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Groklaw Explains Microsoft and the GPLv3

kdawson posted about 7 years ago | from the those-pesky-vouchers dept.

Microsoft 349

A Groklaw Reader writes "After all the questions about how the GPLv3 will or won't apply to Microsoft following Microsoft's declaration that they weren't bound by it, PJ of Groklaw wrote this story about how and why the GPLv3 will apply to Microsoft. Specifically, it covers in what ways Microsoft would convey GPLv3 software under the Novell agreement, and how Microsoft's refusal to allow previously sold vouchers to be redeemed for GPLv3 software would impact that agreement. Given that Novell has said that they will distribute GPLv3 software, Microsoft may have had the tables turned on them already."

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349 comments

BOOM (5, Funny)

gustolove (1029402) | about 7 years ago | (#19809197)

HEADSHOT!

Re:BOOM (-1, Offtopic)

Anonymous Coward | about 7 years ago | (#19809329)

Listen up. Before everybody circle jerks over PJ, I want to throw my 2 cents in. I hooked up with her last year. There was a lot of alcohol involved. Now, I've had drunk sex with horse faced girls, fat girls, skanks, etc, but at least they seemed like a good idea at the time. With PJ, I regretted doing before doing it. Any port in a storm and all that, but the next day I quit drinking. Anyhow, I hope you all can learn a lesson from my mistake.

Re:BOOM (1, Funny)

wellingj (1030460) | about 7 years ago | (#19809363)

Who let the SCO troll in?

Re:BOOM (0)

Anonymous Coward | about 7 years ago | (#19809389)

PJ is like 50-years old. Alcohol has made girls look more desirable for me but never younger! Is she MILF? Well, a push-in-the-bush is better than a pickle-in-the-hand.

is it just me? (0, Flamebait)

friedman101 (618627) | about 7 years ago | (#19809225)

Is it just me or is anyone else hoping Microsoft drags Novell down into the muck? This would be a good lesson to anyone else considering getting in bed with them.

Re:is it just me? (2, Informative)

Spinlock_1977 (777598) | about 7 years ago | (#19809257)

You're completely alone in that feeling, as I'm sure a significant number of slashdot'ers are about to confirm.

Re:is it just me? (1)

cyphercell (843398) | about 7 years ago | (#19809673)

Exactly, I personally hope everyone that gets entangled with Microsoft finds a way out of it - just like I did.

Re:is it just me? (2, Insightful)

setagllib (753300) | about 7 years ago | (#19809431)

I hope Novell escapes from this wiser and embraces freedom-based principles more. They have a lot of good employees and industry power, so the work they do can really make a difference in a struggle like this. They've chosen to be used as a counter-example instead, but I hope it results in a lesson learned and not a lot of careers ruined. Microsoft can market it to convince most people they're in the right, and somehow it's the FOSS people's fault. Novell can't really do that, so they have to issue a public apology for their devil worship, or continue their decline into the fiery pits of hell.

Re:is it just me? (2, Insightful)

Anomolous Cowturd (190524) | about 7 years ago | (#19809777)

I'm hoping Novell survives this, and furthermore takes every opportunity to deride Microsoft and counter their FUD, within the limits of their contract.

What matters is enforceability (5, Insightful)

JordanL (886154) | about 7 years ago | (#19809231)

People are going back and forth about whether or not the GPLv3 will apply to Microsoft, but the real crux of the deal is that it won't matter if there is no one that both has the resources and the motivation to force Microsoft to comply.

How could it possibly stop Microsoft from doing anything they do as long as no one has the money or the reason to take them to court over it and see it through completion. IBM is the only company I can think of that would really have both, and Microsoft isn't stupid enough to violate any of IBM's licenses, nor is it strategically positive for IBM to place themselve directly against Microsoft right now either.

Otherwise, who are we really expecting to take Microsoft to court? Novell? The Free Software Foundation? Please... Microsoft has been stalling the sum total of *Europe* for almost half a decade, if you think Novell or the FSF is going to force Microsoft to comply witht eh GPL you're delusional.

Re:What matters is enforceability (5, Informative)

Enderandrew (866215) | about 7 years ago | (#19809283)

Europe found Microsoft guilty of anti-trust violations and made Microsoft release a version of Windows without Media Player, to which they complied. The EU also made Microsoft pay a half-billion dollar fine, which hurts no matter who you are. They have had to pay further fines as the EU has declared Microsoft hasn't done enough for interoperability, and forced Microsoft to release source code.

It sure seems to me that the EU has been hitting Microsoft pretty hard.

Re:What matters is enforceability (5, Insightful)

ozphx (1061292) | about 7 years ago | (#19809419)

US [amazon.com] : $214.99

Europe [amazon.co.uk] : £184.98 ($371.92)

Yup. The EU sure showed them!

Want to take a bet that MS is expecting to sell more than 3 million (1/2 billion / $150 delta) copies of Vista in Europe?

Heh. I'll take double or nothing on "this is inline with MS's estimates when they got involved in the legal process". ;)

Re:What matters is enforceability (4, Insightful)

Enderandrew (866215) | about 7 years ago | (#19809541)

And Linux has more users in Europe for reasons such as these.

Regardless, how many people buy these licenses as direct consumers?

Most people get their OS license on the cheap bundled directly with their hardware. If Dell was paying Microsoft more than $50 for the license of Windows on a $400 computer, I'd be shocked, yet people keep insisting that license costs over $200.

Re:What matters is enforceability (4, Informative)

VGPowerlord (621254) | about 7 years ago | (#19809707)

Items sold by Amazon.com LLC, or its subsidiaries, and shipped to destinations in the states of Kansas, Kentucky, North Dakota, or Washington are subject to tax.
-- Amazon.com [amazon.com]

The above line is there to note that, due to how taxes work in the US, the US Amazon site does not have tax as part of its item prices.

The "Our Price" amounts displayed for goods sold by Amazon.co.uk are inclusive of UK VAT. ...
For non-book items that are shipped to addresses within the UK (such as giftwrap, audio books, CDs, vinyl records, minidiscs, videos, DVDs, electrical and photographic items, toys, software and PC and video games) the UK VAT rate is 17.5%.
-- Amazon.co.uk [amazon.co.uk]

Whereas the UK site includes the UK VAT of 17.5% for software.

So... £184.98 = 1.175 x price... divide both sides by 1.175... the price is actually £157.43 ($317.32)

So, while the gap is still large (around $100), it's not nearly as large as you originally made it out to be (around $155).

Re:What matters is enforceability (1)

AVonGauss (1001486) | about 7 years ago | (#19809899)

I am definitely no longer fond of Microsoft, for many different reasons that really don't matter at the moment. However, I think people are starting to treat Microsoft like a utility company that they can't avoid or exercise their own personal choice in using. Early anti-trust and similar litigation revolved around Microsoft's practices of limiting OEM vendors from choosing what operating system products to offer their customers - that's been stopped many years ago. Many vendors offer different options at various levels, the most notable one at the moment is the Dell/Ubuntu deal on the consumer hardware.

I just don't get it, if I don't like Colgate toothpaste, I don't buy it. If you don't like Microsoft products, then don't buy them. I don't know why we insist upon making it more complex than that - it's supposed to be a free economy, in the US at least. If you stop buying their products and convince others to stop buying their products, the problem will go away either by Microsoft changing their practices or the company ceasing to exist in the prominence that it now does. Microsoft exists by continuing sales, drop significant numbers in the sales area, then investors get nervous and the company further devalues itself.

Microsoft wants to keep their protocols like SMB proprietary, okay, let them. If proprietary protocols do not work for you as an individual, corporation, country or union of countries, use another one. One doesn't exist? Write one, it's a hell of a lot easier than mimicking a closed proprietary protocol. Want to be mischievous? Take a play out of the Microsoft handbook, write a driver for their Windows operating system so that protocol gets even more widely adopted.

As for why Microsoft has the market penetration that it has now, for most of us, you just need to go look in the mirror. I think the EU has good intentions, but it is also setting very bad precedents.

Re:What matters is enforceability (1)

GizmoToy (450886) | about 7 years ago | (#19809289)

Enforcement is a particularly interesting issue in the current political climate. MS basically got a pass on their anti-trust case, and that was a government case. Finding a company with the will and resources to battle MS on a GPL violation would be extremely difficult. While the FSF would certainly get as much help as the community could provide, I'm not sure it'd be enough.

At least Europe has done a better job of sticking to their guns than we have.

Re:What matters is enforceability (3, Insightful)

Cadallin (863437) | about 7 years ago | (#19809453)

That issue interests me greatly. Remember how that case went? Remember how the judge recommended that Microsoft be broken up? Can you even imagine how devastating that would be to Microsoft today? With the number of divisions (particularly Microsoft Entertainment, that they're supporting Billion dollar/year losses with Office/Windows sales?)

