Microsoft States GPL3 Doesn't Apply to Them

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.

Enlighten me...

How can MS be bound by GPL3 if they avoided using GPL3ed code after June 29? Can you write code that is licensed by future versions of GPL? Wouldn't that make it dangerous for someone to use the code in case they do not like the future version? Sorry for the ignorance Cheers!

Re:Enlighten me...

What happens if the rules are completely rewritten to say that you are not allowed to distribute GPLvX code at all? I know that's not going to happen, but it's a little strange to indefinitely subscribe to a policy that could change at any time into something you may not agree with?

Re:Enlighten me...

As a developer you do not have to use the "Or any later version" language. You can simply reference the version you want your software to be distributed under. IIRC this how the GPLv2 is applied to the Linux kernel. Thus it will not automatically be subjected to GPLv3 unless the developers make a consious decision to move to it.

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".

Re:Enlighten me...

Thus it will not automatically be subjected to GPLv3 unless the developers make a consious decision to move to it.

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.

Re:Enlighten me...

To make it even clearer, only the authors (not just any old distributor) of the work can exercise the option to distribute it under a later version of the license, and all the authors have to agree on it. For example, I can't download a GPLv2 linux kernel, add a couple of lines of new code, and then redistribute the whole thing under GPLv3.

No, absolutely not! Any redistributor gets to choose. This is the language that MOST GPL 2 programs use:

This program is free software; you can redistribute it and/or modify
it under the terms of the GNU General Public License as published by
the Free Software Foundation; either version 2 of the License, or
(at your option) any later version.

The Linux kernel is DIFFERENT. Its terms are:

NOTE! This copyright does *not* cover user programs that use kernel
  services by normal system calls - this is merely considered normal use
  of the kernel, and does *not* fall under the heading of "derived work".
  Also note that the GPL below is copyrighted by the Free Software
  Foundation, but the instance of code that it refers to (the Linux
  kernel) is copyrighted by me and others who actually wrote it.

  Also note that the only valid version of the GPL as far as the kernel
  is concerned is _this_ particular version of the license (ie v2, not
  v2.2 or v3.x or whatever), unless explicitly otherwise stated.

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.

Not from the beginning

In the case of the Linux kernel, it started out from the beginning as GPLV2 only.

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 copyright will change: I've had a couple of requests to make it compatible with the GNU copyleft, removing the "you may not distribute it for money" condition. I agree. I propose that the copyright be changed so that it confirms to GNU - pending approval of the persons who have helped write code. I assume this is going to be no problem for anybody: If you have grievances ("I wrote that code assuming the copyright would stay the same") mail me. Otherwise The GNU copyleft takes effect as of the first of February. If you do not know the gist of the GNU copyright - read it.

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 onl

Re:Enlighten me...

Notice that, in your example, MS cannot change the license on the code it did not write. The very worst that can happen is that people who want to use and/or distribute the code MS added, need to respect the Evil GPLv4 license MS stamped on its own code. Well, that's 100% independent of the GPL and even if the GPL did not exist, people would still have to accept whatever license MS wants to impose if they want to use and/or distribute code that MS wrote.

Re:Enlighten me...

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".

No it's just stupid. Lets assume for now that the FSF aren't going to make fundamental changes to the way the GPL works. Tomorrow they could go bankrupt and the arbitrator would sell their IP rights to the highest bidder, potentially MS. At that point MS can make GPLv4 and allow themselves to use all the GPLv2 or later code without respecting freedom.

Unless they radically change the way they operate, the FSF can't go bankrupt because it doesn't carry any debt. Further, I believe that the GPL trademarks and copyrights are retained by RMS personally and he would have to have a *very* radical change of lifestyle to be in any danger of bankruptcy. He lives very cheaply, doesn't own a house, a car or a mobile phone, and doesn't borrow money for any purpose.

The situation you describe isn't impossible, but it's very, very unlikely. It's far more likely that ongoing updates to the GPL will continue on an as-needed basis in an effort to continue maintaining the four freedoms. Anything can happen, but I think the odds are that software developers who believe in the four freedoms are best served by the "or later" language.

Re:Enlighten me...

So basically, when you use GPLed code, you have to agree to anything that gets put in there or risk losing the right to use that code?

That's how licensing works (and M$ should know this better than anyone). You are bound to the provisions (as long as its lawful of course). If they didn't want to agree to the GPL, they shouldn't have used the code. Reinventing the wheel takes time, effort, and money. Microsoft decided against it, now they are stuck. Of course Microsoft can try and take the GPL to court to see if it's lawful or not, but that would be a long battle that would probably just ending up costing Microsoft a lot more money.

