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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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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.
http://blindscribblings.com - Tasty pop-culture in conceptual fashion.
MSFT's army of lawyers have said no such thing. They've said that in a press release, but as Microsoft Watch said, they have lied about many things in their press releases.[1]
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In any case, they are NOT living up to the obligations they gave to the coupon buyers after they told them they would not sue (except, now, if they include GPLv3 code in SLES). Gee, I wonder how Walmart feels after being used by MSFT in the NOVL ploy; did they pay for nothing? Not to mention what happens if someone takes some GPLv2 or later version from SLES into GPLv3 in a derivative distro, and then asks NOVL for the patent covenant from MSFT.
[1] http://www.microsoft-watch.com/content/corporate/
"Microsoft has a long history of saying stuff (expecting people will believe) that wasn't true then or didn't turn out to be true in the future. I've grabbed some random examples:
Software Assurance: In its May 10, 2001, press release announcing the program, Microsoft claimed: "The improvements to Microsoft's volume licensing offerings are designed to match the current acquisition behavior of the majority of Microsoft's enterprise customers, and should result in a reduction or no change in licensing costs for approximately 80 percent of Microsoft volume licensing customers." In reality, based on research from Gartner and other analyst firms, only a minority of customersthose upgrading every two years or lesswould realize cost savings. The program raised most customers' software acquisition costs, as much as 107 percent, according to Gartner.
U.S. Antitrust Case: There are just so many examples, but I chose this one from a December 1998 Microsoft press release. Microsoft's lead attorney said in a statement: "The government may think they're winning on soundbites, but they are striking out when it comes to proving their case. The major elements of the government's lawsuit have already been discredited, and not a single Microsoft witness has even testified yet." The government went on to win the case, with the trial judge ordering the breakup of Microsoft as remedy.
Windows Vista: In August 2004, Microsoft "announced it will target broad availability of the Windows client operating system code-named 'Longhorn' in 2006." Here is a link to one of several slide shows kicking around Microsoft's Web site that clearly identifies the Longhorn (aka Vista) release as "Holiday 2006." Strange isn't that Microsoft set a delivery date and missed it. Strange is Microsoft later affirming that launching to businesses on Nov. 30, 2006, meant the company met its 2006 ship commitment.
A dozen examples would be easy, but hopefully three makes the point. Microsoft says lots of things that aren't necessarily true or ever going to be true. But the company behaves like if enough people believe what it says, then it's true enough. Saying doesn't make it so."
[1] http://www.groklaw.net/article.php?story=20070630
http://www.vcnet.com/bms/features/tale.shtml "A Tale of Two Press Releases"
"Good morning, class, and welcome to Microsoft Literature 101. Today, we will be examining a short story from the points of view of both the protagonist and the antagonist, and considering how these two characters in a story react to the same events, and what this may reveal about their personalities.
The protagonist in our narrative is a small software company called SCO, otherwise known as the Santa Cruz Operation. The antagonist is the software giant, Microsoft. First, we should sketch out the storyline."
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.
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.
> 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.
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.
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
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!
There's a lot of wishful thinking going on here. People hate Microsoft and they like Open Source. They know that GPL3 would stop Microsoft using patents against OS. And then they post a load of outlandish legal arguments why this is necessary the case and then add IANAL at the end. And they get moderated up for it.
It's like some kind of new slashdot fallacy, argumentum ad happyendium perhaps, assuming that in the end the bad guys will get their just deserts and the good guys will be triumphant. But that's just a Hollywood convention, not something which always applies in the real world.
echo -e 'global _start\n _start:\n mov eax, 2\n int 80h\n jmp _start' > a.asm; nasm a.asm -f elf; ld a.o -o a;
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.
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.
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