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Groklaw Explains Microsoft and the GPLv3
A Groklaw Reader writes "After all the questions about how the GPLv3 will or won't apply to Microsoft following Microsoft's declaration that they weren't bound by it, PJ of Groklaw wrote this story about how and why the GPLv3 will apply to Microsoft. Specifically, it covers in what ways Microsoft would convey GPLv3 software under the Novell agreement, and how Microsoft's refusal to allow previously sold vouchers to be redeemed for GPLv3 software would impact that agreement. Given that Novell has said that they will distribute GPLv3 software, Microsoft may have had the tables turned on them already."
HEADSHOT!
People are going back and forth about whether or not the GPLv3 will apply to Microsoft, but the real crux of the deal is that it won't matter if there is no one that both has the resources and the motivation to force Microsoft to comply.
How could it possibly stop Microsoft from doing anything they do as long as no one has the money or the reason to take them to court over it and see it through completion. IBM is the only company I can think of that would really have both, and Microsoft isn't stupid enough to violate any of IBM's licenses, nor is it strategically positive for IBM to place themselve directly against Microsoft right now either.
Otherwise, who are we really expecting to take Microsoft to court? Novell? The Free Software Foundation? Please... Microsoft has been stalling the sum total of *Europe* for almost half a decade, if you think Novell or the FSF is going to force Microsoft to comply witht eh GPL you're delusional.
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You're completely alone in that feeling, as I'm sure a significant number of slashdot'ers are about to confirm.
- The Kessel run is for nerf herders. I can circumnavigate the entire Central Finite Curve in a lot less than 12 parse
Microsoft said that it doesn't apply to them (now).
/. and FOSS vs Closed Source companies... :(
Groklaw says it does apply to them (in the future).
There is no argument here, no discussion. Does Groklaw actually think that Microsofts Army of Layers knows less than they do about law or something?
This type of round robin arguing, where everyone is shouting about different scenarios yet equating them because they are "similar" is so typical of
Look, I think M$ is evil as much as the next /.er, however, let me be clear.
I don't think you should ever be held accountable for past actions under a new license. If Microsoft sold vouchers before the GPLv3, then they did so under the assumption that the vouchers covered GPLv2 software. Furthermore, much of this whole argument assumes that all this software is definitely moving to GPLv3, and while I expect many of the GNU tools to do exactly that, I haven't seen that many official GPLv3 announcements just yet. The kernel is certainly not moving to GPLv3 anytime soon.
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The whole point that PJ has been going on about are Microsoft's little coupons. She is under the impression that issuing a coupon is the same thing as distributing - that if any of Microsoft's coupons are redeemed for a GPLv3-licensed product, that Microsoft has then distributed it. This is an extremely tenuous position, for the simple fact that Microsoft hasn't copied anything. A coupon is a method for a third party to step in and facilitate payment between a seller and a buyer. In this case, the seller (Novell) is the one doing the copying, and the buyer (the one turning in the coupon) is the one who is getting a license and will be bound by it.
In shory, GPLv3 can say anything it wants, but it falls under copyright law, and if I don't copy, I can't infringe. No version of the GPL can define what constitutes making a copy - only the law can do that.
I hope Novell escapes from this wiser and embraces freedom-based principles more. They have a lot of good employees and industry power, so the work they do can really make a difference in a struggle like this. They've chosen to be used as a counter-example instead, but I hope it results in a lesson learned and not a lot of careers ruined. Microsoft can market it to convince most people they're in the right, and somehow it's the FOSS people's fault. Novell can't really do that, so they have to issue a public apology for their devil worship, or continue their decline into the fiery pits of hell.
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So now Microsoft has modified what you get with the vouchers, or tried to. Novell won't agree not to provide support for GPLv3 software, though, so that blunts the effectiveness of Microsoft's announcement and I must say thank you to Novell for that. I doubt Microsoft realistically thought Novell would stop supporting the software it sells. Microsoft just wanted to say, "Hey, it's not us doing that. We don't authorize or approve. We tried to stop it." And since Eben Moglen has pointed out that the vouchers have no cutoff date, Microsoft, by my analysis, still has to face what it will mean for them if even one such voucher is turned in after Novell begins to offer GPLv3 software.