I mean, what if GPLv4 says you ought to reveal the context in which the GPLed code is being used?

Assuming that the context isn't GPL'd as well, then this is an example of a provision that would be unlawful (and hence invalidate the license), so things like this won't be included in the license. A license can't apply to original works unless the author chooses it to.

Seems like a bad decision by MS and now they're complaining when caught with their hands stuck in the ooze in the OSS jar (I like that analogy, however inaccurate it may be)

They are a big company and will most likely find a way out (probably by completely rewriting the code) but it's good to see that they are at least sweating it.

I am not a lawyer, but:

There's a very big false assumption that everybody seems to be making here. I am, of course, not a lawyer (so this is not legal advice).

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.

Re:Enlighten me...

They are a big company and will most likely find a way out (probably by completely rewriting the code)

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.

Re:Enlighten me...

Actually I think they are asking if you could release code as "GPLv3 only" before the GPLv3 was published.

"GPLv2, or later" allows anybody, MS included, to chose "GPLv2" and ignore anything written in the GPLv3 license.

IANAL, but my guess is releasing your code as GPLv4 only would be the same thing as not releasing it till the GPLv4 was published.

The current conversation is based on the (highly likely) premise that Novel will put GPLv3 code in SUSE before MS shifts all their licenses. This is speculation but it is almost guaranteed given the amount of SUSE userland owned by the FSF.

Guess Again

Re: How can MS be bound by GPL3 if they avoided using GPL3ed code after June 29?
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.

Re:Guess Again

I don't think it's the Linux Kernel MS has to worry about anytime soon. It's the hundreds of programs in a default SLES installation that are owned by the FSF. They will surely be released as GPLv3 very soon now.

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.

Re:Guess Again

Correct me if I'm wrong, but doesn't Apache have its own license agreement and doesn't use GPL?

Yep, you are correct. All software from the ASF uses the Apache License, Version 2.0. http://www.apache.org/licenses/LICENSE-2.0 [apache.org]

IIRC, their whole raison d'etre is because they don't like the limitations of the GPL with respect to commercial software.

Re:Guess Again...... NOT!

"but what they have right now is GPL2 and GPL2 it shall stay."

This is a flawed assumption. Microsoft has inadvertently relinquished all say in WHICH version is distributed in their name, that lies in the domain of Novell who have jumped on this and said (likely to ingratiate themselves back into the open source community) that they will only distribute the most up to date version of SUSE regardless of whether it has GPL3 OR GPL2 code. This is what Microsoft is dreading and can do nothing about since they never stipulated in the patent covenant agreement which code they were giving covenant protection for, only that it was Suse enterprise linux. This is why Microsoft has turned pale and are trying to turn themselves inside out to vainly free themselves of this hideous situation they have gotten themselves into, and hideous indeed it is. Novell is not playing the puppet on this one and aren't doing what they are told (nor do they need to either since it isn't in their agreement).

Novell will provide versions of SUSE with GPL3 code to any person that shows a voucher branded with microsoft's consent to "distribute" a copy, the covenant protections of the microsoft/novell agreement AND the gpl3 terms of distribution will flow to the reciever, and then to any other person that the copy of SUSE is distributed to. Microsoft can do NOTHING about this, they've already done the hard work and passed out the vouchers, thousands and thousands of them, they have "distributed" SUSE linux to the masses essentially (with no expiry date I might add) which is stipulated in their agreement (in other words they MUST pass out all the vouchers according to their agreement with Novell), now all one has to do is wait for the Novell to integrate new GPL3 licensed code, which they have said they will do, show your shiny voucher, smile, pick up you shiny new novell cds/dvd and load the distro onto bittorrent, then laugh evilly as all of microsoft's carefully calculated effort goes up in smoke. This has essentially undone a decade of patent hoarding and scheming to put linux and all gpl code into microsoft's pocket. If it were not true then you wouldn't hear microsoft screaming so loudly that it isn't.

Re:Enlighten me...

You're right. The article summary is very misleading.

FTA -

But, to avoid any doubt or legal debate on this issue, Microsoft decided not to have those SLES (SUSE Linux Enterprise Server) certificates cover support or updates of any code licensed under GPLv3. "We will closely study the situation and decide whether to expand the scope of the certificates in the future," Gutierrez said. Regardless of the Microsoft change to those certificates, Novell will continue to distribute SLES with its full set of functionality and features, including those components that are licensed under GPLv3, said Bruce Lowry, a Novell spokesperson.

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.

