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.
Re:Has it ever been tested? (Score:5, Informative)
Wait a second (Score:5, Informative)
The core of Linux, for example, is pretty much guaranteed to stay at GPLv2 (not just for "Linus didn't like it" reasons, but also pretty big logistical issues like "getting every copyright holder to agree on the change").
I'm guessing the bits and pieces that make up any distro will gradually contain more and more GPLv3 software -- then they basically have to deal with it (accept the v3 license to redistribute those parts, or not accept it and NOT distribute the new versions of that software).
If they (or anyone) wants to fork software based on the last GPLv2 version and maintain the fork themselves, they're welcome to, of course.
But are they even distributing at all? Can someone clarify the certificate thing for me?
They're clearly party to the distribution of.... (Score:4, Informative)
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:Enlighten me... (Score:5, Informative)
The way I always understood it, using the "any later version" language is akin to saying "I beleive in free software, the FSF and I'm in it for the long haul".
Re:Has it ever been tested? (Score:5, Informative)
No. There have been cases of infringement, but a case has never been necessary - some diplomatic talk by a FSF lawyer has always been enough to let infringers see the error of their ways.
There's no real need to "uphold" the GPL, it is utterly rock solid. Anybody is free to choose whether they want to accept its terms or not, if you accept it only gives you extra options you didn't previously have (like being allowed to distribute software that contains other people's GPL code, under the GPL).
The bite is: if you don't accept the GPL, then you have no license to the software at all, and default copyright law situation applies - you're not allowed to modify or distribute software relying on GPL'ed parts at all!
Fighting the GPL would mean arguing that you voluntarily accepted its terms (how else did you get the right to modify / distribute), got extra options without any payment or anything in return - but still you're not actually bound by those terms. Good luck.
Re:Has it ever been tested? (Score:3, Informative)
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 project under a closed license and the case went to court?
Guess Again (Score:5, Informative)
Yes, you can. "GPLv2, or later"
You are (intentionally?) misrepresenting what the GPL says. If Microsoft distributes GPLv2 then ***Microsoft*** gets to choose if they are bound by GPLv2 or GPLv3. Example, I downloaded Apache back when it was covered by GPL2. I can make changes to it and distribute those changes under v2 or v3 if I want to. The people who made Apache cannot force me to upgrade to v3. However, now that v3 is out, Apache will be distributed under v3. If I now download Apache, I'm stuck in version 3.
So the answer to grandparent's question, "can MS be bound by GPL3 if they avoided using GPL3ed code" is that yes, MS avoids being bound by it. Basically they would have to never update linux - or fork it - but what they have right now is GPL2 and GPL2 it shall stay.
read GPL2 for yourself [gnu.org]
If the Program
specifies a version number of this License which applies to it and "any
later version", you have the option of following the terms and conditions
either of that version or of any later version published by the Free
Software Foundation. If the Program does not specify a version number of
this License, you may choose any version ever published by the Free Software
Foundation.
Re:Enlighten me... (Score:3, Informative)
Quoting from GPL itself:
Re:Wait a second (Score:3, Informative)
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 software is actually released under GPLv3. Once that happens then they'll redeem those vouchers for the version of SUSE that has the GPLv3 code in it.
Re:Enlighten me... (Score:5, Informative)
Software is not automatically subjected to GPLV3 with the default language of "or, at your option, any later version". All that means is that someone can choose to distribute a GPLV2 application with that language under either GPLV2 or GPLV3. It's each individual distributors choice.
Re:Enlighten me... (Score:5, Informative)
I always thought the legal logic was a little weak, myself. However now that MS is publicly trying to retroactively change the meaning of already-distributed vouchers, I can only assume that their lawyers are actually afraid that this argument would stand up in court.
This statement by MS amuses me to no end, actually. It betrays how afraid they are of the growing power of Linux (in terms of both consumer acceptability and legal power).
Re:Enlighten me... (Score:5, Informative)
No EULA applies anywhere, ever. (Score:3, Informative)
Note that IANAL and that this is not valid legal advice not an endorsement of any practices explictiely forbidden by EULAs.
Re:Enlighten me... (Score:5, Informative)
Microsoft has bought Suse vouchers from Novell, and sold them to customers. The vouchers have no expiration date.
