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Moglen's Slides and Talk on SUSE Vouchers & GPLv3 Available
Saturday, May 19 2007 @ 10:06 AM EDT

Yesterday, we got the stunning news that the SUSE vouchers have no expiration date, a legal oversight that looks to be the wooden stake in the Novell-Micorosoft patent peace agreement's heart. This is what will happen when someone turns in a voucher after GPLv3 code is available under the new license, which Moglen says is sure to happen:
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.

Or as Eben Moglen puts it:

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 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.

Since Microsoft is unlikely to find that appealing, and since that is a precise description of its voucher activities, it may well try to find a way to get out of the deal as constituted. It seems to have thought that if it dumped its remaining vouchers on Dell, it could escape the GPLv3 consequences. But Moglen's revelation that vouchers already distributed by Microsoft have no expiration date makes that strategy useless. Don't ask me what Microsoft can do. I see no solution for them except to exit the patent peace agreement business. I'm not a lawyer, of course, and I'm sure Microsoft's are working on this, trying to figure out what to do next.

Today, you can get the slides from Eben Moglen's talk as a PDF. You can also listen to the webinar [zip download], but ironically maybe not all of us, because the webinar organizer, OpenLogic, requires that you use a Raindance Player, and although they make a light version of the player available [RaindancePlayer.exe], it requires Windows to view the .rmv file. So there you are. A touch of irony. The biggest news for the FOSS community breaks, and we can't access it. But Microsoft's lawyers can, and I think they are the ones who truly need this information. Our thanks must go to Todd Bishop of Seattle PI, who broke this story and made portions of the text available.

One of the slides defines propagate:

To "propagate" a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law, except executing it on a computer or making modifications that you do not share. Propogation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well. (Sect. 0)

And here is the slide that defines convey:

To "convey" a work means any kind of propagation that enables other parties to make or receive copies, excluding sublicensing. Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying. (Sec. 0)

On the slide titled "Patent Defense" it mentions that there are two types of aggression that can be deterred or defended against by GPLv3:

1. Betrayal from within the community

2. External aggression through anti-competitive licensing

The Novell-Microsoft deal represents both. So that is where the wording comes in that I quoted before, titled in the slides "Anti-monopoly Measures":

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. (Sec, 11)

And here's what Moglen calls the "Dancing With Wolves Provision":

You many 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 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]. (Sec. 11)

This is the clause that lets Novell stay in the Linux business, although without the market advantage it thought the patent peace agreement would give them, and it is likely the clause Microsoft thought would allow it to stay in the Novell-Microsoft patent agreement. However, the revelation that the vouchers have no expiration date makes that seem, to me, impossibly dangerous for Microsoft, unless it wishes to donate its entire patent collection that it alleges GNU/Linux infringes to the FOSS community. I don't think so. Here, once again, is how Moglen explained it in his talk:

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.

"One more layer of probable defense" means this is on top of the already available defense, the implied patent license defense under GPLv2. The first glimmerings of understanding the significance of this news are now appearing. The Register mentions it:

Microsoft will apparently nullify its patent protection agreement with Novell, under the terms of the forthcoming GPL 3 license.

That seems to be the conclusion to be drawn from remarks by Software Freedom Law Centre founding director and general counsel to the Free Software Foundation, Eben Moglen, made yesterday during a discussion on the GPL.

According to the comments, reproduced by the Seattle PI, it seems the act of purchasing Novell's SuSE Linux Enterprise Server (SLES) using certificates that have been distributed by Microsoft will trigger protection for the community from potential prosecution by Microsoft over alleged violations of its IP in Linux and open source.

Well. It's a new concept. It takes a while for all of us to absorb it. Slashdot's Zonk gets it. The key piece, to me, is the fact that there is no expiration date on those vouchers. And don't forget that the vouchers are for support *and* updates. Updates mean software code. So I understand this to mean that Microsoft is conveying to customers the means to obtain GPLv3 code, if a voucher is turned in after the new license is in effect. Is this delicious or what?

I don't know which lawyer wrote the vouchers, but I'm guessing somewhere in Redmond, there is a lawyer beating his head against the wall right about now.


Moglen's Slides and Talk on SUSE Vouchers & GPLv3 Available | 406 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: icephoto on Saturday, May 19 2007 @ 10:21 AM EDT
So PJ can fix them.

[ Reply to This | # ]

Off Topic
Authored by: tuxi on Saturday, May 19 2007 @ 10:24 AM EDT

Put your Off-Topic posts here.

Clickys are encouraged.


[ Reply to This | # ]

Moglen's Slides and Talk on SUSE Vouchers & GPLv3 Available
Authored by: Anonymous on Saturday, May 19 2007 @ 10:50 AM EDT
Only Alanis would call it irony. Using a proprietary codec for something like
this is blatant stupidity.

