Microsoft States GPL3 Doesn't Apply to Them 509
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... (Score:5, Insightful)
Sounds like (Score:2, Insightful)
From the article (Score:4, Insightful)
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?
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.
Re:Enlighten me... (Score:4, Insightful)
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.
Re:Enlighten me... (Score:3, Insightful)
Here's the complete section in question (emphasis added):
Truth be told, I'm not really following PJ on this one. I know of no legal theory that would cause a license to reach out from a second party and latch onto a third party just because the second and third parties have an agreement. In the case of a contract that binds partners, the responsibility usually falls upon the second party to execute a compatible agreement with the third. Failure to do so would place the second party at fault. i.e. Novell could get in trouble, but Microsoft would be shielded by only having a non-GPL agreement with Novell, not directly with the Linux developers.
Now a judge might not be happy with the legal games that Microsoft is playing (can you say 'extortion'?), but I can't see him binding Microsoft to a contract they didn't directly accept.
Re:They're clearly party to the distribution of... (Score:2, Insightful)
This entire saga sounds like the GPL crowd saying, "Aha! We got Microsoft," but I'm unconvinced that the world is turning because of it. IANAL, but I think that Microsoft would LOVE to test this in court.
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.
Re:Wait a second (Score:3, Insightful)
MS for copyright reduction? (Score:3, Insightful)
Re:Enlighten me... (Score:1, Insightful)
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.
Pointless Microsoft Bashing... (Score:4, Insightful)
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. (Score:2, Insightful)
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.
it probably, effectively, does not (Score:3, Insightful)
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.
Re:Has it ever been tested? (Score:3, Insightful)
Re:Has it ever been tested? (Score:3, Insightful)
Do you realize how stupid that just sounded:
Unless a contract, a license, or other document has stood up under court testing, it will remain in question until it has been tested. Until then, your pronouncement should remain a statement of faith and not fact, keeping in mind, dogma != fact.
Re:Enlighten me... (Score:1, Insightful)
It isn't about what the user can choose but about what abusers can choose. It removes the protection from the code. We'll still have the code but wouldn't have improvements made by MS. That drastically changes the mechanism of the license, suddenly one company will be able to do whatever they want with 50% of Free software. Totally changes what the point is.
Re:Buhuhuhuhu. (Score:3, Insightful)
"because most large corporations are sick to death of the hoops they have to jump through for the GPL"
Who do you think was in the bi-weekly meetings with Eben Moglen et al. for the past 18 months working on the GPL drafts?
I refer you to part of a transcript from a recent speech that Moglen gave at the Scottish society for Computers and Law annual lecture for 2007:
http://ia301337.us.archive.org/1/items/EbenMoglenRe:Has it ever been tested? (Score:4, Insightful)
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.
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.
Re:Question (Score:1, Insightful)
Simply saying "latest version of the GPL" should ensure that any new features are covered by the license that was current when they are first downloaded. (Though a system to update all your source files to specify an exact version should be easy to implement and would make proving which version was relevant a lot easier.)
New users could also be bound to the latest version if they get a copy from you, but they would have the option of finding someone who had downloaded a copy under and old version of the license, and getting a copy under that license from them.
Re:Buhuhuhuhu. (Score:3, Insightful)
If you mean in terms of raw sales, it's OsX, not Linux. If you mean in terms of percentage userbase growth, it's QNX, not Linux. Please stop citing factoids that are actually just guesses. Linux is neither the fastest growing nor the most pervasive unix on the market, and it's unlikely that it ever will be (before OsX put BSD in that seat, it was Solaris.)
Yep. That's basically what Apple did, and it's been an enormous benefit to the BSD codebase.
The GPL is fundamentally broken because it doesn't allow that. I know, you hate corporations blindly. The problem is, GPL advocates don't seem to understand just how much effort they're losing because they shut out most corporations. With all these linux user groups, with all these communities, with all these news sources and events, with all this press, there's still more activity in BSD.
Why do you think that is? I'll give you a hint: my company only donates to free-as-in-free open source, and we donate tens of thousands of lines of code a month. We're not alone. Your GPL is costing you tremendously.
No I don't. Please don't start accusing me of things you don't know about me. Chances are good I've donated more source to open source than everyone you've ever met in real life put together. I just want stuff I can use legally. I'm not trying to not return my contributions. However, my license with Nintendo forbids me from exposing their API.
With a BSD project, I just decline to release one object, the one that wraps the API interface. Anyone who wants to use my code on any other platform than the DS would have to replace that object anyway; it's not costing anyone any extra work unless they're also on the DS, and if they're also on the DS they can get the object from the official developer boards where I posted it.
However, with GPL, it's illegal for me to refuse even to release one line of source. So, even though there's no actual reason for me to release it, even though it doesn't do anyone any good to have the object, I'm stuck: I can't release the object because of my Nintendo NDA, and I can't refuse to release the object because then I'm in violation of the GPL.
It's not that I'm trying to cheat and get away with stuff. It's that the nonsense in the GPL means I really can't use GPL code. Ever. No matter what. No matter how much I may want to. No matter how open I am to giving away code. The GPL forbids me from even using GPL stuff if I donate the 99.99% of my work that I legally am able to, because it's all or nothing, nevermind that the limitation is pointless in this case, and robbing GPL products of all my donated work.
