Microsoft States GPL3 Doesn't Apply to Them

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

Comments

Enlighten me...

[vigmeister]

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...

[Sam Andreas]

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

FTA -

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

I don't know all the details of this certificate deal with Novell, but it seems that Microsoft is just covering themselves by saying that their certificates don't cover GPL3, just software licensed under previous GPL's, but Novell is going to provide GPL3 software to Microsoft certificate customers anyway.

I can see issues brewing, but it's nothing like what the summary and headline on this story claim.

Re:Enlighten me...

[somersault]

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

Re:Enlighten me...

[vigmeister]

So basically, when you use GPLed code, you have to agree to anything that gets put in there or risk losing the right to use that code? What if the code is deeply integrated into your system and then a new version of GPL comes along with stipulations you do not agree to? Are you pretty much screwed? If so, given the sentiments of the OSS community, MS should never have agreed to being bound by future versions of GPL. I mean, what if GPLv4 says you ought to reveal the context in which the GPLed code is being used?
Seems like a bad decision by MS and now they're complaining when caught with their hands stuck in the ooze in the OSS jar (I like that analogy, however inaccurate it may be)

Cheers!

Re:Enlighten me...

[just_another_sean]

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

The way I always understood it, using the "any later version" language is akin to saying "I beleive in free software, the FSF and I'm in it for the long haul".

Re:Enlighten me...

[bWareiWare.co.uk]

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

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

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

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

Re:Enlighten me...

[morgan_greywolf]

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

Software is not automatically subjected to GPLV3 with the default language of "or, at your option, any later version". All that means is that someone can choose to distribute a GPLV2 application with that language under either GPLV2 or GPLV3. It's each individual distributors choice.

Re:Enlighten me...

[kebes]

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...

[casings]

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

I mean, what if GPLv4 says you ought to reveal the context in which the GPLed code is being used? Assuming that the context isn't GPL'd as well, then this is an example of a provision that would be unlawful (and hence invalidate the license), so things like this won't be included in the license. A license can't apply to original works unless the author chooses it to.

Seems like a bad decision by MS and now they're complaining when caught with their hands stuck in the ooze in the OSS jar (I like that analogy, however inaccurate it may be) They are a big company and will most likely find a way out (probably by completely rewriting the code) but it's good to see that they are at least sweating it.

Re:Enlighten me...

[Scarblac]

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. Eben Moglen knows copyright law.

Re:Enlighten me...

[aquabat]

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

Software is not automatically subjected to GPLV3 with the default language of "or, at your option, any later version". All that means is that someone can choose to distribute a GPLV2 application with that language under either GPLV2 or GPLV3. It's each individual distributors choice.

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

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:Enlighten me...

[morgan_greywolf]

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

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

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

The Linux kernel is DIFFERENT. Its terms are:

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

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

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

In the case of most every other GPL application, the redistributor gets to decide which version of the license that he is using.

Re:Enlighten me...

[kebes]

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

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

The GPLv3 contains explicit language which states (paraphrasing): "By distributing this software, you must also provide rights to use any patents you own which are in the software. If you do not extend this patent use, you are not allowed to distribute the code. Moreover, by distributing this software, you agree that this patent use right applies to anyone who might eventually get a copy of the code. That is, you extend a license to use the implicated patents to the community at large."

(Again, I'm paraphrasing this highly, the actual wording is much more precise.) Basically GPLv3 requires that anyone who distributes the software agree that they are distributing it without patent encumbrance. So when Novell distributes Linux (with GPLv3 code in it), it means that they are giving their users the assurance that they will not sue them for patent violations. So if MS were actually distributing GPLv3 code, then they could not sue Linux or Linux users for patent violations: they have given us a license to use their patents, as stipulated by the GPLv3. (If they claim otherwise, then they were in violation of the terms of the GPLv3 themselves, and can be sued for copyright infringement.)

Of course it really depends whether MS is actually "distributing" GPLv3 code.

People tend to forget that the GPLv2 had similar (but not as explicit) requirements: you were not allowed to distribute the software if there were patent restrictions. But the GPLv3 makes it much more explicit, and specifically states that patent rights are extended to the entire community (i.e. anyone who may eventually legitimately receive a copy of the code will have the rights extended to them).

Re:Enlighten me...