According to FSF lawyers, when someone hands one in for a copy of Suse, then at that moment Microsoft distributes that version of the software; if it contains GPLv3 code, then there you are.
See this Groklaw article [groklaw.net]. Eben Moglen knows copyright law.
Re:Wait a second (Score:3, Informative)
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* the same code under the GPL. That doesn't make *you* bound to the GPL or anything.
The license agreement accepted by the party who received the code at the time they received it is the only thing that matters. "Or later" means that the party who received the code can then modify it and relicense it under a later version, not that the license the receiving party accepted can be modified.
Re:Guess Again (Score:4, Informative)
IIRC, their whole raison d'etre is because they don't like the limitations of the GPL with respect to commercial software.
Re:Enlighten me... (Score:2, Informative)
Re:Turnabout is fair play... (Score:3, Informative)
CU
I hate to admit this, but MS may be correct... (Score:3, Informative)
Re:Has it ever been tested? (Score:5, Informative)
By default, under copyright law, you DO NOT have the right to copy/modify/distribute someone else's code. If the GPL is invalid, or you don't fully accept its terms, then if you copy/modify/distribute code that was licensed to you only under the GPL, then you are violating copyright law. (Which no one on the proprietary side of the camp is going to do anything to weaken)
The only way anyone gets the right to copy/modify/distribute code that was licenses under the GPL is by accepting the terms of the GPL. And from there its simple contract law.
Re:Enlighten me... (Score:3, Informative)
Software is not automatically subjected to GPLV3 with the default language of "or, at your option, any later version". All that means is that someone can choose to distribute a GPLV2 application with that language under either GPLV2 or GPLV3. It's each individual distributors choice.
Similarly, If Linus Torvalds decided tomorrow to change to GPLv3, anyone who has ever contributed to the kernel could challenge him (if his or her code is still in the kernel). Linus' only options would be to either get permission, or remove the code in question.
Re:Has it ever been tested? (Score:4, Informative)
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:Enlighten me... (Score:5, Informative)
No, absolutely not! Any redistributor gets to choose. This is the language that MOST GPL 2 programs use:
The Linux kernel is DIFFERENT. Its terms are:
In the case of the Linux kernel, it started out from the beginning as GPLV2 only.
In the case of most every other GPL application, the redistributor gets to decide which version of the license that he is using.
Re:Enlighten me... (Score:5, Informative)
The GPLv3 contains explicit language which states (paraphrasing): "By distributing this software, you must also provide rights to use any patents you own which are in the software. If you do not extend this patent use, you are not allowed to distribute the code. Moreover, by distributing this software, you agree that this patent use right applies to anyone who might eventually get a copy of the code. That is, you extend a license to use the implicated patents to the community at large."
(Again, I'm paraphrasing this highly, the actual wording is much more precise.) Basically GPLv3 requires that anyone who distributes the software agree that they are distributing it without patent encumbrance. So when Novell distributes Linux (with GPLv3 code in it), it means that they are giving their users the assurance that they will not sue them for patent violations. So if MS were actually distributing GPLv3 code, then they could not sue Linux or Linux users for patent violations: they have given us a license to use their patents, as stipulated by the GPLv3. (If they claim otherwise, then they were in violation of the terms of the GPLv3 themselves, and can be sued for copyright infringement.)
Of course it really depends whether MS is actually "distributing" GPLv3 code.
People tend to forget that the GPLv2 had similar (but not as explicit) requirements: you were not allowed to distribute the software if there were patent restrictions. But the GPLv3 makes it much more explicit, and specifically states that patent rights are extended to the entire community (i.e. anyone who may eventually legitimately receive a copy of the code will have the rights extended to them).
Re:Enlighten me... (Score:4, Informative)
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.
kooky is as kooky does (Score:4, Informative)
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.
Re:Buhuhuhuhu. (Score:4, Informative)
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:Enlighten me... (Score:5, Informative)
No they can't.
This isn't about code that MS has used. It's about the patents Microsoft has been threatening FOSS with.
- Microsoft is distributing certificates entitling their customers to support and updates to SUSE Linux Enterprise Server.
