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Microsoft States GPL3 Doesn't Apply to Them
Posted by
Zonk
on Fri Jul 06, 2007 09:52 AM
from the they-is-special-you-understand dept.
from the they-is-special-you-understand dept.
pilsner.urquell writes "Microsoft yesterday issued a statement proclaiming that it isn't bound by GPLv3. Groklaw has a very humorous rejoinder to the company's claim. From that article: 'They think they can so declare, like an emperor, and it becomes fiat. It's not so easy. I gather Microsoft's lawyers have begun to discern the GPL pickle they are in. In any case it won't be providing any support or updates or anything at all in connection with those toxic (to them) vouchers it distributed as part of the Novell deal ... These two -- I can't decide if it's an elaborate dance like a tango or more like those games where you place a cloth with numbers on the floor and you have to get into a pretzel with your hands and feet to touch all the right numbers. Whichever it is, Novell and Microsoft keep having to strike the oddest poses to try to get around the GPL. If they think this new announcement has succeeded, I believe they will find they are mistaken. In other words, not to put too fine a point on it, GPLv3 worked.'" EWeek has further analysis of this proclamation.
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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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Enlighten me... (Score:5, Insightful)
Re:Enlighten me... (Score:5, Insightful)
FTA -
I don't know all the details of this certificate deal with Novell, but it seems that Microsoft is just covering themselves by saying that their certificates don't cover GPL3, just software licensed under previous GPL's, but Novell is going to provide GPL3 software to Microsoft certificate customers anyway.
I can see issues brewing, but it's nothing like what the summary and headline on this story claim.
Parent
Re:Enlighten me... (Score:5, Informative)
I always thought the legal logic was a little weak, myself. However now that MS is publicly trying to retroactively change the meaning of already-distributed vouchers, I can only assume that their lawyers are actually afraid that this argument would stand up in court.
This statement by MS amuses me to no end, actually. It betrays how afraid they are of the growing power of Linux (in terms of both consumer acceptability and legal power).
Parent
Re:Enlighten me... (Score:5, Informative)
The GPLv3 contains explicit language which states (paraphrasing): "By distributing this software, you must also provide rights to use any patents you own which are in the software. If you do not extend this patent use, you are not allowed to distribute the code. Moreover, by distributing this software, you agree that this patent use right applies to anyone who might eventually get a copy of the code. That is, you extend a license to use the implicated patents to the community at large."
(Again, I'm paraphrasing this highly, the actual wording is much more precise.) Basically GPLv3 requires that anyone who distributes the software agree that they are distributing it without patent encumbrance. So when Novell distributes Linux (with GPLv3 code in it), it means that they are giving their users the assurance that they will not sue them for patent violations. So if MS were actually distributing GPLv3 code, then they could not sue Linux or Linux users for patent violations: they have given us a license to use their patents, as stipulated by the GPLv3. (If they claim otherwise, then they were in violation of the terms of the GPLv3 themselves, and can be sued for copyright infringement.)
Of course it really depends whether MS is actually "distributing" GPLv3 code.
People tend to forget that the GPLv2 had similar (but not as explicit) requirements: you were not allowed to distribute the software if there were patent restrictions. But the GPLv3 makes it much more explicit, and specifically states that patent rights are extended to the entire community (i.e. anyone who may eventually legitimately receive a copy of the code will have the rights extended to them).
Parent
Strict legalism isn't the most important thing (Score:5, Insightful)
The critical aspect of the vouchers controversy is not whether MS is definitely bound by the GPL to refrain from patent litigation against corporate Linux users;the critical aspect is, How does this affect the perceptions of the potential victims, er, customers? If you consider the potential for the voucher-and-GPLv3 combination to defuse MS' patent threats in any possible litigation, together with the refusal of most Linux distributors to play along with MS, the net FUD effect of MS' patent-threat campaign would seem to be significantly diminished. THAT, I submit, is the critical factor in this whole circus.
Parent
Re:Enlighten me... (Score:5, Informative)
Microsoft has bought Suse vouchers from Novell, and sold them to customers. The vouchers have no expiration date.