This analysis is wrong. If Novell chooses to provide software and services beyond what is required by the voucher, Novell is free to do so. That choice is not in any way binding on Microsoft. This is no different than saying that a grocery store may choose to give me a free box of cereal in exchange for a 35 cent coupon. That store's choice does not in any way compel Kellogg's to give me more free Froot Loops.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
I always thought that the GPL functioned on the premise you needed copyrights to the software to do anything with it you wanted. It therefore was a way to get those copyrights in exchange for giving them to those you gave copies to.
MS is not making copies, they are giving away coupons, from someone else. I don't see how they can possibly be held to the GPL. It makes about as much sense as me saying clipper magazine employees must where there shirt because I used there coupon at an eatery.
The only way I can possibly see it applying is if MS also chooses to directly distribute GPL3 software, because then they would have agreed to the concept that handing out a coupon is distributing, but without agreeing to that I hope that they can't be forced into it.
I also imagine it is possible for the GPL3 to force Novell not to sell any coupons to GPL3 software without getting the purchasers agreement to abide by the terms, in a sense attaching the restrictive (perhaps in a good way, but still restrictive) parts of the GPL to any coupon.
It could also force the "conveying" party not to convey its copy unless all parties involved in propagating and conveying agree to GPL3 terms, but I didn't read it that way at all, it clearly puts pressure on the propagating party, which does not need any permission from the GPL at all to act. I really think the GPL3 as it is written, and being interpreted is worse than a standard EULA in enforcability. It is trying to capture parties not involved at all (book sellers, box stores, ect) and bind them into a contract that they need no part of to carry on (thus undercutting the defense that the GPL is granting you rights you didn't already have).
It is a shame that the ideals that I bought into were sold out to stick it to the man, it makes me feel silly for defending the GPL vs BSD.
Wow, sent an e-mail as suggested when clicking on "use classic" banner, and got a fast response that addressed my msg
Microsoft will do NOTHING involving anything with GPLv3. THey already view the GPL as a dangerous virus and are quite particular about keeping that contamination out of their ecology.
Those "unexpiring" vouchers won't cover GPLv3 stuff, and even if it DID, it is highly unlikely a court would enforce the patent covenants.
So when Microsoft says it is unaffected by the GPLv3, that is perfectly correct, they will have NOTHING to do with it, and anything otherwise is wishful dreaming.
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The judge you get on the day, the jury, how well the lawyers convince the jury to see things their way, what the judge allows and disallows, what the various appeals processes rule, the politicians you buy to change the law at the last moment, all of those change it from absolute certainty to something much hazier.
In that haze, Microsoft's PR, lawyers, management, etc. can all state, "The GPLv3 won't stand up in court." Groklaw can state, "This is how it will go..." and we on Slashdot can argue, "Ha, we've got them now!" or "Microsoft will wriggle out of it somehow, like they always do." to our heart's content. The one certainty is that those are opinions, not absolutes for how it'll work out.
PJ's welcome to an opinion. More accurately however, the title should be "PJ from Groklaw has an opinion about how GPLv3 and Microsoft will work out." What it isn't, and can't be until it's gone through every last legal wrangling, is an absolute what "will" happen.
Right, because lefties aren't influenced by money? Microsoft has billions of dollars in cash, more than enough to buy whatever politicians happen to be in power.
Corruption isn't just a conservative phenomenon. By the time you get to the White House, unless you end up there by mistake, you're already crooked. The process of getting there guarantees it. I'm sure Microsoft slathers its campaign contributions around so that no matter who wins, they owe Redmond a few favors.
The only reason any politician would ever break up Microsoft would be if they thought they could somehow capitalize on its demise, and I don't see any reason why that's possible. You don't win votes by torpedoing one of the crown jewels of the U.S. economy and its economic dominance, even if you're a leftist. There might be some saber-rattling, but it's not going to be anything serious.
Your faith in one batch of weasels over another is cute, but ultimately I think you're just setting yourself up for disappointment.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
"Marvel, marvel at my adroit dissection! Pay no heed to the fact that my dissection is nothing more than occasionally witty, subjective hypothesizing by someone without a law degree, enjoy the fact that I'm ragging on Microsoft!"
