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Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica)
ars technica takes a skeptical look at Eben Moglen's recent claim that, by distributing Novell's Linux support coupons, Microsoft has committed itself to the (yet unfinalized) terms of GPLv3. "Richard Wilder, a patent lawyer for the Association of Competitive Technology (an organization partially funded by Microsoft), argues that Microsoft isn't subject to the GPL because the company isn't literally distributing Linux or any other piece of GPL-licensed software. Speaking to the Seattle Post-Intelligencer, Wilder said, '[Microsoft is] not distributing Linux. They're providing somebody access to a service, but they're not providing copies of Linux on a disk, and they're not providing somebody access to Linux for the purpose of download, and so they're not engaged in any distribution.'"
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Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 21, 2007 21:32 UTC (Mon) by cventers (subscriber, #31465) [Link] While I don't think Moglen's point is necessarily ironclad, I think thereare two imporant things to consider:
1. Moglen has actually studied the Microsoft / Novell contract
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 21, 2007 22:03 UTC (Mon) by segphault (guest, #27468) [Link] Microsoft is not selling SUSE Linux. The company is selling vouchers for Novell service agreements. The entire voucher system was pretty obviously devised to prevent Microsoft from becoming party to the GPL. I think it's pretty dubious to claim that Microsoft will become subject to GPL3 upstream patent licensing requirements as a result of distributing vouchers for services indirectly related to a set of software products that is mostly licensed under GPL2.
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 22, 2007 21:19 UTC (Tue) by malor (subscriber, #2973) [Link] Absolutely. The GPL only applies when you're violating someone's copyright; it allows you to do something you couldn't ordinarily do.
None of Microsoft's actions involve copyright; thus it cannot be bound by the GPL.
But even if it WERE actually distributing the code itself, all the existing code is GPL2 'or later', so they couldn't be bound by a GPL3 change unless they chose to be. It's the person violating copyright that invokes the GPL to allow it to happen, not the recipient.
From what I can see, this whole thing is wishful thinking in Powerpoint slides.
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 22, 2007 21:31 UTC (Tue) by cventers (subscriber, #31465) [Link] > None of Microsoft's actions involve copyright; thus it cannot be bound> by the GPL. None of Microsoft's actions involve copyright; thus it > cannot be bound by the GPL.
Microsoft is causing the distribution of copyrighted material it doesn't
I can't sell certificates for Windows because I'm not a copyright holder.
> But even if it WERE actually distributing the code itself, all the
That is true until Novell includes a GPLv3 or later package in SUSE, and
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 22, 2007 21:57 UTC (Tue) by NigelK (guest, #42083) [Link] > Microsoft is causing the distribution of copyrighted material it doesn't> own the copyrights to. That requires a license.
That's the problem of the distributor - in this case, *Novell*.
If I tell my Mom, "if you'd like to use Linux on your PC, call my friend and he'll install it and support it for you - as a favour to me, he won't charge you for it," then *I* am not bound by the GPL, no matter how the FSF redefines the term "distributor".
Yes, I caused the distribution of copyrighted material. No, I don't need a licence in order to do that - that's my friend's problem.
The FSF had better be prepared to push this point in the courts when push comes to shove. As they decided to review the GPL3 rather than enforce the GPL2 because it was the cheaper option, I sometimes wonder if they will.
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 22, 2007 22:41 UTC (Tue) by sepreece (subscriber, #19270) [Link] "Microsoft is causing the distribution.." While it's fair to say that there are some means of "causing" that would require a license, there are many other that don't. That's the difference between the common English meaning of the word "cause" and a legally enforceable meaning.
"I can't sell certificates for Windows" is also only partially true. You certainly CAN sell certificates that say you'll reimburse someone for the cost of buying Windows and you CAN arrange with a system seller to preload Windows and you can offer certificates good for such a system. In fact, I'm pretty sure you could contract with a re-seller to offer certificates for a box containing a Windows release, too, if you liked, without Microsoft's permission. You just can't make the copies yourself.
