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Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)
Friday, May 18 2007 @ 01:25 PM EDT

This is news indeed. Todd Bishop has the story. Eben Moglen is saying that the SUSE vouchers Microsoft is distributing have no expiration date! I didn't know this. It's huge. This is, according to Moglen's remarks, another defense to any patent infringement claim by Microsoft, and it may well bring that campaign to a screeching halt.

Here's why. Someone, Moglen says, is bound to turn a voucher it got from Microsoft in after GPLv3 goes into effect and GPLv3 code is being distributed, and at that moment Microsoft comes under its terms. And that should mean the end of Microsoft's ability to successfully sue anybody over its alleged patents allegedly in Linux, or to phrase it more exactly, it provides a probable defense to all Linux users and vendors, not just Novell's paying customers, if Microsoft does sue.

Bishop contacted Microsoft, which declined comment. I'm sure this is something they didn't expect when they entered into the devilish "NotaDuck" patent peace agreement with Novell. Oops. I mean with Novell's paying customers. Their intent was to make Novell's paying customers the only anointed blessed Linux users allowed to breathe patent-threat free. But GPLv3 extends the peace to everybody.

Here's how I understand the legal argument. Microsoft is a distributor already under GPLv2, because of distributing the vouchers and some other unstated things FSF's Brett Smith hinted at when he stated the FSF view. So there is already a defense, thanks to GPLv2's implied patent license. But under GPLv3, it's not implied. Here is precisely what happens to Microsoft when someone hands in a voucher after the GPLv3 is in effect:

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 providing freedom to use, propagate, modify or convey a specific copy of the covered work to any of the parties receiving the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.

No wonder, as Moglen puts it, Microsoft has been tossing the vouchers wholesale out of airplanes "as though the coupons themselves were hot, as indeed they are". But now here comes Moglen saying even that won't work, because of the lack of an expiration date on the vouchers. And so, as the sun sets over the horizon, we may be bidding a fond farewell to Microsoft's patent bullying. I hope some friendly folks have bought a voucher. If so, you might just want to take a breather before you turn it in, huh? Then it's buh-bye to Microsoft's 235 patent claims, methinks. So nice of Microsoft to distribute under GPLv3. Hugs and kisses.

Ah! Lawyers at work. It'll be intriguing to see what Microsoft can do next. I told you law was like chess, but this is like watching a game played live. Isn't the law more fascinating than you thought? Let's take a look at what Moglen is saying specifically.

Here's a segment of Moglen's remarks from the online seminar hosted by OpenLogic and provided by Bishop:

"Novell's activity will be protected by the fact that it was complete as of the date in November, which is the effective date of their deal with Microsoft. [The GPL revisions won't be retroactive.] Microsoft's activity will begin to disperse patent defenses into the community. When GPL 3 goes into effect, every Microsoft coupon handed to somebody, which results in the shipment of a Novell Server Edition product to that coupon-holder, will result in a conveyance of broad patent defenses to parties throughout the community.

"The goal of this provision was to incent Microsoft to get out of the patent deal with Novell. Microsoft, which fully understands what we are doing and why we are doing it, has elected instead not to withdraw from the deal with Novell, but to throw coupons wholesale out of airplanes. You have been watching for months as Microsoft gave away these coupons -- which were supposed to be valuable to Microsoft, and for which it paid a lot of money -- as though the coupons themselves were hot, as indeed they are. All of this giving away coupons activity by Microsoft is meaningless and useless. The coupons have no expiration date, and Microsoft can be sure that some coupons will be turned into Novell in return for software after the effective date of GPL 3. Once that has happened, patent defenses will, under the license, have moved out into the broad community and be available to anybody who Microsoft should ever sue for infringement.

"Our goal, in other words, is to add one more layer of probable defense against the Microsoft patent aggression, which Microsoft has just been busy thumping its tub about this week. So, in summary, Novell will be protected for the long haul, and Microsoft will be endangered for the long haul by GPL 3, and that's as it should be."

So you can parse it all out carefully yourself, here's the entire patent clause in the current draft of GPLv3:

11. Patents.

Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims in its contribution, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contribution.

For purposes of the following three paragraphs, a "patent license" means a patent license, a covenant not to bring suit for patent infringement, or any other express agreement or commitment, however denominated, not to enforce a patent.

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) disclaim 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.

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 providing freedom to use, propagate, modify or convey a specific copy of the covered work to any of the parties receiving the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.

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 patent license (a) in connection with copies of the covered work conveyed by you, and/or copies made from those, or (b) primarily for and in connection with specific products or compilations that contain the covered work, which license does not cover, prohibits the exercise of, or is conditioned on the non-exercise of any of the rights that are specifically granted to recipients of the covered work under this License[, unless you entered into that arrangement, or that patent license was granted, prior to March 28, 2007].

Nothing in this License shall be construed as excluding or limiting any implied license or other defenses to infringement that may otherwise be available to you under applicable patent law.

As you can see in the section I highlighted, the minute someone turns in a voucher after GPLv3 is in effect, Microsoft will be granting a patent license to everyone, not just Novell's paying customers: "the patent license you grant is automatically extended to all recipients of the covered work and works based on it". Voila. I hope your PHB understands this.

Will anyone enter into such a deal with Microsoft now? Doesn't this explain why Microsoft suddenly began talking publicly about patents and wanting folks to hurry up and enter into patent peace agreements fast? Will anyone buy SUSE for a patent peace, if they know the patent peace is shortly to be available to the world and his penguin? Novell, by the lack of retroactivity, gets to stay in business. But it loses its "we are the only ones that are not threatened by Microsoft's patents" standing. It can still differentiate itself in the market in other ways, the interoperability angle, which is fine.

Well, to each his own, and you no doubt will be talking to your lawyers if you are considering such a thing, but between Microsoft's lawyers and Moglen, who do you think understands the GPL better? Courts ultimately decide such matters but only if someone is dumb enough to bring it to court. GPLv2 has stood up just fine, by the way, in court challenges.


