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FSF Positioning To Sue Microsoft Over GPLv3?
mjasay writes "Groklaw notes that the Free Software Foundation has decried Microsoft's attempts to distance itself from its obligations to abide by GPL Version 3 (press release here). Citing Microsoft's earlier declaration that they are not bound by GPLv3, the Free Software Foundation declared, 'Microsoft cannot by any act of anticipatory repudiation divest itself of its obligation to respect others' copyrights.' The press release implies that the Free Software Foundation may sue Microsoft over the issue."
Sounds like FSF just wanted to get in the news. Or on slashdot, or whatever. Reading the press release, they don't really SAY much... other than "We hate you Microsoft, neener neener neener."
I'm at a loss there too.
As we all know, the GPL relies on copyright for enforcement. If I distribute GPL'd software, and I do not accept the GPL, then I have committed a copyright violation as nothing but the GPL allows me to distribute the software.
To be sued for copyright infringement, I must have actually made copes of and distributed GPL'd software, not "conveyed" or "propagated" or any other such language. Unless Microsoft has actually redistributed (not caused someone else to distribute, like Novell*) GPLv3 software without abiding by its terms, they are off the hook for copyright violations. They'd only be on the hook for a contract violation.
Again as we all know Microsoft has not signed the GPLv3, so it is not a party to it and does not need to abide by it.
*Unless my understanding of copyright law is wrong, one must make copies of a work and/or distribute them to be on the hook for infringement. The FSF might have a contributory copyright infringement case, but that would be much harder to prove, AFAIK. Of course, I'm an armchair lawyer, so hopefully someone who actually has a law degree will clear this up.
This isn't really news. It's just gross speculation. It's more the FSF equivalent to the FUD that MS spreads regularly. I sincerely doubt that either MS or the FSF wants to get into a major legal fight. It's extremely expensive and does neither side much benefit. Microsoft is going to go out of its way to avoid distributing any GPL3 code. Likewise, I don't see Microsoft abusing its patent library to extract cash out of anyone. If history is any indication, they primarily use their patent stash as a defensive mechanism much like all the other big companies like Sun, IBM, etc.
All of this speculation is blown way out of proportion. The true threats patent-wise to both free software and Microsoft alike are the patent trolls that produce nothing and only receive revenue from patent royalties and litigation.
I'd say that because the distribution of the vouchers predates GPLV3, that MS has a leg to stand on here.
~ a low user id is no indication I have a clue what I'm talking about.
This is inconsistent with the FSF's contention that the GPL is a copyright license but not a contract in which the licensee gives up pre-existing rights, since no rights under copyright are necessary to distribute the vouchers and therefore a pure license of the type the FSF claims the GPL is would be completely irrelevant.
That contention aside, even viewing the GPL as a contract (or, rather, a contract offer), the argument seems to fail since there is no evidence of agreement by Microsoft to be bound by the contract, and thus no contract formed that is binding on Microsoft in the first place.
So for all those who hope that Microsoft will somehow get caught with their hand in the GPL cookie-jar/trap, forget about it. They are already very careful, and GPLv3 makes them even more careful.
Rather, what the GPLv3 does is make a large amount of future open-source development unavailable to Apple. Apple, unlike Microsoft, ships a large amount of GPL based software: GCC, emacs, a lot of random utilities, etc.
And Apple's solution is to buy up the copyright when possible (CUPS), replace (I've heard talk about replacing gcc), and/or fork at the last GPLv2 version.
The GPLv3 is designed to be unpalitable to many companies: TiVo, Apple, Google, etc, and they will sooner forgoe anything released under GPLv3 than deal with the liscence. This is a feature of the GPLv3, not a bug.
But it is a feature that will only be noticed by its absence: large companies avoiding GPLv3 code except for internal use.
-Nicholas Weaver
Test your net with Netalyzr
Don't think 'copyright violation'. Think along the lines of estoppel.
The threat here isn't that the FSF sues Microsoft for a GPLv3 breach; the FSF is making clear that there's a defence to a patent infringement lawsuit, namely that Microsoft aided and abetted the distribution of software under GPLv3 terms. If Microsoft sues RedHat over some FSF code, Eben puts on his cape, leaps into the courtroom and shouts "Aha! But you helped everyone distribute that code. Under the GPL. And because of the intricacies of the voucher system, under GPLv3. And the patent provisions of GPLv3 make clear under what conditions this software is allowed to be distributed. Novell gave EVERYONE permission to use every patentable idea in this software, and by helping Novell do that, you gave everyone permission too"
I reckon that's roughly the scenario that the FSF is hinting at here. It's obviously not a straightforward 'you distributed our software' copyright lawsuit.
