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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.'"
but the Linux distributors who have an agreement with Microsoft must abide by the GPLv3.
Please. It would be a horrible, horrible legal precedent for a party to be bound by a license which was changed after the agreement, even if there's the 'or any later version' bit in the text of said license. I mean, could the FSF just add "The blood of their first born child should also be splattered over a paper copy of the source code." ?
I find the whole "Look at all these clever circumstances in our new GPL3 situation that means that we've fucked M$ good an proper" just to be amusing. The Courts uniformly reject these sorts of attempts to ambush someone by contract into unintended consequences. Will never be upheld. The idea fails on not just one but many doctrines of contract interpretation. You can forget it.
C//
I can't even figure out what they are trying to say with this article.
Microsoft doesn't distribute GPL software so of course they will not be bound by the GPL.
And secondly, I though the MS Novell deal was grandfathered in anyway. The only reference I can find for that though is this line: "Among other things, the released version grandfathers in the Novell deal so that Microsoft's SLES coupons will undermine their patent threats" from the GPL ver. 3 release posting. link
It's not retroactive, nobody ever claimed it was. The thing is that MS have distributed vouchers without an expiration date, knowing about both indirect distribution and or later clauses. They also knew GPLv3 would have an Apache style patent clause.
The courts take a poor view of bad faith attempts to break licensing agreements and Microsoft admitted to working around the GPL for the Novell deal. Microsoft, unclean hands and all will want to keep this one out of the courtroom.
For instance, if the terms of a credit card is changed, I believe one has the opportunity to cancel the card and continue to pay off the debt. So I can see that if MS and Novel never using new software that uses the GPL3, and never having to worry about the GPLV3. What I do not see is how MS can demand that the are allowed to interact with current software and not be under the current license. That would be like saying that MS users can never be under a licensee more restrictive than the first one agreed to upon initial use fo the software.
"She's a scientist and a lesbian. She's not going to let it slide." Orphan Black
Regardless of the FSF's intent, this whole GPLv3 episode has been very disruptive within the OSS community.
Many top developers, including Linus, have wasted many an hour discussing (or arguing) the merits of the GPLv3. But while that was happening, they weren't coding. Spread over a large number of OSS developers, that's a major waste of time and effort.
Exactly. The point was not to punish Novell and MS, but to stop it from happening again. It would be very chilling for the spread of the GPLv3 if the FSF set a precedent of retroactively damaging companies who fully abide by the letter of the GPL, but do things the FSF considers to be immoral.
The problem isn't with GPLv3 covered works or SuSE using it. The problem is that when MS entered into the arrangement the GPLv3 wasn't involved and the restrictions it imposes wasn't involved. So, if anything, the GPLv3 frustrates the deals and MS would likely only be obligated to what was around when the deals were made.
If Novel takes an action independent of MS that subjects them to the GPLv3 license, MS can claim a separability from that. And because of the differences in the GPLv3, MS's obligations would become frustrated and they likely wouldn't be held to obligations that were frustrated if they didn't take any actions to cause the frustration. What would happen is that you would have to sue them and they would win. If they sued you and you used the GPLv3 as a defense, MS could claims the frustration, cite a few specific article where people have claimed they were going to manipulate the GPL to trick MS out of rights and that defense would likely be lost real fast.
Further more, there are some question about the entire trapping them into being subject to the GPLv3 in the first place. It isn't as if once you distribute a GPLv3 covered work that you can never make a claim over IP or patents in a covered work, your limits only go to the work you distributed. So lets, say MS distributed GCC, They would have to both know that something was in it and violated their claims and distribute it after knowing this in order to not be able to go after patent claims on it. And this would have nothing to save Samba or any other project so if they avoid what that have issues and claims over, it still doesn't matter.
It sounds like some people are intending to use the GPL3 to target Microsoft. As soon as the GPL becomes a tactic rather than a license you're playing a stupid game. Then you have to start writing into it piece to try to blunt everything else every other company comes up with that is not desirable. It's a losing game because it's never ending.
A contract is an agreement between two or more parties.
Thus, a license is a contract, but a contract is not necessarily a license. I may not be a lawyer, but I -do- have access to a dictionary.
You are also spewing some nonsense about copyright, which doesn't belong there either: not abiding the terms of a license has nothing to do with copyright law.
It's really amusing that all the best FOSSie minds in the world just started crying because the GPLv3 they just custom crafted in order to specifically attack Microsoft doesn't amount to anything. It seems like FOSSies losing out to Microsoft is kind of a universal theme, like Cobra's schemes always losing out to GI Joe.
Right. In other words, Microsoft is only obligated to distribute GPL version 2 software.
Hold on there, buddy! What you seem to be implying is that MS could distribute GPL version 3 software with impunity (otherwise, how would it make sense to "[use] the GPLv3 as a defense"?). That doesn't make sense, because all Microsoft ever promised to do was distribute the software that existed at the time the agreement was made -- GPL version 2 software.
Nothing about the agreement gave (or even could give) the ability for Microsoft to ignore the license of code produced in the future, any more than the GPLv3 could give the ability to the FSF to condemn actions taken in the past!
Uh, no. All MS would have to do is willfully distribute it, whether it knew about patent violations or not.
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
The problem is that MS isn't distributing anything. They are getting pulled into the coverage of the GPLv3 license by specific wording of the GPLv3 that includes conveying as well as distribution. This inclusion is not by any act of Microsoft but a change in an ancillary operations of a intentful license.