Now, here's where I'm going to get really crazy into progressive fantasy. Suppose a major shake-up happens in the '08 elections. Conservatives get crucified left and right. Bush has been impeached for Obstruction of Justice (which he just did again today, when he invoked "Executive Privilege" to prevent White House Aides from testifying under Oath). Both the house and senate see major shake-ups, and some lefty, like Edwards or (dare to dream) Gore, is sitting in the Oval Office.

Now, seems to me that because of their previous conviction, some nasty complaints to a newly empowered FTC could result in a review of Microsoft's behavior following their conviction. What if they found it necessary to enact the judges original recommendation? Can you imagine the shock-waves? Early '09 "Microsoft Busted," "Microsoft Split into 5 Separate Companies" I'm not saying it's even possible, but just the scenario gives me the shivers!

Nobody's really going to go that far. (5, Insightful)

Kadin2048 (468275) | about 7 years ago | (#19809657)

Right, because lefties aren't influenced by money? Microsoft has billions of dollars in cash, more than enough to buy whatever politicians happen to be in power.

Corruption isn't just a conservative phenomenon. By the time you get to the White House, unless you end up there by mistake, you're already crooked. The process of getting there guarantees it. I'm sure Microsoft slathers its campaign contributions around so that no matter who wins, they owe Redmond a few favors.

The only reason any politician would ever break up Microsoft would be if they thought they could somehow capitalize on its demise, and I don't see any reason why that's possible. You don't win votes by torpedoing one of the crown jewels of the U.S. economy and its economic dominance, even if you're a leftist. There might be some saber-rattling, but it's not going to be anything serious.

Your faith in one batch of weasels over another is cute, but ultimately I think you're just setting yourself up for disappointment.

Re:Nobody's really going to go that far. (-1)

node 3 (115640) | about 7 years ago | (#19809845)

Right, because lefties aren't influenced by money? Microsoft has billions of dollars in cash, more than enough to buy whatever politicians happen to be in power.
Republicans tend to be more big business friendly. Democrats tend to be more consumer friendly. Even if all politicians are crooked (this is absolutely *not* true), they are not all crooked in the same ways.

Your faith in one batch of weasels over another is cute, but ultimately I think you're just setting yourself up for disappointment.
Your notion that all politicians are equally corrupt is quaint, but ultimately, I think you're just setting *US ALL UP* for trouble.

The problem with your theory is that it makes it impossible for any politician to be honorable. It shows prejudice against all parties, which can only benefit those who can be the greatest scoundrel. Think about it.

And, on the topic on hand, a Democratic government is *significantly* more likely to break up MS than a Republican government. The notion that this isn't so is extraordinarily absurd.

Re:What matters is enforceability (3, Informative)

Anonymous Coward | about 7 years ago | (#19809375)

Otherwise, who are we really expecting to take Microsoft to court?

Isn't this the patent enforceability clause? Basically, this isn't about making Microsoft do anything, it's about defending people should Microsoft sue them for patent infringement - i.e. Microsoft have inadvertently indemnified everybody through their distribution deal with Novell. Nobody's looking to sue Microsoft.

Re:What matters is enforceability (2, Informative)

The_Wilschon (782534) | about 7 years ago | (#19809859)

Well, let's see. If MS does decide to sue somebody (say, a major customer of Red Hat) for infringement of a patent because of some piece of software which Novell is distributing under GPL3, then what? Somebody would have to countersue. So, in that case, we've got somebody needing to sue MS.

OTOH, maybe MS does like they've said they will, and doesn't ever sue anybody over these alleged patent infringements. Then we can probably expect them to continue throwing their FUD around about the patent infringment. This will continue to hurt corporate Linux adoption. If we want to avoid that, then somebody would have to sue MS for, I don't know, libel or slander or misrepresentation or something.

So, we have a couple of possibilities. In each possibility, either somebody sues MS, or somebody (FOSS adoption or some FOSS user(s)) suffers somehow. This doesn't seem to comport with "Nobody's looking to sue MS", unless MS voluntarily doesn't throw any more FUD over the patents, which seems unlikely.

Re:What matters is enforceability (4, Interesting)

jkrise (535370) | about 7 years ago | (#19809401)

People are going back and forth about whether or not the GPLv3 will apply to Microsoft, but the real crux of the deal is that it won't matter if there is no one that both has the resources and the motivation to force Microsoft to comply.
To my knowledge, very few cases have enforced Microsoft's EULAs in a court of law, even though most of their clauses may not be legally tenable. Likewise the GPL has rarely been tested in a court of law, but that does not mean it is any less effective. Nobody is holding any gun to developer's heads, and yet, GPL is one of the most widely used licenses for software development, if not the most common one.

It is all about mindshare, not compliance or enforcement - and GPL is clearly winning the mindshare battle.

How could it possibly stop Microsoft from doing anything they do as long as no one has the money or the reason to take them to court over it and see it through completion. IBM is the only company I can think of that would really have both, and Microsoft isn't stupid enough to violate any of IBM's licenses, nor is it strategically positive for IBM to place themselve directly against Microsoft right now either.
IBM is not Microsoft's only enemy by any stretch. Had it been so, SCO vs IBM should've ensured the death of Linux. IBM still maintains both strings to it's bow - Linux AND AIX. But the marketplace and MORE IMPORTANTLY the Developer community have adopted Linux and GPL in a big way. Visual Studio Express and free editions of many other s/w offerings indicates the growing mindshare of Free Software as a viable commercial model for developing and distributing software; and proprietary firms' changing tactics to counter this onslaught.

Otherwise, who are we really expecting to take Microsoft to court? Novell? The Free Software Foundation? Please... Microsoft has been stalling the sum total of *Europe* for almost half a decade, if you think Novell or the FSF is going to force Microsoft to comply witht eh GPL you're delusional.
Going to a court of law to ensure antitrust compliance or even standards compliance is so '90s. The customer has already voted with his dollars for Free Software solutions, and even companies like Dell have woken up to this fact. Companies offering standards compliant, open source s/w under less restrictive licenses are growing in number as well as stature. GPL3 removes the threat of the patent sword hanging over customer's heads as well.

All in all, recent moves have clearly indicated that the GPL is really working, and achieving the stated objectives of the FSF. Kudos to Stallman, Moglen and co.

Re:What matters is enforceability (3, Insightful)

RobBebop (947356) | about 7 years ago | (#19809663)

IBM is not Microsoft's only enemy by any stretch.

And don't applaud IBM to loudly, either. They have a strong set of their own proprietary software tools (Rational comes to mind, and I think they just bought Telelogic).

These brands have tools which put comparable Open Source tools to shame in the professional organizations that IBM sells them too.

No, IBM alone won't sue Microsoft. Nor will Sun or Red Hat. And as long as Microsoft keeps its code closed... you'll never see anything but the remenants of old BSD code packaged with Windows...

The victory will be declared when people wake up and realize the folly in using Windows and the advantages of Linux (and Open Source, as a whole). Unfortunately... there are a lot of software engineers and developers who still don't see this - so it will be a while before "everybody else" can be expected to understand.

Re:What matters is enforceability (1)

jkrise (535370) | about 7 years ago | (#19809805)

And don't applaud IBM to loudly, either. They have a strong set of their own proprietary software tools (Rational comes to mind, and I think they just bought Telelogic).
Matter of fact, I didn't. I actually ponited out that they still have both strings - AIX AND Linux, and still speak as if AIX is an important part of their future. Which to me suggests they are playing fast and loose with Linux and Free Software.

Lotus Notes on Linux is not Free Software - it is proprietary. And IBM has bought over many commercially successful s/w outfits - testing tools, version control, databases etc. - and ensured none of them went the Open Source route.

Fortunately for the Free Software bandwagon, IBM is not the only player in town or even the biggest of it's champions. They are just one more of the "free-ride" parties to join the Open Source game - like Dell. Sun has yet to actually transition their offerings under GPL3 - but I guess they might be the first major firm to do so. Not IBM. Nor HP - the other two-faced company with enough dollars in it's kitty to make a difference.

Re:What matters is enforceability (2)

Eric Damron (553630) | about 7 years ago | (#19809441)

"IBM is the only company I can think of that would really have both, and Microsoft isn't stupid enough to violate any of IBM's licenses..."

What I see is Microsoft beating the patent war drums. If Microsoft is foolish enough to sue ANYONE or play the patent FUD card too strongly so that IBM's business is harmed it will become a concern to IBM.

If someone with one of the Microsoft coupons waits until they are sure that Suse Linux comes with GPL V3 software and then gets that software using that coupon it will add another layer of defense against Microsoft's bullying. There is a real possibility that the Microsoft patent threat will be totally nullified.

Re:What matters is enforceability (1)

BoldAndBusted (679561) | about 7 years ago | (#19809447)

People are going back and forth about whether or not the GPLv3 will apply to Microsoft, but the real crux of the deal is that it won't matter if there is no one that both has the resources and the motivation to force Microsoft to comply.

