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

[sunny256]

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 ÃoesoftwareÃ). You may not use the supplement if you do not have a license for the software.

(Emphasis by me.) Addidionally, if this is GPL, as they say, they can't demand that you have a MS Windows license to use the software. When you've got a copy of it, you're free to use it as much as you want, with or without a MS Windows license.

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

[ComputerDruid]

It's easy to find. It is posted on the linux kernel mailing list as well as in several git trees from kernel.org. Where all kernel patches belong. See http://lkml.org/lkml/2009/7/20/167 .

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

[eldavojohn]

It's easy to find. It is posted on the linux kernel mailing list as well as in several git trees from kernel.org. Where all kernel patches belong. See http://lkml.org/lkml/2009/7/20/167 .

Thanks for the link and I am aware of that. I guess I was wondering how they found themselves in compliance with Section 3 of the GPLv2 and I think this is where the article and SFLC are coming from:

3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)

What I'm trying to say is I'm not seeing any of this and when I actively look on their site for it, nothing comes up.

So I grab GPL code, modify it and upload it to some remote unnamed repository with a license and go about my business releasing it under my own license as a binary on my site? I don't think so.

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

[init100]

1. Violate the GPL
2. Make sure that someone drags you to court for the violation
3. Start crying how the GPL is a communist cancer that should stay away from corporate source code to avoid "infection"
4. ...
5. Profit!

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

[NickFortune]

You can put any license you want on the binaries and still comply with the gpl as long as the sourcecode is available, compilable, and has no such restriction.

That doesn't sound right. From the GPLv2:

Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.

And then later:

6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.

So, no. There are limits on what further restrictions you can impose, and restrictions on actually using the software would seem to be among those disallowed.

Of course, if you take the view that running the program is not covered by the licence, rather than specifically granted (the language seems ambiguous to me, but IANAL) then we could get into the weird situation where you had the right to copy and distribute it, but not to run it. I'm sure someone will tell me why that isn't the case.

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

[mysidia]

That's not true. The GPL only permits you to redistribute binaries under the terms of the GPL. It does not grant permission to distribute binaries under a different license, doing so would be a violation of MS had to follow the GPL.

However, Microsoft cannot be in violation of the GPL with regards to their own binary drivers, unless they included GPL code in them.

If Microsoft developed the drivers / integration components themselves, then they own the copyright.

The only issue some people may want to claim is that the binaries dynamically link against code in the Linux kernel.

Meaning when a user loads the code into their kernel, the user will be modifying the kernel, thus creating what some free software developers call a 'derivative work' subject to the GPL. And (therefore) the theory goes, the binary driver is subject to the Linux kernel's copyright, even when distributed on its own.

This is by no means a proven or generally accepted legal theory, but it is one held by the Free Software Foundation, and at least some Linux kernel programmers.

If you subscribe to this Legal theory, then MS distributing drivers except under the GPL would be a violation of the GPL with respect to the Linux kernel.

If you don't subscribe to this Legal theory, you may hold that when the 'user does linking', this doesn't count as the author of the driver distributing a derivative work. In that case, drivers could be issued under any license the developer so desires, and they could use any binary trickery needed whatsoever to allow it to be loaded into the kernel, without needing to GPL the driver.

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

[Svartalf]

Uh, no, you can't.

Binaries are governed by the terms of the GPL just as the source is- unless you're the sole rights holder for the source code (Microsoft ISN'T...), they can't license under anything other than the GPL, no matter what they might say. Adding additional terms or taking them away is only allowed for the original rights holder- and you're bound to the terms they set aside for you. Since this is the Linux kernel they cribbed from- GPLv2 is the only license they can really use at that point.

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

[Anonymous Coward]

That's the viral nature of GPL: once they get it, they're stuck with it. They can't put their own license on it, no matter what they do elsewhere.

If GPL is viral, than so is copyright. If I take someone else's source code, use it without a license in my own program, and distribute the new source code, everything that uses that code could potentially be a violation of copyright. Similarly, if I distribute a movie that someone else holds the copyright to without a license, me and everyone else who distributes that movie has violated copyright. And if I distribute Microsoft Windows without a license, the BSA will most certainly take me to court and press for criminal charges. It's not the GPL that's viral, it's copyright law. GPL simply provides a fair set of rules by which you can use another person's code. If you don't like the license, write your own code.

