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Microsoft States GPL3 Doesn't Apply to Them 509

Posted by Zonk
from the they-is-special-you-understand dept.
pilsner.urquell writes "Microsoft yesterday issued a statement proclaiming that it isn't bound by GPLv3. Groklaw has a very humorous rejoinder to the company's claim. From that article: 'They think they can so declare, like an emperor, and it becomes fiat. It's not so easy. I gather Microsoft's lawyers have begun to discern the GPL pickle they are in. In any case it won't be providing any support or updates or anything at all in connection with those toxic (to them) vouchers it distributed as part of the Novell deal ... These two -- I can't decide if it's an elaborate dance like a tango or more like those games where you place a cloth with numbers on the floor and you have to get into a pretzel with your hands and feet to touch all the right numbers. Whichever it is, Novell and Microsoft keep having to strike the oddest poses to try to get around the GPL. If they think this new announcement has succeeded, I believe they will find they are mistaken. In other words, not to put too fine a point on it, GPLv3 worked.'" EWeek has further analysis of this proclamation.
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Microsoft States GPL3 Doesn't Apply to Them

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  • Enlighten me... (Score:5, Insightful)

    by vigmeister (1112659) on Friday July 06, 2007 @09:55AM (#19766655)
    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... (Score:5, Insightful)

      by Sam Andreas (894779) on Friday July 06, 2007 @10:05AM (#19766815)
      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.
      • by Anonymous Coward
        As always, Microsoft remains committed to working with the open source software community to help improve interoperability for customers working in mixed source environments and deliver IP assurance.

        HAHAHAHAHAHAAHAHAHAHAHAHAHA!

    • Re:Enlighten me... (Score:5, Informative)

      by kebes (861706) on Friday July 06, 2007 @10:19AM (#19766997) Journal
      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... (Score:5, Informative)

      by Scarblac (122480) <slashdot@gerlich.nl> on Friday July 06, 2007 @10:28AM (#19767123) Homepage

      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.

    • Re: (Score:3, Funny)

      by kimvette (919543)
      tagged microsofteuladoesntapplytome

      t's been 14 seconds since you hit 'reply'.
  • by alienmole (15522) on Friday July 06, 2007 @09:57AM (#19766677)
    ...that tax laws don't apply to me. Oh, and those pesky laws about parking and speeding, too.
  • by Tuoqui (1091447) on Friday July 06, 2007 @09:58AM (#19766697) Journal
    So I guess Microsoft's EULA does not apply either?
    • by dhasenan (758719)
      Right, if you're just selling tickets that other people can exchange for Windows support. MS isn't distributing software for Novell; it's just selling vouchers that people can exchange for Novell support. Nothing to do with software distribution.

      Now, if MS servers were hosting software licensed under GPLv3, that would be an issue. But that's not happening. MS isn't even granting people access to software on Novell's servers, or handing out vouchers that Novell will exchange for such permissions. So the GPL
    • Okay so that is an oversimplification, but you cannot force someone to enter a contract to use something AFTER they have already paid for that privilege. The only legally valid EULA would be one you sign before purchasing the software.

      Note that IANAL and that this is not valid legal advice not an endorsement of any practices explictiely forbidden by EULAs.
    • Re: (Score:3, Informative)

      Microsoft's EULAS are not binding at all at least in Germany as they are not shown before the the customer acquired the product. Thus for all cases where end users, either business or consumers, are buying shrink wrapped or preinstalled software, simply common law aka the BGB (Bürgerliches Gesetzbuch, best translated as common civil law) matters.

      CU
    • Re: (Score:3, Informative)

      by terrymr (316118)
      Never has, at least as far as I can tell.

      When you buy something from a store, a contract exists between you and he store to supply goods in exchange for payment. Microsoft is not a party to this contract.

      The EULA imposes a whole bunch of additional restrictions in return for access to the software which the store contracted to supply to you. Seeing as by agreeing to the EULA you gain nothing to which you werent already entitled to (under the contract with the store) the EULA isn't worth the paper its pri
  • by WED Fan (911325) <akahige&trashmail,net> on Friday July 06, 2007 @09:58AM (#19766705) Homepage Journal

    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.

    • by froggero1 (848930) on Friday July 06, 2007 @10:01AM (#19766745)
      A quick Google search [groklaw.net] revealed that yes, it has gone to court and won.
      • Re: (Score:3, Informative)

        by WED Fan (911325)

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

        O.k., to simplify what I read, a company placed their open development under GPL and the SAE wanted it closed so they could charge fees. Further they said it was derivitive of their owned work. The company won against the SAE. I don't see this as the test. It is a test, and an important baby step to the full test, but still not the difinitive one.

        Is there one where Company A releases code under GPL, Company B releases a derived projec

        • Re: (Score:3, Insightful)

          by martyros (588782)

          Is there one where Company A releases code under GPL, Company B releases a derived project under a closed license and the case went to court?

          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.

      • by Rogerborg (306625) on Friday July 06, 2007 @10:34AM (#19767187) Homepage

        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.

    • by Scarblac (122480) <slashdot@gerlich.nl> on Friday July 06, 2007 @10:12AM (#19766899) Homepage

      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.

      • by WED Fan (911325)

        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.

        Nice sentiment but I'd like to see it tested in court. Related, but different, those that thought the "shrinkwrap" license was rock solid found out otherwise.

        I think "the lawyers" need to find a good solid case to take to court. They need to stop accept

        • by The Cisco Kid (31490) * on Friday July 06, 2007 @10:44AM (#19767319)
          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: (Score:3, Interesting)

          by NickFortune (613926)

          Otherwise, they may find themselves in the position of being considered shakedown artists in the same vein as the RIAA, MPAA, Jesse Jackson, and Al Sharpton. Or, they run the risk of being accused of settling easy to avoid a potentially damaging judgement.

