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."

Comments

How is Microsoft bound by GPL3?

[I'm Don Giovanni]

Can someone explain how MS would be bound by GPL3? They make no GPL software.
The Novell deal was made prior to GPL3.
How does GPL3 relate to MS at all?

Re:How is Microsoft bound by GPL3?

[just_another_sean]

IIRC the GPL3 would apply to MS as soon as someone redeems a SUSE voucher that they received from MS. MS would argue that merely giving out the vouchers is not distribution but most people (the FSF included) see it differently.

I'm not sure if that holds true or not (IANAL, etc.) but it should be interesting to see how this plays out. MS is obviously at least slightly worried or they wouldn't have issued the PR in the first place.

Re:How is Microsoft bound by GPL3?

[mr_mischief]

The angle MS and Novell are taking is that Microsoft's vouchers apply to Novell's GPL v2 stuff. If Novell just happens to distribute GPL v3 stuff in place of that, then it's Novell distributing it of its own free will and not a procurement via Microsoft.

I say the FSF has a right to question that tactic. I'm just not sure where the courts will fall on it.

Re:How is Microsoft bound by GPL3?

[Anonymous Coward]

The Suse vouchers that MS handed out had no expiry date and nothing stating which version of Suse they were valid for.
GPLv3 states that if you give rights to certain users, you must extend those same rights to ALL users without exception.
If a single person uses a Suse/MS voucher to obtain software licensed under GPLv3, ALL users of that software are immune from lawsuits by MS.

Re:How is Microsoft bound by GPL3?

[DragonWriter]

IIRC the GPL3 would apply to MS as soon as someone redeems a SUSE voucher that they received from MS.

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.

Re:How is Microsoft bound by GPL3?

[Bruce Perens]

Well, the theory is that since Microsoft is paying Novell - and has a contract with them - to distribute copies of SuSE to customers who have coupons. The coupons are not just like paying with dollars, since the coupons have no real cash value and there is a contract that says what they are for. So Microsoft is a party to that distribution because it has essentially contracted for someone else to distribute software for them. If you contracted for someone else to distribute bootleg copies of Britneyz new hit, do you think you would have much chance of convincing the court you aren't a party to her label's copyright license or otherwise an infringer?

All of the software that gives "GPL 2 and any later version" as its license is now optionally under GPL3, and new versions of Samba, LIBC, etc., will be "GPL 3 and any later version" and will be included in SuSE. So, Microsoft is obligated under GPL3 if SuSE accepts one coupon for a distribution that contains "GPL3 and later" software. Possibly MS is obligated for "GPL2 and later" software, although that is less clear.

Microsoft has the right to tell SuSE to stop honoring coupons now and keep the money, and then Microsoft would have to refund anyone who had outstanding coupons and eat crow in public. If Microsoft does not do that, it's going to be difficult to show that they didn't accept the license, since they had a way to escape from doing so.

MS is obviously concerned, they would not be making noise if they were not. I suspect that they have lost their last chance to keep Free Software away from their patent portfolio by doing this. They gave up the chunk of rights that we would not have already had due to doctrine of laches, etc. And they will settle for that rather than go to court.

Bruce

Re:How is Microsoft bound by GPL3?

[pete-classic]

They make no GPL software.

I don't know who modded this up, but the question doesn't make any sense. People who make GPL software aren't bound by the GPL with regards to their own software.

The GPL applies to anyone who distributes covered software and doesn't own the copyrights.

-Peter

Re:How is Microsoft bound by GPL3?

[Aim Here]

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.

Re:How is Microsoft bound by GPL3?

[Bruce Perens]

Well, for analogy, consider that I contract with someone to distribute bootleg copies of a CD for me, in return for coupons. I then claim to the judge that I owe nothing to the record label, since the license of the CD was not a contract and did not compel me to give up my pre-existing funds. :-)

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

Clarification

[DimGeo]

Microsoft said they are not distributing any GPLv3 software or code, so they are not bound by said code's license, namely the GPLv3. They never said they will not abide by the GPLv3 if they are bound by it by distributing any GPLv3 stuff.

Re:Clarification

[Bruce Perens]

Oh, you think Microsoft was not playing games when it cross licensed Novell's customers instead of Novell to avoid the patent terms of the GPL? They were just doing business, right? Well, this is payback.

Bruce

And in the red corner, weighing in at

[TheDarkener]

275lbs, wielding his "chair of Google", the solar-panel-for-a-sex-machine, Steve BAAAALLLMMEEERR!

And in the BLUE corner, weighing in at 65lbs, with his slippery-slope of a stomach, sliding down icy hilltops, the racer himself, TUX!

*ding ding*

Re:Cool

[janrinok]

Not quite right there. The FSF have not changed the license under which Novell distributes its software. It was issued under the GPL2 and remains under that license. Microsoft have not infringed upon GPL2. However, if a significant number of developers move to the new GPL3 license then Novell have to make a choice. Either accept the new license conditions or do not accept the new software that is being developed under GPL3. If they do the former then Microsoft could well be accused of infringing GPL3 because their vouchers are a form of distribution - that might not be the correct legal term but I believe that you understand what I'm claiming. If Novell don't accept the new license conditions with the new software then they cannot include it in whatever they are offering. If sufficient elements of the new software are changed by their developers to GPL3 then Novell could find themselves stuck with an out-of-date distribution, or be forced to fork and update many elements of Gnu/Linux themselves in order to keep it under GPL2.

It is by no means certain that your claim that it 'will fail in court' is correct. Many people who know far better than I seem to think that it will succeed.

Get a chill pill people

[nweaver]

Microsoft will be "exempt" from the GPLv3 simply because they will never distribute or pay others to distribute GPLv3 code: since the FSF foundation has made clear they believe that paying others counts as distribution, the Novell deal will not encompass any GPLv3 stuff.

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

Re:Followup

[bzipitidoo]

No need for a lawyer, just use common sense. Yeah, sense still works-- our legal system isn't yet that messed up. So let's run through the facts:

1. MS claims GNU/Linux violates 235 of their patents. MS refuses to reveal anything to substantiate these claims, knowing that every last one of their claims will probably be worked around or invalidated. (In any case, should never have allowed the patenting of software.) MS is also not saying whether they will sue.
2. MS cuts a deal with Novell about their Linux distribution. The main item of this deal is that MS promises not to sue Novell customers for any alleged violations of MS's patents. Complete details of this deal remain unknown to the public.
3. The FSF, which happened to be in the process of revising the GPL to deal with "Tivoization" and was therefore luckily in a good position to respond swiftly to this threat, does respond. They add language saying you can't promise not to sue some users of GPL software over patent violations. You can't discriminate among recipients. All or none get the protection.

It's pretty clear what MS could do had things gone according to their plan, but I'll spell it out. MS would be in position to collect protection money from every GNU/Linux user in the world. And it wouldn't be a one time payment either. Same thing SCO tried. Just like that, the entire free software world would no longer be free. Have to pay for MS's blessing to do anything. And you know, given that cost maybe Windows would be (or look like) a better deal. Plus, Windows would have a big advantage if development on GNU/Linux software slowed way down because developers constantly have to work out deals with MS, and check whether any changes have newly violated any of the MS patents that were blessed. Not saying MS would do such despicable things, but if you believe that, I've got this bridge in Brooklyn....

But we're safe. The FSF has defused this threat. The bullies are afraid to take these issues to court. No need to be worried about technical violations. The spirit of the GPL is most certainly violated by such schemes. Yes, even the spirit of GPL 2. Courts do look at intent when considering cases. But good to have it spelled out in GPL 3, to avoid confusion.