Bah.
I'm hoping Novell survives this, and furthermore takes every opportunity to deride Microsoft and counter their FUD, within the limits of their contract.
Software patents delenda est.
> She is under the impression that issuing a coupon is the same thing as distributing
No, no she's not. The GPLv2 limited itself to distribution, but copyright law has fun theories of secondary liability, etc. The GPLv3 expands the scope that it covers to something close to the full scope of what's covered by copyright law.
Did everyone but me forget just how BROAD copyright law is? It covers loads of crap. Just like I can't sell warez vouchers for Joe'z Warez Sitez which happen to be hosted in a copyright-hostile country and claim no liability, you can't "procure the conveyance" of GPLv3 software as a license dodge any more. Yes, you COULD dodge like that under the GPLv2, but only because the GPLv2 said you didn't need permission for anything but distribution. But not any more, because the GPLv3 forbids it and copyright law says you need permission.
The rules have changed, folks. The GPLv3 is stronger, because it takes advantage of the ridiculously strong copyright laws that are so prevalent. But it really shouldn't matter much unless you dislike things like compatibility with the Apache license or planned to undermine people with weird software patent threats.
The fact is, they sold a contract to support software that is being released under a licence they didn't control. Software that is developed by people who are hostile to their interests. And that left them open to being unable to meet their obligations. They should have known that the GPLv3 could have specifically said "M$ is teh evil, you cannot run this software and theirs in the same company" and had provisions in their support contract to deal with it. Did they really think Stillman et al would just let it slide? It's absurd.
Here is where I don't understand all the "Microsoft is screwed" talk though. If they refuse to honour the contracts, the worst a court can do is make them refund the money paid to them, and possibly a bit more for damages. I don't think Microsoft is loosing sleep over this.
If Wal-Mart ends up feeling burned by being left with unsupported Linux installs, and wants a bit of money, does Microsoft really need to feel all that bad about it? If just proves their point that running Linux can leave you out in the cold.
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You forget that Eben Moglen, a professor of law at Columbia University and general counsel for the FSF read the Novell / Microsoft agreements and drafted the GPLv3 with them in mind with the intent to undo the damage the discriminatory software patent agreements cause.
Given that he believes Microsoft is in trouble and that Microsoft *actually took notice* of the GPLv3 enough to issue an announcement, I'll have to say that while it's probably a thorny legal question, it's nowhere near as one-sided as you make it out to be.
Eben, BTW, is pretty much the foremost legal expert on the GPL. You know, having helped draft it and all. And it's not like PJ doesn't talk with lawyers about her posts. You know, like Eben...
But what the hell do I know? I just post snarky comments on Slashdot... like you do.
... to RMS' frequent claims of being a tireless, persecuted martyr for freedom that they apply to, say, an American politican's frequent claims that any policy which they think is a good idea is justified by freedom. "Freedom" is not a magic word which forgives all sins and justifies all measures. Not for the politicians, not for the activists.
And, yes, RMS is radical and radically wrong on some points. His definition of "freedom" involves having the government coerce people who disagree with him. Read the GNU Manifesto -- not just the fluffy "Oh, I'm going to give you tons of free goodies" bits but the hard core "I really desire a radical transformation of how EVERYONE, not just you and me, see software" bits. Actual quotes, emphasis is mine:
"If programmers deserve to be rewarded for creating innovative programs, by the same token they DESERVE TO BE PUNISHED if they restrict the use of these programs"
"Proprietary and secret software is the moral equivalent of runners in a fist fight. Sad to say, the only referee we've got does not seem to object to fights; he just regulates them ("For every ten yards you run, you can fire one shot"). He really ought to break them up, and penalize runners for even trying to fight." (This is a call for the government to *ban proprietary software*.)
There's another bit where he proposes funding software development by creating a transnational agency to tax all computer hardware, and then fund deserving projects. "The total tax rate could be decided by a vote of the payers of the tax, weighted according to the amount they will be taxed on." Quite aside from the fact that your Dell is now 30% or 300% more expensive than it was yesterday, do you really want ALL money flowing into software to be allocated on the basis of the priorities of the US business community, who will ALWAYS win the "election" for determining development priorities because they spend vastly more money on hardware than anyone else? For that matter, does the idea of any government agency determining how much money needs to be allocated to WoW relative to Office appeal to you?