Also, this closed codec stinks more than most -- mplayer won't play it even with
all the win32 codecs installed.

[ Reply to This | # ]

Redmond lawyer seeks new job?
Authored by: rsi on Saturday, May 19 2007 @ 11:16 AM EDT
but I'm guessing somewhere in Redmond, there is a lawyer beating his head against the wall right about now.

I would guess that at least one lawyer maybe hitting the bricks in a different way, looking for a new job on Monday!

Was that the sound of a chair being thrown in Balmer's office, I hear?

[ Reply to This | # ]

Devil's advocate
Authored by: PolR on Saturday, May 19 2007 @ 11:22 AM EDT
There is an interesting comment on Slashdot from someone claiming to be a law student. Here is the operative text:
Here MS has granted a limited liscense.. there is ample evidence as to intent at the time of the contract formation (many press releases from all concerned parties) and then this defense is practially a template for how to show bad faith on the part of a contracting partner. As discussed above, Novell has little / no option except to distribute under the 3.0 GPL, but doing so subjects their partner to very harsh terms which are explicity intended to [REDACTED] them over. That is a text-book worthy demonstration of abusive languge in a contract.
What should we think of this? I brings me thought of:
  • Microvell got cute with the GPL and it is only natural they get burned.
  • Novell didn't craft the so called "abusive" language. The FSF did and they are not a party to the Microvell agreement.

[ Reply to This | # ]

Moglen's Slides and Talk on SUSE Vouchers & GPLv3 Available
Authored by: Stumbles on Saturday, May 19 2007 @ 11:39 AM EDT
This revelation makes me wonder just how it will effect

You can tuna piano but you can't tune a fish.

[ Reply to This | # ]

A different point of view
Authored by: Anonymous on Saturday, May 19 2007 @ 11:43 AM EDT
I know most here have been operating on the assumption that the Microsoft-Novell agreement was part of some dark plot to make it easier to sue Linux users for patent infringement. That has never seemed likely to me. It seemed too far fetched that Microsoft would indemnify Linux users against patent infringement as part of a plan to sue them.

Now consider the apparent casual manner in which the SuSE certificates were drafted. Whatever one thinks of Microsoft, they have been extremely careful in drafting agreements with "partners". After all, they have definitely subscribed to the McBride school of business relationships: that "contracts are what you use against parties you have relationships with". Is it likely that the Microsoft legal team would have been so incompetent as to fail to understand the consequences of the GPL? Surely not. It makes much more sense to assume that they do not really care about the ability to sue.

I think Microsoft has the following objectives with its patent FUD programme:

  1. slow down the adoption of competitive products to their own by planting the impression that FOSS carries legal risks that are not present in closed source products;
  2. extort money for patent insurance from risk averse executive offices;
  3. create divisions within the FOSS community;
  4. eliminate the simple, commercial friendly and legally bulletproof GPLv2 license and get it replaced by something that will get less commercial support and be amenable to legal challenge, if Microsoft gets sued.
I do not expect many here to accept this, but Microsoft is smart. Suing Linux users for patent infringement would be stupid, but creating the impression that this is possible gains Microsoft a lot of traction in the market, especially since the FOSS community can be relied upon to help.

[ Reply to This | # ]

This theory might work even without the lack of expiry date
Authored by: PolR on Saturday, May 19 2007 @ 11:48 AM EDT
And don't forget that the vouchers are for support *and* updates. Updates mean software code. So I understand this to mean that Microsoft is conveying to customers the means to obtain GPLv3 code, if a voucher is turned in after the new license is in effect. Is this delicious or what?
We don't know how long the support contract is. Updates imply new versions of the code. It is a well established tradition that new versions may come with new license terms and condition. Microsoft themselves are adept of this technique. What if software updates to GPL3 are released during the duration of the support contract? Wouldn't the same theory apply to vouchers turned in before the new license as well?

[ Reply to This | # ]

The real danger from Microsoft
Authored by: elcorton on Saturday, May 19 2007 @ 11:51 AM EDT

As a sympathetic outsider to the Free Software movement and the Linux community, and an appreciative reader of Groklaw, I'm concerned about what I'm seeing in the reaction to the Microsoft-Novell deal.

Although I'm not a lawyer, I like to think I'm of normal intelligence and that I've learned something about the law by following the SCO litigation. To be effective, the GPL has to be understandable to thoughtful lay people. I find the anti-patent provisions in the GPL v3 incomprehensible. The explanations and arguments in its favor on this site are no more clear to me. Moglen's "tutorial" is equally unenlightening. I don't think I'm ever going to see how a copyright license can bind a party that is not exercising any of the rights of the copyright holder. It sounds like Darl material to me.

