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When Microsoft Met GPLv3
Monday, July 09 2007 @ 11:33 AM EDT

Now that Microsoft has declared itself untouched by any GPLv3 terms, everyone is trying to figure out if they have a leg to stand on. There is a whole lot of analysis going on, with some wondering if Microsoft is a distributor of software under GPLv3 by means of the voucher distribution and others wondering just what those vouchers included.

First, "distribution" isn't the issue with GPLv3. That is a GPLv2 question, as I'll show you. GPLv3 talks about "propagating" and "conveying", not just distribution. Propagation includes anything, including distribution but not limited to it, that would make you directly *or secondarily* liable for infringement if you lack permission. Convey means "any kind of propagation" that enables another party to make or receive copies of a work. Like selling them the vouchers, perchance? It's a much broader category of activities than just distribution, and I'll explain the terms that I think would have made Microsoft fit neatly into the "convey" category, had they not backed out. I think you'll be able to see how much more protection GPLv3 provides to your code than GPLv2.

And somehow I missed this earlier, but I now discover that if you read the marketing agreement between Novell and Microsoft more carefully than I did before, it turns out we can know what one got with the vouchers, and what they offered included software, upgrades, and support. No wonder Microsoft decided to pull the plug before any GPLv3 software began to be made available. I just don't know if that is enough to save them, since the vouchers they already sold have no expiration date.

First, the GPLv3 definitions of propagate and convey:

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 modifying a private copy. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well.

To “convey” a work means any kind of propagation that enables other parties to make or receive copies. Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying.

Both definitions matter when we begin looking at the GPLv3 clauses that I think could be viewed as applying to Microsoft:

You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License. For example, you may not impose a license fee, royalty, or other charge for exercise of rights granted under this License, and you may not initiate litigation (including a cross-claim or counterclaim in a lawsuit) alleging that any patent claim is infringed by making, using, selling, offering for sale, or importing the Program or any portion of it....

If you convey a covered work, knowingly relying on a patent license, and the Corresponding Source of the work is not available for anyone to copy, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means, then you must either (1) cause the Corresponding Source to be so available, or (2) arrange to deprive yourself of the benefit of the patent license for this particular work, or (3) arrange, in a manner consistent with the requirements of this License, to extend the patent license to downstream recipients. “Knowingly relying” means you have actual knowledge that, but for the patent license, your conveying the covered work in a country, or your recipient's use of the covered work in a country, would infringe one or more identifiable patents in that country that you have reason to believe are valid.

If, pursuant to or in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of, a covered work, and grant a patent license to some of the parties receiving the covered work authorizing them to use, propagate, modify or convey a specific copy of the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.

A patent license is “discriminatory” if it does not include within the scope of its coverage, prohibits the exercise of, or is conditioned on the non-exercise of one or more of the rights that are specifically granted under this License. You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a discriminatory patent license (a) in connection with copies of the covered work conveyed by you (or copies made from those copies), or (b) primarily for and in connection with specific products or compilations that contain the covered work, unless you entered into that arrangement, or that patent license was granted, prior to 28 March 2007.

They certainly seem, to my brain, to be covered by the phrase "propagate by procuring conveyance of" in that they were propagating and procuring conveyance of SUSE by means of the vouchers they actively marketed. Now, in Microsoft's Statement About GPLv3 [local copy], it mentions both support and updates:

While there have been some claims that Microsoft’s distribution of certificates for Novell support services, under our interoperability collaboration with Novell, constitutes acceptance of the GPLv3 license, we do not believe that such claims have a valid legal basis under contract, intellectual property, or any other law....

At this point in time, in order to avoid any doubt or legal debate on this issue, Microsoft has decided that the Novell support certificates that we distribute to customers will not entitle the recipient to receive from Novell, or any other party, any subscription for support and updates relating to any code licensed under GPLv3. We will closely study the situation and decide whether to expand the scope of the certificates in the future....

In particular, our technical and business collaboration with Novell continues to move full steam ahead, including our joint development work on virtualization, standards-based systems management, identity interoperability and document format translators. In addition, the patent covenants offered by Microsoft and Novell to each other’s customers are unchanged, and will continue to apply in the same way they did previously.

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

We did expect Microsoft to make some changes with regard to the vouchers. Novell acknowledged in its most recent 10K that the patent agreement could be affected by GPLv3's final terms, and Novell expressed in its risks section how the final GPLv3 could impact the Novell-Microsoft deal:

If the final version of GPLv3 contains terms or conditions that interfere with our agreement with Microsoft or our ability to distribute GPLv3 code, Microsoft may cease to distribute SUSE Linux coupons in order to avoid the extension of its patent covenants to a broader range of GPLv3 software recipients, we may need to modify our relationship with Microsoft under less advantageous terms than our current agreement, or we may be restricted in our ability to include GPLv3 code in our products, any of which could adversely affect our business and our operating results. In such a case, we would likely explore alternatives to remedy the conflict, but there is no assurance that we would be successful in these efforts.

And that is exactly what has just happened. Microsoft has in fact altered its behavior to try to avoid being impacted by GPLv3. So much for "we are not bound by GPLv3". Clearly they have enough concerns, they felt they needed to make a change. Why might they be worrying?

Remember that Microsoft wasn't giving those vouchers away. It was selling them for a profit, which the agreement permitted:

Novell acknowledges and agrees that Microsoft may exercise its sole discretion in determining how and whether to use and/or distribute the Prepaid Subscription Rights to best implement Microsoft’s internal business strategies for driving incremental revenue growth and otherwise furthering Microsoft’s business interests. Accordingly, Microsoft, in its sole discretion, will establish the price it will charge Shared Customers and other SLES licensees for such Prepaid Subscription Rights. Novell acknowledges that it is not entitled to share in any revenue (if any) generated by Microsoft from the distribution of the Prepaid Subscription Rights.

So it wasn't comparable to some guy standing on the corner and handing out flyers or a company throwing a coupon in the box with your order. The vouchers represented a much deeper involvement. Here's what the Recitals section of the Novell-Microsoft marketing agreement says:


The parties desire, pursuant to the terms and conditions set forth in the Agreement below, to collaborate on the commercialization of certain of their respective current and future technologies by, among other things:

• marketing a combination of Microsoft and Novell virtualization offerings that allow SLES to run as a guest operating system on Windows, and Windows to run as a guest operating system on SLES, and certain other agreed-upon activities between the parties;
enabling distribution by Microsoft of Novell support and update service subscriptions for SLES; and
• coordinating the provision of customer support for each party’s virtualization technology components between Microsoft’s and Novell’s respective customer support organizations.