Help poke pirates in the eyepatch, arr.
Had you read what I wrote, I addressed this. No matter what PJ might want to have be the case, the GPLv3 cannot define what constitutes its own invocation if the party doesn't cross the line given in national copyright laws. I can write a license that says anything. I can write one that says if you blow your nose, then you become subject to the license on my project. Does that mean the next time you blow your nose you're violating the license? This is ludicrous. GPLv3 cannot define a stricter interpretation of what constitutes copying than the underlying copyright law people are bound by. Which means that it is the law's definition that counts, not GPLv3's. And the reality is, since Microsoft isn't doing anything that constitutes copying according to the law, there's nothing the GPLv3 can do to impose any licensing conditions on them.
I would love it to be the case as much as anyone, but that doesn't make it so.
Under US copyright law, Microsoft can buy Linux CD/DVDs from any legal distributor (in this case, Novell) and sell it to others without ever agreeing to the GPL3.
See: Title 17 Section 109 Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord.
GLaDOS for President 2016! "Well here we are again. It's always such a pleasure." -- GLaDOS, 2011
You seem to forget that it's not the job of "Microsofts Army of Layers" (is it just me or .... ?) to tell the world about the implications of law. It's their job to spin the story long enough to convince some judges. Given the U.S. case law, they may prevail in the end. OTOH the SCO case demonstrates that spin doctors don't always succeed.
That being said, the GPLv3 does apply to everyone - as soon as they distribute GPLv3 software. If Microsoft doesn't do that today, fine (pretty improbable because AFAIK there has not been any project releasing GPLv3'd code yet). If they do that in the future, they had better watch out. The GPLv3 as a software license is as valid as any other software license, like the M$ EULA (which has proven not be valid in certain judiciary systems).
And by the way the M$ EULA does not apply to me either.
open (SIG, "</dev/zero"); $sig = <SIG>; close SIG;
In other news, SCO has announced that as a linux company, Microsoft is actively participating in the infringement of 294 items of SCO's intellectual property. The Free Software Foundation immediately came to Microsoft's aide, going as far as to offer legal council in the event that Microsoft could not afford it. RMS was unavailable for comment.
Stop the Slashdot effect! Don't read the articles!
IANAL, but from reading the article, P.J. describes why what Microsoft is doing fits under the GPLv3 definitions of conveyance and propagation. However, this doesn't address Microsoft's assertion that it doesn't accept the GPLv3 license, and is thus unaffected by it. In general, a license such as the GPL is a license given by the copyright holder to do something that would otherwise be prohibited by the copyright law. In the case of the GPL, it gives third parties the right to distribute the copyrighted material - something which without the license would be copyright infringement. Microsoft asserts that what it is doing with their voucher system is not illegal distribution under the copyright law definitions. Thus the terms of the GPL license are completely irrelevant - there is no agreement between the copyright holders and Microsoft - Microsoft is doing what it's legally allowed to do with any copyrighted material.
Whether or not Microsoft's voucher system is legal under copyright law is a matter for the courts (should it get that far), but this point is in no way addressed by the Groklaw article. From first glance, it might actually be legit, since they are buying a voucher from Novell, and then reselling it, which should be covered by first-sale doctrine.
> Microsoft aren't selling "Download Credits". They are selling patent licenses for patents that might (Your Interpretation May Vary) otherwise be infringed by the Linux.
No, that's exactly what they've sold! The SLES vouchers are redeemed for Suse Linux and a year of support / updates per the article.
And thanks to the grandfather clause in the GPLv3, Novell is allowed to distribute the software, but Microsoft can no longer be discriminatory in who it sues with its software patents.
So my analogy was correct, you just don't understand the situation. Not that I expect anyone to read TFA around here, but it does make that clear, you know!