No doubt, most of the people who read these words will think I'm wrong, that I just don't get it. Maybe so. But if I don't get it, a lot of other people who are far less sympathetic than I am, and who make business decisions about software, won't get it either.

The greatest danger posed by Microsoft's patent blackmail is not litigation. It's that Microsoft will provoke a self-defeating reaction by ideologues in the FOSS camp. The old GPL is clear, effective, and touched with a flash of genius. Replacing it with one that's more convoluted and tortuous than a Microsoft EULA is the sort of thing I'm afraid of.

[ Reply to This | # ]

Could they refuse to honor the vouchers?
Authored by: eric76 on Saturday, May 19 2007 @ 11:54 AM EDT
What happens if Microsoft just refuses to honor the vouchers at that point?

If they just received a slap on the wrist a few years later, they would probably
figure it was worth it.

[ Reply to This | # ]

a lawyer beating his head against the wall right about now
Authored by: Anonymous on Saturday, May 19 2007 @ 12:04 PM EDT
Probably Ballmer using a chair to do the beating.

[ Reply to This | # ]

All of this makes a big assumption
Authored by: Anonymous on Saturday, May 19 2007 @ 12:08 PM EDT
The assumption being made here is that Novell will release future versions of
SuSE under GPL v3 before all of the coupons are redeemed. They could easily
hold off on any GPL v3 releases until after all of the coupons are redeemed. If
there are holdouts, then they've got a real problem. The word
"they've" in the previous sentance refers to both Novell and Microsoft
since they are both "partners" in this patent peace deal.

[ Reply to This | # ]

What IF
Authored by: Anonymous on Saturday, May 19 2007 @ 12:12 PM EDT
Isn't there a clause, never mind we don't know the exact wording, that would
allow M$ to terminate the Novell agreement at anytime? Who would slap their
wrist then?

--only because a lot of these agreements have a back out clause of some sort.

[ Reply to This | # ]

  • What IF - Authored by: Anonymous on Saturday, May 19 2007 @ 12:29 PM EDT
  • What IF - Authored by: PolR on Saturday, May 19 2007 @ 12:38 PM EDT
  • Yes... - Authored by: LocoYokel on Saturday, May 19 2007 @ 01:28 PM EDT
    • Yes... - Authored by: Ian Al on Sunday, May 20 2007 @ 10:04 AM EDT
  • What IF - Authored by: PJ on Saturday, May 19 2007 @ 01:47 PM EDT
Trolls out in force over GPL 3
Authored by: Anonymous on Saturday, May 19 2007 @ 12:20 PM EDT

I've been impressed at the increase in Microsoft trolls over GPL 3, both here
and elsewhere. Looks as if Moglen is onto something. Hope Linus comes around

[ Reply to This | # ]

Moglen's Slides and Talk on SUSE Vouchers & GPLv3 Available
Authored by: Anonymous on Saturday, May 19 2007 @ 12:22 PM EDT
There *may* be ways for Microsoft to wiggle out of this dillema, but not what you suggest.
Firstly it is FAR from clear that distributing a coupon is an actof of distribution of Linux.
It's true that it doubtful that Microsoft's SLES coupons make it a SLES distributor, but it will definetelly be a "conveyer". And theres a paragraph on GPLv3 that covers precisely this.
Secondly, there is no reason to suspect that Novell will distribute a GPL3 variant of Suse to coupon holders.
Except for the fact that those coupons specifically cover *updates*. So, unless Novell stops distributing SLES, even if Novell delivers SLES 10 in excange for the coupon, the customer is entiteled to upgrade to the latest and greatest under the agreement. And then GPLv3 kicks in.

[ Reply to This | # ]

  • Yeah, no. - Authored by: Anonymous on Sunday, May 20 2007 @ 07:21 PM EDT
Replying to the trolls
Authored by: Anonymous on Saturday, May 19 2007 @ 12:49 PM EDT
Because, as has been said before, many, many times -- the current version has
loopholes, and they are being exploited. It doesn't do what we want it to do.
It's NOT legally bullet-proof, the various examples of lawyers sneaking around
it's clear intent are proof of that.

Someone needs to go back into the usenet and other archives back when the GPLv2
was being introduced, and post some of the "Oh! It's so legalistic! We
don't understand it! The GPLv1 was so much clearer!" rants from back

[ Reply to This | # ]

Only one more layer of defense
Authored by: Anonymous on Saturday, May 19 2007 @ 01:10 PM EDT
If it were the only defense, the Monopoly would have to get a law passed to
nullify it. They might still. They should sneak it through some tax committee.
Maybe not sneak. What congressperson has the guts to deny them?

