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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.
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.
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."
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.