Re:Enlighten me...

The argument was being made that because MS was distributing "vouchers" for GPL-software, they would be considered distributors of GPL software, hence bound by the distribution terms of the GPL. Since the vouchers had no "expiry date" on them, the argument was made that if someone cashes in their voucher after Novell releases a version that includes GPLv3, then MS is, by association through the voucher, distributing GPLv3 code and hence bound by that license.

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).

Re:Enlighten me...

I have to ask this to make sure we all completely understand, but so what if MS distributes a Linux distro under the GPL? I mean, what do they care? The argument has gone on so long that I'm forgetting why it's so funny that MS has done this.

You're right... we have to remind ourselves why this matters.

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).

Strict legalism isn't the most important thing

While it's useful to know the exact legal status of the vouchers and GPLv3 implications, let's not lose sight of the more important issue here. This whole MS-Novell agreement was, on MS' part (and, IMHO, that's all that matters here; Novell's motives are very secondary), intended to frighten users away from "wild" versions of Linux through the phantasm of patent litigation, and corral them into using only versions distributed by MS "partners," either in order to extract a Microsoft tax or generally suppress Linux adoption.

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.

Re:Enlighten me...

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.

I hereby declare...

...that tax laws don't apply to me. Oh, and those pesky laws about parking and speeding, too.

kooky is as kooky does

No, no-one has ever suggested that GPLv3 somehow permits the unauthorized distribution of proprietary software. This is your own kooky reading of the debate.

What has been claimed is that by participating in the distribution of GPLv3 programs via the SUSE certificates, MS will be forced to comply with GPLv3 with respect to the software *in the SUSE distribution*. If true, this means that they forfeit their right to sue anyone, whether or not they are using SUSE, over any patents they claim are violated by the GPLv3 software that MS distributes.

I can't comment on whether or not this interpretation will hold up in court, and of course SUSE doesn't include any GPLv3 code *yet*. But your suggestion that RMS is somehow hoping to use GPLv3 to gain access to MS software is just plain wrong.

yp.

Turnabout is fair play...

So I guess Microsoft's EULA does not apply either?

Has it ever been tested?

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?

A quick Google search [groklaw.net] revealed that yes, it has gone to court and won.

Re:Has it ever been tested?

Jesus Tapdancing Christ, please read the fine article:

the only real ruling that has been made in the case is a discovery ruling by Magistrate Judge Paul Komives, permitting DrewTech to take the deposition of a third-party witness.

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.

Re:Has it ever been tested?

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.

Re:Has it ever been tested?

The 'Shinkwrap' EULA's try to take away rights that you already have, without giving you any rights that you didnt already have.

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.

Re:Has it ever been tested?

Has there been any successful court action enforcing any version of the GPL?

The point is that the GPL is so obviously-enforceable, that there is no need to test it.

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.

Re:Has it ever been tested?

Boy, I can tell you're not a lawyer. Unless it's been ajudicated in a court of law, it doesn't count.

Every IP lawyer I know (and I know several) advises their clients to stay away from writing or contributing to GPL projects, especially if the client sells closed source products as well. If their client's business model revolves around selling services based on those GPL projects, it's probably ok, but if the any part of the client's business model involves selling licenses to software products, it's not clear how wide the GPL can spread.

Let me give you a hypothetical example. Consider an open source product that has a plugin model (could be Gimp, could be Firefox, whatever). In order to write a plugin for that product, I need to include a GPLed header that describes the plugin interface. By including that header, does it mean that I'm required to open source my plugin?

The answer is that nobody knows, because it's never been adjudicated. Lawyers have opinions about it, but until a judge has ruled on it, they're just opinions[1].

Given that nobody knows, if there's important intellectual property behind that plugin (maybe it's a 3d rendering algorithm, some nifty DSP for audio, whatever), any competent lawyer would advise their client to stay away from authoring that plugin - it's safer to stick with products that have non viral licenses, otherwise you run the risk of being forced to open source your entire product just because you included a public header.

[1]To a lawer, an "opinion" is a statement of their understanding of the law (whereas an "opinion" to a lay person is a statement of belief).

Re:Has it ever been tested?

Every IP lawyer I know (and I know several) advises their clients to stay away from writing or contributing to GPL projects

Well, yeah, but you're saying the opposite of what the post you're replying to is talking about. You're saying that many lawyers worry the GPL is TOO viral, and that may well be the case -- who knows how the courts will interpret it should someone push it that far? But that's a far cry from saying the GPL may not be valid at all, since copyright law already restricts any redistribution and therefore no GPL violator would have the right to redistribute in the first place unless they agreed to the license.