[ Reply to This | # ]

Moglen's Slides and Talk on SUSE Vouchers & GPLv3 Available
Authored by: Anonymous on Saturday, May 19 2007 @ 01:17 PM EDT

Maybe I really am all that dense, but this whole thing still doesn't make any more sense than it did yesterday. Even if it somehow is true that by distributing the vouchers Microsoft is binding itself to whatever GPL3 is when it comes out, we as a community would be absolute fools to take advantage of the situation.

The evident claim here is that by distributing vouchers (which amount to coupons) allowing somebody to purchase SLES at a discount (never mind that the discount is 100%) from Novell, they are binding themselves to the distribution conditions (licenses) of every package in every future version of SLES, even packages that don't exist yet and licenses that don't exist yet. As best as I can tell, that's all these vouchers are; they're basically like coupons or gift certificates.

Now let's suppose that Novell's intentions toward Microsoft are in fact malicious. Suppose somebody in the community creates a package whose license terms explicitly forbid Microsoft from distributing the package. Suppose Novell now puts this package in SLES 11. Never mind that the terms clearly violate the definition of a free software license; a package's author has a right to license a package under whatever terms she wishes. Novell can distribute whatever they legally have a right to distribute in SLES 11; there's nothing that requires everything in SLES 11 to be GPL compatible (the boxed OpenSUSE 10.2 set contains things that aren't free source at all, such as acroread). Now we have a situation where Microsoft has agreed to "distribute" something (per the discussion here), but they aren't allowed to distribute it (per this hypothetical license). What now? Does Microsoft, caught in a contradiction, vanish in a puff of greasy smoke? Or do we look at it more pragmatically and say that Microsoft either isn't distributing it at all (they're merely distributing vouchers that can be redeemed by Novell), or that they can't be redeemed in a way that violates the license terms of any of the packages in the distribution, or something like that?

Let's look at the coupon or gift certificate analogy a bit more closely. Suppose someone gives me a gift certificate to Micro Center or something, and I use that to purchase software. Does that mean that the person who gave me the gift certificate is now bound by the EULA on that software, just because Micro Center happens to be selling it and that person gave me the gift certificate (purchased from Micro Center) that I redeemed for that package? If the license terms on the package state that I'm not allowed to work on a competitive open source product (think Bitkeeper here), does that mean that the person who gave me the gift certificate is also not allowed to work on a competitive product? At this point, giving a gift that can be redeemed for anything with license terms means that the person who gave the gift is also bound by the license terms of whatever the recipient cares to redeem the gift for. If this really can be done, you can bet your bottom dollar that I am never, ever giving anyone a gift that could possibly be redeemed for something that might bind me, as a third party, to a possible future license that I might not want to be bound to. That basically means I wouldn't dare ever give anyone any gift at all.

Much has been made here of the "or later" language that most packages using the GPL apply:

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.

I believe that to be completely irrelevant here. For one, GPL3 is a different license than GPL2. It may be intended by the FSF to be similar in spirit, but that doesn't mean that it's the same license. Conceptually, releasing a new version of a package under GPL3+ vs. GPL2+ is releasing it under a different license, so in that regard it's no different from releasing it under a license outright forbidding Microsoft from distributing it. However, even if we finesse that, there's still the little problem that the distributor gets to pick the version of the GPL to distribute it under, not the recipient. So the recipient can't come back after the fact and say "I've decided that you distributed it to me under GPL3, so the new and improved patent language kicks in".

In any case, even if an outcome like this is possible, this is a battle we really don't want to win, because it will come back to bite us hard. If we can and do bind someone to undisclosed future changes in license, we can be certain that a) nobody will ever want to do business with us again, and b) the proprietary software community will be the first to jump on the bandwagon. I can think of various possibilities, but one that comes to mind is something where you buy a mobile device and the vendor can upload new firmware with different and more onerous license terms, and you can't block that update.

In any case, I suspect the deal between Novell and Microsoft is structured in a way that Microsoft really can plausibly claim not to be distributing software. They're distributing coupons that can be redeemed by Novell for product. Alternatively, they're actually buying boxed sets from Novell and exchanging those for their coupons. Since that activity is perfectly legal under copyright law -- they're not doing anything that "without permission would make [Microsoft] directly or secondarily liable for infringement under applicable copyright law" -- they can (re)distribute it without accepting the GPL.

I didn't see anything in Eben Moglen's slides that affect any of this in any way.

-Robert Krawitz

[ Reply to This | # ]

For the "I dont understand" crowd. (paid and genuine) ;)
Authored by: SilverWave on Saturday, May 19 2007 @ 01:30 PM EDT

For those genuinely confused this is the best post I have come across lately:
"One more time ... the GPL is a licence" from a post by: ine

Quote in full:
Authored by: ine on Saturday, May 19 2007 @ 12:59 AM EDT
One more time ... the GPL is a licence, not a contract. It is not mutual, it is unilateral.