  


Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying) | 637 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: lordshipmayhem on Friday, May 18 2007 @ 01:34 PM EDT
Not that I'm expecting many.

[ Reply to This | # ]

Off topic thread
Authored by: lordshipmayhem on Friday, May 18 2007 @ 01:37 PM EDT
Remember to try to make links clickable!

[ Reply to This | # ]

Moglen: SLES Vouchers Have No Expiration Date, Unlike MS's Patent Bullying
Authored by: hbo on Friday, May 18 2007 @ 01:39 PM EDT
I don't get how Microsoft continues to be a Linux distributor after they convey all the vouchers to a 3rd party. For example, let's say they sold (or gave away) all the vouchers to Dell. Wouldn't that constitute the end of Microsoft's distribution?

Regards,
Howard

---
"Even if you are on the right track, you'll get run over if you just sit there" - Will Rogers

[ Reply to This | # ]

What about the linux kernel, though?
Authored by: capt.Hij on Friday, May 18 2007 @ 01:40 PM EDT
This is interesting but it will only apply to software licensed under the GPL
v3. The linux kernel is specifically licensed under the GPL v2, and it will be
very difficult to get *everybody* to agree to going to v3. On the other hand, if
this turns out to be true, then it may add more pressure for the kernel
maintainers to at least try to go to v3.

[ Reply to This | # ]

"law was like chess"
Authored by: lordshipmayhem on Friday, May 18 2007 @ 01:40 PM EDT
This is law like full-body-contact chess, and Microsoft is the skinny kid who
just got tackled by the 320 pound linebacker...

...ouch, that's gonna leave a mark....

[ Reply to This | # ]

Effective date.
Authored by: AJWM on Friday, May 18 2007 @ 01:42 PM EDT
Surely the critical date is not the date that GPLv3 goes into effect, but the
date on which Novell starts distributing a version of SuSE that includes GPLv3
software.

As long as Novell can keep distributing under v2, nothing they or Microsoft does
kicks in any v3 terms. (Although the v3 kicks in with _any_ GPLv3 software
that's part of the SuSE distro.)

Do the certificates have a (Suse) version number?

[ Reply to This | # ]

I wonder how much Dell Paid for those Vouchers, Re:Moglen: SLES Vouchers Have No Expiration Date
Authored by: martimus on Friday, May 18 2007 @ 01:46 PM EDT

I wonder if M$ tricked Dell into paying money for those vouchers, or if they were just given away in a frenzied effort by M$ to disassociate themselves from them.

I guess we will never know for sure, but M$ seems to have really shot themselves in the foot. Much better than anyone else could have, anyway.

---
To paraphrase Benjamin Franklin: Billions for defense, but not one cent for dhimmitude.

[ Reply to This | # ]

Wow. It Looks Like M$' Legal Department Has The Same People As The Software Testers
Authored by: Anonymous on Friday, May 18 2007 @ 01:48 PM EDT
Hey, everybody!

It took a couple of paragraphs before the big deal of this sank in. When PJ
mentioned the quirk about distributing after GPL3, that's when it hit me.

I actually laughed out loud and people are wondering what's so funny.

Those who plot the destruction of others destroy themselves.

We have met the enemy and they is us.

Oh what a tangled web we weave....

I'm sorry, but the only other quote I can think of to describe this comes from
PvP:

Brent: Irony! We meet again, old friend!
Cole: You might want to pencil some time in for karma, while you're at it.

Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

Somsone send me a coupon please
Authored by: Anonymous on Friday, May 18 2007 @ 01:48 PM EDT
I'd like a coupon,

I'll turn it in after GPL goes live, and then everyone will be safe!

[ Reply to This | # ]

Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)
Authored by: MjBarne on Friday, May 18 2007 @ 01:52 PM EDT
Doesn't this argument rely on Linux moving to GPL V3? I don't believe that is a
certainty yet.

[ Reply to This | # ]

More Fiendish Even
Authored by: jog on Friday, May 18 2007 @ 02:00 PM EDT
MSFT will have to *beg* Novell to make
cupon redemptions: version-update-patch,
locked in as GPLv2. (happy customers much?)
How much are the ones Dell bought worth now?
I'll be watchin
jog

[ Reply to This | # ]

Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)
Authored by: Anonymous on Friday, May 18 2007 @ 02:03 PM EDT

Ah! Lawyers at work. It'll be intriguing to see what Microsoft can do next. I told you law was like chess, but this is like watching a game played live. Isn't the law more fascinating than you thought?

Umm. No. More insidious, perhaps. This is certainly not like watching a game played live. It will be many years before anything could possibly come of this, assuming Microsoft doesn't find a way to fix it, assuming it is a valid issue, etc.

[ Reply to This | # ]

Voucher image?
Authored by: Anonymous on Friday, May 18 2007 @ 02:11 PM EDT
Does anyone have a link to an image of the actual voucher? I love to see what
it looks like.

[ Reply to This | # ]

Don't use all the coupons for GPLv3
Authored by: Anonymous on Friday, May 18 2007 @ 02:17 PM EDT
Please keep a few coupons back for GPLv4, 5, 6, etc - giafly

[ Reply to This | # ]

Novell a good guy after all?
Authored by: Anonymous on Friday, May 18 2007 @ 02:18 PM EDT
Wouldn't it be amusing, if not downright ironic, that after all the bile and
scorn heaped on Novell (by the FOSS community in general, and Groklaw in
specific) in response to their "deal with the Devil", that that very
deal should prove to be Redmond's undoing?

[ Reply to This | # ]

Yes but...
Authored by: Anonymous on Friday, May 18 2007 @ 02:22 PM EDT
I thought that Linux was going to remain under the GPL v2 license for the time
being so how is the GPL v2 license going to help?

I don't get it.