[swillden]

The way I always understood it, using the "any later version" language is akin to saying "I beleive in free software, the FSF and I'm in it for the long haul". No it's just stupid. Lets assume for now that the FSF aren't going to make fundamental changes to the way the GPL works. Tomorrow they could go bankrupt and the arbitrator would sell their IP rights to the highest bidder, potentially MS. At that point MS can make GPLv4 and allow themselves to use all the GPLv2 or later code without respecting freedom.

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

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

Re:Enlighten me...

[msuarezalvarez]

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

Re:Enlighten me...

[ozmanjusri]

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

No they can't.

This isn't about code that MS has used. It's about the patents Microsoft has been threatening FOSS with.

• Microsoft is distributing certificates entitling their customers to support and updates to SUSE Linux Enterprise Server.
• When Microsoft customers who're entitled to updates on their SUSE Linux Enterprise Server installs get GPL3 updates, Microsoft will have distributed GPL3 code.
• GPL3 includes patent defenses which prevent a distributor suing for patent infringement in the software they're distributing.

The result of this nice little combo is that Microsoft has accidentally indemnified all Linux users against their own patent threats.

Of course, since Microsoft has always said they only intend to use their patents defensively, they should have no problem with this interpretation of the situation, just accept it, get on with business, and stop the 235 patent FUD.

They're not doing that, instead they're dancing a two-step with Novell where Microsoft says they won't support their customers with GPL3 code. That would potentially leave them open to lawsuits for breach of contract, but Novell has stepped up to the plate and said they will support Microsoft customers with GPL3 updates, even if MS disavows it.

That's why PJ and others are so light-hearted about this. It's shown just how scanty the emperor's new suit is, and how complicit Novell is in it's ties to Microsoft's FUD.

I hereby declare...

[alienmole]

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

Turnabout is fair play...

[Tuoqui]

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

Re:Turnabout is fair play...

[The Terminator]

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

Has it ever been tested?

[WED Fan]

Serious question here:

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

Not settlements. I'm talking about an instance where a court in the U.S. has upheld GPL against a violator.

Re:Has it ever been tested?

[froggero1]

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

Re:Has it ever been tested?

[Scarblac]

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?

[kripkenstein]

Has there been any successful court action enforcing any version of the GPL? The point is that the GPL is so obviously-enforceable, that there is no need to test it.

If you want to distribute code, you need a license, or you are in violation of copyright law. So if the GPL is invalid, you don't have a license, since the GPL is the only thing giving you such a license to begin with. This simple logic has kept the GPL out of the courts, since (except for SCO) lawyers and the people that pay for them generally do not like unwinnable cases.

This current matter with Microsoft and the GPL3 is a completely separate issue, though. Microsoft aren't directly distributing code; they are just handing out vouchers for said code (or will be, if they continue handing out vouchers after Novell starts to distribute GPL3 code - which will be soon). That is Microsoft's defense - they aren't distributing the code themselves. Yet, if a major lawsuit should ensue between Microsoft and a Linux vendor, the issue may arise nonetheless: Even if Microsoft are not distributing the code, they are helping a partner to distribute it. This implies that they are tacitly not contesting certain claims in that code, or that the basic business model implied by that code is not seen as illegitimate by Microsoft. I am sure the lawyers can argue this for a few years.

Re:Has it ever been tested?

[Rogerborg]

Jesus Tapdancing Christ, please read the fine article:

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

The GPL wasn't ruled on. It's never been tested by an actual ruling in the United States. Personally I think that GPL2 is a completely valid and applicable license (i.e. it terminates if it's breached, leaving you violating copyright), but there's no case law to directly support that, and all the wishing in the world won't make it otherwise.

Re:Has it ever been tested?

[LO0G]

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

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

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

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

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

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

Re:Has it ever been tested?

[The Cisco Kid]

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

By default, under copyright law, you DO NOT have the right to copy/modify/distribute someone else's code. If the GPL is invalid, or you don't fully accept its terms, then if you copy/modify/distribute code that was licensed to you only under the GPL, then you are violating copyright law. (Which no one on the proprietary side of the camp is going to do anything to weaken)

The only way anyone gets the right to copy/modify/distribute code that was licenses under the GPL is by accepting the terms of the GPL. And from there its simple contract law.

Re:Has it ever been tested?

