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Lawyer Thinks Microsoft Can Evade GPL 3

Posted by Zonk on from the i-a-n-a-l dept.

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.'"

11 of 266 comments (clear)

  1. A lawywer will tell you anything is possible. by cs02rm0 · · Score: 3, Informative

    For a fee

  2. Uhhh... so? by Anonymous Coward · · Score: 3, Informative

    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)

    1. Re:Uhhh... so? by physicsnick · · Score: 4, Insightful

      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.

  3. Car Analogy by An+Anonymous+Coward · · Score: 5, Funny

    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.
  4. Did any of you actually believe they would be ? by jfclavette · · Score: 4, Insightful

    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." ?

  5. how odd... by d34thm0nk3y · · Score: 3, Insightful

    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

  6. Exactly. by khasim · · Score: 5, Informative

    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.

    1. Re:Exactly. by sumdumass · · Score: 3, Insightful

      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.

    2. Re:Exactly. by mrchaotica · · Score: 4, Insightful

      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.

      --

      "[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz

  7. The license as a sword for an opponent by icepick72 · · Score: 3, Insightful

    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.

  8. Re:The Shackles of Freedom by caseih · · Score: 4, Insightful

    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.