I don't think it's relevant that the GPL is a license rather than a contract, since MS has the right to tell Novell to stop honoring those coupons, and thus to stop joining Microsoft to the license.
Bruce
Bruce Perens.
Bruce
Bruce Perens.
Yeah, it doesn't work under those terms, either.
Except that, well, they didn't. They issued vouchers when SUSE was (as it still is) distributed under GPLv2 terms, under an agreement with Novell, with very specific limitations on where the patent guarantee applies that are inconsistent with the GPLv3 (which didn't, IIRC, exist at the time the agreement was made.)
Yeah, they do. And, under the terms of the GPLv3, Novell is not permitted to distribute software under the GPLv3 with only the guarantees Microsoft has provided, which are not as broad as the GPLv3 requires. The result is not that Microsoft's guarantees would be legally treated as broader than they are if Novell changed the licensing on SUSE, the result is that (1) if Novell choose freely (because the software was GPLv2 or later and they wanted to use v3) to use the GPLv3, Novell may be liable to downstream redistributors and users not protected by Microsoft's guarantee for implicit or explicit misrepresentations, particularly if they induced the decision to spend money on SUSE, or (2) if Novell incorporated some else's GPLv3 software into SUSE and thus was compelled to distribute it only under the GPLv3, Novell would be prohibited from honoring the SUSE vouchers and would be liable to Microsoft for breach of contract and/or to the voucher holders as third-party beneficiaries, or, if they chose to distribute despite the terms of the GPLv3, would themselves be in violation of the GPLv3 and liable for copyright infringement.
Most likely, though, what it really means is that Novell doesn't move SUSE to GPLv3 until and unless the vouchers aren't a substantial issue and they are willing to absorb the costs associated with doing so, and if they want to put out a GPLv3 Linux product in the meantime, they do it under a different name, and don't make it eligible for the vouchers.
"Except that, well, they didn't. They issued vouchers when SUSE was (as it still is) distributed under GPLv2 terms, under an agreement with Novell, with very specific limitations on where the patent guarantee applies that are inconsistent with the GPLv3 (which didn't, IIRC, exist at the time the agreement was made.)"
Now there's two things here that give the FSF leverage. One is that Microsoft agreed that Novell should release software under a 'GPLv2 or later' license. The other is that the SuSE vouchers did NOT have an expiration date. Meaning if someone has one of those vouchers, they can wait until GPLv12 to cash it in. There's no way that Microsoft can plead ignorance of the 'GPLv2 or later' language in the code it was distributing, there's no way it can complain about the lack of the expiration date, since it clearly agreed to the voucher system, and Microsoft must surely have been aware that the GPLv3 was being drafted. How can Microsoft suddenly be surprised that it was going to help supply the world with GPLv3 software?
"ah, they do. And, under the terms of the GPLv3, Novell is not permitted to distribute software under the GPLv3 with only the guarantees Microsoft has provided, which are not as broad as the GPLv3 requires."
Except that Novell has confirmed that it's going to go ahead and distribute GPLv3 software anyway. If Alice comes along with a voucher, supplied to her by Microsoft, and gets GPLv3 software from SuSE, and then reads her GPL, happily offers that software to Bob, who gets sued by Microsoft for patent infringement, who is at fault? Bob isn't, he took his GPL at face value. Alice isn't, she took her GPL at face value AND Microsoft helped Alice get this software, with full knowledge that it was going to contain a GPL license. The answer is that both Novell and Microsoft are at fault. Microsoft can't sue Bob, because Microsoft helped Bob (via Alice) get his software with all the GPL guarantees and whatnot. And if Microsoft DOES have the right to sue, then Novell is guilty of copyright infringement for not providing a secure enough GPLv3 guarantee along with the code it supplied.
"Most likely, though, what it really means is that Novell doesn't move SUSE to GPLv3 until and unless the vouchers aren't a substantial issue"
Novell ARE distributing GPLv3 software. The FSF DOES believe the vouchers are a substantial issue, and made that clear as soon as they spotted that the SuSE vouchers had no expiration date. Your 'most likely' scenario is already in the bin.