How could it possibly stop Microsoft from doing anything they do as long as no one has the money or the reason to take them to court over it and see it through completion. IBM is the only company I can think of that would really have both, and Microsoft isn't stupid enough to violate any of IBM's licenses, nor is it strategically positive for IBM to place themselve directly against Microsoft right now either.

Otherwise, who are we really expecting to take Microsoft to court? Novell? The Free Software Foundation? Please... Microsoft has been stalling the sum total of *Europe* for almost half a decade, if you think Novell or the FSF is going to force Microsoft to comply witht eh GPL you're delusional.
Introducing!... In the left corner... weighing in at 90 pounds, sporting a long scraggly beard, receding hairline, ponytail, awful breath and "hacker BO"...surrounded by idealistic and hungry lawyers...wearing the Gnu Shorts...

... The Free Software Foundation [fsf.org]


Operators are standing by to take your on-line donation.

Re:What matters is enforceability (1)

wall0159 (881759) | about 7 years ago | (#19809455)

"who are we really expecting to take Microsoft to court? "

My (naive) understanding is that this is not the issue. GPLv3 reduces the affect of MS's patent litigation threats, and represents another line of defence for Free Software. If MS sues, and they're bound by GPLv3, then they're in breach of copyright.

Of course, whether MS is legally a distributor of GPLv3 code would likely need to be decided in court, which will probably only occur as a defence for a patent suit launched by MS, which will probably never happen (their threats are empty sabre-rattling). It doesn't matter - MS have just had their threats neutralised.

(I'm not a lawyer tho - perhaps someone with more knowledge than me would care to comment?)

Re:What matters is enforceability (2, Interesting)

dilute (74234) | about 7 years ago | (#19809809)

Yeah, the issue is more likely to come up defensively. If MS really trips over this (i.e., gets called on any of its vouchers), then any GPLv3 user that MS sues for patent infringement can defend on the basis that MS has licensed all users, including them, under every patent that was licensed to Novell, regardless of where the user got its copy of the software. So MS will try to put the best face on this, but these are probably not waters that MS would want to wade into. Do you think any such user would have a hard time coming up with a legal defense if sued by MS for patent infringement? I doubt that. So that's the "enforceability" right there. If MS can't find and destroy every last voucher before it is too late, they will be in a bad spot on this and their entire portfolio of patents will likely be impotent as regards any GPLv3 software.

Re:What matters is enforceability (1)

wall0159 (881759) | about 7 years ago | (#19809953)

"If MS can't find and destroy every last voucher before it is too late, they will be in a bad spot on this and their entire portfolio of patents will likely be impotent as regards any GPLv3 software."

That's what I think too. It doesn't really matter whether or not MS would lose in court for copyright violation (for distributing GPLv3 code, and then suing for patent infringement) - it'll never come to that, cause they'll never try and sue. This totally destroys their patent FUD-spreading. An imaginary conversation:

MS: you'd better not use Linux, because we might sue you for patent infringement
IBM, et al: ahh! but you infringe our patents too
GPL-people: and even if MS gets away with that (not likely), we'll sue them for copyright infringement.

Not looking so good for MS now, is it?

Re:What matters is enforceability (0)

Anonymous Coward | about 7 years ago | (#19809503)

Otherwise, who are we really expecting to take Microsoft to court? Novell? The Free Software Foundation? Please...



EC?

Re:What matters is enforceability (1)

CrkHead (27176) | about 7 years ago | (#19809515)

There is the possibility of several nag lawsuits that could make an impact on MS's business. How many different copyright holders are there in a distribution? If a quarter of them filed a small claims suit, MS would have to answer each of them. At the very least their legal department would be divided and could not spend as much time battling the EU without expanding.

Re:What matters is enforceability (0)

Anonymous Coward | about 7 years ago | (#19809521)

"People are going back and forth about whether or not the GPLv3 will apply to Microsoft, but the real crux of the deal is that it won't matter if there is no one that both has the resources and the motivation to force Microsoft to comply."

This is not the objective of GPL v3.

The objective is that, if and when Microsoft attempts to sue anyone over "Microsoft IP" allegedly in Linux, the GPL v3 in conjunction with Microsoft's vouchers for SuSe Linux will provide an effective legal defense.

Combined with the threat of countersuit from the OIN and the Patent Commons, and an army of amature Groklawyers scouring for prior art for Microsoft's patents these defenses should be more than adequate to see off IP licensing threats from Microsoft.

Re:What matters is enforceability (1)

iamnafets (828439) | about 7 years ago | (#19809607)

" Otherwise, who are we really expecting to take Microsoft to court? Novell? The Free Software Foundation? Please... Microsoft has been stalling the sum total of *Europe* for almost half a decade, if you think Novell or the FSF is going to force Microsoft to comply witht eh GPL you're delusional. " Lol. Are you for real?

Re:What matters is enforceability (0)

Anonymous Coward | about 7 years ago | (#19809891)

It's not about Microsoft complying. It's about neutralizing Microsoft's attempts to spread FUD through patents.

What Microsoft said... (2, Insightful)

Anonymous Coward | about 7 years ago | (#19809285)

Microsoft said that it doesn't apply to them (now).

Groklaw says it does apply to them (in the future).

There is no argument here, no discussion. Does Groklaw actually think that Microsofts Army of Layers knows less than they do about law or something?

This type of round robin arguing, where everyone is shouting about different scenarios yet equating them because they are "similar" is so typical of /. and FOSS vs Closed Source companies... :(

Re:What Microsoft said... (3, Insightful)

Anonymous Coward | about 7 years ago | (#19809333)

MSFT's army of lawyers have said no such thing. They've said that in a press release, but as Microsoft Watch said, they have lied about many things in their press releases.[1]

In any case, they are NOT living up to the obligations they gave to the coupon buyers after they told them they would not sue (except, now, if they include GPLv3 code in SLES). Gee, I wonder how Walmart feels after being used by MSFT in the NOVL ploy; did they pay for nothing? Not to mention what happens if someone takes some GPLv2 or later version from SLES into GPLv3 in a derivative distro, and then asks NOVL for the patent covenant from MSFT.

[1] http://www.microsoft-watch.com/content/corporate/s ay_it_aint_so.html [microsoft-watch.com]

"Microsoft has a long history of saying stuff (expecting people will believe) that wasn't true then or didn't turn out to be true in the future. I've grabbed some random examples:
Software Assurance: In its May 10, 2001, press release announcing the program, Microsoft claimed: "The improvements to Microsoft's volume licensing offerings are designed to match the current acquisition behavior of the majority of Microsoft's enterprise customers, and should result in a reduction or no change in licensing costs for approximately 80 percent of Microsoft volume licensing customers." In reality, based on research from Gartner and other analyst firms, only a minority of customersthose upgrading every two years or lesswould realize cost savings. The program raised most customers' software acquisition costs, as much as 107 percent, according to Gartner.

U.S. Antitrust Case: There are just so many examples, but I chose this one from a December 1998 Microsoft press release. Microsoft's lead attorney said in a statement: "The government may think they're winning on soundbites, but they are striking out when it comes to proving their case. The major elements of the government's lawsuit have already been discredited, and not a single Microsoft witness has even testified yet." The government went on to win the case, with the trial judge ordering the breakup of Microsoft as remedy.

Windows Vista: In August 2004, Microsoft "announced it will target broad availability of the Windows client operating system code-named 'Longhorn' in 2006." Here is a link to one of several slide shows kicking around Microsoft's Web site that clearly identifies the Longhorn (aka Vista) release as "Holiday 2006." Strange isn't that Microsoft set a delivery date and missed it. Strange is Microsoft later affirming that launching to businesses on Nov. 30, 2006, meant the company met its 2006 ship commitment.

A dozen examples would be easy, but hopefully three makes the point. Microsoft says lots of things that aren't necessarily true or ever going to be true. But the company behaves like if enough people believe what it says, then it's true enough. Saying doesn't make it so."

[1] http://www.groklaw.net/article.php?story=200706302 30615981 [groklaw.net]
        http://www.vcnet.com/bms/features/tale.shtml [vcnet.com] "A Tale of Two Press Releases"

"Good morning, class, and welcome to Microsoft Literature 101. Today, we will be examining a short story from the points of view of both the protagonist and the antagonist, and considering how these two characters in a story react to the same events, and what this may reveal about their personalities.

The protagonist in our narrative is a small software company called SCO, otherwise known as the Santa Cruz Operation. The antagonist is the software giant, Microsoft. First, we should sketch out the storyline."

Re:What Microsoft said... (1)

Achromatic1978 (916097) | about 7 years ago | (#19809699)

Does Groklaw actually think that Microsofts Army of Layers knows less than they do about law or something?

That's exactly what they think:

One can't help but wonder how well Microsoft understands the GPL even now. They have brilliant lawyers, no doubt about it, but they are not GPL specialists, and law is a profession of specialization, as you have just witnessed.

EULA (0)

Anonymous Coward | about 7 years ago | (#19809973)

MS says this because they feel the same about their license, "You'd have to be a real sucker or totally lawyerless to be afraid of a contract..."