[NMerriam]

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

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

Re:Has it ever been tested?

[swillden]

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

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

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

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

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

Twister

[Obyron]

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

[JavaRob]

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

The core of Linux, for example, is pretty much guaranteed to stay at GPLv2 (not just for "Linus didn't like it" reasons, but also pretty big logistical issues like "getting every copyright holder to agree on the change").

I'm guessing the bits and pieces that make up any distro will gradually contain more and more GPLv3 software -- then they basically have to deal with it (accept the v3 license to redistribute those parts, or not accept it and NOT distribute the new versions of that software).

If they (or anyone) wants to fork software based on the last GPLv2 version and maintain the fork themselves, they're welcome to, of course.

But are they even distributing at all? Can someone clarify the certificate thing for me?

From the article

[igotmybfg]

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

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

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

[H4x0r Jim Duggan]

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.

Guess Again

[oni]

Re: How can MS be bound by GPL3 if they avoided using GPL3ed code after June 29?
Yes, you can. "GPLv2, or later"

You are (intentionally?) misrepresenting what the GPL says. If Microsoft distributes GPLv2 then ***Microsoft*** gets to choose if they are bound by GPLv2 or GPLv3. Example, I downloaded Apache back when it was covered by GPL2. I can make changes to it and distribute those changes under v2 or v3 if I want to. The people who made Apache cannot force me to upgrade to v3. However, now that v3 is out, Apache will be distributed under v3. If I now download Apache, I'm stuck in version 3.

So the answer to grandparent's question, "can MS be bound by GPL3 if they avoided using GPL3ed code" is that yes, MS avoids being bound by it. Basically they would have to never update linux - or fork it - but what they have right now is GPL2 and GPL2 it shall stay.

read GPL2 for yourself

If the Program
specifies a version number of this License which applies to it and "any
later version", you have the option of following the terms and conditions
either of that version or of any later version published by the Free
Software Foundation. If the Program does not specify a version number of
this License, you may choose any version ever published by the Free Software
Foundation.

Re:Guess Again

[just_another_sean]

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

If Novell wants to update the bulk of the userland programs in SLES they will surely at some point need to embrace GPLv3. It's that or fork the v2 versions and maintain them on their own.

Re:Guess Again

[cching]

Correct me if I'm wrong, but doesn't Apache have its own license agreement and doesn't use GPL? Yep, you are correct. All software from the ASF uses the Apache License, Version 2.0. http://www.apache.org/licenses/LICENSE-2.0

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

Re:What did we get?..

[The Cisco Kid]

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.

Pointless Microsoft Bashing...

[nweaver]

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.

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

[Anonymous Coward]

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

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

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

kooky is as kooky does

[yankpop]

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.

Strict legalism isn't the most important thing

[OmniGeek]

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

The critical aspect of the vouchers controversy is not whether MS is definitely bound by the GPL to refrain from patent litigation against corporate Linux users;the critical aspect is, How does this affect the perceptions of the potential victims, er, customers? If you consider the potential for the voucher-and-GPLv3 combination to defuse MS' patent threats in any possible litigation, together with the refusal of most Linux distributors to play along with MS, the net FUD effect of MS' patent-threat campaign would seem to be significantly diminished. THAT, I submit, is the critical factor in this whole circus.

Re:Buhuhuhuhu.

[stonecypher]

Linux is the fastest growing unix-ish operating system out there.

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.)

If that operating system was BSD, a company, such as Microsoft, could just take all the code, write a better version, and begin selling it.

Yep. That's basically what Apple did, and it's been an enormous benefit to the BSD codebase.

The GPL is important, because it doesn't allow that.

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.

You want to use someone else's code without allowing them to see how you used it.

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?

here are sources for that, but a large amount of freely available code is licensed such that you can not just gain from the arrangement, but also have to give back.

Re:Buhuhuhuhu.

[stonecypher]

Are you giving your code back to the community?

Yes, extensively.

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

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

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

Please stop being such a bigot.

Re:Buhuhuhuhu.

[stonecypher]

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

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

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

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

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

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

... what?