Unfortunate choice of wording, don't you think, in the circumstances? -- "enabling distribution by Microsoft of Novell support *and update* service subscriptions for SLES" seems to nail them to the wall pretty well. But it gets worse. In the marketing plan section, you find this paragraph:

(f) Upgrades. The parties acknowledge and agree that, as the parties issue Upgrades to the Combined Offering Software Components during the Term, they will incorporate such Upgrades into the Marketing Plan activities in a mutually agreed upon manner, provided that if a given Upgrade embodies material functional or feature modifications inconsistent with the overall goals of this Agreement, the parties will assess and come to a mutual decision regarding how and whether to market such Upgrades under this Agreement.

So upgrades were contemplated and included as part of the deal. Clause 4.3(d) shows us that specifically:

(d) Implementation Plan. Within *** following the Effective Date, the parties agree to jointly create, by written agreement, a plan that describes (i) the content of the Subscription Certificates, (ii) the process by which Novell will issue the Subscription Certificates to Microsoft, (iii) the process by which Microsoft can exchange Subscription Certificates in inventory relating to SLES Priority Subscriptions for SLES Standard Subscriptions, and vice versa, based on market demand; and (iv) the process by which the recipient of a Subscription Certificate may notify Novell that it seeks to activate the Prepaid Subscription Right, and by which Novell will execute the appropriate SLES Subscription with recipients who activate the Prepaid Subscription Rights, enroll them in support, and enable them to receive SLES updates pursuant to their SLES Subscription.

And clause 1.15 defines SLES as including software upgrades:

1.15 “SLES” means SUSE Linux Enterprise Server version 10 and any Upgrades thereto that Novell may commercially release during the Term.

So upgrades were part of the offering. Here's the definition of "upgrades" in the agreement:

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

Bug fixes is code, folks. Ditto revisions, enhancements, localizations, updates, upgrades and modifications. Now tell me Microsoft, had they not run for the exit, wouldn't have been distributing software under GPLv3, let alone conveying or propagating. Puh lease.

I think after reading all this, you can see why the company decided to try to scrape the Novell vouchers off of its shoes like toilet paper stuck to the bottom. But with the vouchers having no expiration dates, I really wonder if what they have done is enough. So when I read Microsoft's statement that it isn't bound by GPLv3, I'd call it hopeful optimism that the changes they've announced will help them retreat from what would inevitably have been a huge GPLv3 impact. I read it as saying, "*Now* we aren't bound, any more, because we stopped doing what we were doing that would have bound us."

But those pesky vouchers with no expiration date.... the saga is not yet over. So, let's just say, to be continued.

As for Microsoft's statement that they "remain committed to working with the open source community", I have to ask, how will that work, when the GPL is the dominant license chosen by the authors of the community's code? One can't help but wonder how well Microsoft understands the GPL even now. They have brilliant lawyers, no doubt about it, but they are not GPL specialists, and law is a profession of specialization, as you have just witnessed.


When Microsoft Met GPLv3 | 820 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off-topic here, please
Authored by: overshoot on Monday, July 09 2007 @ 11:37 AM EDT
There are some handy instructions in red at the bottom of the comment page for
posting clicky links, too.

[ Reply to This | # ]

Corrections here, please....
Authored by: Jude on Monday, July 09 2007 @ 11:42 AM EDT
... so PJ can find them

[ Reply to This | # ]

Does Microsoft have RIAA/MPAA to thank for this?
Authored by: Jude on Monday, July 09 2007 @ 11:49 AM EDT
Or perhaps even Microsoft themselves helped dig this hole.

IANAL, but it seems to me that the concept of contributory infringement might
have a bit to do with Microsoft's predicament. Is this another case of being
careful what one asks for because one might get it?

[ Reply to This | # ]

When Microsoft Met GPLv3
Authored by: tknarr on Monday, July 09 2007 @ 11:56 AM EDT

I don't think, though, that the GPLv3'd definitions would come into play. However much we might wish otherwise, Microsoft is allowed to reject the terms of the GPLv3. If they reject it, how can it's terms apply? Now, if they do reject it then they're left with only what's allowed under copyright law, which means they aren't allowed to make and distribute copies. But at that point the copyright holder would have to use the definitions of copyright law, not the GPL, since their argument that Microsoft did in fact do something prohibited by copyright law would be based on copyright law and not the GPL.

I still think Microsoft is caught, that the way they structured the deal makes their coupons distribution by any definition, but I don't think we can rely on definitions in the GPL to control what copyright law allows and prohibits.

[ Reply to This | # ]

Two questions...
Authored by: Anonymous on Monday, July 09 2007 @ 11:59 AM EDT
Isn't any code distributed as "GPL 2 or later" already immediately GPL
3 code?

How will Novell recover the costs of providing service and upgrades for all
those certificates M$ sold?

[ Reply to This | # ]

Did Novell plan this?
Authored by: Anonymous on Monday, July 09 2007 @ 12:02 PM EDT
One can only wonder if this Microsoft/Novell agreement wasn't a plan by Novell
to back Microsoft into a corner when the GPL3 was issued.

GPL3 may override greed.

[ Reply to This | # ]

When Microsoft Met GPLv3
Authored by: Anonymous on Monday, July 09 2007 @ 12:03 PM EDT
PJ Wrote:
Now tell me Microsoft, had they not run for the exit, wouldn't have been
distributing software under GPLv3, let alone conveying or propagating.

Microsoft didn't run for the exit for GPLv2, so does this mean that Microsoft is
legally still distributing GPLv2 code?

[ Reply to This | # ]

They may have an out...
Authored by: bwcbwc on Monday, July 09 2007 @ 12:08 PM EDT
Actually, since no software has actually been released under GPLv3 yet, they may
have a way out. It would require a fork off of the current GPLv2 code, and
continued licensing of the "Microsoft Linux" under GPLv2. Novell says
they'll release SW under GPLv3, but have they ever stated that they won't
continue to support SW under GPLv2?

[ Reply to This | # ]

Poisoned pills work both ways
Authored by: Anonymous on Monday, July 09 2007 @ 12:08 PM EDT
All this brouhaha over how much trouble Microsoft is in should provide plenty of
fodder for their PR people to show customers how dangerous and viral GPL code

[ Reply to This | # ]

Did Novell set a trap for MS???
Authored by: Anonymous on Monday, July 09 2007 @ 12:15 PM EDT
Reading through this discussion, I just had an odd thought -- Since Novell's
lawyers have shown great skill & strategy in their dealings with SCO, what
if they had used even more cunning in making this arrangement with Microsoft and
the agreement which Novell made is really an intentional GPL trap which MS
arrogantly walked into. Perhaps Novell is settling some old scores after all?