I really doubt a court would hold that Microsoft's coupons in any way triggered the terms of the GPLV3. Except, perhaps, for the part that might say that Novell couldn't ship GPLV3 software because it was in such a relationship with Microsoft. I haven't heard any arguments that were very convincing. [IANAL]
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 23, 2007 5:49 UTC (Wed) by AJWM (guest, #15888) [Link] > Except, perhaps, for the part that might say that Novell couldn't ship GPLV3 software because it was in such a relationship with Microsoft.
Bingo. That's exactly what the GPLv3 does. It gives the Microsoft-Novell partnership the option of: (a) honoring Microsoft's patent pledge to any and all downstream recipients of software originally procured by a voucher (and since the downstream can in turn convey that back upstream, then everybody); or (b) of not distributing any GPLv3 code at all; or, of course, (c) of dissolving the agreement.
Microsoft is unlikely to agree to (a). Novell is unlikely to agree to (b). Therefore the most likely path is (c), which leaves the world of Linux distribution pretty much status quo ante as far as any Microsoft alleged patents go. The separate "patent peace" as a souce of FUD or distro differentiation disappears.
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 23, 2007 16:41 UTC (Wed) by sepreece (subscriber, #19270) [Link] I can't decide whether the "You may not convey..." clause applies or not. It seems to depend on the final part of the sentence ("which license does not cover..."), which would depend on the specific language of the Microsoft patent non-assert, which I have no familiarity with, and on exactly how to interpret "any of the rights that are explicitly granted", which is open to some interpretation.
That would suggest that your option (a) would actually be "Microsoft could agre to not limit applicability of its patent pledge in ways that would conflict with...".
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 23, 2007 18:07 UTC (Wed) by malor (subscriber, #2973) [Link] I just had an interesting thought. If Microsoft wanted to wipe out Novell's Linux business, they'd just have to refuse to break the contract, no? Suddenly, anyone getting GPL code from Novell is 'poisoned'; they've been given patent immunity that they can't transfer. If Microsoft holds to its contract, and grants those and ONLY those people patent immunity, anyone in that population (people who bought SuSE after that agreement was in place), including Novell itself, would effectively be out of the GPL3 network, right? They can only receive GPL3 code, not transfer it anymore?
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 24, 2007 10:41 UTC (Thu) by NRArnot (subscriber, #3033) [Link] It would all depend on the terms of the contract, which almost certainly aren't public at present.
Novell could unilaterally break the contract, Microsoft could then sue Novell for damages (though it would have to prove that it had indeed suffered damage). How much Novell would end up paying Microsoft in damages would be up to a court. It is concievable that this could kill Novell, but unlikely. IANAL.
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 22, 2007 23:29 UTC (Tue) by malor (subscriber, #2973) [Link] If I pay you to give a copy of code you wrote to someone, I'm not involved with the exercise of copyright. That's why it's COPYright, not PAYright or TRANSACTIONright or something. GPL code is just like code you wrote, with the exception that you have to grant the recipient more rights. Again, I'm not involved with that.
Look at it in a different domain: if I give you money now, and in exchange you agree to give someone a toaster in the future, that part of the transaction is between you and them. It's like buying a gift certificate redeemable at a store. If for some reason you can't make good on the transaction (perhaps because the toaster is stolen), then my customer may be unhappy with me, and I might potentially have to refund him or her, but I'm in no other way liable.
An example that's closer: I don't need permission from the copyright holder to buy someone a gift certificate for a CD, even if I name the specific CD on the certificate. I'm not making the actual copy, and thus I'm not infringing copyright. The GPL only triggers if I'm doing something that would otherwise be illegal under copyright law, and it's clearly quite legal to buy someone a gift certificate.
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 24, 2007 13:24 UTC (Thu) by nim-nim (subscriber, #34454) [Link] > Microsoft is not selling SUSE Linux. The company is selling vouchers for> Novell service agreements.
Courts have a huge experience dealing with crooks that think changing the name of an action is sufficient to avoid inconvenient legal terms. If this ever gets before a judge Microsoft will have to prove that what they're selling to end-users is not effectively the same as a software license.