According to FSF lawyers, when someone hands one in for a copy of Suse, then at that moment Microsoft distributes that version of the software; if it contains GPLv3 code, then there you are.
See this Groklaw article [groklaw.net]. Eben Moglen knows copyright law.
Parent
Guess Again (Score:5, Informative)
Yes, you can. "GPLv2, or later"
You are (intentionally?) misrepresenting what the GPL says. If Microsoft distributes GPLv2 then ***Microsoft*** gets to choose if they are bound by GPLv2 or GPLv3. Example, I downloaded Apache back when it was covered by GPL2. I can make changes to it and distribute those changes under v2 or v3 if I want to. The people who made Apache cannot force me to upgrade to v3. However, now that v3 is out, Apache will be distributed under v3. If I now download Apache, I'm stuck in version 3.
So the answer to grandparent's question, "can MS be bound by GPL3 if they avoided using GPL3ed code" is that yes, MS avoids being bound by it. Basically they would have to never update linux - or fork it - but what they have right now is GPL2 and GPL2 it shall stay.
read GPL2 for yourself [gnu.org]
If the Program
specifies a version number of this License which applies to it and "any
later version", you have the option of following the terms and conditions
either of that version or of any later version published by the Free
Software Foundation. If the Program does not specify a version number of
this License, you may choose any version ever published by the Free Software
Foundation.
Parent
Re:Guess Again (Score:5, Insightful)
If Novell wants to update the bulk of the userland programs in SLES they will surely at some point need to embrace GPLv3. It's that or fork the v2 versions and maintain them on their own.
Parent
Re:Enlighten me... (Score:5, Informative)
The way I always understood it, using the "any later version" language is akin to saying "I beleive in free software, the FSF and I'm in it for the long haul".
Parent
Re:Enlighten me... (Score:5, Informative)
Software is not automatically subjected to GPLV3 with the default language of "or, at your option, any later version". All that means is that someone can choose to distribute a GPLV2 application with that language under either GPLV2 or GPLV3. It's each individual distributors choice.
Parent
Re:Enlighten me... (Score:5, Informative)
No, absolutely not! Any redistributor gets to choose. This is the language that MOST GPL 2 programs use:
The Linux kernel is DIFFERENT. Its terms are:
In the case of the Linux kernel, it started out from the beginning as GPLV2 only.
In the case of most every other GPL application, the redistributor gets to decide which version of the license that he is using.
Parent
Not from the beginning (Score:5, Informative)
No.
Linux 0.01 was distributed under the following license:
This kernel is (C) 1991 Linus Torvalds, but all or part of it may be redistributed provided you do the following:
- Full source must be available (and free), if not with the distribution then at least on asking for it.
- Copyright notices must be intact. (In fact, if you distribute only parts of it you may have to add copyrights, as there aren't (C)'s in all files.) Small partial excerpts may be copied without bothering with copyrights.
- You may not distibute this for a fee, not even "handling" costs.
The Linux 0.12 release notes said:
The Linux 0.95 release notes said:
Linux-0.95 is NOT public domain software, but is copyrighted by me. The copyright conditions are the same as those imposed by the GNU copyleft: get a copy of the GNU copyleft at any major ftp-site (if it carries linux, it probably carries a lot of GNU software anyway, and they all contain the copyright).
The copyleft is pretty detailed, but it mostly just means that you may freely copy linux for your own use, and redistribute all/parts of it, as long as you make source available (not necessarily in the same distribution, but you make it clear how people can get it for nothing more than copying costs). Any changes you make that you distribute will also automatically fall under the GNU copyleft.
NOTE! The linux unistd library-functions (the low-level interface to linux: system calls etc) are excempt from the copyright - you may use them as you wish, and using those in your binary files won't mean that your files are automatically under the GNU copyleft. This concerns /only/ the unistd-library and those (few) other library functions I have
written: most of the rest of the library has it's own copyrights (or is
public domain). See the library sources for details of those.
Linux 0.99.2 was the first version that actually included the GPLv2 COPYING file.