Lets put this into some more relative terms, If you are supporting your product and how a third party uses an unrelated product that happens to be conflicting with your product, are you now bound by the license requirements of that third party software? That answer is no unless you received a copy of the software and installed it agreeing to the license and all that jazz. Now, ask yourself if you are subject to the terms of a license by telling the person having problems to goto the companies web page and get the updates and installing them? The answer there is no too. It doesn't matter what that license says or attempts to do, you aren't subjected to it. So, are you in copyright violation if you do any of the above without the express permission of the people who own the copyright on the third party software that is having problems with your program? Again the answer is no.
So, MS isn't distributing anything, Novell is. Now that a license attempts to impose restrictions that weren't there when the deal was made, MS can only be held for the obligations it agreed to and that were present under the circumstances when the deal was made. SO yes, their agreement would only cover GPLv2 works and when Novell distributes GPLv3 covered works, MS isn't part of that. It is independent of their deal even if some aspects appear to overlap.
No, What I am talking about is that MS isn't actually distributing covered works and because the GPLv3 license says so doesn't make them a party to that license just because they made a deal under conditions of another license. Novell can act independent of MS and use GPLv3 covered code but that doesn't obligate MS to the terms of it. MS would have to make an action on it's own to become covered by the GPLv3 license. The deal isn't enough to be this action.
It doesn't need the ability. All it takes to frustrate a deal is to impose restrictions that a person or company cannot agree to after the fact. Suppose we had a deal where I supplied you with parts for your device for $1 a piece under the condition you only purchase your parts from me. My manufacturing plant burns down and I cannot build a new one soon nor can I supply you with the needed parts for another year. The deal is now frustrated and I cannot hold you to only getting parts from me.
Now suppose the parts are patented by a third party who carried a term in the license that says if you use a sweatshop, you have to pay an additions $5 per unit produced. He heard I was going to china to open a factory to continue making the part and included that provision after our deal was made. When I went to China to make your parts, the new plant is considered a sweat shop and your product now costs $6. Are you liable for the extra $5 or just the $1 per part that our agreement was over? That answer is you are only obligated for the $1 dollar. Now, I cannot take a $4 dollar loss so our deal is frustrated and we cannot enf
How this got rated insightful, I will never know, because it is not. A couple of points.
First, Free Software under the GPL is certain free for you to use in any way. You can even embed GPL'd software in your embedded rocket flight control computer if you want. Microsoft can *use* GPL'd software in any way they see fit. In fact Microsoft has entire labs full of Linux machines (they believe that one should know one's enemy). Contrast this with Windows, which is not free for me to use in any way I see fit. I cannot run it under certain Virtual machines, I cannot install it on more than so many computers (as provided by the EULA). In contrast, GPL'd software has no EULA; there are *no* restrictions whatsoever on its use.
Second, there are restrictions on *redistribution* of the code, though, as there should be.
What you are saying is pretty silly. If I downloaded a copy of MS's source code from somewhere and tried to redistribute it, you wouldn't say that I am shackled when copyright law does not allow me to do so. GPL'd software is the same. Without the terms of the GPL I have no rights to modify and distribute the source code at all! How the GPL shackles my existing non-rights to distribute copyrighted code that I don't own, I will never know. For without the GPL, I cannot distribute the code to others, and others cannot distribute the code to me!
Seems to me that the GPL ensures freedom in a couple of ways. It ensures that I can use the code freely for any purpose, even without agreeing to the terms of the license at all! Also it ensure that as the author of GPL'd code, my code will never be stolen from me against my will, and sold back to me with restrictions on its use.
So let's stop right now with this nonsense about the GPL shackling freedom.
I want you to give us all this irony-free-freedom you are talking about, now that I got freedom I will use my freedom to lock you into a room and not let you go out ever again.
Or ... we could implement true freedom which would prevent anyone from removing freedom from others.
Copyright infringement is "piracy" in the same way DRM is "consumer rape"
"MS is distributing vouchers redeemable for SuSE Linux. According to the lawyers that wrote the GPLv3, that counts as "conveying" SuSE Linux."
This is a ludicrous assertion. Many magazines, newspapers, gas stations, and product boxes carry vouchers that are redeemable against a huge variety of items, but they aren't assumed by law to be distributors of those items, any more than I would be if I gave somebody some money to go to a store and buy said product for themselves. A voucher that entitles one to a free SUSE Linux isn't distributing Linux any more than one that says "Free Big Mac when you show this at any Macdonald's" is distributing Big Macs - Macdonald's are doing the distributing, not whoever is issuing the voucher. If the GPL 3 says otherwise, then it's in for an extremely rough ride when it gets tested in the courts, so I'm pretty sure that it doesn't actually say anything of the sort.
I'm also pretty sure that GPL3 neither implies nor specifically states that those who sell sealed, boxed versions of a compliant Linux distro are bound by it, because that would have raised screams of protest from commercial Linux distros such as RedHat, not to mention being guaranteed a quick and ignominious death if somebody challenged it in court. Even Microsoft haven't got the temerity to try and bind wholesalers and retailers to their software licensing terms (that's why EULA is an acronym for end-user licensing agreement), so it's hard to see why so many people here think that Stallman et al would be stupid enough to try and pull something that even a predatory monopoly with several entire governments in its pocket doesn't think it could get away with.
I'm not going to change your sheets again, Mr. Hastings.