms. Now the contract effectively stipulates that Microsoft must give away licenses to their patents. The Novell-Microsoft deal is
    • GPL3 explicitly recognizes this situation and exempts deals in force before the GPL3 was released.
  • From the GPLv3, the wording meant to stop Microsoft-Novel deals is:

    ...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

    • Even if that would work, do you think msft wants to give their patents away? Not long ago, a patent troll that owned a tiny part, of a part, of a process sued msft for $1.5B. Msft would be taking one helluva chance giving their patents away.

      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.

      • 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)

    by d34thm0nk3y ( 653414 ) on Saturday August 04, 2007 @01:59PM (#20114521)
    I can't even figure out what they are trying to say with this article.

    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]
    • She (Kay Lam-Beattie, principal with intellectual property lawyers Idealaw [legalcapital.com.au]) comes to the same conclusion:

      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

    • Sure the GPLv3 does not apply to Microsoft unless they distribute software that is licensed under it. The purpose of the new patent clauses were never intended to directly hamper someone like Microsoft, but rather prevent someone like Novell from making similar deals in the future. Now it may or may not do a good job at that, but the article didn't even get into that issue, instead pointing out a bunch of facts that are both irrelevant and well known to those who followed the GPLv3 drafting process. Pretty
    • Microsoft does distribute and will presumably continue to distribute GPL'd software. They provide their customers with the GNU toolchain among other things.

      They've been very good Free Software citizens all things considered, of course they're not a Free Software company like Red Hat, but they use, and abide by the terms of the GNU GPL, they provide the source code for the covered software on an open FTP site for anyone to download and they've always been very open about it. Of course the Microsoft VPs talki
  • I may just be forgetting the facts, but I thought that the final revision was altered in such a way to not retroactive punish the ms/novell deal? Wasn't it designed to keep them from entering any others and to take effect once SLED integrated GPL3 code but not n the current GPL2 codebase?
  • Of course, Microsoft/Novell don't have to worry about this because prior agreements are explicitly exempted.

    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)

    by fermion ( 181285 ) on Saturday August 04, 2007 @02:11PM (#20114593) Homepage Journal
    For instance, if the terms of a credit card is changed, I believe one has the opportunity to cancel the card and continue to pay off the debt. So I can see that if MS and Novel never using new software that uses the GPL3, and never having to worry about the GPLV3. What I do not see is how MS can demand that the are allowed to interact with current software and not be under the current license. That would be like saying that MS users can never be under a licensee more restrictive than the first one agreed to upon initial use fo the software.
    • The problem is that under the GPLv2, no permission was needed to do anything with the software except in distributing it, parts of it, or product built from it. Now, under the GPLv3, they changed that to include the act of conveying it which is more then that.

      Now, all microsoft's actions were from before the GPLv3 came around. If novell changes something that has a restrictive license, Microsoft would have to do something to be bound by that license. Under the current deal, their support and access to updat

      • Re: (Score:2)

        by jbengt ( 874751 )
        Selling coupons for those wishing to license Novell/Suse software may indeed be considered distribution under US law. Do you think Microsoft would want to test this in court by suing Gnu/Linux users over patents that might or might not be held valid, or do you think they'd rather let the current confused atmosphere of FUD contintue?
  • Uh, I thought that the patent provisions in GPL3 were more to do with preventing the Novell side of the deal happening - Novell is effectively prohibited from entering it's side of the bargain. After all, they're the one distributing other people's GPL3'd code.

    Or did I miss something?
  • Microsoft doesn't have to have anything to do with Linux for me to use it, so regardless of what they do I'm not even affected. That's the beauty of using Linux!
  • ...unless they distributed GPLv3 software themselves. Whatever Novell does or doesn't do can't bind Microsoft. A voucher to get software from Novell isn't distribution by Microsoft. The ones that could get stuck in the middle is Novell, if a court finds that it can't simultaniously satisfy the GPLv3 and its agreement with Microsoft. That would force Novell to refrain from distributing at all, which would practicly be a death sentence.

  • The license as a sword for an opponent (Score:4, Insightful)

    by icepick72 ( 834363 ) on Saturday August 04, 2007 @02:59PM (#20114921)
    It sounds like some people are intending to use the GPL3 to target Microsoft. As soon as the GPL becomes a tactic rather than a license you're playing a stupid game. Then you have to start writing into it piece to try to blunt everything else every other company comes up with that is not desirable. It's a losing game because it's never ending.
  • These lawyers act like they haven't read the damn gplv2 and v3. Its VERY clear that any customer that wants to use the gplv3 license *instead of* the gplv2 has that right-- and it was granted in gplv2.
    • It was only granted in limited circumstances and the original author has the ability to deny letting it move to a later version when the project starts. After that, it would take all contributing copyright holders to make the switch or deny the switch. In the case of turning it isn't a GPLv2 only project, anything released before the switch can be changed.
  • I read through the GPLV3 & it looks like just about any other license, what's so different about V3 that it would be such a large problem for Microsoft ?

    What does it say Microsoft would have to do, that Microsoft doesn't want to do ?
  • its a license. Acceptance is done by using the software, distributing it, etc..

    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
  • The "leading IP lawyer in Australia" has obviously not actually studied the document:

    "'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.'"
    That is: Microsoft's *existing* agreement is immune to the GPL3 because it took place before the GPL3 was finalized.

    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.
  • And in these courts there are people with jobs and they are called "lawyers". Each "Lawyer" puts forth a view contrary to their opponents.....
  • I find it hard to believe that this "leading lawyer" from Australia is competent to make proclamations any important jurisdictions, such as any state of the United States (especially Louisiana, yikes), where most of these companies headquarter and do business. The U.S. lawyers are wisely keeping their mouths shut pending actual litigation that would provide a real case to evauluate, I should think. They have reputations to worry about, after all.

    Besides, I thought the GPLv3 already exempted the MS-Novell de

  • As Novell puts out future versions of SUSE, they will incorporate GPL 3 software into their OS. If MS then distributes this GPL 3 software, they would be bound by the license just like anyone else.

    From articles on Slashdot over the last year or so, my understanding is that the Novell certificates MS was selling did not have an expiration date, making it possible for someone to redeem them after SUSE has been injected with GPL 3 code, thus pwning MS with the greatest pwning in the entire history of pwnage.

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