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

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

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

I am not a lawyer, but:

[williamhb]

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

MS have not distributed GPL3 code, no matter how much we would like them to have. They have offered a covenant not to sue Novell's customers, and vouchers offering support for Novell's product. This is very different. None of this makes MS a party to the GPL because MS do not need any kind of license or copyright provision just to say "I won't sue Joe Bloggs, and I'll help him with his technical issues". No matter what the FooBarSpecialLicense attached to the product Joe Bloggs happens to own says!

(And if you think otherwise ask yourself this: what part of copyright law would MS have broken by saying "I'm happy to assist with Joe's problem but I don't agree to your license agreement"? On what grounds could you sue them? Or if they say "Mr Novell, if you sell Joe a copy of product X, I'm happy to talk to him about any problems he has with it; but I don't agree to your license agreement" What would you sue them for? If there is no potential copyright breach, there is no license.)

What the Novell-MS deal could have impinged on was Novell's right to distribute SUSE at all. If they were unable to offer the equal patent cover required by the GPL (and clearly they are unable to extend Microsoft's offer of patent protection to non-customers without Microsoft's consent), then they would have been unable to meet the terms of the GPL3 and thus unable to legally distribute the software. Except that Eben Moglen kindly gave them a get-out clause at the end of paragraph 11 of the GPL.

In most countries, as I understand it, even if Novell hadn't been given a get-out clause, the only result would have been the Novell-MS deal being "frustrated". "Frustration" is where an unforseen circumstance prevents a contract from being possible to fulfill. This appears to me to have happened. An unforseen change (the FSF deliberately altering the GPL licensing terms to affect the deal) would have prevented Novell from being able to fulfill its end of the Novell-MS deal. It wouldn't have been able to distribute SUSE under GPL3 because it couldn't extend MS's patent provisions beyond what MS offered in the initial contract without asking MS first. Thus the Novell-MS deal would get terminated, and there might have been a little wrangle about "reasonable recompense for the services provided". (Novell would need to go along to a court to get the contract declared frustrated, however.)

But with the get-out clause in para 11, even that won't happen.

All up, Eben Moglen's grand plan doesn't seem to amount to a hill of beans.

Disclaimer: Once again, this isn't legal advice. It is based on an engineer's shaky memory of engineering law lectures, and has the potential of being utterly wrong.

Not from the beginning

[Schraegstrichpunkt]

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

No.

Linux 0.01 was distributed under the following license:

This kernel is (C) 1991 Linus Torvalds, but all or part of it may be redistributed provided you do the following:

- Full source must be available (and free), if not with the distribution then at least on asking for it.

- Copyright notices must be intact. (In fact, if you distribute only parts of it you may have to add copyrights, as there aren't (C)'s in all files.) Small partial excerpts may be copied without bothering with copyrights.

- You may not distibute this for a fee, not even "handling" costs.

The Linux 0.12 release notes said:

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

The Linux 0.95 release notes said:

Linux-0.95 is NOT public domain software, but is copyrighted by me. The copyright conditions are the same as those imposed by the GNU copyleft: get a copy of the GNU copyleft at any major ftp-site (if it carries linux, it probably carries a lot of GNU software anyway, and they all contain the copyright).

The copyleft is pretty detailed, but it mostly just means that you may freely copy linux for your own use, and redistribute all/parts of it, as long as you make source available (not necessarily in the same distribution, but you make it clear how people can get it for nothing more than copying costs). Any changes you make that you distribute will also automatically fall under the GNU copyleft.

NOTE! The linux unistd library-functions (the low-level interface to linux: system calls etc) are excempt from the copyright - you may use them as you wish, and using those in your binary files won't mean that your files are automatically under the GNU copyleft. This concerns /only/ the unistd-library and those (few) other library functions I have written: most of the rest of the library has it's own copyrights (or is public domain). See the library sources for details of those.

Linux 0.99.2 was the first version that actually included the GPLv2 COPYING file.

Until Linux 2.4.0-test8 was released, no particular version of the GPL was actually specified for the kernel as a whole*, although it was clear that GPLv2 applied. Section 9 of GPLv2 states:

9. The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns.

Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation.

The copyright status of Linux is a little more complex than most people would like (and than some people would like to believe.)

Footnote:
* This isn't true for individual files. To this day, some files in Linux are explicitly 'v2 or later', some are 'v2 only', some are BSD-licensed, etc. The only common thing is that (except for some disputed firmware files) they are all GPLv2-compatible.