Until Linux 2.4.0-test8 was released, no particular version of the GPL was actually specified for the kernel as a whole*, although it was clear that GPLv2 applied. Section 9 of GPLv2 states:
9. The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns.
Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation.
The copyright status of Linux is a little more complex than most people would like (and than some people would like to believe.)
Footnote:
* This isn't true for individual files. To this day, some files in Linux are explicitly 'v2 or later', some are 'v2 only', some are BSD-licensed, etc. The only common thing is that (except for some disputed firmware files) they are all GPLv2-compatible.
Parent
Re:Enlighten me... (Score:5, Informative)
Parent
I am not a lawyer, but: (Score:5, Insightful)
MS have not distributed GPL3 code, no matter how much we would like them to have. They have offered a covenant not to sue Novell's customers, and vouchers offering support for Novell's product. This is very different. None of this makes MS a party to the GPL because MS do not need any kind of license or copyright provision just to say "I won't sue Joe Bloggs, and I'll help him with his technical issues". No matter what the FooBarSpecialLicense attached to the product Joe Bloggs happens to own says!
(And if you think otherwise ask yourself this: what part of copyright law would MS have broken by saying "I'm happy to assist with Joe's problem but I don't agree to your license agreement"? On what grounds could you sue them? Or if they say "Mr Novell, if you sell Joe a copy of product X, I'm happy to talk to him about any problems he has with it; but I don't agree to your license agreement" What would you sue them for? If there is no potential copyright breach, there is no license.)
What the Novell-MS deal could have impinged on was Novell's right to distribute SUSE at all. If they were unable to offer the equal patent cover required by the GPL (and clearly they are unable to extend Microsoft's offer of patent protection to non-customers without Microsoft's consent), then they would have been unable to meet the terms of the GPL3 and thus unable to legally distribute the software. Except that Eben Moglen kindly gave them a get-out clause at the end of paragraph 11 of the GPL.
In most countries, as I understand it, even if Novell hadn't been given a get-out clause, the only result would have been the Novell-MS deal being "frustrated". "Frustration" is where an unforseen circumstance prevents a contract from being possible to fulfill. This appears to me to have happened. An unforseen change (the FSF deliberately altering the GPL licensing terms to affect the deal) would have prevented Novell from being able to fulfill its end of the Novell-MS deal. It wouldn't have been able to distribute SUSE under GPL3 because it couldn't extend MS's patent provisions beyond what MS offered in the initial contract without asking MS first. Thus the Novell-MS deal would get terminated, and there might have been a little wrangle about "reasonable recompense for the services provided". (Novell would need to go along to a court to get the contract declared frustrated, however.)
But with the get-out clause in para 11, even that won't happen.
All up, Eben Moglen's grand plan doesn't seem to amount to a hill of beans.
Disclaimer: Once again, this isn't legal advice. It is based on an engineer's shaky memory of engineering law lectures, and has the potential of being utterly wrong.
Parent
Re:Enlighten me... (Score:5, Informative)
No they can't.
This isn't about code that MS has used. It's about the patents Microsoft has been threatening FOSS with.
- Microsoft is distributing certificates entitling their customers to support and updates to SUSE Linux Enterprise Server.
- When Microsoft customers who're entitled to updates on their SUSE Linux Enterprise Server installs get GPL3 updates, Microsoft will have distributed GPL3 code.
- GPL3 includes patent defenses which prevent a distributor suing for patent infringement in the software they're distributing.
The result of this nice little combo is that Microsoft has accidentally indemnified all Linux users against their own patent threats.Of course, since Microsoft has always said they only intend to use their patents defensively, they should have no problem with this interpretation of the situation, just accept it, get on with business, and stop the 235 patent FUD.
They're not doing that, instead they're dancing a two-step with Novell where Microsoft says they won't support their customers with GPL3 code. That would potentially leave them open to lawsuits for breach of contract, but Novell has stepped up to the plate and said they will support Microsoft customers with GPL3 updates, even if MS disavows it.