Re:Has it ever been tested?

Point taken, I got sidetracked in my response. But I think that my core point still holds up - here's a different hypothetical: I could imagine that a court would rule that beacause the GPL doesn't specify in all cases how the license transfers that it's unenforcable and then throws it out.

We just don't know, and won't until it's adjudicated.

OTOH, as Eben Moglen is fond of pointing out, it's unlikely that there are any lawyers foolish enough to take the GPL to court, so that will probably never happen. Even the fools at SCO aren't dumb enough to try seriously arguing that the GPL is invalid.

The reason no one wants to try to invalidate it is very simple: If you successfully invalidate the GPL, all you've achieved is to prove yourself guilty of copyright infringement. Doh! What you have to do is to argue that the GPL is valid, so that you actually have permission to distribute the software you don't own, *but* that the rather clear and mild stipulations attached to that permission somehow shouldn't apply to you.

That's a really hard argument to make. So hard that no one wants to try. Especially when they know that someone of the caliber of Eben Moglen is just waiting to slash through their necessarily tortuous logic.

EULA

I declare Microsoft's EULA does not apply to me.

Sounds like

Sounds about as useful as the emancipation proclamation and the time of it's creation. to sum up: Lincoln: "All the slaves in Confederated-held (aka not our)territories are free!" and MS: "We declare that we are free from the laws of the government under which we are placed"

Twister

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.

That's the most bass-ackwards mangling of Twister I've ever heard. Didn't these people have childhoods!?

I recognize this from somewhere...

I am now king of this playground and there is nothing you can say to stop it in any way forever and ever.

Revoke license?

Is it possible to revoke Novell's right to distribute a GNU/Linux distribution?

Assume, for a minute, that the owners of all the GNU/Linux public code decide that Novell should not be able to redistribute their code... What consequences would that have?

Just wondering...

Y

Wait a second

As long as they don't redistribute any GPLv3 software, they're correct.

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?

From the article

"At this point in time, in order to avoid any doubt or legal debate on this issue, Microsoft has decided that the Novell support certificates that we distribute to customers will not entitle the recipient to receive from Novell, or any other party, any subscription for support and updates relating to any code licensed under GPLv3."

How very interesting. The Novell support certificates that Microsoft distributes don't entitle the recipient to get support for GPLv3 code. So why would anyone buy one of these things from them?

They're clearly party to the distribution of....

Microsoft made a deal with Novell so that Novell will give a copy of
GNU/Linux to anyone with a Microsoft voucher. After this deal, Microsoft
recommended Novell's GNU/Linux distribution and distributed those vouchers
to anyone who wanted one.

So they are basically contracting Novell to distribute GNU/Linux on their
behalf. In legal terms, they're "procuring the distribution of" GPL'd
software, and that's covered by copyright.

I think it's clear that Microsoft and Novell are together distributing GPL'd
software, and the GPLv3 project's team of lawyers are convinced that
Microsoft is indeed distributing GPL'd software.

Good news - GPLv3 not viral!

Microsoft used to warn anyone who would listen about the GPL being viral. Touching it might give you free software cooties, and worse, infect your own intellectual property. But apparently Microsoft has found the solution to that, and is embracing the new, non-viral GPLv3!

What did we get?..

GPLv3 worked.

It will have worked, when a piece of Microsoft's code is opened for all to see. Wake me up then...

Re:What did we get?..

Opening up MS code is not the goal of GPLv3. Preventing code whose authors chose to license it under GPL3 is the goal of GPL3, nothing more. And it will do that.

And saying 'GPL3 doesnt apply to us' is disingenious, becuase it may, or may not. It applies, if they accept some GPL3 code from someone or somewhere, that they dont have any other license to use (incorporate into their own code and/or modify, and distribute - not just 'run it'), then it does in fact apply to their use thereof.

Presumably, MS' lawyers are smart enough to recognize that, but even more so, they are smart enough to use GPL3 for as much FUD as they can, to try and scare people (who dont already understand what the GPL is really abouyt) away from GPL3 (or even 2) software.

Now just a minute...

If they ever use any GPLv3 code, they are indeed bound by the license. There's only one way to test this though, and that's to have it tried in court. I know there's little chance of the Linux kernel itself ever becoming GPLv3, but I hope people write lots of GPLv3 software for no reason than that MS said this (yes, I am a fangirl. Sue me.). Someone has got to take these kleptocrats to court.

Does GPL allow for source in 'dead tree' format?