We thought that Novell understood the GPL and were confused with what they were
doing. Perhaps Novell really does have a GPL black belt and things like the no
expiration date weren't oversights, but planned features. Now, that the real
ramifications of this agreement are becoming apparent to all, the trap is
already sprung and MS is struggling to find a way out. This would seem to fit
better with the legal kung fu that Novell seems to exhibit with SCO; of course,
this strategy would have been pretty risky and is probably a fictional daydream,

[ Reply to This | # ]

Novell will use the GPL3
Authored by: Chris Lingard on Monday, July 09 2007 @ 12:20 PM EDT

Novell have replied to Microsoft's claim that they are not bound by licenses. Here is the link

On Thursday Microsoft had declared that it was "not a party to the GPLv3 license and none of its actions are to be misinterpreted as accepting status as a contracting party of GPLv3 or assuming any legal obligations under such license;" and that furthermore "at this point in time, in order to avoid any doubt or legal debate on this issue, Microsoft has decided that the Novell support certificates that we distribute to customers will not entitle the recipient to receive from Novell, or any other party, any subscription for support and updates relating to any code licensed under GPLv3."

Novell, however, begs to differ: Regardless of how the matter of Microsoft's Suse Linux certificates was finally resolved Novell would in all cases supply customers with a complete subscription for the Suse Linux Enterprise Server, including updates of GPLv3-licensed program versions. Novell welcomed and supported the new GPL version and was planning to include GPLv3 software in its distribution, it was said. There were no provisions in the final version of GPLv3 that would prevent Novell from doing so, the company declared.

But if Microsoft have promised something in the vouchers that they sold, how can they refuse to honour them.

[ Reply to This | # ]

Can Microsoft stop themselves from distributing GPLv3 Code?
Authored by: Anonymous on Monday, July 09 2007 @ 12:21 PM EDT

Back in the days of IBM mainframes that only talked to other IBM mainframes, IBM discovered that IBM code could be e-mailed out of their organization and thus "distributed". This was at a time when IBM built the hardware and largely controlled both ends of the conversation. Even with huge amounts of control, IBM was never able to completely stop IBM code from "leaking" out. How is Microsoft going to do it in the era of the Internet and the general purpose computer?

How likely is it that Microsoft will never distribute GPLv3 code in any shape, way, or form? Microsoft is bound to distribute Linux. If they give a Linksys WRT54/GL router to someone they are distributing Linux. If they give a next generation cell phone to someone, they are distributing Linux. If they purchase and use a Mac, they likely have some GPL software on it. If Microsoft uses a supercomputer somewhere, they are likely using Linux. If they a give out an old TiVO, they are distributing Linux.

Linux is everywhere. It has taken over the embedded world. It has taken over the high-end world. Universities run all there new ideas on Linux. How is Microsoft with tens of thousands of employees going to effectively purify itself from distribution of Linux?

[ Reply to This | # ]

When Microsoft Met GPLv3
Authored by: Anonymous on Monday, July 09 2007 @ 12:31 PM EDT
If someone 'calls' them on it, I expect Microsoft will ask them to be specific
about what's being distributed, and will cease distribution of the item in
question forthwith.

GPL always gives that as an option.

[ Reply to This | # ]

When Microsoft Met GPLv2
Authored by: webster on Monday, July 09 2007 @ 12:35 PM EDT
1. Distributing vouchers is distributing code. They let the cat out of the bag
under GPLv2 as well. V3 just makes it more specific and more difficult to
weasel around.

2. Why are they now backtracking at the debut of v3? a) They want to make it
seem like they didn't give up their rights to sue under v2; and b) they want to
preserve the FUD.

3. All of the redlining in the article above existed for v2, except the first

<red>Microsoft may cease to distribute SUSE Linux coupons in order to
avoid the extension of its patent covenants to a broader range of GPLv3 software

This embodies several fallacies. It presumes that the Monopoly hasn't already
extended its patent covenants to Linux under GPLv2. They know what the GPL is.
You can't distribute SLES without it. They also know you can't modify the GPL.
They have distributed SLES through distributing coupons. When you play with
that slick and sticky tar baby of the GPL, you are stuck. You get the code
free, use it, change it and distribute it free. Free from other's claims and
free from your claims. The Monopoly knows this. They are lying to maintain the

Just as SCO has waived any claims by distributing all code in question under the
GPL, so has the Monopoly. Linux is free from Monopoly claims as of the date of
the last coupon used. They'll just have to invent new patents after the last


© 2007 Monopoly Corporation. ALL rights reserved. Yours included.

[ Reply to This | # ]

Why is everybody looking...
Authored by: oneandoneis2 on Monday, July 09 2007 @ 12:43 PM EDT what's written in the GPL to decide if it applies to MS?

I can write "By reading this text you agree to become my personal
slave" and it means nothing. Licenses don't get to define when they apply
to you.

For MS to come under the terms of the GPL, they have to do something that
COPYRIGHT LAW says is illegal without a license. If copyright law says that
selling vouchers for somebody else's copyright works constitutes copying, then
MS is indeed going to take delivery of a GPL v3 shafting because they've either
violated copyright law or accepted the GPL.

But if copyright law says that selling vouchers that can be used to get a copy
of a copyrighted work FROM SOMEBODY ELSE doesn't constitute you making a copy,
then the GPL v3 can say that you have to paint yourself blue and it won't be
relevant: If they haven't made something legally considered to be a copy, they
haven't come under copyright law, so they haven't done anything that requires
them to accept the GPL.

[ Reply to This | # ]

Who will Test these theories?
Authored by: rsteinmetz70112 on Monday, July 09 2007 @ 01:01 PM EDT
It seems to me that regardless of the analysis here and elsewhere the only sure
way to resolve this is for someone to step forward and sue Microsoft for
infringement or something. I can't imagine who would be willing to do that.

The other possible resolution is for Microsoft to sue someone for something
(probably patent infringement) and have these issues brought up as a defense, or
more likely a counter claim. I don't think Microsoft will sue anyone.

It seems to me Microsoft has some credible defenses which include;

"Conveying vouchers for someone else's service is not prorogation. Whatever
that means."

"The GPLv3 is copyright abuse, requiring more that copyright law

However much you believe Microsoft is wrong in those or any other arguments, it
will be long and expensive to resolve this thorough the courts.

I've wondered for a while whether the GPLv3 is not subject to attack by its
complexity and breadth. The beauty of GPLv2 to me is that it was simple, clear
and limited.

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 | # ]

Where does the definition of conveying end?
Authored by: Anonymous on Monday, July 09 2007 @ 01:06 PM EDT
If I download gpl v3 licensed software through the internet, Are my ISP and the
ISP of the entity whose web site that I download it from considered to be
conveying? What about all of those other ISP's in between whose routers allowed
me to get my copy? What about the search engine that I used to find it in the
first place, or my friend that emailed me the link? What about the owners of the
DNS servers that allowed me to actually find the ip address of the host that was
referenced in the link?

[ Reply to This | # ]

Dangerous PR
Authored by: sproggit on Monday, July 09 2007 @ 01:19 PM EDT
I would be very interested to know how effective MS and in particular their
lobbying capability is going to be in their inevitable attempts to try and spin

From a slightly wider, perspective, however, another thought. Consider how the
story to date would appear as viewed by a technology company [say a hardware
vendor] who have some employees advocating the release of drivers under the GPL.
Suppose that the hardware in question lives within the "PC" ecosystem
and therefore that the hardware vendor has a relationship with Microsoft.

