SFLC Says Microsoft Violated the GPL

After Microsoft donated driver code to the Linux kernel under the GPLv2, stories surfaced that they had done so under duress of already being in violation of the GPL. Microsoft quickly denied that any GPL violation was a driver for their decision to donate the code; the company's senior director of platform strategy, Sam Ramji, said at the time: "Microsoft's decision was not based on any perceived obligations tied to the GPLv2 license." Now the Software Freedom Law Center confirms that Microsoft was indeed in violation of the GPLv2 when it distributed its Hyper-V Linux Integration Components without providing source code. Community members led by Greg Kroah-Hartman contacted the company and coached them through the process of getting compliant. Microsoft now says that they had already been on the path for several months toward releasing the software under GPLv2 before Kroah-Hartman got in touch.

Comments

I've Still Yet to See the Code from Them

[eldavojohn]

So I downloaded the Hyper-V Linux Integration Components from Microsoft and unpacked the exe. I was prompted with this agreement:

MICROSOFT SOFTWARE LICENSE TERMS

MICROSOFT WINDOWS SERVER 2008

HYPER-V LINUX INTEGRATION COMPONENTS

PLEASE NOTE: Microsoft Corporation (or based on where you live, one of its affiliates) licenses this supplement to you. You may use it with each validly licensed copy of Microsoft operating system products software (for which this supplement is applicable) (the âoesoftwareâ). You may not use the supplement if you do not have a license for the software. The license terms for the software apply to your use of this supplement. Microsoft provides support services for the supplement as described at www.support.microsoft.com/common/international.aspx.

After it unpacks, I get an RTF named "Linux ICs for Hyper-V" and LinuxIC.iso ... no source code. Anybody know where said source code is? Because when I do a search on their site, I'm not finding it.

Sure, it may have contributed the source code to some repository somewhere but I think the GPLv2 says you need to provide it if you are distributing. Which is what they're doing. Pretty obvious violation right there. Also, when you distribute it, you should have a copy of the GPLv2 license with it. I can't find a trace of it when I get the iso from them ...

Re:I've Still Yet to See the Code from Them

[mdwh2]

It obviously restricts his rights if he can't use it beyond the 30 days. The fact that he might be able to get round it is neither here nor there - you've still imposed an extra legal restriction (if it didn't matter, then why would you have the restriction there?)

Re:I've Still Yet to See the Code from Them

[mrchaotica]

In that case, the "derivative work" only ever exists as a transient copy in RAM, making this theory seem doubtful.

See, this is exactly what I meant when I said "it might be difficult for us techies to understand how this can be true when it's not reflected within the code itself!"

Remember, this is a legal issue, not a technological one. It doesn't matter if the derived work doesn't physically exist at the time of distribution because the law also considers the intent of the people who wrote the software. If they intended for the code to be linked (only) with the Linux kernel, then it's legally defined as a derivative work of the kernel whether such linking actually occurred or not!

It's just like all those various proposals to try to circumvent copyright law by breaking stuff up into little pieces and distributing the pieces separately. The fact that each individual piece is small enough that it's distribution should count as Fair Use is irrelevant; if you intend to re-assemble the pieces you're still committing copyright infringement.

The bottom line is really simple: it's pointless to argue whether something is or is not copyright infringement based on technological distinctions, because the law simply does not care.

Surprising, actually.

[fuzzyfuzzyfungus]

I'm actually pretty surprised by this news. It is well known that MS hates the GPL; but they are a big company, with a nontrivial legal team, and they know that the GPL has, thus far, held up in court.

Surely legal would have thrown a screaming fit if they tried to release anything that constituted a clear licence violation. In practice, copyright holders of GPL licenced stuff have been mild and cooperative about this sort of thing, generally aiming at compliance and occasionally fairly small damages; but they are under no legal obligation to do so, and MS has very deep pockets, which would bring the lawyers swarming if they were in clear violation.

Are they trying to provoke a test case, or did they just fuck up?

Re:Surprising, actually.

[Svartalf]

They just effed up. There's no "test case" to be had. The way that the GPL works is a derivative works and publication license.

What that means is that releasing your modifications to the code so licensed and the means for which you used to build binaries from it is the royalty payment for being able to use it. Without such payment, you aren't licensed to produce derivative works or publish complete copies. In the act of making a copy and giving it to someone else, you're publishing.

There's nothing unreasonable/illegal about the royalty payment being required, so there's nothing really out of the ordinary for courts to "invalidate". If it's able to be invalidated, each and every rights deal for book, music, video/movie, or software publishing deal is equally invalid.

Not even MS wants to go there.

does it matter?

[R.D.Olivaw]

Yes, it's less spectacular if they've done it only because they were in violation but I think they should be applauded either way.
In the worst case, it shows that they are willing to play by the rules. They didn't try to take it as far as they could. They found out the violation and promptly fixed it.

So?

[mark-t]

Okay... I'm no Microsoft fan by a long shot, but so what if they had been violating the GPL all this time before releasing the source code? I think that the important point is that they are doing so *NOW*... because, after all, isn't that the point of the GPL? Sure, in an ideal world they wouldn't have been violating the GPL in the first place, but if you will forgive me for the apparent paraphrasing Gandalf from LotR, there's really no point in dwelling on it because what's done is done... the most important thing is what we decide to do about it to make things better... _today_. And I really don't think that more Microsoft hatred is the way to accomplish that.

Oh, how convinient.

[asdf7890]

Microsoft now says that they had already been on the path for several months toward releasing the software under GPLv2 before Kroah-Hartman got in touch.

I wonder if MS would accept that same reasoning if it were applied next time an auditor finds a pile of incorrectly licenses MS product in a company. "Ah, yes, that. I'm on the path toward paying for the licenses I should have."