          There's an interesting aspect to this in regard to the RIAA.

          If Microsoft can argue in court that selling vouchers redeemable for a thing is not the same as distributing the thing itself, then that surely opens the way for web sites to legally sell

    • by kripkenstein (913150) on Friday July 06, 2007 @10:15AM (#19766945) Homepage

      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.
      • by LO0G (606364) on Friday July 06, 2007 @10:40AM (#19767265)
        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).
        • by NMerriam (15122) <NMerriam@artboy.org> on Friday July 06, 2007 @10:49AM (#19767411) Homepage

          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: (Score:3, Insightful)

        by WED Fan (911325)

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

        Do you realize how stupid that just sounded:

        • The FACT that God exists is so obvious, there is no need to prove otherwise
        • Global warming is so obviously human caused, there is no further need of science to prove it
        • Linux is so obviously secure, we don't need test it
        • I can ovbiously speel, I don't ned a spelczecher

        Unless a contract, a license, or other document has stood up under court testing, it will remain in questi

    • No - the GPL is far too clear, it is very unlikely you will ever find a violator stupid enough to court, they will always settle.
  • Sounds like (Score:2, Insightful)

    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 (Score:5, Funny)

    by Obyron (615547) on Friday July 06, 2007 @10:01AM (#19766749)
    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!?
  • Wait a second (Score:5, Informative)

    by JavaRob (28971) on Friday July 06, 2007 @10:03AM (#19766785) Homepage Journal
    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?
    • Re: (Score:3, Informative)

      by Iphtashu Fitz (263795)
      As long as they don't redistribute any GPLv3 software, they're correct.

      There are two arguments being brought up with regards to this:

      1 - The GPLv2 license has an option to specify that code is licensed by "GPL version 2 or later". If this is the case then the argument goes that many of those who wrote code under GPLv2 could simply say "well now my code is licensed under GPLv3".

      2 - People who have those vouchers from MS For copies of SUSE may hold on to them until parts of the linux kernel and other related
      • by Abcd1234 (188840)
        I think the question the GP was asking was, when step 2 occurs, which entity is responsible for actually distributing the software to the users? If it's Novell, and not Microsoft, then it's unclear to me how Microsoft would be bound by the GPL.
      • Re: (Score:3, Informative)

        by jonnythan (79727)
        "The GPLv2 license has an option to specify that code is licensed by "GPL version 2 or later". If this is the case then the argument goes that many of those who wrote code under GPLv2 could simply say "well now my code is licensed under GPLv3"."

        Sure, they can say that, but that only applies to those who accept the code from that point on or those who redistribute it with GPLv3.

        You can't retroactively change a license agreement. I can license *you* my code under the BSD license and then license *Microsoft* t
      • 1 - The GPLv2 license has an option to specify that code is licensed by "GPL version 2 or later". If this is the case then the argument goes that many of those who wrote code under GPLv2 could simply say "well now my code is licensed under GPLv3".

        They can say that, but the code originally distributed under the GPL2 can still be used and redistributed under the GPL2, even if the original author republishes it as GPL3. (Of course, the republished version is bound by v3).

        The purpose of the "or later" cl

    • Re: (Score:3, Insightful)

      by jZnat (793348) *
      The Linux kernel is probably going to remain GPLv2 for quite a while, but the core of the GNU/Linux operating system is mostly GNU software which is (or will be) GPLv3 or later. Good luck making a Linux distro without GNU tools or anything GPLv3 in general.
      • Re: (Score:3, Insightful)

        by ceejayoz (567949)
        Good luck making a Linux distro without GNU tools

        What, they're going to revoke my existing GPL2 installations?
  • From the article (Score:4, Insightful)

    by igotmybfg (525391) <slashdot@@@danielthompson...net> on Friday July 06, 2007 @10:05AM (#19766813) Homepage
    "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?

    • Re: (Score:2, Funny)

      by Tatisimo (1061320)
      So why would anyone buy one of these things from them?

      Most the time those things from big companies are printed in high quality glossy paper and look so nice! Maybe they could be framed and set up for display.

  • by H4x0r Jim Duggan (757476) on Friday July 06, 2007 @10:07AM (#19766829) Homepage Journal
    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.
    • Re: (Score:2, Insightful)

      So let's say that the GPLv3's lawyers are correct and that they find some means by which to bring Microsoft to court over non-distributed code. They'll sue Microsoft over Copywrite violation? Use the GPL as a defense against some future patent violation case (which will likely never come as it is much more useful as a threat)? So a bunch of geeks show up to court to thinking that they've got the big guy by the tail, and Microsoft's big nasty lawyers show up planning set a precident as to what counts as dist
  • by alienmole (15522) on Friday July 06, 2007 @10:07AM (#19766843)
    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?.. (Score:3, Interesting)

    by mi (197448) <slashdot-2012@virtual-estates.net> on Friday July 06, 2007 @10:10AM (#19766873) Homepage

    GPLv3 worked.

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

    • by The Cisco Kid (31490) * on Friday July 06, 2007 @10:28AM (#19767127)
      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.
  • 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
  • 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.

  • by nweaver (113078) on Friday July 06, 2007 @10:38AM (#19767243) Homepage
    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.
  • by fermion (181285) on Friday July 06, 2007 @10:39AM (#19767255) Homepage Journal
    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.

  • by GuyverDH (232921) on Friday July 06, 2007 @10:41AM (#19767285)
    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.
  • by jimicus (737525) on Friday July 06, 2007 @11:36AM (#19768109)
    This is the company that said "Antitrust laws shouldn't apply to us".

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