From that outside perspective, it could easily be considered that

1. a GPL v3 draft was written.
2. MS decided to weigh in and try and cut a deal with Novell.
3. The FSF decided to re-write the GPL just to rub Microsoft's nose in it.

OK, before we go further, we all know that GPLv3 was in a consultation phase and
that the release that followed the Microsoft deal would have happened
regardless. We also know that Richard and Eben introduced the changes that made
the final draft to solve a wider issue, i.e. to prevent the subversion of FOSS
software and/or attempts to break the spirit of the GPL license.

But think about this from the context of the wider technology community. We
review this on a daily basis. If your only real connection with these issues
came from your Microsoft Sales Rep that sold you copies of MSDN Universal and
some Developer Tools, how easy would it be for Microsoft to introduce the
thinking that, "This is what happens when you get involved in that nasty
GPL stuff" ???

The reason that this happens so often and in such a widespread was is at least
in part because of the way that corporations make decisions. Does the hard-core
tekkie whose job it is to fix PCs get to choose the hardware and software
configurations being used? No, it's the executive who gets taken out to lunch by
the sales reps from the technology companies. And that's how decisions are

I think that we need to be very mindful of the way that changes like the last
set introduced for GPLv3 - essential though they were - are discussed and
disseminated around the wider business community. Personally, I think it would
be nice if companies that have come on board with GPL v3 were to take the time
to explain the consequences to their customers. So IBM and others should be
encouraged to do so.

I also think it would be nice to see companies like IBM, who have contributed to
the FOSS community and continue to support it, would provide useful material for
"FOSS Evangelists", if I can use the term, who work for many of their
customers. It's the grass-roots work like this that can generate awareness and
support that no amount of MS PR can ever hope to overturn, and that's what we
need to remember when we're in the middle of these debates...

[ Reply to This | # ]

When Microsoft Met GPLv3
Authored by: Anonymous on Monday, July 09 2007 @ 01:47 PM EDT
Does anybody seriously believe that Microsoft can be forced to agree to the
GPLv3? You can't accidentally enter into a contract. This is first day of law
school stuff. Microsoft has clearly repudiated the GPLv3. No court would ever
find otherwise.

The only claim against Microsoft would be for copyright infringement. Since they
are not a party to GPLv3 they have no permission to redistribute code which is
only available under GPLv3.

But even if Microsoft screws up and, in the future, distributes code to which
they have no license, I don't see how the subsequent infringement claim (if
there even is one) is going to hurt Microsoft in any material way.

[ Reply to This | # ]

I don't get it
Authored by: Anonymous on Monday, July 09 2007 @ 01:50 PM EDT
I'm sorry, but I don't see how any of this matters. Why does it matter *when*
the vouchers are used? Wouldn't the law have to look at the license used *when*
the vouchers were given? If Novell gives out something different when people
turned in the voucher, is Microsoft somehow magically associated with the new
licenses? Lets say the next version of SuSE included a package whose license
that said "if you convey or otherwise help distribute this software and you
own the source code for MS Windows, you must release the source code for MS
Windows under the BSD license". Would this mean that Microsoft will be
forced to actually do it? That just doesn't seem right to me. What gives
Novell that power?

[ Reply to This | # ]

Does US law apply to Microsoft?
Authored by: Anonymous on Monday, July 09 2007 @ 02:15 PM EDT
It seems they are untouchable. Who will make them comply?

[ Reply to This | # ]

One Loophole for Microsoft
Authored by: BassSinger on Monday, July 09 2007 @ 02:21 PM EDT
From what I've read of the Microsoft/Novell vouchers, they only apply to SLES
(Suse Linux Enterprise Server). So one loophole exists. If Microsoft can get
Novell to limit SLES to GPL2 code, and rename the new code released under GPL3
then the vouchers would not be good for GPL3 code and thus they would not be
subject to those restrictions and limitations.

However, that would involve a lot of cooperation from Novell, and one would hope
that they are going to make M$ pay big time for such *relief* if they do it.

This, however, does not exempt them from the GPL2 restrictions they have already
distributed. With luck, those will also come back to bite them where it hurts.

In A Chord,


"We cannot solve our problems with the same thinking we used when we created
them." -- Albert Einstein

[ Reply to This | # ]

identifiable patents
Authored by: Anonymous on Monday, July 09 2007 @ 03:06 PM EDT

" “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."

Does this mean that not identifying the patents and not believing them to be valid is a potential workaround?

[ Reply to This | # ]

Microsoft has another way out
Authored by: Anonymous on Monday, July 09 2007 @ 03:26 PM EDT
You only need to accept the GPL if you wish to legally distribute GPL code. So ... they just admit to willful copyright infringement. Their lawyers probably figure that they can argue that Linux has "no value" since it is given away free, pay a nominal fine, and then make up the difference when they start suing for patent infringement (or just bully more distributors into paying Microsoft tax).

[ Reply to This | # ]

When Harry Met Sally
Authored by: Anonymous on Monday, July 09 2007 @ 03:32 PM EDT

When Microsoft Met GPLv3.

I couldn't help but wonder: Is this going to be a romantic relationship?


[ Reply to This | # ]

Contributory infringer or a vicarious infringer?
Authored by: Ian Al on Monday, July 09 2007 @ 04:07 PM EDT
There has been much discussion about whether Microsoft, by virtue of the coupons, is subject to the "propagating" and "conveying" of software as defined by GPL V3.

What Microsoft want to, theoretically, do is to sue Linux users for patent violation. What they want to avoid is any responsibility for causing either copyright violation or violation of the patents forming the basis of their case. (It's all theoretical because they dare not make any patent claims.)

GPL V3 says

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
We know that, if they succeed in bringing patent violation litigation, Microsoft make both GPL V2 and GPL V3 software unavailable for Novell to distribute under the licence. Novell are then, directly, guilty of copyright violation. Have a look at this link contributory infringer or vicarious infringer. So GPL V3 is directly calling on this bit of copyright law whereas V2 implies it. With the vouchers Microsoft are contributory infringers and/or vicarious infringers of the copyrights in Linux. Further, Microsoft are also directly inducing the infringement of exactly the patents that would forms the basis of their litigation. I can't say what the defences that this brings as IANAL, but IIRC the law looks very unkindly on law suits where the infringing action is the direct result of the plaintiff's actions. I assume that the copyright violations in which they would be complicit would not go well for them, either. What it would say to the world's courts and the world's Microsoft customer's about the value that Microsoft put on not violating other people's copyrights and the obvious abuse of monopoly would also go badly for them.

With a single bound, Microsoft can make themselves unbound by GPL V3 by simply withdrawing the patent claims and making honest and legal distributors of Novell, again. Then the FUD goes pop.