That's why PJ and others are so light-hearted about this. It's shown just how scanty the emperor's new suit is, and how complicit Novell is in it's ties to Microsoft's FUD.
Parent
I hereby declare... (Score:5, Funny)
Turnabout is fair play... (Score:5, Funny)
Has it ever been tested? (Score:4, Interesting)
Serious question here:
Has there been any successful court action enforcing any version of the GPL?
Not settlements. I'm talking about an instance where a court in the U.S. has upheld GPL against a violator.
Re:Has it ever been tested? (Score:5, Informative)
Parent
Re:Has it ever been tested? (Score:5, Insightful)
Jesus Tapdancing Christ, please read the fine article:
The GPL wasn't ruled on. It's never been tested by an actual ruling in the United States. Personally I think that GPL2 is a completely valid and applicable license (i.e. it terminates if it's breached, leaving you violating copyright), but there's no case law to directly support that, and all the wishing in the world won't make it otherwise.
Parent
Re:Has it ever been tested? (Score:5, Informative)
No. There have been cases of infringement, but a case has never been necessary - some diplomatic talk by a FSF lawyer has always been enough to let infringers see the error of their ways.
There's no real need to "uphold" the GPL, it is utterly rock solid. Anybody is free to choose whether they want to accept its terms or not, if you accept it only gives you extra options you didn't previously have (like being allowed to distribute software that contains other people's GPL code, under the GPL).
The bite is: if you don't accept the GPL, then you have no license to the software at all, and default copyright law situation applies - you're not allowed to modify or distribute software relying on GPL'ed parts at all!
Fighting the GPL would mean arguing that you voluntarily accepted its terms (how else did you get the right to modify / distribute), got extra options without any payment or anything in return - but still you're not actually bound by those terms. Good luck.
Parent
Re:Has it ever been tested? (Score:5, Informative)
By default, under copyright law, you DO NOT have the right to copy/modify/distribute someone else's code. If the GPL is invalid, or you don't fully accept its terms, then if you copy/modify/distribute code that was licensed to you only under the GPL, then you are violating copyright law. (Which no one on the proprietary side of the camp is going to do anything to weaken)
The only way anyone gets the right to copy/modify/distribute code that was licenses under the GPL is by accepting the terms of the GPL. And from there its simple contract law.
Parent
Re:Has it ever been tested? (Score:5, Insightful)
If you want to distribute code, you need a license, or you are in violation of copyright law. So if the GPL is invalid, you don't have a license, since the GPL is the only thing giving you such a license to begin with. This simple logic has kept the GPL out of the courts, since (except for SCO) lawyers and the people that pay for them generally do not like unwinnable cases.
This current matter with Microsoft and the GPL3 is a completely separate issue, though. Microsoft aren't directly distributing code; they are just handing out vouchers for said code (or will be, if they continue handing out vouchers after Novell starts to distribute GPL3 code - which will be soon). That is Microsoft's defense - they aren't distributing the code themselves. Yet, if a major lawsuit should ensue between Microsoft and a Linux vendor, the issue may arise nonetheless: Even if Microsoft are not distributing the code, they are helping a partner to distribute it. This implies that they are tacitly not contesting certain claims in that code, or that the basic business model implied by that code is not seen as illegitimate by Microsoft. I am sure the lawyers can argue this for a few years.
Parent
Twister (Score:5, Funny)
That's the most bass-ackwards mangling of Twister I've ever heard. Didn't these people have childhoods!?
Wait a second (Score:5, Informative)
The core of Linux, for example, is pretty much guaranteed to stay at GPLv2 (not just for "Linus didn't like it" reasons, but also pretty big logistical issues like "getting every copyright holder to agree on the change").
I'm guessing the bits and pieces that make up any distro will gradually contain more and more GPLv3 software -- then they basically have to deal with it (accept the v3 license to redistribute those parts, or not accept it and NOT distribute the new versions of that software).
If they (or anyone) wants to fork software based on the last GPLv2 version and maintain the fork themselves, they're welcome to, of course.
But are they even distributing at all? Can someone clarify the certificate thing for me?