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

Beancounters do not consult court verdicts

[jkrise]

And so while Microsoft might well get away in a court battle, the market has already made up it's mind when MS made it clear they will have nothing to do with GPL3. While existing customers might not implicate MS into GPL3 obligations; they may not have ANY future customers. And so, it is still a win for the FSF, without any need to go in to court.

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)

Re:Uhhh... so?

[physicsnick]

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.

Car Analogy

[An Anonymous Coward]

She said: "An easy analogy is a car park with a sign that says you are bound to a given contract if you enter into that car park. Anybody can enter, but you have to accept the terms, and the signal of you accepting those terms is when you enter. You have to do something positive to accept the terms - you have to act."

That lawyer obviously reads Slashdot, she went straight for the largely irrelevant car analogy.

Did any of you actually believe they would be ?

[jfclavette]

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." ?

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.

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

[mce]

Sorry, but you need to go back to law school (or to reading comprehension class). They are bound to v2, but v2 does not at all imply v3. If they don't like v3, they just keep using v2. If a package author changes his or her distribution license to v3 (or later), this does not affect copies previousy distributed under other licneses in any way. Not even if there is not a single other change in the package.

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

[kgp]

Please keep up at the back.

The license will apply to GPL v3 licensed components of (say) Linux (like the GNU utils or tools) that will be caused to be conveyed by Microsoft because they issued these coupons that don't have a expiry date. However that gives people like Novell the choice of either forking and duplicating a lot of work on keeping the GPL v2 bugfixed and working. Or distributing the newer GPL v3 components that everyone else is using.

It doesn't apply to current GPL v2 software.

The GPL v3 distribution license will apply to distributed and MSFT will be dragged into this because they are paying someone else to distrbute the bits. Eben Moglen and his collegues are not idiots (strangely enough)

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

[ozphx]

too long didnt read. buses are cars too.

actually i did read, and you are correct.

Microsoft is like the the supplier of the little pink lapel badges. After you change your license all the people on Slashcoat are posting around saying "HAHA! Now Microsoft has to give out full sized raincoats! PWNZORED!"

Bullshit. The bus company (Novell) is fucked. Balls in their court.

Courts will reject ambush tactics

[Courageous]

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//

how odd...

[d34thm0nk3y]

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

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.

Re:Exactly.

[sumdumass]

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.

Re:Exactly.

[mrchaotica]

So, if anything, the GPLv3 frustrates the deals and MS would likely only be obligated to what was around when the deals were made.

Right. In other words, Microsoft is only obligated to distribute GPL version 2 software.

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.

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!

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.

Uh, no. All MS would have to do is willfully distribute it, whether it knew about patent violations or not.

Re:Exactly.

[sumdumass]

Right. In other words, Microsoft is only obligated to distribute GPL version 2 software

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.

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.

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.

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!

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

Re:Exactly.

[Weedlekin]

"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.

good new for MS users

[fermion]

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.

A waste of time and effort!

[Anonymous Coward]

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.

Re:This may betray some sort of ignorance on my pa

[FishWithAHammer]

be willing to sleep with the devil Hey, why's BSD being dragged into this...?

The license as a sword for an opponent

[icepick72]

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.

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:Good try?

[mrchaotica]

And why would MS want to use code released under GPL, anyways?

• Because MS is obligated to by the agreement with Novell.
• Because MS would like people to use the version it controls, instead of some hippie distro like Ubuntu.
• Because MS would like to surreptitiously insert patented algorithms into GPL'd code, in hopes of extracting license fees (or better yet, preventing use of the code altogether, since developers could no longer legally share it with each other) while still being able to claim to ignorant PHBs that it "supports open source"

Re:The Shackles of Freedom

[caseih]

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.

Re:The Shackles of Freedom

[Vexorian]

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.

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.