- When Microsoft customers who're entitled to updates on their SUSE Linux Enterprise Server installs get GPL3 updates, Microsoft will have distributed GPL3 code.
- GPL3 includes patent defenses which prevent a distributor suing for patent infringement in the software they're distributing.
The result of this nice little combo is that Microsoft has accidentally indemnified all Linux users against their own patent threats.Of course, since Microsoft has always said they only intend to use their patents defensively, they should have no problem with this interpretation of the situation, just accept it, get on with business, and stop the 235 patent FUD.
They're not doing that, instead they're dancing a two-step with Novell where Microsoft says they won't support their customers with GPL3 code. That would potentially leave them open to lawsuits for breach of contract, but Novell has stepped up to the plate and said they will support Microsoft customers with GPL3 updates, even if MS disavows it.
That's why PJ and others are so light-hearted about this. It's shown just how scanty the emperor's new suit is, and how complicit Novell is in it's ties to Microsoft's FUD.
Re:Turnabout is fair play... (Score:3, Informative)
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 printed on.
If you bought the software directly from Microsoft their might be some basis in contract law to enfore the EULA - but it's hard to say because contract law requires that the terms be made available to both parties prior to the transaction taking place. If they won't show you the contract until after you've already comitted to it then its not valid.
Re:Twister (Score:2, Informative)
Not from the beginning (Score:5, Informative)
No.
Linux 0.01 was distributed under the following license:
This kernel is (C) 1991 Linus Torvalds, but all or part of it may be redistributed provided you do the following:
- Full source must be available (and free), if not with the distribution then at least on asking for it.
- Copyright notices must be intact. (In fact, if you distribute only parts of it you may have to add copyrights, as there aren't (C)'s in all files.) Small partial excerpts may be copied without bothering with copyrights.
- You may not distibute this for a fee, not even "handling" costs.
The Linux 0.12 release notes said:
The Linux 0.95 release notes said:
Linux-0.95 is NOT public domain software, but is copyrighted by me. The copyright conditions are the same as those imposed by the GNU copyleft: get a copy of the GNU copyleft at any major ftp-site (if it carries linux, it probably carries a lot of GNU software anyway, and they all contain the copyright).
The copyleft is pretty detailed, but it mostly just means that you may freely copy linux for your own use, and redistribute all/parts of it, as long as you make source available (not necessarily in the same distribution, but you make it clear how people can get it for nothing more than copying costs). Any changes you make that you distribute will also automatically fall under the GNU copyleft.
NOTE! The linux unistd library-functions (the low-level interface to linux: system calls etc) are excempt from the copyright - you may use them as you wish, and using those in your binary files won't mean that your files are automatically under the GNU copyleft. This concerns /only/ the unistd-library and those (few) other library functions I have
written: most of the rest of the library has it's own copyrights (or is
public domain). See the library sources for details of those.
Linux 0.99.2 was the first version that actually included the GPLv2 COPYING file.
Until Linux 2.4.0-test8 was released, no particular version of the GPL was actually specified for the kernel as a whole*, although it was clear that GPLv2 applied. Section 9 of GPLv2 states:
9. The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns.
Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation.
The copyright status of Linux is a little more complex than most people would like (and than some people would like to believe.)
Footnote:
* This isn't true for individual files. To this day, some files in Linux are explicitly 'v2 or later', some are 'v2 only', some are BSD-licensed, etc. The only common thing is that (except for some disputed firmware files) they are all GPLv2-compatible.
Re:Enlighten me... (Score:1, Informative)
So to start at the beginning: If someone (say Linus, or the Free Software Foundation which holds the copyright on the many GNU tools that make up a large part of every Linux distribution) creates a piece of software from scratch, copyright law automatically gives them the exclusive right to copy, modify, and distribute that software. Anyone else attempting to do these things is automatically guilty of copyright infringement unless they have the permission of the original author. Such permission is given in the form of a "copyright license", and because the author doesn't owe anyone a license, he can attach any strings to it that he wants. The GPL is a copyright license that gives anyone who receives a copy of the software the right to modify and redistribute it on very generous terms, the only strings attached being essentially that they make the source code available and perpetuate the same license to their downstream recipients. Version 2 of the GPL includes a very few additional details to ensure that this worked as intended; version 3 includes many more such details, but that's pretty much the gist of both versions. (This is why people are wrong who say the GPL takes away their freedom. Copyright law already took away their freedom; the GPL actually gives almost all of it back. If you don't like the terms of the GPL, simply refrain from redistributing the software, and you're no worse off than you were to start with under plain copyright law. Much better off, actually, because you can still *use* the software in private all you want.)