Just a random thought on my part, but would the terms of the GPL License be fulfilled if someone modified the original source, and provided those who asked for a copy of the source with the entirety of the source code printed out on paper?

END COMMUNICATION

A little to declare victory, IMHO

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.

I translate this as the following:

GPL Team: We just released GPL3.
MS: It doesn't apply to us.
GPL Team: We win!

I'd wait until a little more time has passed and lawyers on both sides hash it over a bit more before declaring victory. Especially against MS.

Pointless Microsoft Bashing...

Microsoft has always viewed the GPL as a virus, and has made all attempts to avoid contact. Their paranoia on this front is legendary, and for good reason when you hear the GPL crowd react to actual or perceived violations of the GPL.

With the Support certificates, microsoft was deliberately having a competitor actually handle the support and touch the GPL code. Which is all fine and good under GPL2.

The GPL3 patent covenant is even more toxic, especially to a company like Microsoft which has a lot of patents. So they are simply saying "our certificates will not support anything on GPLv3".

In many ways, this is Microsoft's paranoid overreaction, as they are not by any means a contributor to the code, even if the certificats were valid for GPLv3, but it is an understandable conservative reaction.

Since Microsoft has never and WILL NEVER contribute or distribute GPLv3 code, yes, the statement is perfectly correct.

Buhuhuhuhu.

Yeah, that's a great way to look at it. Microsoft released a PR that said "we're not at threat." Surely that means a license which hasn't even been tested in court has "won." By the by, Microsoft is an enormous corporation with many, many lawyers. If you get lazy and start assuming you've won, then you've lost, no matter how strong your current position is.

Besides, in the long run, the camp which really won was BSD, because most large corporations are sick to death of the hoops they have to jump through for the GPL. I know, I'm going to get modded flamebait (even though I'm not flaming anyone) and troll (even though I'm not trolling) for saying this, since this is GPL love central, but in the long run, the love you get is equal to the love you give.

And MIT/BSD license gives out a hell of a lot more love than GPL. I know because my company started on the back of BSD code, and that code has more than doubled in size due to my contributions.

I'm not alone. GPL throws too much away. I believe GPLv3 is GPL's swan song, and I can't be happier that it's going away. It's time for people who write open source to stop closing it. Corporations donate an enormous amount of work to code, and GPL makes many market presences completely impossible. (Yeah yeah, linking, source release, aroo, don't care. I write Nintendo games, and it is literally impossible to use GPL code under the Nintendo license. This is a lot more common than zealots want to believe.)

Most government agencies can't use GPL. Anyone working on protected API hardware can't use GPL. Anyone working on protected hardware without a dynamic linker can't even use LGPL, which pretends it's supposed to fix these problems (hence the sweeping changes to FLTK's license.) On and on it goes.

Real men don't give code to just some people.

Re:Buhuhuhuhu.

Are you giving your code back to the community?

Yes, extensively.

Perhaps, you should consider the idea that real men don't use other people's work to get themselves rich without giving anything back.

I agree. Funny how you assume that because I advocate the BSD license, that I don't donate. I actually donate quite a bit more than almost anyone I know. I really wish you GPL goons would quit pretending I was a thief; it's really, really offensive.

Try googling my nick some time. When you realize that the several thousand dollar bounty I arranged for the Nintendo DS TCP stack has no use to me, since you can't use it in the commercial kit and since I'm a commercial developer, maybe you'll start to understand why I find it so offensive that you all assume I don't give back. I give back a hell of a lot, and I dislike being insulted by people who almost certainly don't do anywhere near as much for their communities as I do just because I find the paranoid limitations of the GPL distasteful, and just because I point out what a tremendous amount of work those limitations throw away.

Please stop being such a bigot.

Re:Buhuhuhuhu.

But the GPL in both v2 and v3 trim isn't going to just go away because you and your company don't like it.

Don't I know it. If things went away because I disliked them, this would be a very different world in which we both live, and GPL never would have made it to v2 in the first place. (I've been releasing open source since before GPL existed, y'see, which is a big part of why I find it so offensive. GPL people seem to believe that the GPL created open source, but there were several vendors selling OSes built on BSD years before Linux had even been thought up.)

Nonetheless the GPL (both forms) are also more suitable for some purposes and many of those are business purposes.

It's funny - people say that, but then they never explain how a business would ever want these restrictions in place. When I ask for an explanation, people usually point out some business they can think up which isn't hurt by these limitations, or point out a GPL company. Well, yay for you. The problem is, in neither of those cases does the GPL actually do good for the company, so that doesn't actually support the claim.