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

[alexhs]

Funny, Microsoft did the steps in reverse...

5. Profit!
4. ...

3. Start crying how the GPL is a communist cancer that should stay away from corporate source code to avoid "infection"

That was in 2001.

2. Make sure that someone drags you to court for the violation

That was in 2003. Not directly but supposedly partly founded by them.

1. Violate the GPL

That is in 2009.

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

[wastedlife]

This.

Too many people seem to think that GPL is a trap to get you to release their precious code. However, it only requires them to release their code if it contains GPL code. At its heart, it is like saying, here is my code, I grant you a license to use, modify, and distribute as much as you would like. My payment is that you need to distribute the entire source, including your own changes.

The bottom line is, if you don't want to be held to the GPL license, either work out a different license with the copyright holders, or write it yourself. If you want free code from someone else with little to no restrictive licensing, use BSD-style licensed code or public domain code.

In my opinion, writing and using GPL code makes more sense from a business perspective than BSD, because you get a community of free and paid developers to add to your own, and other businesses need to release their improvements so that you can use them as well, protecting your ability to compete.

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

[shentino]

The binary is a derivative work of the source.

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

[mrchaotica]

Well, it seems you did not download the gpl version, but an old version.

Sorry, but copyright law doesn't work that way. Even if they do abide by the license when they release a new version, the old version is still a separate work (according to the law) and still in violation. They need to either release the source code for the old version too, or quit distributing it.

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.

Re:Old news?

[Anonymous Coward]

Come on, there's always time for anti-microsoft stories.

GPL2

[TechForensics]

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.

Yeah, right.

Re:GPL2

[kscguru]

This all isn't in keeping with their company line up to this point- and companies typically don't change this much this fast. Ever. I doubt that they're telling the truth here on this- as much because of what they've done in the past and how radically different it is from what that was.

Never forget that Microsoft does not act as a single, intelligent creature with one purpose. Microsoft is a large fiefdom. There is one king (Balmer) who doles out responsibility to a small army of dukes, earls, counts, and such (vice presidents), each of whom have their own agenda (amass the most resources, either by raising revenues or stealing from each other). Linux is a very annoying enemy to one of the dukes, and is a strategic ally of a count.

It is entirely possible for one part of Microsoft - probably the Windows Server marketing organization - to be spewing anti-GPL filth while at the same time another part of Microsoft - the hypervisor engineering team - is working very hard to interoperate with Linux because the lack of that integration is killing them in the marketplace against VMware. I would be more surprised if Microsoft didn't manage to act like a schizophrenic. Microsoft as a whole doesn't give a damn about Linux; it's one or two parts of the company that feel strongly one way or another.

Your honour

[Norsefire]

I had been on the path for several months of buying a legitimate copy of Windows before Microsoft's lawyers got in touch. Honest.

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.

Re:does it matter?

[Norsefire]

If someone had been distributing pirated versions of Windows and only stopped 5 months after they had been contacted by Microsoft's legal team, would Microsoft applaud them?

Re:does it matter?

[A beautiful mind]

This reminds me of the old joke some former ex-communist block countries have.

So Lenin is working in his study and suddently he realises there are kids playing football outside his window. He opens the window and shouts: "Get the fuck out of here stupid spastic kids!"

This proves conclusively what a good man Lenin was, he has to be applauded as such. He after all could have ordered the kids to be shot dead, no?

Re:AGAIN?

[Josh04]

I agree. This has been a terrible set of articles which makes the community as a whole look like a bunch of irrational, immature children. Microsoft finally did what Slashdot has been demanding they do for years, and somehow this too is a 'bad thing'. This is worse than the articles complaining that IE6 was finally being put down.

Re:Blatant lies

[Antique Geekmeister]

I believe you meant to say "getting all Symantec". It's much funnier that way, and takes advantage of your partial spelling of 'semantic'.

Re:Will there be any action against Microsoft?

[mdwh2]

Note that even if they release the code, that doesn't help them - they've still violated copyright law. Just as if someone is sued for sharing mp3s - saying that you'll stop won't help you.