What if Microsoft decide that it is just too dangerous to do more than FUD? Well, the covenant is to not sue someone over patent violations. (Who that might be is meaningless and irrelevant as they are not a party to the covenant and cannot be legally sure that it appies to them.) What it isn't is a licence to use the patents. If Microsoft is not lying (as if!) then Novell is violating copyrights in the GPLed software they are distributing because they are also violating the Microsoft patents. Microsoft is already a contributory and/or a vicarious infringer. That can't be a comfortable thought for Microsoft. Well, they said it. They are not bound by GPL V3 so they are bound by copyright law and they are already violating that law. Unless they are lying about the patents.

Of course, there is a way out of this conundrum. Microsoft need to unsell the Dell and Walmart coupons. Otherwise, the first one to be sold shoots off both feet. Then they need to scrap all of the deals including the interoperation elements. Providing millions of dollars worth of support for the violation of their own alleged patents is just as bad as selling coupons. I can't see what the remedy is for the Microsoft violations of GPL copyrights, but there must be a way! A huge prefessional company would not get themselves into an illegal act that they could not back out of, would they? However, the only way I can see is for them to publicly state that all of their pronouncements about violations of their patents were a major mistake on their part and that they withdraw all claims that they have made against open source software.

Yeah, right!

Ian Al

[ Reply to This | # ]

Open Office
Authored by: Anonymous on Monday, July 09 2007 @ 04:44 PM EDT
It will be very interesting if OO were to be released under the GPL 3. What will
happen then to the ODF/OOXML convertors that Novel, Xandros and Linspire are so
fervently working on ?

I`m waiting for more fun to start !

[ Reply to This | # ]

Regardless of the outcome, this matters
Authored by: Anonymous on Monday, July 09 2007 @ 05:01 PM EDT
It matters because this is scaring Microsoft. Microsoft is the bully and GPL v3
has the teeth to scare even the bully. Now that others are seeing that there's
something that doesn't scare them but that scares Microsoft, they can take
courage and start standing up to the bully.

It may not kill the bully or put them in prison, but it can certainly eliminate
the fear from the rest of the kids on the playground.

[ Reply to This | # ]

Windows Services for Unix
Authored by: Anonymous on Monday, July 09 2007 @ 05:02 PM EDT
WSU ships with loads of stuff

I wonder if this is all 100% GPL free

[ Reply to This | # ]

If it's not covered by the GPL, then it's not legal.
Authored by: darkonc on Monday, July 09 2007 @ 05:32 PM EDT
If Microsoft's 'procuring' of copies of Linux for their customers (via Novell, or otherwise) is not covered in the GPL then, to the extent to which it is a violation of Copyright, it's illegal.

The fact that Novell is normally a legal GPL2 distributor may not quite cut it because, in this case, they're actually acting as an agent for Microsoft, who is not (it appears) agreeing to the GPL (2 or 3?).

In any event, now that MS has disavowed distributing any GPL3 software via the Novell vouchers, customers who get GPL3 software (including updates) from Novell are exposing themselves to precisely the kind of lawsuit that those vouchers were supposed to protect them from.

Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

remain committed to working with the open source community
Authored by: Tweeker on Monday, July 09 2007 @ 06:02 PM EDT
Microsoft is exactly as committed to working with the open source community as
it was a month ago...

[ Reply to This | # ]

copyright, copying, distribution
Authored by: Anonymous on Monday, July 09 2007 @ 06:04 PM EDT
Ok... Maybe I don't know anglo saxon copyright, but I thing I do know
scandinavian rights of authors, and it (apart from DMCA-like stupidity) only
protects copying and distribution rights (and som moral rights). It does NOT
protect "enablement" of parties to recieve copies. ... IPRED2 may
change that however.

[ Reply to This | # ]

They'll get some FUD out of it, at least!
Authored by: Anonymous on Monday, July 09 2007 @ 06:33 PM EDT
I'm no fan of Microsoft, despite using their OS and software on a daily basis.

All their FUD and anti-competitive tricks are really annoying.

But still, this debacle with the no-expiration-date vouchers may give Microsoft
(perhaps for the first time?) a legitimate sob story to back up their "the
GPL is viral" FUD meme! I expect them to try and spin it that way, at

I actually do feel a little sorry for them, because at the time they began their
little voucher project (which unfortunately for them, they are not able to
discontinue in a timely fashion because of the no-expiration-dates) the GPLv3
had not been released, and the current version of the GPL at that time, GPLv2,
did not have these particular (ahem) "viral" effects, forcing them to
(explicitly) grant patent covenants and whatnot.

Surely it couldn't have happened to a *nicer* company than Microsoft. But I
can't help thinking, if I distribute my own source code under a "GPLv.N or
later" clause, a similar thing could someday happen to me. The "or
later" clause really is a double-edged sword; you have to trust that future
changes by the FSF will not change the license from something you find
acceptable to use with your own code into something you don't find acceptable
(for whatever reason). Unfortunately, the alternative (limiting it to specific
versions) may be even worse, especially if lots of other people make
contributions to your codebase. Now, relicensing the whole work to a newer
version (to pick up "bug fixes" the license, ala Tivoisation with
GPLv3) becomes a much more difficult proposition (c.f. Linux).

[ Reply to This | # ]

Samba Announces Move to GPLv3
Authored by: Anonymous on Monday, July 09 2007 @ 07:23 PM EDT
Cnet News


[ Reply to This | # ]

Their tail in a trap?
Authored by: mtew on Monday, July 09 2007 @ 07:32 PM EDT
First INaL!

My understanding is that Novell is required to provide the Software, Updates and
Service for SuSE by the vouchers.

Does it have to be the publicly available version or can it be an inferior GPLv2
only version? Assuming the later:

What would Microsoft's likely reaction be?

What would FSF's likely reaction be?

What would be the likely range of reaction from Novell's 'normal' customers be?

What would the likely range of reaction from the 'coupon' customers?

What would be likely to happen to the value of the coupons?

Would a suit for the loss of value for the coupons be likely to result in a
judgement against Novell?

What would the likely range of community reaction be?

Hypothetical legal question asked to increase understanding and NOT as advice:
Could Novell do this legally?


[ Reply to This | # ]

The GPLv3 does not rewrite copyright law.
Authored by: Anonymous on Monday, July 09 2007 @ 07:38 PM EDT
Whether Microsoft has done something that requires a license to GPLed software is determined by copyright law (and the ways judges choose to interpret it) not the terms and definitions of any license including GPLv3.

Congress, not the FSF gets to write the copyright law.

It is a good thing too. Imagine if Microsoft could rewrite their EULAs to force it to be applicable to bystanders.....

Thus the question of wether Microsoft is "distributor" within the meaning of copyright law (and hence requires a license) of GPLed software depends solely on copyright law and not on the terms and definitions of the GPL (any version).