It allows you to do something that you have no right to do otherwise (namely, you are free to copy, modify and distribute GPL'd software, except as part of non-GPL'd software).

It isn't an exchange, except in the social engineering sense: the GPL tends to create a growing pool of shared software that even sworn enemies can use and modify co-operatively (think Sun and IBM). IBM knows that it can put code into the GPL'd pool and that Sun will have to put any improvements that it makes back into the pool. So IBM benefits and Sun benefits, but they don't have to like each other.

But the GPL is like an edict. The owners of the copyright are not asking for your agreement, they are simply *telling* you what you are allowed to do with *their* code. It is entirely up to you whether you avail yourself of their licence. By choosing to distribute coupons for GPL'd software, Microsoft has chosen to avail itself of the GPL. Otherwise, what right have they to distribute GPL'd code or binaries to anyone?

I would just add that If you have an issue with a license changing, GPL2 to GPL3 etc., then you should not distribute/convey code that has this as part of its terms for use. D'oh!

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

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

[ Reply to This | # ]

The FSF cannot rewrite copyright law with GPLv3.
Authored by: Anonymous on Saturday, May 19 2007 @ 01:51 PM EDT
With its new version of the GPL the FSF gets to redefine what happens when someone needs a license "under applicable copyright law". What the FSF can not do is rewrite "applicable copyright law" to make it apply to situations the legislature never intended. Only the legislature can do that. Indeed this is recognized by the text of the GPL:
To "propagate" a work means to do (or cause others to do) anything with it that requires permission under applicable copyright law, except executing it on a computer or making modifications that you do not share. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well.
"Convey" is defined using "propagate" so the whole GPLv3 only applies to activities "that require permission under applicable copyright law".

Will someone please tell me how it is that "distributing coupons" is an activity that "requires permission under applicable copyright law"? I see where copyright law refers to "copying", "distributing", and "creating derived works", but I just can't find where it refers to "distributing coupons".

If "distributing coupons" is not an activity that requires a license, then MS does not require a license GPL or otherwise with respect to the Novell coupons. If MS does not require a license then it can not be restricted in any way by the terms of a license that it does not require and has not agreed to.

I am for freesoftware, but I think a lot of people have been engaging in the wishfull tinking of "if only".

"If wishes were horses beggars would ride."

[ Reply to This | # ]

Anyone with a voucher please post here!
Authored by: Anonymous on Saturday, May 19 2007 @ 02:41 PM EDT
Anyone who has a voucher,

Please post to this thread!

post anonymously if you like.

If you have multiple vouchers, please let us know if you are willing to donate
some to groklaw users for the express purpose of validating them AFTER the gplv3
has been released.

[ Reply to This | # ]

In some US states, undated vouchers may have expiration period determined by law
Authored by: Anonymous on Saturday, May 19 2007 @ 03:14 PM EDT
However, it is my understanding (IANAL) that in California, undated vouchers
never expire. Other states may differ.

[ Reply to This | # ]

FUD, FUD, glorious FUD - a repost
Authored by: Alan(UK) on Saturday, May 19 2007 @ 04:11 PM 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
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 | # ]

Damocles sword
Authored by: ikocher on Saturday, May 19 2007 @ 04:21 PM EDT
I think Novell will be M$'s Damocles sword...
If Novell decides to give GPL3 software for a voucher, M$ will be fryed.
Sort of this is up to Novell, as far as Novel wants/can keep going GPL2 only,
but there will be a time they could not be GPL2 only... Then comes the question
to M$: pay Novell so they can keep themselves GPL2 only, or loose their
"patent advantage". Can Novell keep the forked code in benefit to

Funny what this marvelous agrement might become, the ball is now on Novell's
side :) :) :)


[ Reply to This | # ]

This is delicious...
Authored by: Anonymous on Saturday, May 19 2007 @ 04:36 PM EDT
It looks to me like MS have the option of canceling the agreement the day before
the GPL v3 becomes effective.

...And nothing else really.

[ Reply to This | # ]

Moglen's Slides and Talk on SUSE Vouchers & GPLv3 Available
Authored by: Anonymous on Saturday, May 19 2007 @ 04:44 PM EDT
It's simply not legal to induce other people to infringe on copyright.
Contributing to infringement that does not exist (because of the grandfather clause)? Good luck with that one!

[ Reply to This | # ]

License change rights... compare FSF & M$
Authored by: ikocher on Saturday, May 19 2007 @ 05:04 PM EDT
M$ has the right, as the law permits and the EULA says it, to change the terms
whenever they want and they really do, just check the new EULAs that come with
patches, even security updates. I think M$ has done this at least since w98
Hardware companies even do this, since to use a driver for a piece of hardware
one bought, one must accept the license, and if you don't accept, you will not
be able to use the hardware at all. Great, another change in the terms of use.

