Lawyer Thinks Microsoft Can Evade GPL 3

rs232 writes with a link about a disheartening observation on the GPLv3. Unless there's something more specific in the Novell agreement that would fall within the new version of the GPL, Microsoft should have no trouble slipping free of it. Silicon.com has a piece speaking with a leading intellectual property lawyer from Australia. She says, "'I would be very surprised to see this upheld. It was a nice try on the part of (the FSF), but at this stage, I'd say it's not going to be an effective strategy. It will be tough to hold up in court.' In this case, she said, Microsoft never acted — never 'entered' into the agreement, and the terms and conditions can only apply to new actions by Microsoft, not older ones. She said: 'Their actions so far are not enough to say that they are bound.'"

Comments

A lawywer will tell you anything is possible.

[cs02rm0]

For a fee

Uhhh... so?

[Anonymous Coward]

Pretty sure I've read that the FSFs intention was to address future deals, not this specific existing one (though some have tried to think of ways it could apply anyhow. You know, non-expiring vouchers and what not)

Exactly.

[khasim]

IANAL ... but the GPLv3 is a LICENSE not a CONTRACT.

If Microsoft does not follow the LICENSE then Microsoft cannot LEGALLY re-distribute the software. Doing so would put Microsoft in violation of basic copyright laws.

Which is why Microsoft quickly distanced itself from the GPLv3.

AUSSIE LAWYER HAS NOT READ THE BLEEDING GPL3!

[argent]

The "leading IP lawyer in Australia" has obviously not actually studied the document:

"'I would be very surprised to see this upheld. It was a nice try on the part of (the FSF), but at this stage, I'd say it's not going to be an effective strategy. It will be tough to hold up in court.' In this case, she said, Microsoft never acted -- never 'entered' into the agreement, and the terms and conditions can only apply to new actions by Microsoft, not older ones. She said: 'Their actions so far are not enough to say that they are bound.'"

That is: Microsoft's *existing* agreement is immune to the GPL3 because it took place before the GPL3 was finalized.

Yes. That's correct. So what? WE ALREADY KNOW THIS. That's why the GPL3 contains THIS language: "You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a discriminatory patent license (a) in connection with copies of the covered work conveyed by you (or copies made from those copies), or (b) primarily for and in connection with specific products or compilations that contain the covered work, unless you entered into that arrangement, or that patent license was granted, prior to 28 March 2007."

Not only that, but the GPL3 doesn't actually cover any of the software that Novell is currently shipping... it's all GPL2.

The "great insight" here is that the GPLs can't do something that it explicitly does not try and do, regarding software it doesn't even cover!

Sheesh.

Re:Did any of you actually believe they would be ?

[slashqwerty]

Microsoft entered into a contract with Novell. They allowed Novell to distribute software that utilizes Microsoft patents and to do so with software licensed under the GPL. This included software licensed under GPLv2 or any later version. Microsoft had already had access to draft versions of GPLv3 which clearly had patent restrictions on it. They were well aware of what GPLv3 had in store.

The Microsoft-Novell contract has not been made public so I don't know exactly what it says. However, Eben Moglan (lawyer and one of the key architects of the GPL) has read it and he says Microsoft is bound by GPLv3.

Perhaps Australian law differs on some details but in the United States it looks like Microsoft has granted the Free Software community the rights to utilize Microsoft patents in GPLv3 code.

Haven't we been over this a couple of times?

[dgun]

As Novell puts out future versions of SUSE, they will incorporate GPL 3 software into their OS. If MS then distributes this GPL 3 software, they would be bound by the license just like anyone else.

From articles on Slashdot over the last year or so, my understanding is that the Novell certificates MS was selling did not have an expiration date, making it possible for someone to redeem them after SUSE has been injected with GPL 3 code, thus pwning MS with the greatest pwning in the entire history of pwnage. Or so the story goes.