Why aren't they being sued for $150,000 per violation?

The Kettle and the Pot

[hackus]

So, seems like Microsoft for SEVERAL MONTHS has been on the GPL path to compliance?

I would like to point out, that if you pirated several Microsoft so called "Intellectual Property" binaries and eventually paid for them all, you would land in court with some fairly large fines.

Furthermore, this idea that companies cannot show source code for violations in the GPL rules seems a bit, well, warped.

This loop hole allows companies to hide behind IP rules, to protect their violations of copyright.

It is well known that Microsoft is in the HABIT of taking OTHER companies/individual works and using them for thier own gains, fairly shamelessly in some cases, and in others covertly.

-Hack

Re:Will there be any action against Microsoft?

[silent_artichoke]

Why aren't they being sued for $150,000 per violation?

Gentlemen, start your FTP clients!

Re:does it matter?

[unfunk]

I'm giving up the opportunity to mod what will undoubtedly be a trollfest in this article's comments so I can post this.

I think that this is a positive sign from Microsoft. For years they've been going on about how the GPL is a virus and communist and will be the death of us all.
Now they've released code under it. It doesn't matter that they had to, it matters that they did it. They undoubtedly had a team of lawyers looking at their options before doing this. If they were of the viro-communist mindset toward the GPL before this, they certainly aren't now. The lawyers must have told Microsoft that if they decided to play the "GPL is invalid" card, it would have been a very long and hard battle for defeat.

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.

Re:So?

[swillden]

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?

If there are no negative consequences to violating the GPL, companies can do it as a matter of course, and then only come into compliance when forced to. This hugely increases the burden on those enforcing the GPL, because as long as there's any value in non-compliance for a time, companies may as well not comply. That's why the FSF has begun demanding cash settlements and other punitive measures for violators.

Additionally, as other posters have noted, it appears that Microsoft is actually still *NOT* in compliance. Providing the source to the Linux kernel team is not sufficient per the terms of the GPL. Since MS is distributing binaries, the GPL requires them to either distribute the source with the binaries, or to accompany the binaries with an offer, valid for at least 3 years, to provide the source upon request. Also, MS must not impose additional licensing requirements beyond those of the GPL, but it seems they are imposing additional requirements which violates the GPL another way.

Re:does it matter?

[CrimsonKnight13]

Hell no, and did we surrender to Germans at Perl Harbor? Hell no! No surrender to M$. That's what I say.

I greet you, traveler from some unknown alternate universe. Where I come from, Japan attacked Pearl Harbor & the US survived it.

Re:AGAIN?

[Josh04]

I'm not entirely sure you understand how reality works. The code was based on the GPL; the code was released. Somehow, Microsoft is _still_ a villain. I don't get it.

Re:Why are people obsessed over this?

[DMalic]

It's interesting to see a company which so violently protects their own code against violation treating their own copyright infringement so frivolously.

Isn't it amazing?

[Anonymous Coward]

Isn't it amazing how /. posted yet another anti-Microsoft story?
Bunch of freakin' whiners.

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."

Re:AGAIN?

[DMalic]

What? Microsoft distributed code they did not have the legal right to distribute. It's very laudable that the company later came into compliance with a license which would give them the legal right to distribute that code, but that belated action does not legally excuse the original violation. Nobody is threatening the company.

Never blame on malice...

[TurtleBlue]

what can be explained by sheer ignorance.

        Microsoft, though we keep referring to them in the singular, has well over 80,000 employees, and I'm betting most of them are not versed in the nuances of the GPL licenses, neither their driver developers, nor the paralegals writing the EULA's (though I bet the lawyers are).

        Now, this doesn't excuse them of a violation one bit. Though it's possible, I doubt they had a a strategy "all along" to open-source the drivers because they included GPL code - because they work with citrix maybe, but not purely due to the GPL bit.

          It also doesn't mean they did this in an effort to subvert or screw with GPL code - Microsoft's grand-poo-bah executive committee might "hate the GPL", but it'd be good to remember that eight levels of management separate them from some device driver writer tasked with getting Linux to run in hyper-V (who may or may not be employed there any longer).

Re:Will there be any action against Microsoft?