Microsoft Vouchers (4, Insightful)

Enderandrew (866215) | about 7 years ago | (#19809323)

Look, I think M$ is evil as much as the next /.er, however, let me be clear.

I don't think you should ever be held accountable for past actions under a new license. If Microsoft sold vouchers before the GPLv3, then they did so under the assumption that the vouchers covered GPLv2 software. Furthermore, much of this whole argument assumes that all this software is definitely moving to GPLv3, and while I expect many of the GNU tools to do exactly that, I haven't seen that many official GPLv3 announcements just yet. The kernel is certainly not moving to GPLv3 anytime soon.

Re:Microsoft Vouchers (4, Informative)

january05 (1126057) | about 7 years ago | (#19809393)

Except for all the software in SLES that was "GPLv2 or any later version"; except the fact that the FSF already had GPLv3 Draft 2 printed up? Except for the fact the contract at Groklaw and the coupons refer to a product known as "SLES" and _updates_ for the software, and that the coupons MSFT sold and got revenue from have no expiry date? Yes, it is certainly negligence on the part. Best scenario: MSFT renounces the patent deal and LEAVES the GNU/Linux revenue stream as long as they don't want to comply with the GPL. That will certainly get them into compliance. Anyway you're wrong about GPLv3 btw, Samba's already GPLv3, GNU tools, several other Linux apps, etc.

Re:Microsoft Vouchers (1)

Danse (1026) | about 7 years ago | (#19809395)

If Microsoft sold vouchers before the GPLv3, then they did so under the assumption that the vouchers covered GPLv2 software.
Hope they have that in writing.

Re:Microsoft Vouchers (0, Flamebait)

Baron von Pilsner (1115373) | about 7 years ago | (#19809403)

While I hate to... I totally agree with you. RMS seems like kind of a nut anyway...

Re:Microsoft Vouchers (5, Insightful)

QuantumG (50515) | about 7 years ago | (#19809435)

You have to be a little crazy to stand for freedom in today's world.

Re:Microsoft Vouchers (1, Insightful)

Anonymous Coward | about 7 years ago | (#19809583)

Damn right: Freedom is Slavery!

I wish Slashdot would apply the same skepticism (2, Interesting)

patio11 (857072) | about 7 years ago | (#19809881)

... to RMS' frequent claims of being a tireless, persecuted martyr for freedom that they apply to, say, an American politican's frequent claims that any policy which they think is a good idea is justified by freedom. "Freedom" is not a magic word which forgives all sins and justifies all measures. Not for the politicians, not for the activists.

And, yes, RMS is radical and radically wrong on some points. His definition of "freedom" involves having the government coerce people who disagree with him. Read the GNU Manifesto -- not just the fluffy "Oh, I'm going to give you tons of free goodies" bits but the hard core "I really desire a radical transformation of how EVERYONE, not just you and me, see software" bits. Actual quotes, emphasis is mine:

"If programmers deserve to be rewarded for creating innovative programs, by the same token they DESERVE TO BE PUNISHED if they restrict the use of these programs"

"Proprietary and secret software is the moral equivalent of runners in a fist fight. Sad to say, the only referee we've got does not seem to object to fights; he just regulates them ("For every ten yards you run, you can fire one shot"). He really ought to break them up, and penalize runners for even trying to fight." (This is a call for the government to *ban proprietary software*.)

There's another bit where he proposes funding software development by creating a transnational agency to tax all computer hardware, and then fund deserving projects. "The total tax rate could be decided by a vote of the payers of the tax, weighted according to the amount they will be taxed on." Quite aside from the fact that your Dell is now 30% or 300% more expensive than it was yesterday, do you really want ALL money flowing into software to be allocated on the basis of the priorities of the US business community, who will ALWAYS win the "election" for determining development priorities because they spend vastly more money on hardware than anyone else? For that matter, does the idea of any government agency determining how much money needs to be allocated to WoW relative to Office appeal to you?

Re:I wish Slashdot would apply the same skepticism (1)

QuantumG (50515) | about 7 years ago | (#19809963)

Your criticism of the tax suggestion is valid. RMS would probably agree with you. At the time, it was only slightly wacky, but it has gotten more wacky over time and now is clearly not a good idea. BTW, this is basically how UK television is financed. The result is great tv, but for $3 billion a year I could give you some great tv too.

As for the rest of what you've quoted and commented on, I happen to agree with RMS. Proprietary software is wrong. Copyright is an unjust system which is just as inefficient as UK tv licenses. They both require massive and intrusive police forces to enforce. That alone should be evidence enough that it's a bad idea. The fact that both copyright and tv licenses are tolerated and many people can't see what is wrong with them is testimony to the old adage: you can get used to anything. Like cooking a frog, all you've gotta do is turn up the heat slow enough.

And that's the key point here. As soon as you need people with guns to force the populous to obey laws that they would much rather break, then you're not living in freedom anymore. It doesn't matter if the laws are about restricting the sale of party drugs or restricting the copying of bits. If "the people" want to do it and "the government" is stopping them, then the government is not for the people.. and it obviously isn't by the people.

Re:Microsoft Vouchers (2, Insightful)

Otter (3800) | about 7 years ago | (#19809411)

Furthermore, to the degree that one wants to see major players support Linux, inventing ways to use changes in the GPL to screw Microsoft for peripheral involvement in Linux support seems completely counterproductive. Obviously, as far as the army of screeching morons at Groklaw is concerned, damaging Microsoft is more important than anything else. But for real computer users, this seems like a huge step backwards.

Besides, if it turns out that some convoluted trickery in the GPL really does wind up costing Microsoft some money, is that "innovation" worth taking pride in?

Re:Microsoft Vouchers (0)

Anonymous Coward | about 7 years ago | (#19809717)

Furthermore, to the degree that one wants to see major players support Linux, inventing ways to use changes in the GPL to screw Microsoft for peripheral involvement in Linux support seems completely counterproductive.

Are you joking or trolling? 'peripheral involvement in Linux support'?! Do you call this [engadget.com] support?

Microsoft thought they could get around the spirit--if not the letter--of the GPL by a technicality (getting Novell to support their patent FUD [groklaw.net] ) and make Free software proprietary, Stallman and his erstwhile chums at the FSF have plugged the gap. Now, please stop trolling and get a clue.

Sorry for feeding everyone, but am worried someone might actually believe this rubbish

Re:Microsoft Vouchers (1)

wellingj (1030460) | about 7 years ago | (#19809427)

Samba moved to GPLv3. [slashdot.org]
So unless Microsoft wants to start it's own SMB/CIFS networking protocol from scratch in the Linux
environment they have to sanction and help a GPLv3 project in the name of interoperability.
Jeremy Allison is no ones fool.

Re:Microsoft Vouchers (3, Informative)

Enderandrew (866215) | about 7 years ago | (#19809565)

Microsoft only has to bundle 3.0.xx releases which aren't GPLv3. Are the 3.2 GPLv3 releases even out yet?

Re:Microsoft Vouchers (3, Interesting)

Vengance Daemon (946173) | about 7 years ago | (#19809473)

Hmmmm - So when I use Microsoft software with their EULA that states quite clearly that they can changes the terms of the license at any time by simply posting the change on their web site, why can't others move their software from GPL2 to GPL3. When Microsoft can make changes to their license at any time, why can't others do the same?

Re:Microsoft Vouchers (3, Interesting)

Enderandrew (866215) | about 7 years ago | (#19809507)

Because that is evil, and stupid.

If Microsoft posted on their website tomorrow new terms to their license that I give them full rights to do anything on my box, or that I owe them whatever, if people really fought it in court, the people would win. You can't hold people responsible for terms that they didn't initially sign up for.

The FSF is claiming to be the good guys here, so why should they do something so underhanded as to claim a new license alters previous agreements retro-actively?

Re:Microsoft Vouchers (3, Informative)

Chandon Seldon (43083) | about 7 years ago | (#19809897)

The FSF is claiming to be the good guys here, so why should they do something so underhanded as to claim a new license alters previous agreements retro-actively?

The FSF is doing no such thing.

GPLv3 is simply new terms on distributing FSF software in the future. There may be no way for Microsoft to honor the vouchers they've distributed, avoid the new GPLv3 terms, *and* not infringe copyright - but that doesn't mean the FSF is altering any agreements retroactively, they're simply changing the terms of the license that they are offering their future work under. Microsoft shouldn't have assumed that the FSF would continue to offer their new software under GPLv2.

Re:Microsoft Vouchers (2, Interesting)

VGPowerlord (621254) | about 7 years ago | (#19809741)

Now, the question becomes this: If you don't use Microsoft Office, but you offer to fix someone's computer that does, can Microsoft apply the terms of that EULA to you, even though you never agreed to it?

'cause that's what the FSF is trying to do.