> None of Microsoft's actions involve copyright; thus it cannot be bound by
Microsoft is certainly trying hard to avoid direct copyright involvment. However copyright law includes a "contributory infrigement" aspect and should Novell be sued on copyright grounds for a scheme co-designed and marketed with Microsoft, I sort of doubt Microsoft could disclaim indirect involvment.
Lastly the legal exposure increases with each country the vouchers are sold in. Copyright laws have similar outlines worldwide, but exact terms vary from country to country and borderline schemes like the MS/Novell one may not hug the red line on the same side everywhere.
IANAL, so take this all with a grain of salt.
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 24, 2007 13:41 UTC (Thu) by malor (subscriber, #2973) [Link] I don't think this could be considered contributory infringement for the same reason that buying you a gift certificate for a Target CD - even if I have a deal with Target not to sue you for my CD patents - wouldn't be. (and, fwiw, I think the whole idea of 'contributory copyright infringement' to be absolutely laughable... and isn't the US the only country that has that case law?)
There's no possible way that this could be considered copyright infringement under the terms of the original deal, so if the GPL3 does trigger based on something in the Microsoft/Novell agreements, I don't think Microsoft can be held liable for 'willfully' infringing. Most of us think the motivations were pretty shady, but in terms of the law, it appears to be squeaky-clean.
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 21, 2007 21:40 UTC (Mon) by jimmybgood (guest, #26142) [Link] The article claims, "Moglen's argument is extremely obfuscated..." and then goes on to quote Moglen. The quote did not seem obfuscated at all. I don't know if it's correct or not, but it was pretty easy to understand.
Then they quote Microsoft's claim that they won't be "distributing" Linux. Except, golly gee, the GPLV3 doesn't use the term "distribute", it deals with "propogation." Frankly, I don't know the legal meaning of either.
Then they make the claim, "the Linux kernel itself will not be transitioned to GPL3." That remains to be seen.
Finally, the article concludes with a paragraph of waffling. I was looking forward to a reasoned critique of Moglen's claims, but this wasn't it.
Distribute vs. Propagate & Kernel Licensing Posted May 21, 2007 23:14 UTC (Mon) by sammythesnake (guest, #17693) [Link] 2 things: 1 - the difference between "distribute" and "propagate", and 2 - whether the kernel will be released under GPLv3
1) The difference between the terms "distribute" and "propagate" is one drawn deliberately by the GPLv3 to include "propagation" by means outside of the normal legal definition of "distribute" in a way that gives extra strength to the copyleft nature of the GPL. I think the main differences are things like indirect relationships *causing* distribution in the legal sense of the word.
The reason "distribute" is significant, even though the GPLv3 (as currently drafted) uses "propagate", copyright law (in any jurisdiction I know of) doesn't actually use that term or an equivalent. Therefore you simply don't need the copyright holder's permission to "propagate" unless your "propagation" falls within the law's definition of "distribution". If I read the article's gist correctly, Microsoft didn't (and doesn't appear to be intending to) "distribute" the kernel or other parts of that nebulous thing usually called linux, so it doesn't need any of the copyright holders' permission in order to do so. Therefore, they don't need the GPL or any other license to do what they're doing and intend to do, so the terms of the GPL and other licenses simply aren't relevant to their actions. I suspect Novell might be the ones with the legal questions to ask their lawyers, actually, because they *are* distributing the code when microsoft's customers redeem their coupons. I'm not sure if Novell will fall afoul of the terms. That's a question for their lawyers, I guess...
2) If the kernel switches to GPLv3, I'll eat my hat. One reason is that many of the most significant contributors to the kernel (including Linus Torvalds who has pretty much the final veto) have expressed doubts that the final draft of the GPLv3 will address their concerns with the drafts seen so far.
The most significant problem, though, is that there are an impossibly large number of contributors to the kernel, some of them uncontactable, some even no longer of this life. It's not likely that their contributions could be re-licensed under the GPLv3 (remember the kernel is distributed under v2 only, even if certain parts are also available via other licenses such as BSD variants) or removed. Some of those parts are very central, some of those parts may even be practically impossible to identify with certainty.