[ Reply to This | # ]

Confusion
Authored by: enodo on Friday, May 18 2007 @ 02:22 PM EDT
I'm confused.
  • Let's assume that someone turns in a voucher for Suse after the date v3 goes into effect. At that point, all of the software on it has the "v2 or any later version" language in the license. Therefore, Novell can say it's distributing under the terms of v2, which doesn't make Microsoft a distributor.
  • If Suse subsequently contains a single application that explicitly uses the v3 only license, doesn't that only mean that users/distributors of that particular package can't be sued? So if some other package (allegedly) violates a patent, MS can still sue over that, right?
  • I don't understand how MS could be sued under the GPL v3 anyway. How does their procuring distribution for the code make them a party to the license? Suppose I procure distribution of something that violates a copyright - why does that make me a copyright violator? I guess I don't see how this provision of the GPL v3 works...

[ Reply to This | # ]

Fork risk...
Authored by: Anonymous on Friday, May 18 2007 @ 02:27 PM EDT
Get your tin-foil hats, I think there might be a fork risk.

What if, in this contract with Microsoft, Novell agreed not to release any
software under GPLv3?

What if Novell agreed to fork the code at the point where GPLv3 takes hold and
begin their own in-house development under GPLv2.

Novell certainly has the know-how, money and man-power to do it, and with Dell
in bed with MS, they can probably lock them up with Novell's own forked version
of GPL software.

What about SAMBA? Novell stated they got access to protocols from Microsoft as
part of the deal. Novell also has Miguel de Icaza who probably knows enough
about MS to continue the development of SAMBA.

What about OpenOffice? There would be enough in the package that they didn't
have to ship OOo personally, they could simply have Dell do that, or point the
user to OOo if they wanted it.

[ Reply to This | # ]

Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)
Authored by: Anonymous on Friday, May 18 2007 @ 02:45 PM EDT
I'm sure MS will claim they are not distributing Linux by giving out Novell's
vouchers. And as for an end to patent agression, my guess is that when Linux is
covered by GPLv3, Microsoft will find another twist and keep attacking. Maybe
they will sue RedHat or another distributor whom has refused to enter into the
patent agreement. The FUD ladies and gentlemen is only going to get worse as
time goes on and as Microsoft loses ground to open source software. Bank on it.

[ Reply to This | # ]

Depends on the Novell-MSFT terms
Authored by: Anonymous on Friday, May 18 2007 @ 02:49 PM EDT
I assume these terms are secret?

Depending on the terms of their agreement, Novell may in fact be barred from
distributing anything under GPLv3 - regardless of GPLv3 itself permitting them
to distribute, they may be contractually prevented from doing so by their
agreement with Microsoft.

This would be very unfortunate indeed, as the community would win nothing, and
Microsoft would have achieved one of the outcomes it was probably banking on -
one of the major Linux distributors, and possibly the one with the most
corporate cred, will wither into insignificance. The reason for their demise
will doubtless be spun as the machinations of evil bearded copyright communists,
and Linux in general could be viewed by suits as a radioactive hazard.

Also, please remind me - I seem to recall that the patent language in GPLv3 was
added as a reaction to Novell's deal - meaning that it can't be argued that
Novell would have seen this one coming when they signed the deal. Is that
correct?

And finally, a possible escape clause - it's playing silly word games, but seems
to me it might work. Does anyone know the exact wording of the MS vouchers? If
they are for "SuSE Linux Enterprise Server", and Novell re-brands
future versions of their distro to "SuSE Datacentre-Grade Linux" or
something silly, and only releases GPLv3 software under the newly branded
distro, might that give Microsoft some wiggle room?

[ Reply to This | # ]

Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)
Authored by: Anonymous on Friday, May 18 2007 @ 02:58 PM EDT
..
The Monopoly has choked on their FUD. They ventured to play in Open Source and
they caught the GPL virus.

The red that PJ highlights above confounds them.

Their deal with Novell was so convoluted, but they stung themselves. They will
trip over their tungues trying to explain how they didn't intend to free their
patents playing with GPL'd software. What will they say to the Judge? "We
intended to subvert it!"

No big deal. Just another excellent reason now not to sue over software patents
these days. The GPL is going to make patent and copyright contention
unnecessary and wasteful. All will accept this and accomplish reform. If not,
businesses will demand GPL for safety.

[ Reply to This | # ]

Am I missing something here?
Authored by: Anonymous on Friday, May 18 2007 @ 03:03 PM EDT
Didn't Linus say he wasn't going to switch linux to the GPLv3. Has that
changed? Why would GPLv3 have anything to do with Linux, if the kernel isn't
distributed under that license.

Dan

[ Reply to This | # ]

Moglen seems to be assuming too much!
Authored by: Anonymous on Friday, May 18 2007 @ 03:05 PM EDT
What if GPLv3 "comes into effect" in the sense that FSF
gives its approval, but Novell never releases any software
subject to GPLv3? Remember all the the current GPLed
softwhere files have beginning comments that say:


/* project--: C++ frontend for glade (Gtk+ User Interface
Builder)
* Copyright (C) 1998 someone
*
* This program is free software; you can redistribute it
and/or modify
* it under the terms of the GNU General Public License
as published by
* the Free Software Foundation; either version 2 of the
License.



or

/* project--: C++ frontend for glade (Gtk+ User Interface
Builder)
* Copyright (C) 1998 someone
*
* This program is free software; you can redistribute it
and/or modify
* it under the terms of the GNU General Public License
as published by
* the Free Software Foundation; either version 2 of the
License, or
* (at your option) any later version.

The "any later version." allows someone to re-release
gplv2 code under gplv3 when it comes out. Some projects
like the Linux kernel do not have this clause in their
headers, which would make it vary difficult for those
projects to goto gplv3.

In any case their is no requirement that anyone re-release
their code under gplv3. All the code out their under GPL
version 2, does not loose its protection magickly when FSF
puts its stamp of approval on GPL v3. Everyone can
continue to use the old GPL v2 code under GPL v2. There is
nothing in the GPL v2 that prevents this.