Maybe this is bad, and I think this is not very kool, but as PJ said, this _is_
the law, not what it should be, but what it _is_.

Now FSF wants to use _this_same_right_, to change the license. I guess M$ will
come out saying this is bad, illegal, can't be done, etc; but is the same right
they had used since long ago, and M$ is pretty used to this. Many people live
happily with this "practice".

So, now that FSF wants to use this "technic", in order to protect
_everybodys_ from M$ FUD, guess what: people cry... Come on on which side you
are? What are you thinking? M$ can do it anytime they want, but FSF can't?
When M$ does, it does not extends your right, it all the way around: everytime
they do it, they limit users right even more.

Here FSF is giving us users and developers more rights, more freedom, and more
important: peace of mind against coporations and individuals that want to
control everything we do and how we do it.

I go with FSF, change GPL! Go FSF, go!


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Moglen's Slides and Talk on SUSE Vouchers & GPLv3 Available
Authored by: Robert Smits on Saturday, May 19 2007 @ 06:10 PM EDT
Please clear up my confusion. Can anyone tell me why Suse Linux, licensed under
GPLv2, is affected by GPLv3? I don't understand why Novell has any obligations
under v3 when it uses v2.

Thanks, Bob

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M$ seems to be in a pickle, I think...
Authored by: MDT on Saturday, May 19 2007 @ 06:12 PM EDT

Ok, I've been trying to wrap my head around all the arguments both ways, and I think I have it down, and I think M$ are hoisted well and good. I'm not sure exactly what the contract says, so I can't be sure, but I think it has to be one of the two Scenario's below.

Here's Why :

Scenario 1 :

They were paid by Novell with the vouchers. Part of the deal was that they would pay Novell X amount of money as part of their crosslicense deal. Then, Novell would give M$ X amount of money and 70,000 vouchers for Distrubtions of SUSE.

M$ accepted the coupons as payment for a debt. This would be the same as me accepting $1,000 and a hundred vouchers for CD Players as payment for a debt that Best Buy owed me. Now, I then give my vouchers (I accepted them as payment for a deal) and give the vouchers out to my friends. Is Best Buy distributing CD Players? No. They distributed the CD players to me, and then agreed to hold them for me until I gave them a voucher. When I gave my voucher to John Doe, I distributed that CD Player to John Doe just as if I'd gone into Best Buy and picked it up prior to handing it to him.

Scenario 2 :

M$ signed a deal with Novell, and agreed to give out 70,000 vouchers per year for 5 years. This is very straight forward, they are distributing the software.

This is the same as if I signed a contract with AOL, and said 'You give me X dollars, and I will give out vouchers for trial memberships'. Now, I have taken money in an agreement to give out access to someone elses product. I am distributing that product because John Doe would not have the free trial membership if I had not given it to him. I am a facilitator in his obtaining the product, and am either the agent of Novell (which means both Novell and M$ violate the GPL3 the day they distribute it), or I have redistributed on my own as a seperate entity (and Novell will scream from the highest tower in town that *they* are not distributing in violation, and that M$ is not an agent of theirs).

So, either way, M$ has only one real choice. They can, by their deal, back out of it at any point they choose, and I bet they will back out of it a week or so before the GPLv3 goes active. To avoid this situation. This is really what FSF wants anyway, the deal to be nullified. Which is fine with me.


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Moglen's Slides and Talk on SUSE Vouchers & GPLv3 Available
Authored by: Anonymous on Saturday, May 19 2007 @ 09:13 PM EDT

As usual,

#include <std_disclaimer/ianal.h>

The only thing that really makes sense to me, after reading Moglen's slides, is that he's trying to deliver a very stiff warning to Microsoft that it really should back out while the backing is good and make absolutely sure it doesn't even look like it's distributing any GPL3 code. It has been reported that he knows details of the deal under NDA that have not been made public, and it's certainly possible that Microsoft would find itself in hotter water than what I can see to be the case. Moglen isn't in the habit of spreading FUD, and that slide deck is really quite strongly worded, but he has a long track record of backing up everything he says in every particular.

I still find it very hard to see any circumstances under which they've actually incurred any obligations at this time -- again, maybe there's something I've missed. I don't see anything in the slide deck that indicates that Microsoft is already in trouble. Todd Bishop's blog indicates otherwise, but I'd rather read Moglen's remarks directly, rather than an excerpt, before going along with that. I still have trouble seeing how Microsoft's actions could be considered propagation or conveyance, since I still don't see where Microsoft is doing anything that would be considered infringement under copyright law -- but I'm certainly not an expert on all the ins and outs of it.