Re:Microsoft Vouchers (1)

VertigoAce (257771) | about 7 years ago | (#19809779)

Which EULA would that be? I just read through the Windows Vista license and the Office 2007 license and neither included the clause you are describing. They mention in passing that updates to the software may require you to agree to an updated license, but that's different from changing their website (and I don't think anything that gets pushed out as an automatic update will include a revised license).

Re:Microsoft Vouchers (2, Interesting)

The_Wilschon (782534) | about 7 years ago | (#19809927)

updates to the software may require you to agree to an updated license
And this is pretty much exactly what is happening with GPL3. Versions of projects which have been distributed under GPL2, if you can get your hands on them (from somebody distributing under GPL2), are still under GPL2. But, projects which are moving to GPL3 are basically saying "if you want updates, you have to agree to an updated license".

Since it is practically (although not actually) impossible to forgo updates, you have to agree to a new license or run some pretty big risks.

Re:Microsoft Vouchers (2, Insightful)

jeevesbond (1066726) | about 7 years ago | (#19809479)

I don't think you should ever be held accountable for past actions under a new license. [...] Furthermore, much of this whole argument assumes that all this software is definitely moving to GPLv3

Quite right, which is why it's so important that the vouchers they have been conveying have no expiry date. When, in the future, someone goes to Microsoft with a voucher and Microsoft conveys a copy of SLES with Samba [slashdot.org] (or some of the other projects [vnunet.com] who're switching) then the GPLv3 will apply:

It's a long shot Jim, but it might just work...

Re:Microsoft Vouchers (2, Interesting)

sumdumass (711423) | about 7 years ago | (#19809559)

Well, I don't think you could legally change something to force another party of a separate contract into an obligation that didn't exist in the first place. It just won't hold up. If anything MS could refuse to extend the terms of the agreement to licenses not in existence at the time of the agreement. This would survive the "no expiration date" on the vouchers.

But more to the point, This license won't effect Microsoft because it doesn't do what people are claiming it to do. the terms You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License.means if you received the work in itself complete with all the abilities it implies. It doesn't preempt any legal holding a person or company might or would have if a third part placed your IP in the work and passed it off as theirs. In this case, the restrictions would be on the work before the license was applied (because of the law and the timeline) and the license would have to carry the restrictions or limitations because it is after the fact with regard to existing infringements when the license is put in place and when you would receive the work covered by the license.

The other terms used are just as misinterpreted. the clause If you convey a covered work, knowingly relying on a patent license, and the Corresponding Source of the work is not available for anyone to copy, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means, then you must either (1) cause the Corresponding Source to be so available, or (2) arrange to deprive yourself of the benefit of the patent license for this particular work, or (3) arrange, in a manner consistent with the requirements of this License, to extend the patent license to downstream recipients. "Knowingly relying" means you have actual knowledge that, but for the patent license, your conveying the covered work in a country, or your recipient's use of the covered work in a country, would infringe one or more identifiable patents in that country that you have reason to believe are valid. specifically state that "if you convey a work knowingly relying on". This means you would have to know the exact contents of the disputed IP whether it is copyright claims or patent claim and distribute after adding this into the work. It wouldn't cover You distributing something not knowingly relying on your IP that I snuck into the work. In Microsoft's case, they would have to not only convey a work they claim violates something, but would have to have knowledge of the claimed violation before conveying it. Just distributing Samba updates under the GPLv3 would not invalidate any claims against KDE, OO.org, or the GNU C compiler. In fact, it wouldn't even invalidate claims against Samba unless those claims are known and in the update. The great misconception comes from where the license says of it is derived, it must carry the same license. It isn't a matter of being included in the original program. So an update to Samba wouldn't negate and claimed violations in samba unless the claimed violations were in the update and obvious to the owner when conveying or propagating the work.

The terms If, pursuant to or in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of, a covered work, and grant a patent license to some of the parties receiving the covered work authorizing them to use, propagate, modify or convey a specific copy of the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it. says basically the same as above except that it is more in general. And again, it doesn't make a blanket claim as people are claiming.

Now here if the clause most people are making not of,A patent license is "discriminatory" if it does not include within the scope of its coverage, prohibits the exercise of, or is conditioned on the non-exercise of one or more of the rights that are specifically granted under this License. You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a discriminatory patent license (a) in connection with copies of the covered work conveyed by you (or copies made from those copies), or (b) primarily for and in connection with specific products or compilations that contain the covered work, unless you entered into that arrangement, or that patent license was granted, prior to 28 March 2007. This clause actually forbids Microsoft or novell from distributing any GPLv3 software if the agreement is still in place and covering what they are distributing. So in the case that MS or MS through Novell does distribute anything it claims violates it's IP, it doesn't mean MS give up it's claims (assuming they knew the claim was in the covered work before distributing it). It means that MS distributed the work against the license. SO MS would be in violation of copyright law and whoever would have to show damages and MS could keep their claims. But here is the trick, The more valuable the copyright claim is, the more MS can show they benefited from the infringed IP. It will be a no win situation. Any GPLv3 covered program wishing to take Microsoft to court for not accepting the GPLv3 license and still distributing the program would be setting themselves up to a counter suite based on the IP in dispute in which MS gets to attempt to valuate based on the programs previous stated claims of value and MS's own evaluation in the loss of profits. So it the OSS company said it was worth 200 per copy, MS could say it is part of 2003 advanced server and we sell that for 1100 a copy and the company already claimed they make 200 a copy using our IP. Guess who really loses in the end? Well, assuming the IP claims holds up and isn't shot down in the process.

And to this point, I'm wondering if MS cannot claim ownership of the program because of the aledged IP violations. I mean it the program wouldn't have worked or been effective without their claimed IP, then it would seem like it would be their work making the program. But I guess that is a question for another time.

Anyways, the point it, the license doesn't do what people are attempting to claim it does. And all MS really has to do if pressed is claim that they never accepted the license and take the copyright hit and use the counter IP claim to stop prosecutions for it.

Re:Microsoft Vouchers (1)

Chandon Seldon (43083) | about 7 years ago | (#19809929)

And to this point, I'm wondering if MS cannot claim ownership of the program because of the aledged IP violations. I mean it the program wouldn't have worked or been effective without their claimed IP, then it would seem like it would be their work making the program. But I guess that is a question for another time.

And this is why the term "Intellectual Property" is much more confusing than it is helpful.

Looking at it this way is much more likely to produce an accurate understanding of the legality: People don't own software. They may hold a copyright on a piece of software, they may have a patent on a method implemented in a piece of software, they may even have a trademark on the name of the software. These are separate and unrelated government granted monopolies - under no circumstance does having one of them mean that you have a right to the others.

Re:Microsoft Vouchers (1)

Rolgar (556636) | about 7 years ago | (#19809581)

But surely Microsoft's lawyers had been following the development of the GPL composition, and advising the executives and marketing departments of what was going on when they signed the agreement with Novell. They had to know that the companies they were signing contracts with do not have exclusive rights over the license of all software they distribute, and those companies are bound by the decisions of the software writers, and that the pending licence release would probably become the default license of most of the software that their contract would cover. Surely somebody at Novell or Microsoft thought of all of this and it is in someway covered under the contract, such that Microsoft has an out or a buyout to void the contract should the software licenses change. If they had such an out, and didn't disclose it to the customers that they were dealing with, they might have earned a lot of ill-will even if they are in the clear legally.

Microsoft can do what they want (2, Insightful)

acidrain (35064) | about 7 years ago | (#19809865)

If Microsoft sold vouchers before the GPLv3, then they did so under the assumption that the vouchers covered GPLv2 software.

The fact is, they sold a contract to support software that is being released under a licence they didn't control. Software that is developed by people who are hostile to their interests. And that left them open to being unable to meet their obligations. They should have known that the GPLv3 could have specifically said "M$ is teh evil, you cannot run this software and theirs in the same company" and had provisions in their support contract to deal with it. Did they really think Stillman et al would just let it slide? It's absurd.

Here is where I don't understand all the "Microsoft is screwed" talk though. If they refuse to honour the contracts, the worst a court can do is make them refund the money paid to them, and possibly a bit more for damages. I don't think Microsoft is loosing sleep over this.

If Wal-Mart ends up feeling burned by being left with unsupported Linux installs, and wants a bit of money, does Microsoft really need to feel all that bad about it? If just proves their point that running Linux can leave you out in the cold.

Is the patent chest open for everyone? (1)

jj421 (642627) | about 7 years ago | (#19809331)

Lets assume that Microsoft is "caught" by GPLv3. I don't think that the implications are as broad as some assume. From TFA (and GPLv3):

If, pursuant to or in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of, a covered work, and grant a patent license to some of the parties receiving the covered work authorizing them to use, propagate, modify or convey a specific copy of the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.
As I read it Microsoft would be required to grant a patent license to the specific package and derived works that were conveyed under GPLv3 and that contained code covered under that patent. Linux, the kernel, would not then be protected from patent assault since it won't be distributed under GPLv3 and it isn't a derived work. As I read it, the only way to get patent protection from GPLv3 is to release your code under GPLv3.