Even if it can be done (which is doubtful, but possible, I guess) there would have to be enough will to get permission from *all* those contributors whose code would stay in the new GPLv3-licensed kernel. That would be a lot of effort, and without a massive incentive (and complete success) it's a non-starter. I don't see that level of will to go with v3 in the kernel development community.
It remains to be seen how people react to the final draft, but I think it's unlikely to be anything like a unanimous cheer of approval.
Cheers & God bless
Distribute vs. Propagate & Kernel Licensing Posted May 22, 2007 6:07 UTC (Tue) by jengelh (subscriber, #33263) [Link] At any time, people who wish to do so, can relicense their code now with as little as a patch (I suppose). That won't make the whole kernel GPL3, but it is a step towards being able to do the switch. Plus, every code parts that will be (or already are) under "GPL2 or later" can IMO be reused for other projects (once GPL3 is out that is).
Distribute vs. Propagate & Kernel Licensing Posted May 22, 2007 10:56 UTC (Tue) by forthy (guest, #1525) [Link] If the kernel switches to GPLv3, I'll eat my hat. One reason is that many of the most significant contributors to the kernel (including Linus Torvalds who has pretty much the final veto) have expressed doubts that the final draft of the GPLv3 will address their concerns with the drafts seen so far. That's not very convincing. These expressed concerns express more a lack of understanding of the GPL in general, and a conservative approach to stick to what's already there. Linus is known to change his mind when he was wrong, and like most of us, he's wrong quite often. So while it will take some time, Linux will eventually go GPLv3. The second thing is a myth which needs debunking, and also shows the poor understanding of legal issues: Linux is redistributed as GPLv2 only by Linus Torvalds - a choice he can make on his own, as he did (he didn't ask contributors in 2.4.0-test9 when he introduced this "GPLv2 only" wording on top of COPYING - Linus can only speak for himself, not for anybody else WRT copyright stuff). If you dig through the kernel sources, you find one or two files attributed as "GPLv2 only", the rest is either unattributed (i.e. any GPL) or explicitely attributed with "GPLv2 or later". You'll only have to ask the authors of explicitely attributed files, or replace this code.
Distribute vs. Propagate & Kernel Licensing Posted May 22, 2007 22:35 UTC (Tue) by sepreece (subscriber, #19270) [Link] I think you're underestimating the difficulty, though I agree it is possible to relicense.
It's not just the (somewhat more than "1 or 2") "explicitly GPLv2-only" files. Linus can only change the licensing for files that he holds the copyright on. If a file doesn't state its licensing at all, somebody would need to find out who held the copyright and get permission to relicense it.
Distribute vs. Propagate & Kernel Licensing Posted Jun 1, 2007 12:18 UTC (Fri) by forthy (guest, #1525) [Link] The FSF is quite clear about that you must povide a copyright notice and a license statement in each file of a GNU project, to make this bullet-proof; Linus isn't. The GPL however deals with that: If you don't state anything, it's "GPLv2 or later". Linus preface to the COPYING file is legally non-binding to patch-submitters, it's only upstream (i.e. you can't requiest Linus to give you rights under GPLv3). Therefore, you can assume that people who haven't clairified their licensing conditions submitted that under the rules of GPLv2 - that means with the option to update. And last time I grepped through the source tree, it was really just two files which were clearly identified as GPLv2 only - there might be some oversight, because it's far easier to grep for the specific term the GPLv2 contains for the GPLv2-or-later license term. So again: If you, as author, want to specify "GPLv2 only", you have to do this yourself. You can't let Linus do this job for you, because Linus is not the copyright holder, and can't speak for you. If you don't do anything, it's save to assume that the text in the GPLv2 is appropriate. If you sue me (or Linus) over changing your untagged file to GPLv3, you'll very likely lose in court.
