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...

[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...

[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...

[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.

Re:Has it ever been tested?

[froggero1]

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

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.