What might happen is that projects like gcc, bash, or
glibc, might re-release the old code with new beginning
comments that say:

* project--: C++ frontend for glade (Gtk+ User Interface
Builder)
* Copyright (C) 1998 someone
*
* This program is free software; you can redistribute it
and/or modify
* it under the terms of the GNU General Public License
as published by
* the Free Software Foundation; either version 3 of the
License, or
* (at your option) any later version.

If you use this newly released files with the new comments
then you would be stuck with GPLv3.

But there is nothing that requires Novell to use this new
code! They could continue using the old code with the old
comments. Indeed, if they need new features, they could
fork this old code as needed keeping the old v2 comments.
Novell could continue indefinitely into the future this
way. Indeed, if Novell can not escape the MS-Novell deal,
this would be the only option for Novell. Otherwise they
would be a GPLv3 infringer. If this were to happen, MS
would not become subject to GPLv3, because of the
certificates, because Novell would not be distributing any
code subject to GPLv3.

There is another possibility, remember that parts of the
MS-Novell deal are still secret. Suppose new software
comes out under gplv3 that Novell wants to include in it's
distro. Suppose the new software is new versions of gcc,
bash, and glib. Novell says to MS: "We are activating the
secret escape in the MS-Novell deal. You may now sue our
customers with respect to any patents you may have in our
gcc, bash, and glib packages. And by the way, we still
don't believe that you have any such binding patents!"
If there is such an escape clause and Novell activated it,
Novell could put the new gcc, bash, and glib, into it's
distro. If there is no such escape clause then Novell's
Lawyers should be shot! If this were to happen where would
MS stand? Would MS then be subject to the GPLv3 as
a "conveyor"?

[ Reply to This | # ]

do we know there is no date on them?
Authored by: Anonymous on Friday, May 18 2007 @ 03:06 PM EDT
not that I doubt Eben Moglen, but I would like to see a scan of a voucher. I
would be interested to see if they specify a version of SUSE as well.

[ Reply to This | # ]

If Microsoft realised they were 'hot' they would just sit on them wouldn't they?
Authored by: Anonymous on Friday, May 18 2007 @ 03:12 PM EDT
Eben's argument sounds fairly convincing to me, although I think there may be
some wiggle room about giving a voucher being equivalent to
"distributing". Maybe the deal with Dell will mysteriously fall apart
in the next few weeks. Have they given vouchers to anyone else?
What exactly is the voucher for anyhow? Is it for the software or for the
support agreement?

[ Reply to This | # ]

Licenses
Authored by: Anonymous on Friday, May 18 2007 @ 03:14 PM EDT
It's interesting to take a look specifically at the packages Microsoft says
infringe their patents, and what licenses those packages are distributed under.
Of course, we can't be too specific, because Microsoft wan't. They mentioned
two specific packages, Linux aka the Linux kernel, and openoffice. Other
categories were "graphical user interfaces" by which I suppose they
mean kde and/or gnome, "email" which might include thunderbird,
evolution, and who knows maybe others. And then there's "other open
source" which we can't do much with.

I believe gnome, kde, and evolution will go GPLv3. (I checked all of 1 kde
source file, and it had the "or later version" line; gnome and
evolution seem to be GNU products.)

We know Linux kernel probably won't, as has been overdiscussed here before.
Openoffice is LGPL; I dunno if Sun has announced any plans to change this.
Thunderbird is MPL.

So it's kind of a mixed bag, stuff that probably will go GPLv3, stuff that
probably won't, and stuff that isn't GPL at all.

[ Reply to This | # ]

  • Licenses - Authored by: PJ on Friday, May 18 2007 @ 03:31 PM EDT
    • Licenses - Authored by: Anonymous on Friday, May 18 2007 @ 05:01 PM EDT
      • Licenses - Authored by: Tyro on Friday, May 18 2007 @ 05:49 PM EDT
        • Licenses - Authored by: Anonymous on Friday, May 18 2007 @ 10:08 PM EDT
Please spell out how MS has no options as of today
Authored by: Anonymous on Friday, May 18 2007 @ 03:22 PM EDT
I don't quite see how it can be that MS cannot do something tomorrow to avoid
the problem.

How could they be stuck now with because of GPLv3 features when it hasn't even
become effective.

Hope it's not too much trouble to elaborate; or maybe I didn't read carefully
enough.

[ Reply to This | # ]

This makes my day
Authored by: PolR on Friday, May 18 2007 @ 03:23 PM EDT
It seems Microsoft is giving away its patent portfolio to FOSS in more ways than
one. ROFL.

My first reaction was this is too good to be true. There must be a catch
somewhere. Then a thought occurred to me. How long is the service contract
provided by the coupons? Does it include upgrades and patches? What if Novell
distributes GPL3 software as an upgrade during the term of the service
contract?

If Novell wants to, it could be that Microsoft would end up distributing GPL3
software to the _current_ coupons recipient. No need to wait until a sleeping
coupon pops up like a jack in a box.

This is a golden opportunity for Novell to undo the damage and return into the
good grace of the community.

[ Reply to This | # ]

SUSE Vouchers?
Authored by: rsteinmetz70112 on Friday, May 18 2007 @ 03:25 PM EDT
Has anyone released the actual language of the voucher or a facsimile of one?

People keep talking about them like we know what they say.

Moglen has apparently seen one not under an NDL or I'm sure he wouldn't be
talking about them.

Someone out there must have one.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

hmm tell me one thing
Authored by: Anonymous on Friday, May 18 2007 @ 03:28 PM EDT
How the vouchers will affect a linux version which isn't yet been made?
Will Novell/M$ ever distribute this new version of linux?

[ Reply to This | # ]

How can Microsoft be bound by the terms of a licence which was not in effect
Authored by: billyskank on Friday, May 18 2007 @ 03:29 PM EDT
at the time that they conveyed the protected works? Idon't understand.

---
It's not the software that's free; it's you.

[ Reply to This | # ]

What exactly are the Vouchers good for ?
Authored by: Anonymous on Friday, May 18 2007 @ 03:53 PM EDT
I have not seen the actual text of the vouchers, but I would expect them to read
something along the lines of "This voucher entitles you to download and run
1 copy of 'Suse Linux Enterprise Server (SLES)' on a single machine and use
Novell Support for this for x years".