Distribute vs. Propagate & Kernel Licensing Posted Jun 1, 2007 20:41 UTC (Fri) by zlynx (subscriber, #2285) [Link] I do not understand where you got the idea that the GPLv2 license itself includes the ability to redistribute under GPLv3 or higher.
The part I believe you refer to is in the recommended use of GPLv2, not the license text itself.
See, it goes like this:
How to Apply These Terms to Your New Programs
And it is generally understood that if you submit code to an open source project without an explicit copyright license assignment, that you are agreeing to the project's default license. If you submit a poem to a poetry contest, you automatically agree to the license statement.
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 22, 2007 11:15 UTC (Tue) by oever (subscriber, #987) [Link] Then they quote Microsoft's claim that they won't be "distributing" Linux. Except, golly gee, the GPLV3 doesn't use the term "distribute", it deals with "propogation." Frankly, I don't know the legal meaning of either.Does this mean the telephone companies and ISPs will all lose any patent that is covered by GPLv3 code passing through their pipes?
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 22, 2007 11:50 UTC (Tue) by khim (guest, #9252) [Link] Nope. If the process "is carried out through an automatic technical process without selection of the material by the service provider" and "no copy of the material made by the service provider" - you don't need any license.
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 22, 2007 13:45 UTC (Tue) by leandro (subscriber, #1460) [Link] MS does distribute GNU GPL'd software, by the way almost all the GNU toolchain: its MS Unix Integration Services for Windows is essentially a GNU personality for MS Windows.
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 22, 2007 14:04 UTC (Tue) by NigelK (guest, #42083) [Link] Yes, but MS is completely in control of that distribution - no way will they allow GPL3'd code into that distribution if it puts their patent portfolio at risk. It's also insulated from anything to do with Novell.
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 22, 2007 15:56 UTC (Tue) by JoeBuck (subscriber, #2330) [Link] As far as I can tell, even under GPLv2 Microsoft would be constrained from suing over any patent that is (allegedly) infringed by anything in the GPL code they distribute (which is quite a lot).
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 22, 2007 16:03 UTC (Tue) by NigelK (guest, #42083) [Link] Hmmm. True, up to a point. MS doesn't distribute the Linux kernel, nor OOo, various Linux desktops, etc. So whilst MS distributes *some* GPL'd software directly, there's an awful lot of critical GPL'd software MS doesn't handle. It's not as if once you've distributed GPL software, then *any* GPL software may use your patents.
All the MS FUD I've seen that specifies potential infringing software has been stuff MS *doesn't* distribute itself.
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 22, 2007 19:36 UTC (Tue) by s_cargo (guest, #10473) [Link] "[Microsoft is] not distributing Linux. They're providing somebody access to a service, but they're not providing copies of Linux on a disk, and they're not providing somebody access to Linux for the purpose of download, and so they're not engaged in any distribution."I wonder what Microsoft's position would be if the shoe were on the other foot, and someone were selling coupons for support service for bootleg copies of Windows. Would Microsoft consider them guiltless innocent parties to copyright infringement?
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 22, 2007 22:30 UTC (Tue) by sepreece (subscriber, #19270) [Link] If the support were explicitly for bootleg copies, they'd probably be madder at the bootlegger than at the people offering support, though they might also be liable.
However, we're not talking about bootleg copies of Linux here, but legally licensed copies. To the best of my knowledge, anybody who wants to can sell support for Windows or Linux without the copyright holder's permission (though you can't claim to be a certified support vendor unless you qualify).
Linux vouchers, Microsoft, and GPL3: separating the signal from the noise (ars technica) Posted May 23, 2007 5:55 UTC (Wed) by AJWM (guest, #15888) [Link] > However, we're not talking about bootleg copies of Linux here, but legally licensed copies.
Ah, but when the copy starts including GPLv3 code, it ceases to be legally licensed unless the distributer (eg Novell) is able to comply with the terms (eg extending Microsoft's patent agreement).
Yes, this is actually more of a bind on Novell than on Microsoft, but either way it disrupts the agreement that got everyone pissed off to start with.
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