If and when you can show me a company where GPL is a significant asset over BSD/MIT, great, please fill me in. Until then, I respectfully disagree, as a businessman who's had to deal with these things. Making the statement is easy. Defending it isn't.

The reality is that GPL code for all intents and purposes isn't available for those of your frame of mind to use; it isn't the end of world and no amount of sour grapes will change the fact that developers with other goals have just as much right to use the GPL as you have to use proprietary and BSD code.

... what?

Dude, when did I ever say anyone didn't have the right to GPL? You're ranting about correcting something I didn't actually say. At no point did I ever imply that people didn't have the right to release their own source under whatever license they wanted. I respect that people have that right, and with all due apologies to Voltaire, "sir, I may disagree with your choice of license, but I shall defend to the death your right to choose it."

That doesn't mean I can't explain why I disagree with it. Please stop putting words into my mouth. All I said was that the limitations that the GPL imposes have significant costs to projects which use it, and that I find the ramifications thereof sad. At no point did I say any of the things you just attempted to shame me for.

Why is it that any time I speak on behalf of the BSD, GPL people start arguing with fantasies and blaming me for what their imaginations said?

Great

This whole Trojan Voucher business should really put to rest all that annoying "GPL is viral" FUD - well done!

it probably, effectively, does not

I think they have discrened that they only need to be concerned with a law if they do not have the money to go through the legal process and influence public officials. Let not forget that they bought the Bush administration to get out of the Monopoly pickle they found themselves in, when they could have simply released APIs like we have asking them to do for 20 years. Let us not forget that they are spending, allegedly, 1 billion dollars to repair the defective Xbox line, instead of going the likley cheaper route of a class action suite. Let us not forget that they are in all likelihood paying off Linux companies to validate the MS IP claims.

What do all these have in common. It uses current cash to cover up misdeeds and protect future profits. Who in this world has a billion dollars to sue MS for violating the GPL. Do I see any hands? Then it does not apply to them right now. Perhaps in 5 or 10 years, if someone actually finds the money to sue, it will. But then it probably won't make difference.

I hate to admit this, but MS may be correct...

MS isn't distributing code. What they are distributing is a piece of paper, authorizing a user to receive code from Novell. If I go out and buy a gift certificate, give that to you, and you buy a RedHat or SuSE license with it, am I bound by the GPLv3? I don't think so. I believe this is where MS is going with their line of thinking... Now, if these certificates come bundled with media, containing GPLv3 code, then that's an entirely different story, unless the bundle was put together by a supplier, like Dell.

What are they trying to avoid

I skimmed both linked articles. Is there a summary of what they are trying to avoid?

GPLv2 - GPLv3

If I, an end user of GPL'd software, decide I want to follow the terms of the GPLv3 instead of v2, GPLv2 gives me that option. The problem with this is any software distributed by novell now that is licensed under the gplv2 is automatically licensed under the gplv3 if the end user so wishes. Microsoft has no rights when it comes to removing that option from the end user.

"Microsoft denies IP violations"

"News at 11." God, this story is SO old, isn't it?

What else are they going to say...

It will be really interesting to see how the new gpl effects their linux strategy.

To all those who doubt this...

This is the company that said "Antitrust laws shouldn't apply to us".

it's more like...

.. a bull and a matador.. let's see who slays who! will the bull kill the matador or will the matador kill the bull?

I wonder...

I wonder... And yes, I'm just wondering at this point... If Microsoft didn't think it managed to snag a single contact person through their contract with Novell(aka someone legally entitled to sell, or cross-license) code to them, more than any other right...

Someone particularly paranoid might also think that Novell, as the owner of the Unix trademark, might make an ideal scapegoat in a lawsuit...

"You were distributing..."

"We did so in good faith, and even Novell didn't know we were in the wrong..."

Especially given that for a GPL violation(say if Microsoft did copy GPL code) whoever they stole code from could sue, it would be either the fsf, or the coder, NOT Redhat or another company whose stock value might be affected by suing Microsoft...

Fixed...

Microsoft States GPL3 Law Doesn't Apply to Them

Fixed that for you.

FTA:

While there have been some claims that Microsoft's distribution of certificates for Novell support services, under our interoperability collaboration with Novell, constitutes acceptance of the GPLv3 license, we do not believe that such claims have a valid legal basis under contract, intellectual property, or any other law.

Open letter to Microsoft

I am not party to the MS EULA

Trust

This makes Opensource look very untrustworthy to me.

another defence for Microsoft

Microsoft seems to be preparing to fight GPLv3 with two defences. They plan to deny that the coupons constitute distributing GPLv3 code and they plan to deny that GPLv3 can force its own interpretation of the Microsoft-Novell agreement upon Microsoft.