All Novell needs to do is come out with a new package called , say, "SLES
PLUS" (or "SLES NT" or "SLES XP" ;-) as soon as they
need to update the GNU-Tools to GPL-V3.

They will then happily ship you a version of the old "SLES" under
GPL-V2 if you turn in your voucher and provide minor bug-fixes for some time.

I do not believe, or dare to hope, Microsoft lawyers would fall for a trap like
this so easily.



[ Reply to This | # ]

Objection, Your Honor
Authored by: Prototrm on Friday, May 18 2007 @ 03:56 PM EDT
According to the section of GPL3 you quoted: "the patent license you grant
is automatically extended to all recipients of the covered work and works based
on it", couldn't it be argued that you are granting the license to everyone
you personally distributed the covered work to, and no one else? In other words,
the recipients of the Microsoft coupon are covered by the patent agreement, and
that's pretty much it. Yes, works derived on it are also covered, but is it
necessary to prove in court who the father is?

IANAL and everything. Just asking a question of my betters. And maybe this
possibility is covered in language elsewhere in the GPL3.

But my fingers are indeed crossed that this is the good news it appears to be.

---
"Find out just what any people will quietly submit to and you have found out the
exact measure of injustice and wrong which will be imposed upon them."

[ Reply to This | # ]

Microsoft must NOT have known about this possibility
Authored by: Anonymous on Friday, May 18 2007 @ 03:57 PM EDT
"No wonder, as Moglen puts it, Microsoft has been tossing the vouchers
wholesale out of airplanes "as though the coupons themselves were hot, as
indeed they are". But now here comes Moglen saying even that won't work,
because of the lack of an expiration date on the vouchers. And so, as the sun
sets over the horizon, we may be bidding a fond farewell to Microsoft's patent
bullying. I hope some friendly folks have bought a voucher. If so, you might
just want to take a breather before you turn it in, huh? Then it's buh-bye to
Microsoft's 235 patent claims, methinks. So nice of Microsoft to distribute
under GPLv3. Hugs and kisses."

This is kind of backwards logic, no? Why would Microsoft be "throwing the
coupons out of airplanes" if *the more coupons out there, the more likely
that they would be used to convey GPLv3 software*.

If Microsoft had a shadow of a doubt, at the time, that these coupons could
force them to grant a patent license to all Linux users, they wouldn't throw
them out of airplanes. They'd burn them all in a huge incinerator so nobody
could *ever* cash them in. The more Vouchers they have out there, the more
likely someone is to sit on them. The hell with however many millions they paid
to Novell. Don't throw good money after bad and all that.

[ Reply to This | # ]

Question
Authored by: Steve Allen on Friday, May 18 2007 @ 04:09 PM EDT
OK, imagine this scenario:

Suse 10.2 is GPLv2.
GPLv3 goes into effect.
Then Suse 10.3 is released with whatever GPLv3 code is in effect at the time.

If Novell only supplies copies of Suse 10.2 for the coupons, does that trigger
the GPLv3 provisions?


---
Contrary to popular belief, Unix is user friendly.
It just happens to be selective about who it makes friends with.
-Kyle Hearn

[ Reply to This | # ]

  • Question - Authored by: Anonymous on Saturday, May 19 2007 @ 12:31 PM EDT
What version of Suse are the vouchers for?
Authored by: Fruny on Friday, May 18 2007 @ 04:11 PM EDT
Is Novell required to provide their latest (possibly with GPLv3 software) or can
they just provide an older version (which would only include GPLv2 stuff).

What if they were to then offer a free upgrade? Would that insulate Microsoft
from distribution arguments?

[ Reply to This | # ]

Covered Work
Authored by: Anonymous on Friday, May 18 2007 @ 04:12 PM EDT
"the patent license you grant is automatically extended to all recipients
of the covered work"

This all depends on how you define covered work. MS & Novell define it to be
SUSE, not Linux in general.

I don't see any problem for MS here.

[ Reply to This | # ]

"see what Microsoft can do next" - the same options they always had.
Authored by: Anonymous on Friday, May 18 2007 @ 04:38 PM EDT
Just as before, Microsoft can file lawsuits or hire friends like SCO to file lawsuits against whomever they don't like. This development adds just another to the already long list of reasons why such lawsuits would be bogus.

As SCO proved, it matters not at all how bogus the claims are. The most bogus IP lawsuit in the world has been demonstrated to cost many years and many tens of millions of dollars to defend against by even the most powerful companies well versed in IP law (IBM). It proved you don't need patents or even copyrights to kill any small to mid sized business.

My guess is that Microsoft's patent war will be as strong as ever even if it never sees a courtroom.

Microsoft will just take execs out to lunch and say

"See how much little SCO hurt IBM. We've got 280 times as many patents than SCO had"
and execs will fold without even giving it a second thought.

[ Reply to This | # ]

Only if the kernel uses GPL v3?
Authored by: Anonymous on Friday, May 18 2007 @ 04:56 PM EDT
Doesn't this apply if and only if the software received in exchange for the
coupon is licensed under GPLv3? What if the coupon holder got GPLv2 software in
exchange for the coupon, even after the effective date of GPLv3?

Don Andrews (dwandre), not logged in

[ Reply to This | # ]

Where can I buy one of those cool MS coupons?
Authored by: Anonymous on Friday, May 18 2007 @ 05:56 PM EDT
I thought the coupons were worthless and uninteresting. But if this story is
true, I'm interested in buying one. Where are they for sale?

[ Reply to This | # ]

Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)
Authored by: SilverWave on Friday, May 18 2007 @ 05:56 PM EDT
#33232

Posted by unregistered user at 5/18/07 9:22 a.m.

Wow thats a clever move by the fsf.
MS must be smarting.