One of the details of the GPL is that it withholds permission to distribute covered software if such distribution also requires a patent license and that patent license is not given freely to everyone in the world. This is simply an example of a special situation where you have (or have acquired) a special right which allows you to use and distribute software while others do not have that right -- the GPL is primarily concerned with *perpetuating* the freedom of the software (which is what distinguishes it from BSD-style licenses), so it insists that you extend to all your downstream recipients the same freedoms that were given to you, and if you can't or won't do that then the GPL refuses you the permission to distribute it at all. So if Novell admitted that Linux infringed Microsoft's patents and paid patent royalties to Microsoft for the right to distribute Linux, but couldn't or wouldn't extend that patent license not only to their own customers but to the whole world (which of course Microsoft would never agree to), then the GPL would disallow them from distributing Linux at all.
Now before we go any further you have to understand that patent law allows a patent holder to sue not only anyone *selling* their patented thing, but also anyone who merely *uses* it. If I patent a better mousetrap, and my competitor copies it and sells one to you, an innocent consumer, I can sue my competitor and/or I can also sue you. Microsoft has recently begun making lots of scary noises about the "patent infringement liability" that goes along with merely *using* Linux. At first it seemed they just wanted to scare people away from using it. Granted, they probably aren't going to bother suing a hobbyist using it at home, but apparently some pointy-haired bosses at big companies using it in their server rooms do take these threats seriously.
(As an aside: Some Linux vendors like Red Hat have responded to these threats by promising to indemnify their customers -- part of what their customers pay for when they buy Linux is an agreement that if they are sued
Re:Does GPL allow for source in 'dead tree' format (Score:2, Informative)
Re:Enlighten me... (Score:3, Informative)
No, that's not correct. The distributor made a copy and gave it to you. This is comparable to purchasing a book or CD. You don't "copy" the book or CD when you acquire it. The distributor made or otherwise obtained copies that he's providing you. This is what's known as the "first sale".
The GPL only kicks in when you make a non-backup copy of the copy you received. (Standard copyright law makes it legal for you to make backup copies.)
This is actually how the GPL is designed. You receive a copy from someone who has the rights to distribute the software. It could be the author, or a GPL licensee. You now are completely free to use the software as you choose with no restrictions save for those placed upon you by copyright law. Copyright law says that you can't make a copy and give it to a friend because only the owner of the software has the "right" to "copy". However, the owner can delegate that right per his or her choosing.
The GPL provides a unilateral offer to become a distributor. Since copyright law does not allow you to redistribute software you have received (save for the "first sale doctrine [wikipedia.org]" exception) it is assumed that you accept the GPL offer when you redistribute. However! You can claim that you never accepted the GPL. If you do so, then you are in violation of copyright law and may owe damages to the copyright holder of the software.
PJ echos this point in this article [weblogs.com]:
Re:Enlighten me... (Score:3, Informative)
Copying a piece of software for personal use is most likely legal, and although it doesn't give you a "license" to use the product, I've never heard of any case regarding personal software copying brought to a court, and it would most likely be easily defeated (professional pirates HAVE been pursued and sent to prison though) most likely because consumer protection laws are very powerful here, especially in Quebec, and most EULA provisions have no legal basis and are most certainly invalid here, especially the stuff about lack of "implied warranties" and inability to get a refund for opened products. In Canada, Microsoft for example have to offer a refund within 30 days of buying any of its software products (Windows, Office, etc) if the customer is not satisfied. This is handled directly through them, and not the resellers though.
Note: I am not a lawyer, and shouldn't take my legal advice, but I've followed such issues for many years, have been working for 10 years in the computer industry at a computer reseller/VAR, and it's the kind of stuff my customers will often ask and that I've had to check into, inquire about and research carefully