Re:Is the patent chest open for everyone? (1)

wellingj (1030460) | about 7 years ago | (#19809481)

That all depends... Some of the Kernel code is GPLv2 or later.

Re:Is the patent chest open for everyone? (1)

sumdumass (711423) | about 7 years ago | (#19809629)

You are correct on this. Further, they would have to have knowledge that what was conveyed was infringing.

It could be entirely possible that MS could distribute updates to samba and not cover any IP they claim ownership to and therefore not validate the rest of samba users.

But even more likely is that they will just say the GPLv3 didn't exist in it's current state when the vouchers were released and the terms don't apply to that software. Novell could be picky about what GPLv3 software they include and GPLv3 updates are incompatible with GPLv2 software so it isn't as if it will be sneaked in anyways.

Nothing to see here, etc. (0)

Lobster Quadrille (965591) | about 7 years ago | (#19809347)

I considered putting in a 'First post' 10 minutes ago and only a half dozen people have commented since.

Apparently nobody cares.

Mine Shaft Gap (-1)

Anonymous Coward | about 7 years ago | (#19809357)

Law is just a set of rules with a bundle of opinions in between followed by a result. Whatever anyone says it's just so much chest beating. People tear their hair about Microsoft and Linux but deep down people know they depend on each other. Without Linux, Microsoft is a monopoly that would be torn to shreds by politicians. Without Microsoft, Linux is just a bunch of wannabes wanking in their basements. You know what? I couldn't fucking care.

So yeah. Lots of authoritative sounding people, Errol Flynn business types, and cap wringing saviours of the world scream for attention and gather their respective flocks as the attention seeking charade rolls along, like some music producers party in a Douglas Adams novel, but what does it matter? Who really cares? What part of life is bigger than either of them don't people get? It's like watching a pair of Peacocks buttfuck each other.

Microsoft is dead, so someone says. The GPL ain't so hot. Money flows, passions are aroused, teeny tiny feet stamp like children throwing a sugar fuelled tantrum. "Me, me, me." they all shout, hitting their keyboards like the frenzied B movie hacker types trying to look dangerous. Writs fly, excited passions elevate once soggy embers to the bold and shiny erect status of a minuteman missile but it's all empty posturing. Rhetoric. Noise. Futility.

Watch out for the mine shaft gap.

Coupons do not make for distribution (4, Insightful)

Excelcia (906188) | about 7 years ago | (#19809421)

The whole point that PJ has been going on about are Microsoft's little coupons. She is under the impression that issuing a coupon is the same thing as distributing - that if any of Microsoft's coupons are redeemed for a GPLv3-licensed product, that Microsoft has then distributed it. This is an extremely tenuous position, for the simple fact that Microsoft hasn't copied anything. A coupon is a method for a third party to step in and facilitate payment between a seller and a buyer. In this case, the seller (Novell) is the one doing the copying, and the buyer (the one turning in the coupon) is the one who is getting a license and will be bound by it.

In shory, GPLv3 can say anything it wants, but it falls under copyright law, and if I don't copy, I can't infringe. No version of the GPL can define what constitutes making a copy - only the law can do that.

Re:Coupons do not make for distribution (1)

harlows_monkeys (106428) | about 7 years ago | (#19809535)

Furthermore, Novell makes the coupons, which they sold to Microsoft, who then gives them to customers. So, even if distributing coupons that are redeemable for a copyrighted work counted as a distribution of that copyright work under copyright law (a position with no support in case law or statute that I've seen anyone cite), this particular distribution would be covered under the first sale doctrine.

I would not be surprised if this turned out to be the reason that the deal was structured to use coupons.

Re:Coupons do not make for distribution (0)

Anonymous Coward | about 7 years ago | (#19809605)

"In shory, GPLv3 can say anything it wants, but it falls under copyright law, and if I don't copy, I can't infringe. No version of the GPL can define what constitutes making a copy - only the law can do that."

According to "the law", using copyright law provisions one can apparently take down a Bittorrent tracker site that has no copies of music files or video files on it (bbotleg or otherwise). The Bittorrent sites don't copy anything either ... they merely point people to where such a file can be obtained.

Re:Coupons do not make for distribution (1)

QuantumG (50515) | about 7 years ago | (#19809615)

Yep, right now you make a lot more sense than Groklaw.

Copyright is about copying.. Novell are doing the copying, not Microsoft.

Re:Coupons do not make for distribution (2, Informative)

jeevesbond (1066726) | about 7 years ago | (#19809635)

She is under the impression that issuing a coupon is the same thing as distributing - that if any of Microsoft's coupons are redeemed for a GPLv3-licensed product, that Microsoft has then distributed it.

From the article:

First, "distribution" isn't the issue with GPLv3. That is a GPLv2 question, as I'll show you. GPLv3 talks about "propagating" and "conveying", not just distribution. Propagation includes anything, including distribution but not limited to it, that would make you directly *or secondarily* liable for infringement if you lack permission. Convey means "any kind of propagation" that enables another party to make or receive copies of a work. Like selling them the vouchers, perchance?

Had you bothered to read the article you would have know that too.

Re:Coupons do not make for distribution (1)

QuantumG (50515) | about 7 years ago | (#19809839)

Sounds like copyright abuse to me. Ya know, trying to obtain from a license more power than is granted under copyright law? Penalty: those portions of your license become void, and you might lose copyright protection all together - as happened in the Lexmark case.

Hmm? (1)

Xenographic (557057) | about 7 years ago | (#19809921)

IANAL, but the Lexmark case, IIRC, ruled that Lexmark's "lockout device" was just too trivial to be copyrightable and that the DMCA didn't protect it. I don't recall that they lost on the grounds of copyright misuse, although if you can find the ruling, I wouldn't mind rereading it.

Anyhow, you can thank secondary liability under copyright law for the GPLv3 being able to cover that. The GPLv2 only cares about distribution, but that's not all a software license can cover, it's just that it usually doesn't make much sense to do more than that with a free software license.

Copyright law is amazingly (and oftentimes overly) broad, after all. The GPLv3 is just drawing more power from it and trying to use it to keep people like Microsoft from suing people.

Re:Hmm? (1)

QuantumG (50515) | about 7 years ago | (#19809991)

http://www.eff.org/legal/cases/Lexmark_v_Static_Co ntrol/20030108_lexmark_v_static_control_components .pdf [eff.org]

There's the ruling. Far as I'm aware it was a copyright misuse decision. They were trying to use copyright to do something other than prevent distribution (lock out competitors). Triviality didn't come into it.

Copying defined by law, not by GPLv3 (3, Insightful)

Excelcia (906188) | about 7 years ago | (#19809889)

Had you read what I wrote, I addressed this. No matter what PJ might want to have be the case, the GPLv3 cannot define what constitutes its own invocation if the party doesn't cross the line given in national copyright laws. I can write a license that says anything. I can write one that says if you blow your nose, then you become subject to the license on my project. Does that mean the next time you blow your nose you're violating the license? This is ludicrous. GPLv3 cannot define a stricter interpretation of what constitutes copying than the underlying copyright law people are bound by. Which means that it is the law's definition that counts, not GPLv3's. And the reality is, since Microsoft isn't doing anything that constitutes copying according to the law, there's nothing the GPLv3 can do to impose any licensing conditions on them.

I would love it to be the case as much as anyone, but that doesn't make it so.

But *copyright law* still covers them! (5, Interesting)

Xenographic (557057) | about 7 years ago | (#19809807)

> She is under the impression that issuing a coupon is the same thing as distributing

No, no she's not. The GPLv2 limited itself to distribution, but copyright law has fun theories of secondary liability, etc. The GPLv3 expands the scope that it covers to something close to the full scope of what's covered by copyright law.

Did everyone but me forget just how BROAD copyright law is? It covers loads of crap. Just like I can't sell warez vouchers for Joe'z Warez Sitez which happen to be hosted in a copyright-hostile country and claim no liability, you can't "procure the conveyance" of GPLv3 software as a license dodge any more. Yes, you COULD dodge like that under the GPLv2, but only because the GPLv2 said you didn't need permission for anything but distribution. But not any more, because the GPLv3 forbids it and copyright law says you need permission.

The rules have changed, folks. The GPLv3 is stronger, because it takes advantage of the ridiculously strong copyright laws that are so prevalent. But it really shouldn't matter much unless you dislike things like compatibility with the Apache license or planned to undermine people with weird software patent threats.

Re:Coupons do not make for distribution (1)

Chandon Seldon (43083) | about 7 years ago | (#19809951)

In shory, GPLv3 can say anything it wants, but it falls under copyright law, and if I don't copy, I can't infringe.

If that were true, then a bittorrent tracker like The Pirate Bay would be obviously legal here in the USA. Such a tracker isn't legal because of a concept called contributory infringement - if you enable someone to infringe copyright, then you are also infringing copyright (unless you have some sort of copyright license). This appears to be the basis for the "vouchers are conveying" claim.