-Robert Krawitz

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Has FSF looked at Subsystem for UNIX-based Applications yet?
Authored by: leopardi on Saturday, May 19 2007 @ 09:44 PM EDT
Has Eben Moglen or anyone else associated with FSF looked at GPLv2 vs GPLv3 in relation to Microsoft's Subsystem for UNIX-based Applications? Will Microsoft be able to continue distributing it, or is it dead? Since the GPL components of this subsystem, and its associated utilities and SDK are already circulating under GPLv2, are they already protected from any Microsoft patent claims?

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Moglen's Slides and Talk on SUSE Vouchers & GPLv3 Available
Authored by: 351-4V on Saturday, May 19 2007 @ 10:43 PM EDT
All I can say is "Thank goodness Eben is on our side."

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Business as usual
Authored by: Anonymous on Saturday, May 19 2007 @ 10:57 PM EDT
This changes nothing. Microsoft was already barred from suing, because of the near-certain retaliation by companies and organizations with even larger patent portfolios. Since it's impossible to code anything these days without violating someone's patents, Microsoft would certainly be vulnerable. So they'll continue their FUD, and their threats, and keep the water muddy - just as they've been doing. This development is no reason for them to stop.

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But this only works if SuSE adopts GPLv3
Authored by: Anonymous on Sunday, May 20 2007 @ 07:23 AM EDT
... *and* if you can get that GPLv3d SuSE with the voucher. Even then Microsoft
will have some interesting days in the courts saying that they never intended to
distribute under GPLv3 and that the deal they entered by handing out the voucher
was changed without them being able to do anything about it (the same applies to
Windows-Users forced to accept licence changes with their updates or have an
unpatched system overrun by Viruses, but they won't invest the resources MS has
to change that).

But let's face it: Novell can simply not adopt GPLv3 for SuSE (won't happen
since they want to stay on top of development), or (maybe by renaming their
product) make it so that you can't get the GPLv3 SuSE directly via the voucher
(but you can upgrade, getting the upgrade from SuSE).

For example: SuSE changes their (GPLv3d) products name to "SuSE BrandNew
Server", not something you can get with the voucher which is only for
"SuSE Server", but you *can* upgrade "SuSE Server" to
"SuSE BrandNew Server" with some update which you get from *Novell*.
That way MS would never distribute under GPLv3 , yet Novell can adopt it and
even give people with vouchers the opportunity to upgrade. Why Novell would be
that nice to MS is another question, but they *did* enter the deal with MS.

The other thing is, that even if Novell put "SuSE Server" under GPLv3
and you could get it with the vouchers MS could (and will) argue along the lines
that this is a onesided change of the deal (Novell changes the deal between MS
and the receivers of those vouchers). With enough resources this could tie MS
aggressive patent strategy up in the courts for some years (see SCO), but
eventually they might succeed (and if it looks bad for MS *they* will stall and
meanwhile spread FUD).

All in all i think that while the vouchers may give a legal angle against MS
patent-bullying it's a long shot and by no means a free ride.

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Hey, there's an EASY way out for MS
Authored by: devil's advocate on Sunday, May 20 2007 @ 07:30 AM EDT

They just RECALL the coupons. Say that they were defective (which they are, according to them). Anyone who received a faulty coupon will get their money back if they paid any. "Sorry but we forgot to put an expiry date on them. Silly us. The patent protection wasn't meant to extend to GPL v3." If a company can recall its defective batteries why can't MS recall its defective coupons?

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Don't throw me into the briar patch...
Authored by: Anonymous on Sunday, May 20 2007 @ 10:15 AM EDT
If you disregard the fact that we all hate Microsoft, wouldn't it be a bit scary
if a little legal loophole like this meant that you could find yourself bound by
GPLv3, GPLv4, GPLv5 based on an agreement that pre-dated all of them?

Say MS sues someone over patent infringement.

Perry Mason dashes in at the last minute waving a SUSE voucher.

Scenario 1:
MS says, "We are being held to a license that didn't even exist when we
issued these vouchers. We were never a party to GPL3. Novell distributed the
software, not us. FSF say that GPL3 was not intended to be retro-active. To
accept this would have absurd consequences"

Judge: "I agree"

MS (to world): "WooHoo! We've defeated GPL in court!"

Scenario 2:
Judge: "Gotcha MS, you're banged to rights - your patent now belongs to the

MS (to world): "Look - GPLv3 is so viral it applies to you even if
once-upon-a-time you touched the GPLv2; even if you like GPL3, do you really
want to be bound retrospectively by whatever GPL 5,6,7 says?"

Upshot? At worst, MS loses a probably-invalid-anyway patent and scores a massive
FUD hit.