Actually I'm a big Ron Paul fan. :) I don't agree with all of his stances necessarily, but I really like the guy for having a well-thought-out, consistent philosophy and not being afraid to talk about it. That's fairly rare at the national level, even more so for presidential candidates, even long-shot ones.
I don't think that he'll ever make it to the White House, though, so I'm pretty sure my theory is safe. Both the electoral system and national expectations are stacked against someone who's up-front and honest about their beliefs and philosophy, and who isn't reading from a prompter fed by the latest Gallup poll.
But I'm still planning on voting for him in the primary.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
And, on the topic on hand, a Democratic government is *significantly* more likely to break up MS than a Republican government. The notion that this isn't so is extraordinarily absurd.
I'm not sure what you mean by "significantly," given that I think the odds of either party doing it are so vanishingly close to zero that it's hardly worth pretending that it's on the table.
You couldn't disassemble Microsoft, in the current climate (monoculture and dependence), without risking a huge upset in the tech sector. If Redmond catches a cold, the entire economy would feel it. And "it's the economy, stupid." Being 'pro-consumer' doesn't count for much if you're perceived to be bringing on the next dot-bomb.
If anything, Democrats depend far more on the high-tech sector of the economy than Republicans do for support, particularly corporate support. In recent years, Microsoft (and its employees) has been a major Democratic donor (#30 overall -- even bigger than the NRA and just beneath the AFL-CIO); in both '04 and '06 they gave the majority of their donations to Democrats.* Their employees are overwhelmingly Democratic donors and voters as well. Not to mention, Microsoft is also deeply in bed with the entertainment industry, another Democratic stalwart.
The political philosophy of either of the major parties is basically irrelevant; their actions are virtually always predictable by looking solely at their sources of funding and votes. Democrats are funded by the high tech industry, and many of their core constituencies are people who work in the tech industry, or are from areas (major urban centers) that depend on high-tech industries. They're not going to wreck that gravy train.
* Source is here although I'm not sure the deeplink will work. You can just search Opensecrets for Microsoft Corp.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
Ok, think of it this way: Let's say I run a cafe that is close to a bookstore. To drum up business, I enter into an agreement with that nearby bookstore. I pay the bookstore for 500 copies of the new Harry Potter and the bookstore issues me 500 coupons that allow the bearer to get a free copy. I then run a promotion - come to my cafe and order so many meals and get a coupon. A customer takes advantage of this and turns in the coupon for the book. The customer is the buyer, the bookstore is the seller, and my cafe is doing nothing but paying the purchase price.
Now, saying that Microsoft is at all liable for anything under GPLv3 is like saying that J.K Rowling could claim the cafe is violating her copyright. I don't need J.K. Rowling's permission to give out coupons for her book, because my cafe didn't copy it. The publisher/bookseller (I'm lumping them together to make the analogy simpler) copied it. The publisher/bookseller is is the party that needs permission to copy the book, not me. I'm just acting as a mediator to bring together someone who is licensed to sell the book with people who want the book.
Now, if the bookstore was making bootleg copies of the book, and I knew this and got some sort of a discount on their coupons because of it, then a case could be made that my coupons facilitated copyright violations. This is where facilitation clauses in copyright law come in - but this doesn't apply in the Microsoft deal. There is no inherent copyright violation in Novell's distributing of Linux, so Microsoft giving out coupons for it doesn't count like that. Microsoft is not facilitating copyright violations with their coupons, because Novell is licensed (by the GPL) to hand out Linux. If Novell was violating the GPL in some way, and Microsoft knew about this and was using the coupons as a way of facilitating that violation, then they could be said to be liable under copyright law. That isn't the case, so Microsoft has nothing to fear. Microsoft doesn't need the GPL's permission to do what they are doing, because they aren't copying.
The GPL is not keeping anyone from suing Microsoft over this deal, because the GPL doesn't apply to Microsoft in this deal. Microsoft isn't copying the work. They are bound by nothing, just as my cafe isn't subject to any copyright laws for distributing harry potter coupons.
I disagree. Novell does have some pretty neat products, and it would be a shame to see them die. You can be pretty damn certain that if Microsoft does drag Novell down with this, their products will disappear into a digital black hole rather than being open sourced.