[ Reply to This | # ]

secondarily liability requires a primary infringer.
Authored by: Anonymous on Monday, July 09 2007 @ 07:42 PM EDT
I know of 3 forms of indirect copyright infringement.
  1. Contributary infringement
  2. Vicarious infringement
  3. inducing infringement

In contributary infringement you have to know of the direct infringement. In vicarious infringement you have to benefit from the direct infringement. In inducing infringement you enable the direct infringement. In all there cases there has to be direct infringement.

Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F. 2d 1159, 1162 (2d Cir. 1971)

Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F. 2d 304, 306 (2d Cir. 1963)

MGM Studios, Inc. v. Grokster Ltd., 125 S. Ct. 2764 (2005)

Does anyone know of any form of indirect infringement where there is no primary infringer? I did not think so.

But the FSF let what might have been the primary infringer (Novell) off the hook with the grandfather clause, so there will be no primary infringer. Hence no indirect infringer.

[ Reply to This | # ]

Don't forget that anti patent provisions of GPLv2!
Authored by: Anonymous on Monday, July 09 2007 @ 07:44 PM EDT
If Microsoft has done something that will make it a distributor of GPLv3ed software, when such software is added to SLES, so that Microsoft requires a license under applicable copyright law and must agree to GPLv3, then by the exactly the same reasoning, Microsoft is already a distributor of all the the GPLv2 software in SLES, and Microsoft must agree to GPLv2 for all the GPLv2 software in SLES! This includes the Linux kernel and indeed all of the GPLed software in the current version of SLES!

The GPLv2 includes an i mplied patent license for every patent implemented by the software. If Microsoft were a GPLv2 software distributor, the GPLv2 anti patent provisions are strong enough to scare it silly! The FSF has never said the the GPLv2 anti patent provisions were week or unenforceable. The GPLv3 anti patent provisions were always represented as a tightening that implemented better internationalization and that closed some loopholes. See the various GPLV3 draft rational documents for the various stages of the draft of GPLv3.

If Microsoft has done something that makes it a distributor (under applicable copyright law) of all the GPLv2 software in SLES and if it must therefore agree to GPLv2 for all that software, then it has granted an implied patent license for every patent implemented by any GPLed software in SLES, including the kernel! In this case, Microsoft is up a creek without a proverbial paddle, and the GPLv3 is not really needed. There is no reason to wait for GPLv3 to kick in. The kernel will never be under GPLv3 anyway!

If this is the case Novell should be praised rather than condemned for tricking Microsoft into effectively letting go of all of their applicable anti Linux patents.

The proof that the "coupon expiration date + GPLv3 means that MS is doomed" people don't really believe there own arguments is that that they continue to go out of their way to kick Novell! If they believed their own arguments they would be congratulating Novell.

[ Reply to This | # ]

The GPLv3 can not reach out and force Microsoft to agree to it.
Authored by: Anonymous on Monday, July 09 2007 @ 07:54 PM EDT
If Microsoft perchance has done something that requires a license to GPLed software, then Microsoft still does not have to agree to the terms of any version of the GPL. Instead, they can sit back and wait to be sued. If sued, they can settle or pay the fine. Microsoft has the galzillion dollars with which to do it.

I believe that that is exactly what Microsoft would do.

There is no way that Microsoft is going to agree to any version of the GPL.

Microsoft hates GPLed software just as much as Free Software advocates hate Microsoft. Microsoft hates the GPL with a fiery passion cabable of incinerating whole planets! Chairs are nothing! They will never agree to any version of GPL.

[ Reply to This | # ]

The real killer....
Authored by: tiger99 on Monday, July 09 2007 @ 08:18 PM EDT
.... for M$/Novell is that Samba has gone GPL3, as expected.

Now, I am expecting (thinking positively here) that Ms. Kroes is finally, and quite soon now, going to win her battle with Gates and Ballmer, and M$ will have to release the networking protocols on terms which are FOSS-compatible.

When that happens, the Samba team, well proven as highly competent, will almost certainly finish achieving proper compatability with the M$ protocols, with real GPL3 Samba, well ahead of the Novell team (major players having left!) with a forked GPL2 samba derivative.

The implications, when that happens, will be horrendous for the Illegal Monopoly. Who will want an expensive Windoze 2003 server licence, when they can have as many Linux/Samba licenses as they want, for free? (Doubtless, fully supported FOSS solutions, such as RedHat, will still be much cheaper than M$.)

[ Reply to This | # ]

What law/statue applies?
Authored by: Anonymous on Monday, July 09 2007 @ 09:28 PM EDT
Firstly, please do relegate this to the "troll bin" before finishing.
I post anonymously as I post here VERY rarely, but the question I ask is
important to me.

As I understand it, the GPL works because it is the only license one has to
distribute the copyrighted material. Without adhering to the GPL, one cannot
copy the material, leaving one in violation of copyright law. That is the way it
works. By distributing the GPL-licensed contents you have a choice of breaking
the law (copyright violation) or following the licenses. By NOT distributing the
GPL-licensed material, the license has no real effect on you as you cannot be
breaking copyright law (and GPL v2 doesn't actually ask you to do anything until
such time as you do distribute the copyrighted material).

So I understand how the license has power over companies/people that distribute
GPL-licensed code & derivatives thereof. You either have the right to
distribute (following the GPL) or you don't (and are hence breaking the law).
The question I have is what law does the GPL v3 rely on to enforce restrictions
on those that are not distributing the GPL-licensed code? As far as I
understand, copyright law does not cover the "conveyance" of covered
material. If I sell vouchers redeemable for a book (or say, a magazine
subscription), my actions are not covered by copyright law. The person giving
you the book/magazine is, but my contract with them for voucher redemption is
not. As such, the copyright license can only affect the person distributing the

If I setup a valid contract to give out vouchers for a magazine subscription,
but for whatever reason the copyright license for some material used in the
magazine AFTER I have given out the voucher says "people distributing
vouchers for this magazine must also give you vouchers for their other
magazines", my understanding of this is that copyright law will not apply.
There may be a breach of contract between me & the company the vouchers are
redeemable at, but as I am not distributing the magazines myself - copyright law
does not affect my actions.

So I am curious as to which law allows the GPL v3 to affect Microsoft. I know
(& understand) how it affects Novell (they are distributing the covered
material), but as far as I can see - the best that this license does is force a
breach of contract between the end-user & Novell, Novell & Microsoft, or
both. It cannot, however, create a legal relationship between the end-user &
Microsoft through the GPl v3 as there is no activity (i.e. distribution of
copyrighted material) covered by the applicable laws (copyright laws).

I KNOW there have been a veritable tonne of lawyers going over this, who
couldn't ALL have missed this. So they are obviously basing the
"enforcement" on some other law. I would like to know which law this
is, please.