Re:Coupons do not make for distribution (1)

Excelcia (906188) | about 7 years ago | (#19809993)

Contributory infringement wouldn't frighten me, and I don't think it frightens them either. It really doesn't come into play except to expand the sphere of liability for clear copyright infringement. In this case, there is no intrinsic infringement going on - the deal in question is a legal one between a buyer and Novell. It would take a lot of fast talking in a court to successfully equate a tracker helping people illegally download bootleg movies and a generally respectable company using coupons as a way to help people pay for a legal product.

wrongo (2, Interesting)

Spazmania (174582) | about 7 years ago | (#19809433)

So now Microsoft has modified what you get with the vouchers, or tried to. Novell won't agree not to provide support for GPLv3 software, though, so that blunts the effectiveness of Microsoft's announcement and I must say thank you to Novell for that. I doubt Microsoft realistically thought Novell would stop supporting the software it sells. Microsoft just wanted to say, "Hey, it's not us doing that. We don't authorize or approve. We tried to stop it." And since Eben Moglen has pointed out that the vouchers have no cutoff date, Microsoft, by my analysis, still has to face what it will mean for them if even one such voucher is turned in after Novell begins to offer GPLv3 software.

This analysis is wrong. If Novell chooses to provide software and services beyond what is required by the voucher, Novell is free to do so. That choice is not in any way binding on Microsoft. This is no different than saying that a grocery store may choose to give me a free box of cereal in exchange for a 35 cent coupon. That store's choice does not in any way compel Kellogg's to give me more free Froot Loops.

Re:wrongo (1)

Chandon Seldon (43083) | about 7 years ago | (#19809989)

This is no different than saying that a grocery store may choose to give me a free box of cereal in exchange for a 35 cent coupon. That store's choice does not in any way compel Kellogg's to give me more free Froot Loops.

That sort of logic was my first thought, but copyright law has nothing to do with physical property law - and intuition about physical objects won't necessarily help you understand copyright (in fact, it rarely will). A number of actions infringe copyright if performed on a copyrighted work without a license: Copying, modification, and distribution are the obvious ones - but assisting someone else in performing a potentially infringing action can also be infringement (if it wasn't, bittorrent trackers with hollywood movies would be perfectly legal).

I'm not a lawyer, so I can't be sure, but the FSF lawyers seem convinced and Microsoft twitched damn fast to stop distributing the vouchers.

Why does MS need GPL? (2, Insightful)

AvitarX (172628) | about 7 years ago | (#19809477)

I always thought that the GPL functioned on the premise you needed copyrights to the software to do anything with it you wanted. It therefore was a way to get those copyrights in exchange for giving them to those you gave copies to.

MS is not making copies, they are giving away coupons, from someone else. I don't see how they can possibly be held to the GPL. It makes about as much sense as me saying clipper magazine employees must where there shirt because I used there coupon at an eatery.

The only way I can possibly see it applying is if MS also chooses to directly distribute GPL3 software, because then they would have agreed to the concept that handing out a coupon is distributing, but without agreeing to that I hope that they can't be forced into it.

I also imagine it is possible for the GPL3 to force Novell not to sell any coupons to GPL3 software without getting the purchasers agreement to abide by the terms, in a sense attaching the restrictive (perhaps in a good way, but still restrictive) parts of the GPL to any coupon.

It could also force the "conveying" party not to convey its copy unless all parties involved in propagating and conveying agree to GPL3 terms, but I didn't read it that way at all, it clearly puts pressure on the propagating party, which does not need any permission from the GPL at all to act. I really think the GPL3 as it is written, and being interpreted is worse than a standard EULA in enforcability. It is trying to capture parties not involved at all (book sellers, box stores, ect) and bind them into a contract that they need no part of to carry on (thus undercutting the defense that the GPL is granting you rights you didn't already have).

It is a shame that the ideals that I bought into were sold out to stick it to the man, it makes me feel silly for defending the GPL vs BSD.

Re:Why does MS need GPL? (1)

timmarhy (659436) | about 7 years ago | (#19809687)

"always thought that the GPL functioned on the premise you needed copyrights to the software to do anything with it you wanted."

no. the GPL's premise is that if you distribute gpl'd software you must also make the source code availible. In the end it's rather a moot point since nothing MS distributed is modified anyway and isn't out there on 1000 ftp servers to start with. I personally hope MS win this, because if they lose they will jump up and down and point at how viral the GPL is and how OSS is the devil. winning this is more of a loss for oss then a win, all this stupid one up manship needs to stop. "It makes about as much sense as me saying clipper magazine employees must where there shirt because I used there coupon at an eatery"

uhuh, it makes a lot more sense then that sentence does.

Re:Why does MS need GPL? (0)

Anonymous Coward | about 7 years ago | (#19809701)

The way I see it, the coupon is like a movie ticket. It's a contract between the issuer (MS) and the person or organization recieving it (whomever). It's outside the GPL 3 entirely. If some GPL v3 progam has infringing devices, MS is free to use the coupon system to assuage the interested infinging beneficiaries of their fear, uncertainty and doubt. All the GPL v3 does is prevent from Microsoft from distributing GPL v3 software directly, and officially without contributing a license back to that project for all downstream uses of that source. Which may well impact some Microsoft Research projects. But it's pretty unlikely it'll effect too much else.

If the GPL v3 could work as suggested, might I suggest adding to v4 a obligation to for all commercial uses to fund and provide health insurance to all users who don't have health coverage.

Secondary Liability (1)

Xenographic (557057) | about 7 years ago | (#19809761)

You forgot just how broad copyright law is, didn't you? Before, the GPL only concerned itself with distribution, so that confusion is understandable, but the GPLv3 defined new terms to use more of that "void" between all activities covered by copyright law and mere distribution.

If you read the Groklaw article, you'll see that there are fun secondary liabilities you can give rise to under copyright law. Yes, procuring the conveyance of a copyrighted work could be infringement under copyright law if I didn't have permission from the copyright holder. Seriously, if I sold download credits to "Joe'z Warez Sitez" do people think that the copyright holder couldn't go after me? Similarly, Microsoft can't be content to have Novell do their "dirty work" for them any more because the scope of the GPL has expanded.

Now yes, this does leave us in a murky legal area. But the GPLv3 CAN cover what it's covering here, it just hasn't cared about such conduct before now. Microsoft has expensive lawyers, though, so who knows? If anyone can buy their way out of this, they can, I mean, what do a few laws cost these days? I suspect companies write it off as a cost of doing business.

Re:Secondary Liability (1)

ozphx (1061292) | about 7 years ago | (#19809933)

Microsoft aren't selling "Download Credits". They are selling patent licenses for patents that might (Your Interpretation May Vary) otherwise be infringed by the Linux.

I think this needs a car analogy:

If there exists a car, say the Stallman Hippy, which is unique in that when you buy it, you promise that you will only buy petrol from GNUolium stations. You also have to promise that when you rent out the car that the leasee also buys petrol from GNUolium stations. Also if you have Carbon Credits you have to pool these with the Hippy Drivers Club.

The nasty EPA suddenly claim that the Stallman Hippy blows too much hot air. To stop being fined, they say that you need to buy a bunch of Carbon Credits.

Now can someone tell me how the fuck we get from that arrangement to the EPA being legally bound to use only GNUolium fuel?


Christ no! MS is just promising not to sue a bunch of dudes by licensing them a few patents. Those dudes are a bunch of asstards who are also covered by the GPLv3 which says they have to relicense the patents. Guess what? They don't have that right. That means they cannot use the GPLv3 covered software.

This is like claiming if I take some of Microsofts Community Public Licensed crap and link it with some GPL crap that Microsoft has to GPL the aforementioned crap. That crap is a bunch of bullcrap. (I have to GPL it, and I can't, because I don't own it). Similarily with the patents that the distributor (not microsoft) has to sublicense, which they can't, because they are microsofts.

Dream on M$ Bashers... (2, Informative)

nweaver (113078) | about 7 years ago | (#19809485)

Microsoft will do NOTHING involving anything with GPLv3. THey already view the GPL as a dangerous virus and are quite particular about keeping that contamination out of their ecology.

Those "unexpiring" vouchers won't cover GPLv3 stuff, and even if it DID, it is highly unlikely a court would enforce the patent covenants.

So when Microsoft says it is unaffected by the GPLv3, that is perfectly correct, they will have NOTHING to do with it, and anything otherwise is wishful dreaming.

Oh, my head (1)

drwho (4190) | about 7 years ago | (#19809511)

Goddamn it...just trying to read and reason through this argument makes my head hurt. This is like the old SCO orguments all over again. Both sides have lawyers trying to be clever by introducing more and more complexity. This is the diseased law system we now have, thanks to not only greedy show-off lawyers but people who are ready to accept them as necessary in their world. Software licenses should be pretty easy to understand - this goes for GPLv3 and everything else. Contracts between Microsoft and Novell should be simple and easy to understand. But they aren't. Lawyers screwing everyone again.