Well, I certainly wish Novell no ill, what with all their contributions, both technical and otherwise (they probably will be the ones that finally crush SCO, before IBM gets a chance from that judge).
But it seems PJ and many people here is hoping Microsoft will be found to have distributed copyrighted works on account of those vouchers. As I see things, the only possible way one could argue the vouchers are distribution would be under some sort of contributory infringement theory---the kind of liability you would have if, for instance, you distribute coupons that some pal of yours will redeem for pirated software. You're liable even if you're not distributing, because you're contributing to the infringement by your pirate friend.
Under US law, contributory infringement requires direct infringement by some other party. So, in this case I think Microsoft can only be held liable is Novell is liable too. The direct infringement would be Novell's, and Microsoft would be contributing to it. That sounds like an awfully weak theory to me, but never mind that, my point is that hoping Microsoft will be infringing copyright implies that Novell will be in an even worse position. Which is effectively "hoping Microsoft drags Novell down into the muck", as the GP said.
Now, I don't give a rat's ass about Microsoft patents, so Novell taking some millions from them to "license" those to their customers is perfectly fine with me. More power to them, who cares. But people here seems to be implying that Novell's covenant was a big fucking sin, so ugly and despicable that we shouldn't feel any kind of gratitude for them, that there's nothing morally wrong if they get hurt, backstabbed by the very community that Novell is protecting from SCO.
I think that is disgusting. But hey, this is probably just me.
Wait wait wait wait - MS gives their software for free - at least it's free from the point of view of anyone buying a windows pre-installed computer. THAT is where the large user base comes from - first-time users!
No, no sig. Really.
ThePromenader
And, of course, PJ is NAL. She is not licensed in any jurisdiction to practice law...
Yeah, I pretty much hate Microsoft's OS...and their business practices really suck...but their stranglehold on the industry is finally weakening.
What I'd really like to see happen is that Microsoft actually starts legitimately competing to hold onto its market share... Starts turning out a quality product... Makes Windows less of a headache to deal with... Makes Office appealing for reasons other than "we have to buy it because everything is in Word format."
Unlikely, I know... But anyone who can help point them towards the light deserves credit.
"Work is the curse of the drinking classes." -Oscar Wilde
"Work is the curse of the drinking classes." -Oscar Wilde
At its peak in early 2001, right before the beginning of the end, Enron had a market cap of $48B USD. While that's big by normal people's standards, it's only enough to have gotten them to #77 on the top-100 list at the time. (Source, from April 2001.) Enron employed 21,000 people prior to its collapse.
Microsoft, during the same period, was #2 at $370B, and today it's still $281B, almost six times larger than Enron was; Microsoft employs 71,000, or about 3.5 times as many people. Given that Enron's collapse is frequently described using words like "unprecedented" and "disastrous," and led directly to the one of the biggest changes in corporate securities law since the 1930s (Sarbanes-Oxley), not to mention the dismantlement of one of the nation's largest accounting forms (Arthur Anderson), a Congressional investigation, and jail time for most of the people responsible (except for Kenneth Lay, who had the good fortune to die first, to much applause), and speculation that its long-term effects would be greater than 9/11, I'm not sure I'd be so blasé.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
I think you aren't understanding the situation.
If Novell is guilty of copyright violation in the distribution of GPL3 software, it will be because they software was covered by patents that they knew about, and didn't have the right to allow others to redistribute. If this is the case, then they knowingly exposed other people to legal danger, and therefore deserve to be punished.
If Novell is not guilty, then either they didn't know about the patents, or they had the right to distribute. Novell's claim is that they don't know of any valid MS patents that cover the GPL software that they distribute.
If MS is endangered by the GPL3, it will be because of some part of the MS-Novell agreement that isn't public knowledge. As such, they will deserve to lose any benefit from hidden patents.
My suspicion is that Novell is being honest, and that MS is engaged in a massive FUD project. Nevertheless, to protect myself I do not intend to purchase from Novell or MS, or to use any recent Novell software, including mono, until this is resolved. I hope that Novell got LOTS of money from MS, but I don't care enough to re-examine the public parts of the deal.
I think we've pushed this "anyone can grow up to be president" thing too far.