[ Reply to This | # ]

What's the fuss?
Authored by: Anonymous on Monday, July 09 2007 @ 11:39 PM EDT
What's the fuss about "propagate" and "convey"?

It is well established copyright law that "direct" infringing
distribution is the *physical* transfer of "copies in a fixed medium".
No one can rationally claim that Microsoft is tranferring physical copies of any
GPL software. This eliminates "conveying":

To “convey” a work means any kind of propagation that enables other parties to
make or receive copies. Mere interaction with a user through a computer network,
with no transfer of a copy, is not conveying.

This leaves Microsoft with causing secondary "vicarious" or
"contributory" infringement. Both require a party other than Microsoft
to directly infringe. Who are the alleged "direct" infringers?

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 modifying a private copy.
Propagation includes copying, distribution (with or without modification),
making available to the public, and in some countries other activities as well.

Can anyone rationally identify the other parties and their direct infringement
actions that Microsoft allegedly induces?

[ Reply to This | # ]

When Microsoft Met GPLv3
Authored by: Anonymous on Tuesday, July 10 2007 @ 01:59 AM EDT
Simply beautiful. What is not so pretty at times is how some in our GNU
community do not bother to understand the issues. Sometimes these issues are as
simple as the dates (March 28) them selves. I tried to call it all over the Net
and on every board I could find. Slashdot included. I was not the first but I
was right.


[ Reply to This | # ]

  • March 28 ? - Authored by: Anonymous on Tuesday, July 10 2007 @ 03:34 PM EDT
This is why I don't use Linux!!!
Authored by: Anonymous on Tuesday, July 10 2007 @ 04:07 AM EDT
You guys make it all way too complicated with all this licensing junk.

There needs to be the "do any damn thing you want with the code"

If the Linux geeks spent half as much time writing code as they did worrying
about what Microsoft was doing, they might stand half a chance.

Stop making Microsoft your scapegoat.


[ Reply to This | # ]

When Microsoft Met GPLv3
Authored by: Anonymous on Tuesday, July 10 2007 @ 04:55 AM EDT
ah ah ah!! a foot in two shoes!!

[ Reply to This | # ]

Have we seen the text of a voucher?
Authored by: DrHow on Tuesday, July 10 2007 @ 05:09 AM EDT
I am surprised that I have yet to see precisely what one of these famous
vouchers actually says. I may have missed something, in which case could
someone provide a link? If no copy of the voucher text is available, then I
must wonder, "Why not?"

[ Reply to This | # ]

but, but I thought the GPL was a defense!
Authored by: xtifr on Tuesday, July 10 2007 @ 06:48 AM EDT

I'm confused here,. My understanding is that the GPL is a defense. No one to my knowledge is ever bound by the terms of the GPL; you comply with its terms to defend yourself against potential copyright infringement suits. Which is why it almost never comes up in court--the plaintiff (copyright holder) lacks a motive to mention it, and the defendant (who normally has not complied with its terms) lacks the ability.

So when Microsoft declares themselves "untouched by any GPLv3 terms", that has to be true. Defending yourself with the GPL is always voluntary. If Microsoft prefers to try to defend itself against copyright suits without claiming to have a valid license, that is surely their privilege and right.

But that raises the question: how are they going to be sued for copyright infringement here? How do these vouchers constitute a violation of copyright in the absence of a valid license? Novell is creating the actual copies, which is the potentially infringing activity. Microsoft seems to be acting purely as a reseller. And under the doctrine of first sale, resellers most definitely do not need a license. (If mere "conveyance" requires a license, I think my neighborhood bookstore is in big trouble.)

Finally, a lot of people are talking about Microsoft violating the GPLv3 as if it were some unitary thing. My understanding is that the GPL is more like boilerplate. Each piece of software on my system (Debian GNU/Linux) has its own separate license. I don't think Microsoft is going to be in trouble the moment the first GPLv3 package enters SLES. It's only when a package which infringes one of Microsoft's alleged patents becomes GPLv3 that Microsoft needs to worry. Until then, they can't violate the individual licenses of any of the software on the system, no matter how many patent-violation suits they launch.

Do not meddle in the affairs of Wizards, for it makes them soggy and hard to light.

[ Reply to This | # ]

distribution without modification
Authored by: Anonymous on Tuesday, July 10 2007 @ 09:38 AM EDT

"distribution (with or without modification)"

I guess I won't be providing Linux discs to my friends anymore. Suddenly, I'm
liable for the distro content.

[ Reply to This | # ]

Why you are wrong about the GPL
Authored by: Anonymous on Tuesday, July 10 2007 @ 12:04 PM EDT
Your analysis is spot on, but you forgot one thing - Microsoft does not have to
accept the license for any reason. Novel does all the dirty work - they do the
actual distribution, they do the coding, the bug fixes, etc. Microsoft does
(arguably) distribute, but they were never in a position where they would have
had to accept the license, so it is a moot point.

To put it another way - is there a possible case for a copyright infringement
suit if they don't accept the GPL? Doesn't look to promising to me.

[ Reply to This | # ]

When Microsoft Met GPLv3
Authored by: Anonymous on Tuesday, July 10 2007 @ 03:44 PM EDT
But PJ, you told us, that GPL works through Copyright alone
and how is Copyright involved with those coupons for the
coupon seller?

How can the GPLv3 apply to them, where they do something
for which no license is needed? All it takes is a contract
includes a promise that that somebody with a license will
convey the software to the coupon holder.


And more than that, you repeat frequently that the coupons
have no expiry date. That's fine. But suppose that this
means, that Microsoft would be bound to whatever conditions
(licenses) Novell attaches to Suse, do you really expect
that such a license change plus the release of a Novell
product based on it, will automatically retroactively make
it apply to Microsoft?

So why doesn't it just say "If your company name is
Microsoft, you must release everything you have under GPLv3
as well and assign copyright to FSF." That would also
automatically be law... not?!

I am afraid, but Copyright won't magically extend that far,
not soon anyway.


[ Reply to This | # ]

First Sale doctrine; A way out for Microsoft?
Authored by: Anonymous on Wednesday, July 11 2007 @ 05:59 PM EDT
Advocates of the "coupon expiration date + GPLv3" theory claim that the MS-Novell coupon scheme means that MS requires a license because Microsoft is a distributor as defined by U.S. code Title 17 section 106 (3):
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
  • (1) to reproduce the copyrighted work in copies or phonorecords;
  • (2) to prepare derivative works based upon the copyrighted work;
  • (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  • (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  • (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
They claim that Microsoft's role in the coupon scheme satisfies (3). Thus, they claim, Microsoft need to be protected by a license; for some software Novell will release in the future, the only license available will be GPLv3; and that the terms of this license mean that Microsoft must give up its bogus patent claims and FUD.

I doubt that Microsoft's role in the coupon scheme satisfies (3). I would like someone to provide some on point case law, and this has still not happened. However, my doubt could be wrong, so let us assume for the sake of argument, that it is wrong. Let us assume that Microsoft's role in the coupon scheme as it is commonly understood does satisfy (3).