I would like to suggest a third defence to Microsoft which would probably be much more effective than the first two. Microsoft could pay Novell to cancel the Microsoft-Novell agreement before Novell actually distributes any GPLv3 code. Abolishing the Microsoft-Novell agreement would forestall the possibility that the Free Software Foundation might be able to extend Microsoft's software patent protection to all open source developers, distributors, and users.

---------------------
Steve Stites

Internal distribution to contractors

This creates an interesting issue if Microsoft ever ends up using GPLv3 stuff within the company. IIRC, giving GPL'd code to contractors (as opposed to employees) is considered distribution per the license. Essentially, Microsoft is risking blowing the 235 patents if they have Linux or other patent-contested software available on their internal network, assuming contractors have access to it. One download, and the patents extend to everyone per the license.

This is somewhat off-topic, but I honestly wonder if this will sharply limit the use of GPLv3 software in corporations. Seems like you'd have to vet every single piece of GPLv3 software you use against your patent portfolio to be comfortable, or force contractors to download all their own tools from an external source (which is kind of a nightmare if you're trying to keep everyone on the same version).

Microsoft Linux?

This discussion suggests an entertaining scenario:

Microsoft has the resources, and OS sales are a small part of MS revenue; most comes from applications that sell well on any platform. Gates assigns a good project manager—one with a ripe sense of humor—to put together a crack team to fork linux/gnu based on pre-GPLV3 code only. The new source is scrupulously annotated, open and available. It is licensed with whatever terms both satisfy GPLV2 and cause the greatest rending of shirts among the Fosserati.

The most important new code in the fork is an extension of the APIs so that Windows applications run native alongside linux applications without virtualization. It includes virtualization anyway. New developments can mix and match. It supports .Net.

It is released as Microsoft New Generation Linux, sold in a pretty box loaded with advertising for MS applications. The OS is on a non-DRM self-installing DVD loaded with the OS, every driver known to man, a selection of best of breed free applications, and all the source. Microsoft pulls out all the stops in applying everything they've learned from the millions it has spent on usability research. The box includes a really well-written user guide, and discount certificates for the Windows Office Suite. Distributors like Dell are given a deal that fails to draw a substantial distinction between MS Windows and MS NG Linux.

Between the manuals and the DVD, ordinary consumers can install and use all of this without actually coming into contact with the linux community or its online resources. The great mass of consumers, who would rather spend a few bucks than become their own tech specialists, will buy more software, much of it from MS.

Experienced linuchim, if they have any interest, can buy it, get a copy from someone (it's legal), or download the three-gigabyte distribution file.

A t-shirt...

I so much long for an FSF t-shirt with large letters on it: GPLv3. Black on white. Or white on black. Well, `fsck m$' on the other side would not hurt too...

I have just checked the GNU site, and the last t-shirt they offer is a stale 2001's levitating gnu...

LOL

"As always, Microsoft remains committed to working with the open source software community ..."

Yeah, right

well, they're correct, sort of

Microsoft is right that they aren't party to the license and that they aren't copying the distributed code. So, technically, "the license doesn't apply to them".

However, what does apply to them is the contract they have with their customers when they distribute vouchers, and the GPLv3 does apply to the recipient of those vouchers once they download the GPLv3 code. So, unless they become a party to the GPLv3 license, the vouchers are worthless and they aren't fulfilling their obligations.

This is really not so different from the kind of sublicensing agreements Microsoft makes frequently. I'm not a party to Microsoft's license with the MPEG-LA, but they are required by their license with the MPEG-LA to ensure that their license with me restricts my use of the software in the way that the MPEG-LA requires.

That is not what they've said....

The writeup on this article is utter FUD. Don't get me wrong, I'm all for bashing Microsoft when they deserve it, but what they said was, they're offer to support Novell customers doesn't require they accept the GPL v3. They have said they won't support GPL v3 software, and as part of that, they are doing what they need to so they aren't forced to accept it.

Re:Huh?

http://en.wikipedia.org/wiki/Twister_(game) [wikipedia.org]

Re:Huh?

Sounds like a geekier version of Twister.

Mods?

Are you people neocons or something? I don't see how the parent's statement about Presidential "signing statements" is a troll. Mod the damned thing funny, because it IS funny.

PS- "funny" grants no karma. Now go ahead and mod me "offtopic".

-mcgrew (sm62704)

Re:GPL-shmi-pee-ell

You couldn't be any dumber ... could you.