There can be such a thing as an honest and useful lawyer. A lawyer should take pride in creating a contract that clearly lays out the rights and responsibilities of both parties. There should be no vague language, and no grey areas left over. A contract should be designed so that any breach of it would be such a clear-cut violation that the violator would have not a leg to stand on in court, and therefore not think that they can get away with bad behavior.

There should be no wiggle room. None. Ockham's Razor comes to mind as a way of making everything clear and solid.

In a way, criminal and common law can also be thought of as a contract of sorts, and that the same principles of clarity simplicity, and zero wiggle room should apply. Laws should be engineered - no extra crap piled on. Like engineered products, there are occasional minor revisions that need to be made to fix bugs or to become compatible with another body of law. Eventually, however, a complete rewrite of a section of law would be commissioned - one in which the simplicity of the section of law becomes clearer and more simple, and is free of bugs, while being compatible. This is what our lawyers, courts, and legislatures ought to be doing, and are not.

There's just too much cruft in the law. I wonder what would happen if we were to take a crack team of programmers and turn them lose to rewrite the legal code.

Re:Oh, my head (1)

Nazlfrag (1035012) | about 7 years ago | (#19809985)

You seem to forget how laws are created - with practically no oversight whatsoever. Do you think the politicians who vote these laws in actually read the things, or could even understand them if they did? Instead, hundreds of unaccountable staffers pore through these documents trying to fix them to benefit their lobbyists and whatever spin the PR department is after.

The problem with our legal system is that laws are rarely repealed, and laws are passed in totally unrelated bills, ie. the final bill is usually a result of both sides of parliament sneaking in dozens of caveats for their own purposes with no relation to the original bill. The real problem is our political system has no need or want for well engineered laws, only PR and lobbyist concerns. The two sides of politics have lost any real distinction and seem to shift their ideology from one poll to the next (PR angle) while keeping their pimps, err I mean lobbyists happy.

This all results in society getting its freedoms chopped down one bill at a time, with no recourse except expensive lawyers. This is all from my Aussie perspective, but I'm sure it's very similar across the Pacific.

Here's why PJ is wrong... (1)

stubear (130454) | about 7 years ago | (#19809519)

...bug fixes and updates do not necessarily cover license upgrades without referring to this part of the agreement, quoted in the article as well,

"If the final version of GPLv3 contains terms or conditions that interfere with our agreement with Microsoft or our ability to distribute GPLv3 code, Microsoft may cease to distribute SUSE Linux coupons in order to avoid the extension of its patent covenants to a broader range of GPLv3 software recipients, we may need to modify our relationship with Microsoft under less advantageous terms than our current agreement, or we may be restricted in our ability to include GPLv3 code in our products, any of which could adversely affect our business and our operating results. In such a case, we would likely explore alternatives to remedy the conflict, but there is no assurance that we would be successful in these efforts."
Microsoft will likely ocntend that a relicensing is not a part of the definiton of an upgrade,

"1.21 "Upgrades" mean any corrections, improvements, bug fixes, revisions, enhancements, localizations, updates, upgrades or other modifications made commercially available by either party."

Re:Here's why PJ is wrong... (1)

Oswald (235719) | about 7 years ago | (#19809691)

I don't think anyone would claim that relicensing qualifies as an upgrade. As long as Novell's customers are content with the last GPLv2 version of any software that subsequently relicenses to GPLv3, they have no problem. If, however, they wish to move forward along with the rest of us as that software is corrected and improved, that might create difficulties.

No one, even the experts, get more than an opinion (4, Insightful)

nick_davison (217681) | about 7 years ago | (#19809525)

PJ of Groklaw wrote this story about how and why the GPLv3 will apply to Microsoft.
There's the classic acronym IANAL. Even when two lawyers are involved, the moment they're from different sides, they too have different interpretations. They may be certain their personal interpretation is correct and is exactly how things will pan out but the same still holds true...

The judge you get on the day, the jury, how well the lawyers convince the jury to see things their way, what the judge allows and disallows, what the various appeals processes rule, the politicians you buy to change the law at the last moment, all of those change it from absolute certainty to something much hazier.

In that haze, Microsoft's PR, lawyers, management, etc. can all state, "The GPLv3 won't stand up in court." Groklaw can state, "This is how it will go..." and we on Slashdot can argue, "Ha, we've got them now!" or "Microsoft will wriggle out of it somehow, like they always do." to our heart's content. The one certainty is that those are opinions, not absolutes for how it'll work out.

PJ's welcome to an opinion. More accurately however, the title should be "PJ from Groklaw has an opinion about how GPLv3 and Microsoft will work out." What it isn't, and can't be until it's gone through every last legal wrangling, is an absolute what "will" happen.

Sacred horse (4, Insightful)

Achromatic1978 (916097) | about 7 years ago | (#19809665)

I know PJ is a sacred horse around here, and all that, and am prepared to be modded accordingly, but geez, the ego:

One can't help but wonder how well Microsoft understands the GPL even now. They have brilliant lawyers, no doubt about it, but they are not GPL specialists, and law is a profession of specialization, as you have just witnessed.

"Marvel, marvel at my adroit dissection! Pay no heed to the fact that my dissection is nothing more than occasionally witty, subjective hypothesizing by someone without a law degree, enjoy the fact that I'm ragging on Microsoft!"

Bah.

Sheesh, have you forgotten? (4, Informative)

Xenographic (557057) | about 7 years ago | (#19809871)

You forget that Eben Moglen, a professor of law at Columbia University and general counsel for the FSF read the Novell / Microsoft agreements and drafted the GPLv3 with them in mind with the intent to undo the damage the discriminatory software patent agreements cause.

Given that he believes Microsoft is in trouble and that Microsoft *actually took notice* of the GPLv3 enough to issue an announcement, I'll have to say that while it's probably a thorny legal question, it's nowhere near as one-sided as you make it out to be.

Eben, BTW, is pretty much the foremost legal expert on the GPL. You know, having helped draft it and all. And it's not like PJ doesn't talk with lawyers about her posts. You know, like Eben...

But what the hell do I know? I just post snarky comments on Slashdot... like you do.

Re:Sacred horse (0)

Anonymous Coward | about 7 years ago | (#19809873)

Actually, she was comparing Microsoft lawyers with Eben Moglen, not herself. Because he is the GPL specialist who has outlawyered Microsoft, it seems.

Re:Sacred horse (1, Informative)

Achromatic1978 (916097) | about 7 years ago | (#19809909)

Actually, she was comparing Microsoft lawyers with Eben Moglen, not herself. Because he is the GPL specialist who has outlawyered Microsoft, it seems.

What, because, uhh, PJ, a non-legally qualified person, has decided he has, by virtue of her selective soundbiting? Scroll around this thread for many comprehensive examples of how she has twisted commonly and legally accepted definitions of concepts and phrasing.

Which Microsoft Product does this Affect? (1)

Aefix (968923) | about 7 years ago | (#19809799)

I can see that if Microsoft modifies or adds to a GPL'ed software package, that product will need to be copyleft-ized. What I'm curious about is, how does this affect their independently produced software (Windows, etc.) at all? I can see how whatever app they write using GNU/Linux libraries to do virtualization will need to be FOSS, but I fail to see how this will affect the software this virtualization package is meant to run. Won't users still need to buy a genuine copy of Windows, Office and the rest anyway?

A win for Microsoft (1)

jihadist (1088389) | about 7 years ago | (#19809829)

They are now legally bound to do nothing but offer support for a third-party's software, aka Linux. They will do this, make huge profits, all while claiming the evil FOSS movement forced them to do it. And then curious people will come to FOSS sites and see exchanges like this one... the decorum of angry rioters at a lynching, and all crying for Microsoft's head, as if they did something that much better.

What FOSS should do to steal Microsoft's thunder is to find some way to offer for-profit support for Linux, at a lower rate. That will actually deprive Microsoft of revenue, where the GPLv3 is depriving them of a costly proposition while still enabling them to sell support for something they now don't have to own, and are not negligent when/if it fails.

I love how 'groklaw' is an 'expert' (0)

Anonymous Coward | about 7 years ago | (#19809911)

People, clue in, groklaw is (at best) a fledgling paralegal who blogs. At worst, it's an IBM facade. It's likely in the middle. What it IS NOT is any type of expert legal opinion by someone who has a clue about how the industry works today. I work for MSFT's #1 competitor as a senior legal staff member. I would *strongly encourage* this audience to understand the 'expertise' you are subscribing to....

This is all moot in the US (3, Informative)

VGPowerlord (621254) | about 7 years ago | (#19809975)

Under US copyright law, Microsoft can buy Linux CD/DVDs from any legal distributor (in this case, Novell) and sell it to others without ever agreeing to the GPL3.

See: Title 17 Section 109 [copyright.gov] Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord.
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