There are fourteen algebraic math solvers that I'm aware of under open source licenses. I didn't make my DS calculator for four months because for a long time, every single solver I found was GPL or LGPL, meaning I couldn't use it. Then, eventually I found AXIOM. I now use AXIOM. I've donated significantly to AXIOM. There are better works out there than AXIOM, and many which would be much easier for me to use, more appropriate in context, with a smaller footprint. But I can't use them, because GPL is so ridiculously paranoid.
Yes, I know, you want to pretend we're all corporate vampires. We aren't, and it's shameful for you to assume that of your fellow man. I've earned my place in open source. Have you?
Re:I hate to admit this, but MS may be correct... (Score:2, Insightful)
Yes, it's an exaggerated example. But the point is that while distributing coupons doesn't necessarily mean that you're distributing the product itself, on the other hand the courts cannot allow people to circumvent laws by using indirection tricks like "coupons" and "vouchers."
A less exaggerated example would be a company that hires some other company to do something illegal (e.g. copyright infringement). The small company gets sued and goes bankrupt. The big company, however, claims that they cannot be sued because they didn't do anything illegal. But surely outsourcing isn't a valid way to side-step the law.
I think it's unclear how exactly this would end up in court. MS can make the case that they are distributing vouchers and not code. Others can make the case that they are distributing code through an affiliate, namely Novell. (After all, they have very public agreements in place with Novell.)
Re:Buhuhuhuhu. (Score:4, Insightful)
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.... 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?
Re:GPL is a license (Score:3, Insightful)
Yes sir. The GPL is a unilateral contract offer that one side has already agreed to. Thus it goes into effect as soon as the other side agrees. Since Microsoft has not explicitly agreed to the license (or explicitly distributed GPLed code, thus signifying acceptance or violation of copyright law) then Microsoft is not bound. That's my interpretation anyway. Providing a credit offer to pay for someone else's services does not, in any legal theory I've ever heard, bind you to the terms of the transaction between the buyer and the seller. You may accept certain legal responsibilities in that case (generally only as far as assuring that your offer was completed to the full written and intended terms of the contract between you and the buyer), but you have no real relation to the seller.
Re:Enlighten me... (Score:4, Insightful)
Re:Buhuhuhuhu. (Score:3, Insightful)
Combine that with that those same people - again, maybe this is chance - finally realizing that corporations aren't just stealing code without donating back, because it's bad business (corporations using community code donate to community code because that encourages other corporations to do so, dramatically lowering their total development and maintenance cost, which basically every manager with any college training knows) - and you start seeing a pretty big shift in behavior.
Again, maybe I just know a statistically unlikely cluster of people. But, the cluster's pretty big, and that sets my opinions pretty firmly. I could be wrong, but my belief is that the GPL is now in decline, and whereas like DOS it's never actually going away, in my opinion, a massive reduction would be a huge win for everyone.
It's just what I believe. Time will vet or clown me. We'll see.
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.
Re:Wait a second (Score:3, Insightful)
What, they're going to revoke my existing GPL2 installations?
Re:Has it ever been tested? (Score:3, Insightful)
If the GPL has never gone to court in this way, it's for the same reason that continental ballistic missiles have never been used in combat. No one doubts that continental ballistic missiles could blow the face off half the planet, so it never escalates that far.
The threat of copyright law (because if you don't have the GPL, all you have is someone else's IP and no license to use it) it is substantial enough that anyone who actually consults a lawyer will try to avoid taking it to court.
Re:Enlighten me... (Score:3, Insightful)
The missing point is until he gets hit by a bus.
I haven't seen RMS' will, but I'm certain that he's made arrangements for his estate to be passed on to someone else who believes just as strongly in Free Software as he does.
The man is far from stupid, and he consistently demonstrates amazing foresight.
Re:I am not a lawyer, but: (Score:3, Insightful)
Something I would like to add is that with the GPLv3 as I read it, it says that when you receive the code you are giving a license and rights from the copyright owners. then it goes on to describe the patent stuff later. It would appear to me that the License is claiming that only if you place something in there that you would have to guarantee the right for others to use it. So if I distributed some code and made no changs to it, I would only be relaying the implied ability to do so from the GPLv3 license I received with the software. I wouldn't be adding any implications to it so if I found that one of my patents were being violated i wouldn't have lost any of my rights on it. Further, even if I did change or modify the code, as long as I didn't add the offending IP, I couldn't be held to have approved of the license ordeal.
In other words, I can see that SCO or IBM is distributing some GPLv3 code and sneak their patented process into it and then claim that by their unknowing distribution, it is free, open and fair game now. SCO or IBM would have to have actual knowledge of the items being in there and have some say about them being placed in the code that is covered. It would be like having a yard sale where someone went on your neighbors property, opened their shed door and picked up their WeedEater and said I would give you 5 dollars for this. If you accept the $5 it doesn't negate the fact that the item was stolen or anything surounding it including the receiving stolen property charges.
So even if Microsoft is bound by the GPLv3, I doubt that they are going to be put out by anything they didn't participate in releasing to the public via the GPLv3. I just don't see how it would be possible.
Re:Not from the beginning (Score:3, Insightful)
Turn about is fair play, as far as I am concerned. I didn't purchare
Win2K under License 6. Why should I now be subject to your change
in license only because I needed a Service Pack to fix your crappy
software?
If there was truely justice in this world, Microsoft would have been
broken up into at least 5 different pieces (operating units) at the
end of the DOJ anti-trust trial. It was GWBush's "free enterprise,
but only for the really big companies ^H^H^H^H^H^H^H^H^H^H
contributors" rise to power that saved your "800 pound gorilla".