Re:GPL-shmi-pee-ell

The thing you need to remember is that by default, you have no rights to the source code of said GPL software. It's covered by the same copyright laws that make it illegal to pirate Windows and such. However, there is the added option of gaining access to the source, if you choose to agree to certain terms.

Your whole idea of whether or not there is a transaction taking place is a technical nitpick that can be left up to the courts. It's along the same lines as the debate over the validity of click-through EULAs. What if I view the source and see where the "Agree" button links, but never actually click the button? Is that the same as clicking the button? As for being able to download it without clicking on some sort of license agreement, does that mean if I find a copy of Windows on some site that allows open downloading, I suddenly can use it without any regard for its licensing? Can I just take something from a sidewalk vendor stand, since it's out in the open and not a "real" store? Whether or not downloading software packaged with license details constitutes a legally binding agreement is completely separate from the validity of the license itself.

GPL is most definitely a "free with strings attached" license. You get it for free, and the attached string is that you have to pass it on to others freely (just as you received it freely). If you don't like that idea, don't use/support the GPL. The rest of your comments about transactions are legal details which don't apply to the GPL any more than to any other license, except that it's easier to find GPL software which you could use in violation of copyright law (as opposed to the hidden-away closed source of other programs).

Next time you are at the supermarket and they have those little hotdogs with toothpicks and a sign that says "take one, free", imagine how goofy it would be if there was a piece of paper next to them that had terms and conditions of taking it for free.

Next time you're at the supermarket and they have one of those "buy one, get one free" sales, take the free one and tell them how goofy it is that they're forcing you to do something else to get the free one.

Re:Huh?

Don't worry about it. The game is only fun with attractive members of the opposite sex...

Re:GPL-shmi-pee-ell

Has there ever been a lawsuit based on GPL that stuck?? I know there have been threats, but I don't recall anything going to court.

Plenty of posts about this elsewhere. No one is dumb enough to take it to court.

if you give stuff away to your friends you have no right to dictate to them how they use it or regift it. I see source code this way as well. I think we'd avoid a lot of confusion if we just dropped the notion that free stuff can have a license. I know it wouldn't be the first time money had to change hands for something to be legally enforcible.

But you wouldn't like it if your friends sold your gifts, would you? If, instead of charging you for my closed-source software, I asked for say...a computer, or rights to your software, you would have no objections, right? There is nothing wrong with non-monetary compensation.

but the notion of giving away things and also attaching requirements is a lot like a passive aggressive relative who "helps" you, but then expects you to do things for them in repayment. Free should be free with no strings attached.

No kidding. That relative would be like me in the previous example. I'll "help" you by giving you software, but I expect you to do things for me, like pay me. The GPL asks that you keep the software GPL-ed. The nature of the GPL is that it increases your freedom.

They want to give away software, but they don't want to give away software. It seems so straightforward- if you get paid for something you can attach a license requirement. If you don't get paid and you give away things, there seems to be no real agreement between parties. Just because you put a sign up next to your garbage that says "free garbage to anonymous takers, but you must obey these other rules..." doesn't mean you have legal recourse when it disappears and shows up on ebay.

Ok, what the hell? They want to give away free software and they want to keep it free. If you choose to not accept the terms of the GPL, there is "no real agreement between parties." On the other hand, you can accept the agreement and attach the GPL to your distributions.
Your logic is:
If I give away things to takers, I can't tell them not to sell it on eBay.
If I sell things to people, I can tell them not to sell it on eBay?
Well shit, it's both your choice to buy the thing I sold and the thing you took for free. I didn't force anything upon you.

Next time you are at the supermarket and they have those little hotdogs with toothpicks and a sign that says "take one, free", imagine how goofy it would be if there was a piece of paper next to them that had terms and conditions of taking it for free.

Imagine how goofy it would be if you distributed those little hotdogs.

Merely downloading something IS NOT an acceptance of a license

Gee, really? The license applies to distribution; you can use the free software to do whatever you want. Only when distributing or modifying the code do you need to concern yourself with the license.

Re:GPL-shmi-pee-ell

The GPL doesn't restrict you at all. It doesn't stop you doing anything that you couldn't already do with the program in question.

COPYRIGHT law is the restriction, and is there by default. The GPL then waives part of that restriction.

If I give you a program, unless I have said otherwise, you don't have the right to distribute it.

Re:GPL-shmi-pee-ell

You realize that what you are saying is that you think there should be no copyright on any material that is given away for free. Are you really sure you think this is a good idea? At least the advertising industry would be very hurt by this, and I'm sure it would have enormous other implications.