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Sounds like an opportunity
Authored by: Anonymous on Sunday, May 20 2007 @ 03:05 PM EDT
What would happen if the FSF put together code that violates as many of MS
patents as possible and this gets distributed under GPL3. Nice way of cross
licensing for free. Also, all comments seem to presume that Novell will not want
to distribute SuSE under the GPL3 and will look for a way around. Why should
they? They got what they wanted out of the deal. Maybe they will adopt the GPL3
as soon as it becomes available which makes Microsoft's position a whole lot
more precarious. Nice to see partnership going the other way for once. Nice one

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Why did Microsoft want the deal even before GPLv3 was completed?!?
Authored by: luvr on Sunday, May 20 2007 @ 04:09 PM EDT
Ever since Microsoft and Novell announced their deal, I have been wondering why Microsoft decided to strike the deal before GPLv3 got finalised.

Were they really in such a hurry, that they ignored any possible consequences of the GPLv3 on the code that the deal covered? Must have been quite a panic that they found themselves in, then!

Weren't they aware that the Free Software Foundation was in the process of reviewing the GPL? I find that rather hard to believe, but if they were aware, then they must have understood that the FSF would react to the deal, and that it would try and invalidate it under the new version of the GPL.

Did they believe that, since Linus himself had spoken out against GPLv3, the deal wouldn't be affected by it, since Linux would remain licensed under the GPLv2 anyway? This, too, seems strange to me, since there's far more to the typical Linux distribution than just the kernel; even if the kernel remains GPLv2 forever, the GNU tools, obviously, will move to GPLv3 pretty soon. Furthermore, Linus may change his mind, if he decides that the final version of GPLv3 is an improvement (as far as the kernel goes) after all.

All in all, the panic seems to be the most plausible explanation to me. Or am I overlooking something?

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Stallman's up, the pitch, Moglen Slides, Steals Home! [nt]
Authored by: Aladdin Sane on Sunday, May 20 2007 @ 09:07 PM EDT

"I've noticed wickedness wears pretty thick armor." 
  --Sancho Panza, "Man of La Macha", 1972

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But if vouchers==distribution isn't GPLv2 enough?
Authored by: Anonymous on Monday, May 21 2007 @ 06:59 AM EDT
The argument about the vouchers seems to be that if "A" gives
"B" a voucher to recieve some software from "C" then not
only is "A" the distributor of the software, but that the act of
"distribution" takes place when "B" hands the voucher to
"C", at which stage "A" becomes an involuntary party to any
agreements or obligations that "C" has entrered into in the
intervening time.

I hope that doesn't have unforseen consequences.

But, hang on, if handing out vouchers == distribution then isn't the entire
shennanigan neatly dealt with by v2? I thought the whole point of the voucher
shell game was to do an end-run around GPLv2 by not "distributing"
anything? My money would be on the "vouchers" turning out either to be
worthless bits of paper that don't actually promise anything, or they puport to
only cover any support and non-free software that comes with SUSE.

PS. Several sub-threads have cited the "GPLv2 or later" wording.

Is this relevant? Here's my understanding of what that "or later"

If a bit of code says "GPLv2 or later" then I can choose to
re-distribute that code under GPLv3 - probably because I've modified it or
merged it with some v3 code. Without the "or later" I couldn't do that
without seeking out the copyright holder, because, for better or worse, GPLv3 is
more restrictive than GPLv2.

(Interesting aside - if I simply re-distribute, am I entitled to change "v2
or later" to "v3 or later"? I wouldn't think so)

However, if I just re-distribute it under v2, don't merge it with any v3 code,
then the only license I've agreed to is V2. If some downstream distributor
migrates it to v3, that is entirely their responsibility. So the "or
later" clause is pretty irrelevant to the MS case.

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Vouchers will not be honoured.
Authored by: Anonymous on Monday, May 21 2007 @ 02:29 PM EDT
MS can ask Novell not to honour the vouchers with GPL3 code. If MS does this
and Novell goes ahead anyway, then it will be tough proving that MS distributed
GPL3 code. If Novell complies with MS's request then the voucher owner can sue
MS and/or Novell. I doubt they will be able to collect much more than the price
of the SuSE Linux release in question.

Either way, MS's can't-stand-the-light-of-day patents are still under the full
control of Redmond.


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Moglen's Slides and Talk on SUSE Vouchers & GPLv3 Available
Authored by: Anonymous on Friday, June 01 2007 @ 10:41 AM EDT
Nice work but... no cookie yet.
The vouchers do not have an expiry date. True, and a very interesting oversight
it is.

They also lack, however, another provision afaik: they do not state which
specific version (or versions) of SUSE Linux they are redeemable for. It may be
that the still-secret part of the Microsoft-Novell agreement does specify that.
It may also be that Novell simply will decide to sidestep the issue altogether
and give (e.g.) SLES 9 to any comers with voucher in hand.

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