For the record that was me - I didn't have time to create an account.
http://blog.seattlepi.nwsource.com/microsoft/archives/115505.asp

---
Linus: "The bulk of all patents are crap...
Spending time reading them is stupid...
It's up to the patent owner to do so, and to enforce them."
:p

[ Reply to This | # ]

This doesn't make sense.
Authored by: Anonymous on Friday, May 18 2007 @ 06:35 PM EDT
I'd be interested in seeing exactly what Moglen said, but the way it's being
interpreted here doesn't make sense.

The gist of the argument is that Microsoft will be held to the terms of a new
license after the fact of its distribution. Aside from the fact that I can't
(as a non-lawyer, admittedly) see any court holding someone to the terms of a
license imposed after the fact, we really wouldn't want to set a precedent for
that. For one, it would surely be used against us; in addition, it would ensure
that nobody would ever want to touch the GPL again (that really would make it
viral -- or perhaps retroviral would be a better term: you're being held
retroactively to changes that you never agreed to). Basically, Microsoft
purportedly faces unlimited liability for changes after the fact.

Microsoft would surely argue that even if what it did counted as distribution
under the GPL, the act of distribution occurred when it distributed the
vouchers. But not every act of distribution requires a license to begin with:
if you have a legal copy of something, you're always allowed (at least in the
US, to the best of my knowledge) allowed to sell that copy -- you just can't
make any more copies and sell them without permission. So Microsoft might
simply argue that it was giving away existing legal copies, and the GPL applied
only to Novell, not to Microsoft. And whether or not the GPL uses the word
"convey", it has never purported to impose restrictions beyond those
already imposed by copyright law, so they'd argue the language is irrelevant --
they never accepted the GPL in the first place, and are only doing what they
would otherwise be allowed to do under copyright law. Or they'd simply refuse
to honor the vouchers, or ask Novell to buy them back, or flat out refuse to
grant the patent license, or whatnot.

But the real consideration has to be, is this the right thing to do, and would
we want to live in a legal system that allowed a result like this to happen:
would any of us be happy if the shoe were on the other foot.

-Robert Krawitz
-rlk@alum.mit.edu

[ Reply to This | # ]

Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)
Authored by: Anonymous on Friday, May 18 2007 @ 06:53 PM EDT

Rock on Eben and Pamela!

[ Reply to This | # ]

The GPL is a License, not a contract.
Authored by: Anonymous on Friday, May 18 2007 @ 08:05 PM EDT
As the FSF is fond of saying, the GPL is a license not a contract. This applies to GPLv2 and GPLv3. Both versions allow one to do things that would be otherwise illegal under copyright law. Name one thing, that MS is doing with respect to Novell that requires a license under copyright law! Distributing coupons? Show me the provision of copyright law that says you need a license to distribute coupons!

So assume, MS does not comply with GLP v 2 or 3 and therefore does not have a license. Just what does MS need a license for?

[ Reply to This | # ]

Unreasonable
Authored by: Anonymous on Friday, May 18 2007 @ 08:18 PM EDT
This is unlikely to fly in the form it's in at the moment for several reasons:

1. It depends on exactly what the voucher says. If it's a voucher for Suse 10
then that doesn't include any GPL3 software.

2. If you can put stuff into a license like this, and expect it to be upheld,
then I can put into a a license that your firstborn child belongs to me and
reasonably expect that I'll get a pile of firstborns delivered real soon.

Think about it this way, if you give your friend some money to buy a Linux CD
for another friend, then according to the language of this clause, you are can
be bound by the license of the software. But you haven't handled the software,
so how can you be bound by the license? Microsoft aren't doing any distribution,
so they can hardly be bound by a license that is relevant to distribution.

What might work is if the license only allowed your friend your friend to give
it to the other friend if you too agreed to the license. [Yes, I've added this
to the GPL3 comments.]

3. If MS gives away all the vouchers before GPL3, it's unreasonable for them to
be bound by GPL3. That's retrospective activation.

4. If you use the GPL2 with a clause allowing someone to distribute under GPL2
or later license, you can't reasonably be subjecting yourself to GPL3 if they
choose to distribute under GPL3. That's activation working it's way backwards
through licensees! And what's more, in this case it's jumping to people who
aren't even licensees. It would be breathtaking if this were upheld.

4. Even if Microsoft are retrospectively governed by GPL3, the patent clauses
only cover the patents used those exact bits of software distributed.

So all in all, this is just very wishful thinking.

JeffV

[ Reply to This | # ]

Dear Customer
Authored by: argee on Friday, May 18 2007 @ 08:24 PM EDT
Dear Customer
Thank you for sending in a Voucher for the SUSE Server
Edition. The voucher program has been withdrawn. Enclosed
please find our check for $99.99 for the value of the
voucher.

You may cash the check, or you are free to purchase the
SUSE Server edition from any dealer or vendor for the list
price of 95.99.

Thank you for your interest, and we hope you continue to be
a SUSE/Novell customer.

Signed
Novell, Inc.

---
--
argee

[ Reply to This | # ]

Yet another example of MS incompentence
Authored by: bigbert on Friday, May 18 2007 @ 08:43 PM EDT
Is it just me, or is MS becoming more and more amateurish and incompetent? Not
putting an expiry date on a coupon is just plain stoopit!

But I must share this with you guys: a few weeks ago the MS roadshow visited our
campus to address the students. It was the typical smoke-and-mirrors fluff --
unfortunately for them, our students are hard-core techies who saw through it
straight away. At the end of the presentation the MS guy announced with wide
eyes that..... [drum roll].... a FREE COPY OF VISTA FOR THE FIRST STUDENT TO
SHOUT! He was met with a total silence, and then the students simply got up and
walked out. You should have seen the look on their faces.

Needless to say, all us greybeard tutors were rolling on the floor laughing. It
was one of the best days of my life.

And before the MS fanbois start their sniping, let me just add that more than
half of these students participated in the Vista Beta testing program. Their
reactions weren't because of any indoctrination, but from bitter experience.

Needless to say that they all do one paper in Linux in 2nd year....... :-)

But the difference between our students, who get a good education in IT and NOT
in a particular vendor's products, and the MS clowns was very visible. The MS
people just came across as incompetent point-and-click monkeys and struggled to
answer some very basic questions. Our students wiped the floor with them.

