Lawyer Thinks Microsoft Can Evade GPL 3

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.'"

A lawywer will tell you anything is possible.

For a fee

Exactly.

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.

Re:

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

Re:Exactly.

The problem isn't with GPLv3 covered works or SuSE using it. The problem is that when MS entered into the arrangement the GPLv3 wasn't involved and the restrictions it imposes wasn't involved. So, if anything, the GPLv3 frustrates the deals and MS would likely only be obligated to what was around when the deals were made.

If Novel takes an action independent of MS that subjects them to the GPLv3 license, MS can claim a separability from that. And because of the differences in the GPLv3, MS's obligations would become frustrated and they likely wouldn't be held to obligations that were frustrated if they didn't take any actions to cause the frustration. What would happen is that you would have to sue them and they would win. If they sued you and you used the GPLv3 as a defense, MS could claims the frustration, cite a few specific article where people have claimed they were going to manipulate the GPL to trick MS out of rights and that defense would likely be lost real fast.

Further more, there are some question about the entire trapping them into being subject to the GPLv3 in the first place. It isn't as if once you distribute a GPLv3 covered work that you can never make a claim over IP or patents in a covered work, your limits only go to the work you distributed. So lets, say MS distributed GCC, They would have to both know that something was in it and violated their claims and distribute it after knowing this in order to not be able to go after patent claims on it. And this would have nothing to save Samba or any other project so if they avoid what that have issues and claims over, it still doesn't matter.

Re:Exactly.

So, if anything, the GPLv3 frustrates the deals and MS would likely only be obligated to what was around when the deals were made.

Right. In other words, Microsoft is only obligated to distribute GPL version 2 software.

What would happen is that you would have to sue them and they would win. If they sued you and you used the GPLv3 as a defense, MS could claims the frustration, cite a few specific article where people have claimed they were going to manipulate the GPL to trick MS out of rights and that defense would likely be lost real fast.

Hold on there, buddy! What you seem to be implying is that MS could distribute GPL version 3 software with impunity (otherwise, how would it make sense to "[use] the GPLv3 as a defense"?). That doesn't make sense, because all Microsoft ever promised to do was distribute the software that existed at the time the agreement was made -- GPL version 2 software.

Nothing about the agreement gave (or even could give) the ability for Microsoft to ignore the license of code produced in the future, any more than the GPLv3 could give the ability to the FSF to condemn actions taken in the past!

It isn't as if once you distribute a GPLv3 covered work that you can never make a claim over IP or patents in a covered work, your limits only go to the work you distributed. So lets, say MS distributed GCC, They would have to both know that something was in it and violated their claims and distribute it after knowing this in order to not be able to go after patent claims on it.

Uh, no. All MS would have to do is willfully distribute it, whether it knew about patent violations or not.

Re:

Right. In other words, Microsoft is only obligated to distribute GPL version 2 software

The problem is that MS isn't distributing anything. They are getting pulled into the coverage of the GPLv3 license by specific wording of the GPLv3 that includes conve

Re:

"MS is distributing vouchers redeemable for SuSE Linux. According to the lawyers that wrote the GPLv3, that counts as "conveying" SuSE Linux."

This is a ludicrous assertion. Many magazines, newspapers, gas stations, and product boxes carry vouchers that are

Re:The Shackles of Freedom

How this got rated insightful, I will never know, because it is not. A couple of points.
First, Free Software under the GPL is certain free for you to use in any way. You can even embed GPL'd software in your embedded rocket flight control computer if you want. Microsoft can *use* GPL'd software in any way they see fit. In fact Microsoft has entire labs full of Linux machines (they believe that one should know one's enemy). Contrast this with Windows, which is not free for me to use in any way I see fit. I cannot run it under certain Virtual machines, I cannot install it on more than so many computers (as provided by the EULA). In contrast, GPL'd software has no EULA; there are *no* restrictions whatsoever on its use.

Second, there are restrictions on *redistribution* of the code, though, as there should be.

What you are saying is pretty silly. If I downloaded a copy of MS's source code from somewhere and tried to redistribute it, you wouldn't say that I am shackled when copyright law does not allow me to do so. GPL'd software is the same. Without the terms of the GPL I have no rights to modify and distribute the source code at all! How the GPL shackles my existing non-rights to distribute copyrighted code that I don't own, I will never know. For without the GPL, I cannot distribute the code to others, and others cannot distribute the code to me!

Seems to me that the GPL ensures freedom in a couple of ways. It ensures that I can use the code freely for any purpose, even without agreeing to the terms of the license at all! Also it ensure that as the author of GPL'd code, my code will never be stolen from me against my will, and sold back to me with restrictions on its use.

So let's stop right now with this nonsense about the GPL shackling freedom.

Re:

I want you to give us all this irony-free-freedom you are talking about, now that I got freedom I will use my freedom to lock you into a room and not let you go out ever again.

Or ... we could implement true freedom which would prevent anyone from remov

Beancounters do not consult court verdicts

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.

Re:

Ignoring that what you just said is barely coherent, if you look at the motivation behind every new part of the GPL v3, it has to do with ensuring that software users get the four freedoms that define free software, and nothing to do with giving the FSF co

Re:

I would agree. I am one of those people who don't like the GPLv3 too. Although I have a few more reasons then you state.

There are some serious problems left in the GPLv3 that will hamper this idea of people wanting to use free software over proprietary. Ma

Re:

gowen wrote:

Software Freedom (in the FSF sense) has always been anti-capitalist. It's central tenet is sharing. The central tenet of capitalism is not sharing. Now you can like that or you can dislike it (and I couldn't care less), but don't pretend this

Uhhh... so?

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!

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 we

Re:Uhhh... so?

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.

Car Analogy

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.

A legal arms race?

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 jus

Software Freedom Day

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 y

Did any of you actually believe they would be ?

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." ?

Licenses aren't changing after the fact

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

Re:

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

Re:

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 l

Courts will reject ambush tactics

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//

Obviously MS hasn't violated* the GPLv3...

...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 p

Re:

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

Good try?

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

Re:

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 wi

Re:

And why would MS want to use code released under GPL, anyways?

• Because MS is obligated to by the agreement with Novell.
• Because MS would like people to use the version it controls, instead of some hippie distro like Ubuntu.
• Because MS would like to surrep

Wording is also a problem

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

Then the patent troll sues microsoft?

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 som

Re:

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, Microso

how odd...

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]

Re:

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? [zdnet.com.au]

Yeah, I don't get what their point is either.

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 si

I thought this was intentional?

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 bu

huh?

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 e

good new for MS users

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.

Aren't GPL3 patent changes aimed more at Novell?

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

I'm still not affected

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!

Microsoft would never be caught up in this anyway

...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 th

Re:Microsoft would never be caught up in this anyw

So what's the point of GPLv3? To make sure that companies that sells Linux software are doomed?

Fill me in. I'm not up to date on this stuff.

The license as a sword for an opponent

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.

More of a shield than a sword

GPLv3 is a defense against msft's under-handed tactics. Msft has always been the antagonist - not just against Linux but the entire industry.

read the gpl!

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.

What's the big deal ?

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 ?

how absolutely silly this lawyer is,,,,

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

AUSSIE LAWYER HAS NOT READ THE BLEEDING GPL3!

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.

Re:

The "deal" isn't what's relevant. The fact that Microsoft may distribute FSF "property" is. This distribution would come as a reult of them entering into an agreement with someone that creates derivatives of FSF "property". Every time Microsoft chooses to

Re:This may betray some sort of ignorance on my pa

be willing to sleep with the devil

Hey, why's BSD being dragged into this...?