[molnarcs]

They won't. It has always been the policy of the FSF to try to work out GPL violation problems behind the scenes, then if it fails, go public (unless the public finds out first about the violation) and finally seek legal remedies. I don't know any cases that reached this final stage.

What really bothers me is the marketing spin they put on what is essentially complying with copyright laws. "Today, in a break from the ordinary, Microsoft..." yada yada - break from the ordinary my ass! This is what happened:

• Code was found in violation of the GPL by Stephen Hemminger - the main engineer at the open-source networking vendor Vyatta

• Hemminger approached Greg Kroah-Hartman, who agreed that there is a problem and worked behind the scenes to rectify the situation.

• MONTHS later Microsoft ended its copyright violation by finally releasing the code and complying with the GPL.

Then they went on with another spin:

"We arrived at the decision to release the drivers to the community under the GPLv2 through this process. Both Greg K-H and Jim Zemlin of the Linux Foundation have reiterated that this is the same process that other companies follow when deciding how to release new device drivers to the Linux community."

This is so typical - there are some half-truths in there. It is the normal process the FSF has pursued for getting violators in complience with the GPL, however, it is NOT the NORMAL process for those companies or individuals who genuinely want to donate code to the FSF or the linux kernel. "Today in a break from the ordinary..." yeah, well you can say this is a break for the ordinary, for usually it takes far more time to get Microsoft to comply with laws and regulations. 5 months only - amazing!

Re:AGAIN?

[Runaway1956]

Donated?

I'm terribly sorry, but that one word pretty much screws your post, and your attitude. MS "donated" nothing. They were caught redhanded with their hands in the cookie jar. They were threatened with legal action, so they paid for the cookies, in the currency damanded by their victims.

The seperate issue of examining that code? Go for it. A lot of people are examining it right now, I suspect. ;)

Re:does it matter?

[Chris Burke]

I think that this is a positive sign from Microsoft. For years they've been going on about how the GPL is a virus and communist and will be the death of us all.
Now they've released code under it. It doesn't matter that they had to, it matters that they did it. They undoubtedly had a team of lawyers looking at their options before doing this. If they were of the viro-communist mindset toward the GPL before this, they certainly aren't now. The lawyers must have told Microsoft that if they decided to play the "GPL is invalid" card, it would have been a very long and hard battle for defeat.

Microsoft may have said things to the effect of the GPL being possibly invalid, but there's no way they actually believed it. It's not like they only had their lawyers look at the license when they discovered they were violating it. If there was any actual hope of getting the license invalidated, then they would have created a test case scenario long ago. But no matter how much FUD they spout in public, when push comes to shove MS, like everyone else but a couple crazies like SCO, quietly moves to comply rather than fight a legal battle they know they won't win.

So I agree that this is a positive thing -- it's going to be harder for MS to spout anti-GPL FUD, and hey now there's more GPL software out there which is nice. But I don't see how this is a positive sign from Microsoft. I'd bet you anything this was simply a screw-up on their part, and they never had any intention of giving the GPL validation (which it theoretically shouldn't need, but practically speaking it can use). I don't see how complying with a license rather than fighting a legal battle they can't win and which would only make them look worse represents a sea change in their corporate mentality.

Re:AGAIN?

[Chris Burke]

They violated the GPL. That is a bad thing.

Complying with the license rather than trying to fight a legal battle they would certainly lose is not a good thing, it's a neutral thing. You're not being "good" when you serve the jail time the court sentences you to. You're not being "good" when you screw a supplier out of money you owe, then agree to pay them that money when you get caught. You don't get brownie points for doing what you are legally obligated to do to correct your mistakes!

So, net result: bad thing.

"Microsoft finally did what Slashdot has been demanding they do" -- what rubbish. They did it because if they didn't, they were going to get sued and this would have become an even more high-profile clump of dirt on their face. Now they can play it off to the gullible like they're being magnanimous, rather than be dragged kicking and screaming to the inevitable conclusion.

I don't remember Slashdot ever demanding Microsoft screw up and unwittingly violate the GPL, forcing them to either cripple their own product by removing the offending code or releasing the source.

Re:does it matter?

[thetoadwarrior]

A lot of people get Lenin confused with others. Some think he wrote "Hey Jude" since it was about his kid but it was actually McCartney.