---

--------------------------
Surfus, ergo sum.

[ Reply to This | # ]

Microsoft Open Sores Software
Authored by: CypherOz on Friday, May 18 2007 @ 08:56 PM EDT
Steve Ballmer was reported today as saying that Microsoft will continue to fully support Open Sores SoftwareTM.

He went on to say that Microsoft had always included Open Sores SoftwareTM in their products and that unlike the GPL; the Microsoft EULA guaranteed customer full closed access to Open Sores SoftwareTM.

:-)

---
The GPL is enduring, not viral

[ Reply to This | # ]

Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)
Authored by: Anonymous on Friday, May 18 2007 @ 09:05 PM EDT
I am guessing that when ms and novell were talking, ms managed to get an 'in
principle' agreement.
When they got that, they rushed it through and missed bits, and this is the
result.
No one ever anywhere misses out expiry dates on coupons.
I would think it would be the first thing any legal counsel would think of at
the mention of redeemable coupons.
This is what you also get when a company gets so greedy, it takes its eyes
right off the target.

[ Reply to This | # ]

Err, I don't get it
Authored by: Zak3056 on Friday, May 18 2007 @ 09:18 PM EDT
So GPL v3 comes out, and Microsoft distributes a copy of SUSE the next day. Here's what the GPL has to say:

Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation.

At the VERY worst, Microsoft is prevented from distributing any software that is EXPLICITLY licensed under GPL v3. However, there is NO current software that fits this definition. So this doesn't really change anything.

[ Reply to This | # ]

Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)
Authored by: Anonymous on Friday, May 18 2007 @ 09:34 PM EDT
Isn't it now late for M$ to be signing Novell like agreements with others. As
I understand any agreement signed after march 28 will be covered by GPLv3.

[ Reply to This | # ]

Is any GPL software in Subsystem for UNIX-based Applications covered by Micosoft patents?
Authored by: leopardi on Friday, May 18 2007 @ 10:20 PM EDT
Here is another way to turn Microsoft patent threats against itself (I think). Microsoft is still shipping Subsystem for UNIX-based Applications and has a download page for the associated Utilities and SDK. The Utilities and SDK download includes gcc 3.3.

If you download the Utilities and SDK you will notice that in the doc directory there is a copy of GPLv2, prepended by a list of utilities which it applies to.

Now, what if any of the GPLv2 software in Subsystem for UNIX-based Applications or the Utilities and SDK downloads violated any Microsoft patents? The only rights which Microsoft have granted for use of this software are those conveyed by GPLv2 itself. At the very least it may make it inconvenient for Microsoft to ever upgrade this software to GPLv3. There may also be implications even in the case of GPLv2.

If none of this GPLv2 software violates Microsoft patents, then that is a win for GNU, since there are a fair few GNU utilities included, including gcc.

Worth investigating further, don't you think?

[ Reply to This | # ]

What about non GPL FOSS
Authored by: Anonymous on Friday, May 18 2007 @ 10:59 PM EDT
How does the Novell/MS deal play out for nonGPL FOSS? Mozilla, Apache etc. Is
there room for MS to cast a pall on all FOSS by going after "patent
infringements" in Non GPL licensed FOSS? Anybody paying attention to that
area?

emk

[ Reply to This | # ]

GPL for Dummies
Authored by: Anonymous on Saturday, May 19 2007 @ 12:24 AM EDT
There seems to be a lot of 'front porch' logic being applied to this situation, which, by mischaracterizing the GPL, purports to somehow disprove Eben Moglen's assertions. Since 'common sense is neither,' and IANALJAGWAC (I am not a lawyer, just a guy with a clue), here is the nutshell version:

The vouchers are for 'a GNU/Linux distribution'--it doesn't matter which one. However, if the v3 license language isn't acceptable to Microsoft/Novell, then they will have to redeem it with an old or forked version...Which, in MS-speak means: you get this copy of Windows 95, while the world is on XP. Your future prospects are extremely limited.

Don't like the GPL? Fine, then don't use GNU/Linux. Sorry, Ballmer, you think Linux is playing in your world, guess what? It's the other way around, so you have two choices: play nice together, or go home and play with yourself!

[ Reply to This | # ]

Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)
Authored by: Anonymous on Saturday, May 19 2007 @ 12:32 AM EDT
It's weird that they can, even potentially, be bound by a contract that doesn't

exist in this situation. What if the GPLv3 added a clause that Microsoft had to

switch to Linux, or something more absurd?

[ Reply to This | # ]

what if ....
Authored by: Anonymous on Saturday, May 19 2007 @ 12:47 AM EDT
what if M$ pulls out of the Novell agreement, could it still be liable under
GPLv2/3 in respect of the licences sold till date.

[ Reply to This | # ]

Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)
Authored by: Anonymous on Saturday, May 19 2007 @ 09:03 AM EDT
But there is no GPL3, only a discussion draft. And the Linux kernel will not be
covered by it.

Unfortunately, the stubbornness of the "Free" software movement in its
insistence in trying to regulate the uses of software (ie no DRM/confiscating
digital keys) has made GPL3 unpalatable.

[ Reply to This | # ]

Software piracy by selling vouchers - Microsoft will love this business plan
Authored by: PeterMan on Saturday, May 19 2007 @ 09:04 AM EDT
Hello Bill and Steve.


I have a fine busniess plan. You are going to like it, beacuse frankly, the idea
is just yours.

I know of a little shop in Costa Rica that, you know, has all these fine
products like Microsoft Windows XP, Microsoft Vista, Microsoft Office, Visual
Studio, Bizztalk and lots more available on purple-ish, shiny discs for $3,- a
pop.

Now, what I am going to do, I am going to buy vouchers from these guys. Next I
am going to open a little office somewhere in Miama and run a litle webshop on
which I sell these vouchers for $15,- a pop.