There is a way for Microsoft and Novell to restructure what they are doing to avoid this problem. Everyone has been assuming that when a coupon holder redeams a coupon, getting a copy of software from Novell, that title to the copy of the software is passing directly from Novell to the coupon holder. Since the coupon came from Microsoft, Microsoft is entangled in Novell's distribution.

What if title to the copy of the software passes in a two step process? First the title transfers from Novell to Microsoft in one step and then title transfers from Microsoft to the coupon holder in a separate step. It is possible for each step to be completely legal and no step requires microsoft to have a license. This is possible because of Title 17, section 109 (First sale doctrine):

109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord

(a) Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

This if followed by some exceptions that don't seem to apply to this discussion.

Let us look at each step of this process.

  1. Transfer of the title to the copy of the software from Novell to Microsoft.
    1. Novell can do this because it obeys the terms of the GPL. The MS-Novell patent arrangement is grandfathered.
    2. Microsoft can do this without a license because receiving a copy or receiving title to a copy is not one of the exclusive rights of the copyright holder in Title 17 section 106.
    Step 1 means that Microsoft has title to a legal copy of the software for step 2.
  2. Transfer of the title to the copy of the software from Microsoft to the coupon holder.

    Microsoft can to this because of the first sale doctrine mentioned above. Microsoft can resell or give away a copy of the software that it has legal title to. It does not need permission or a license from the copyright holder. The first sale doctrine is why you can resell a book you bought for a class that is over without getting permission from the copyright holder.

OK, I realize that nobody here is going to like this; I do not like it myself. But can anyone find a genuine flaw in the above? Is there any reason that MS and Novell can not restructure what they are doing according to what has been suggested above? Does anybody really know that the above is not what MS and Novell are really doing now?

Please everyone, do some thinking not emoting. We don't need anymore howls of outrage. They don't do any good.

[ Reply to This | # ]

When Microsoft Met GPLv3
Authored by: Anonymous on Thursday, July 12 2007 @ 11:57 AM EDT
``So upgrades were contemplated and included as part of the deal.'' Yep: ``in
a mutually agreed upon manner''. That part should be highlighted in red, too.
It is clearly sufficiently weasely to allow for a fairly easy escape.

[ Reply to This | # ]

Things that the GPLv3 restricts.
Authored by: Anonymous on Friday, July 13 2007 @ 03:52 PM EDT
A copyright license can indeed restrict instead of enlarge rights. GPLv2 didn't. It only broadened. GPLv3 restricts and broadens. It's allowed to do both, because it's absolutely voluntary. Leave the code alone and it can't touch you.
The GPLv3 indeed does restrict in comparison to what GPLv2 allows. However it does not restrict in comparison to what is allowed by copyright law in the absence of a license, that is without the permission of the copyright holder. The GPLv3 can not do this kind of restriction. Furthermore, a close reading of the GPLv3 reveals that it does not even try.

Let us be abstract. Let X be any activity that "without permission, would" NOT "make you directly or secondarily liable for infringement under applicable copyright law". (NOT added to the quotation.)

Examples of X could be:

  1. receiving a physical copy of the work. (not on the list, Title 17 section 106)
  2. excerpting a small section of source code in a proprietary academic work for scholarly criticism. (Fair use)
  3. disposing of a physical copy of the work, that is legally owned, by selling or giving away. (First sale)
Now let us look at the definitions section of the GPLv3.
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 modifying a private copy. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well.

To “convey” a work means any kind of propagation that enables other parties to make or receive copies. Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying.

By the definition above X is not "propagating". "Conveying" is defined in terms of "propagating". Therefore X in not "conveying" either. The rest of the GPLv3 is basicly a bunch of complicated prohibitions against some kinds of "propagating" and "conveying". Therefore the GPLv3 does not prohibit X.

Suppose, contrary to fact, the GPLv3 was written in such a way that it did attempt to disallow X. What would happen?

Darth would go ahead and do X anyway. What would happen if the FSF tried to enforce the GPLv3 against Darth? At trial Darth's lawyer would say: "Darth has never agreed to the GPLv3. Therefore its provisions do not apply to Darth. X is allowed by the applicable copyright law. (Game over)". Darth would win and the FSF would loose.

The authors of the GPLv3 were smart. They did not attempt to prevent X, because they knew the attempt would fail and cause needless complications. It would be overreaching.

Summary: Pure copyright licenses like the GPL lack the power to prevent activities that are allowed by the applicable copyright law without permission of the copyright holder. The GPLv3 does not even try.

[ Reply to This | # ]

Federal judge says indirect infrigement reqires direct infringement;sites precident
Authored by: Anonymous on Tuesday, July 17 2007 @ 07:31 AM EDT
In a totally different case, with a totally different fact picture, Capitol Records, Inc., et al., vs Debbie Foster and Amanda Foster, Lee R. West United States District Judge says:
The Copyright Act does not expressly render anyone liable for infringement committed by another. Metro_Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.. 545 U.S. 913, (2005). Rather, the doctrine of secondary liability emerged from common law principles. Id. Under those common law principles, one infringes a copyright contributorily by intentionally inducing or encouraging a direct infringement. The elements of a claim for contributory copyright infringement are: (1) direct infringement by third party; (2) knowledge by the defendant that third parties were directly infringing; and (3) substaintial participation by the defendant in infringing activities. See Newborn v. Yahoo!, 391 F. Supp.2d 181, (D.D.C. 2005); see also Newborn v. Yahoo! Inc., 437 F.Supp.2d 1 (D.D.C 2006) (finding defendant was entitled to an award of attorneys' fees after prevailing upon plaintiff's frivolous and objectively unreasonable contributory copyright claim). Merely supplying means to accomplish infringing activity cannot give rise to imposition of liability for contributory copyright infringement. Id.;see also A & M Records, Inc. v. Napster, Inc. 239. F.3d 1004, 1013 (9th Cir. 2001). One infringes a copyright vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it. Grokster, 545 U.S. 913.
I have copied the above by hand so check the original.

The judge is basicly saying that indirect infringement requires direct infringement. If this principle were applied to the "coupons expiration date + gplv3" theory, it would say that Microsoft is not guilty of infringement if Novell is not guilty of direct infringement.

Free software advocates, in their zeal to get Microsoft, should not attack this principle, because that would make it easier for the RIAA to persecute innocent people accused of copying songs.

Because of the grandfat her clause, the FSF has all but admitted it does not intend to proceed against Novell.

Summary: This "coupons expiration date + gplv3" theory is dubious, so dubious, that it undermines the creditability of those who use it. Free software advocates would do better to attack the validity of Microsoft's patent claims. The weekness of these claims is show by Microsoft's refusal to say what they really are. The recent Supreme Court decision on patents should facilitate such an attack.

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