Users that have bought my vouchers can mail them to Costa Rica and in rerurn
they get a fine purple-ish, shiny disc.

Ofcourse, the BSA and your army of laywers will never arrive at the doorsteps of
my Miama office, because, as you know, I am not distributing these discs, I am
just selling vouchers.

I am glad you nod 'ok'. Yep. Picking up the phone to Costa Rico right now.


Al Capone.

P.S.
Oh, Bill and Steve, now that I think of it, the only reason your army of lawyers
could arrive at my doorstep is because you might have patented this idea. Or
not, that's always hard to tell with Microsoft's Heisenberg patents.

P.S.2
Great Bill and Steve.. admire your recently developed business model. Couldn't
have thought of it myself. Nice restaurant.. hey.. another business plan just
occured to me.

[ Reply to This | # ]

Moglen: "I can change the rules..."
Authored by: SilverWave on Saturday, May 19 2007 @ 09:06 AM EDT
Moglen:
"...The patent part of the deal is excessively destructive of peace in the
community, and it won't get you what you want, because I can change the rules
which apply to the facts, after you have made the facts."

Heh MS legal playing out of their league.

I think we can expect some reorganization in MS legal after this gaff.



---
Linus
The bulk of all patents are crap...
Spending time reading them is stupid...

Moglen
I can change the rules...
The coupons have no expiration date...

[ Reply to This | # ]

FUD, FUD, glorious FUD
Authored by: Alan(UK) on Saturday, May 19 2007 @ 09:57 AM EDT
Just imagine the following case:

Jane did not have a pencil so she asked John who only had a spare pen. John
asked George who said that he would exchange a pencil for a pen and if someone
brought his pencil back he would give them a pen. John took George's pencil and
gave it to Jane who took it back to George when she had finished with it.
Meanwhile George had exchanged John's pen with one from Mary who had hidden
drugs in it. George gives the pen to Jane and John is charged with trafficking
in drugs.

John is black so he gets sent down for 25 years without parole. But change John
for Microsoft with a huge team of lawyers, replace the drugs with GPLv3 code,
George is Novell, Mary can be FSF or anyone releasing code under GPLv3, Jane can
just be Jane. The pencil and pen you can work out for yourself.

Now, seriously, is any court going to find Microsoft 'guilty' of trafficking in
GPLv3 code?

---
Microsoft is nailing up its own coffin from the inside.

[ Reply to This | # ]

This Defense Cannot Work
Authored by: Anonymous on Saturday, May 19 2007 @ 12:08 PM EDT
This argument seems completely unworkable to me. Perhaps you can convince the
judge that distributing a voucher to receive a product from an other company
is equal to distributing the product, in some senses. But it is still that
other company that distributes the product itself, and therefore licenses the
product to the recipient. The software is simply not licensed from Microsoft,
in any case.

[ Reply to This | # ]

  • Question is - Authored by: Anonymous on Sunday, May 20 2007 @ 05:08 PM EDT
V3 not an all-or-nothing issue
Authored by: DrHow on Saturday, May 19 2007 @ 02:51 PM EDT
It seems that folks are speaking as if, were Novell to distribute to a voucher
holder a version of SUSE Linux which contains but a single V3 GPL'd application,
then the V3 license terms come to be imposed on MS in general. What I would
expect is that the V3 terms would apply to MS only with respect to any of their
patents which are infringed by that particular application. Does not MS's
implied 'threat' remain a matter of concern for the kernel and any other
applications which remain under V2 in anyone's distribution?

(I do not actually believe that the threat is all that credible to start with.)

[ Reply to This | # ]

Certificates=Vouchers=Coupons?
Authored by: Anonymous on Saturday, May 19 2007 @ 06:11 PM EDT
Are the "certificates" that have been referred to the same thing as
the "coupons" and "vouchers"? I would guess so, but can
someone who is not guessing confirm this?

[ Reply to This | # ]

Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)
Authored by: Anonymous on Saturday, May 19 2007 @ 07:25 PM EDT
Does a voucher have to be re-deemed after the GPL3 comes into effect AND the
SUSE distribution at the time has software covered by the newer license?

How does this redemption as a point-in-time event work with regards to updates
and patches to current SUSE installations given that current and proposed
licensing is 'timeless' in contrast to the artificial short life-cycle of
patents?

---
Ciphernaut

[ Reply to This | # ]

Why Now! Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)
Authored by: abraxus on Saturday, May 19 2007 @ 09:53 PM EDT
I don't understand the rationale for releasing this information and giving
microsoft's lawyers an opportunity to look at alternatives like reissuing the
coupons or something else before then. Why not just let it happen and then say
look what you did? It seems very odd. Who knows what devilish ideas Steve
Ballmer will come up with when pressed to the wall. Too late now though. This
cat is out of the bag. I just hope they don't find a way to put it back in by
then.

It just seems tactically strange. Why broadcast the good news about something
that hasn't happened yet and that doesn't take effect until someone does
something in the future when you could just let it happen with no one the wiser?
What could they possibly be thinking?

[ Reply to This | # ]

Overestimated Impact and the Danger of Backfire
Authored by: Reliant on Monday, May 21 2007 @ 09:50 AM EDT
The clause says if there are patent agreements, you can't distribute without
giving patent agreements (paraphrase). When the GPL3 comes out, people are
thinking that will mean Microsoft will convey patent peace to Linux. That's not
going to happen.

What will happen is Microsoft will refuse to honor those vouchers, and blame the
GPL. "We're sorry, but the GPL is forbidding us from giving you what you
paid for. Blame them", only with marketting spin to make them look like the
victims

[ Reply to This | # ]

Nope, that's not a killer argument
Authored by: DMF on Monday, May 21 2007 @ 12:23 PM EDT
Recall, please, that Microsoft included the usual weasel words in the patent
license granted through the Novell deal: they can revoke the license.

If they want to file suit, and GPLv3 extends the license to (presumably) the
sued party, then all MS has to do to squash that extension is to revoke the
license for all Notaduck licensees.

[ Reply to This | # ]

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