Submitted by Microsoft says software that’s licensed under a new version of a popular open source license isn’t covered by the patent protection deal it recently signed with desktop Linux distributor Linspire. In a posting on its Web site, Microsoft said the Linspire client software protected by the patent deal doesn’t include any parts of the distribution that “comprise or include Foundry Products, Clone Products, GPLv3 Software, or Other Excluded Products.” The document was published on July 5, three weeks after Microsoft struck a deal with Linspire through which Linspire’s customers are indemnified against Microsoft’s patent claims against Linux users.
I wouldn’t be surprised if this is what Microsoft was expecting to happen.
At least in US law, you can’t be dragged into new terms of a contract unless both parties agree ahead of it going into effect.
Thus, say what you will, but this is likely to have been an interesting ploy by Microsoft, countered by one of the FSF, and something to be determined in a court room in a more binding way, assuming one of the parties find things worth the time, effort, money, and possibly bad PR of such a move.
Erm. How is this good for Microsoft? As projects start to move to v3 (if they do). Then the value of the Microsoft patent deal will drop, If Gnome, KDE and the Kernel all move to v3, then the majority of the Operating System will not be covered by this covenant and MS will be forced to actually show their hand of patents and start sueing if they want to continue to profit from free software. At that point, all manner of hell will break loose in the corporate American world.
This is effectively an admission by MS that their computing tax will not stand up to the GPLv3.
It’s largely a high stakes game of poker. I would be surprised if Microsoft didn’t show at least one patent they were confident they could win on, perhaps something they’ve already tested in court, to the people that matter that they made the deals with. At least, that’s how I would go about it. Granted, software patents aren’t respected everywhere, but if they’re respected enough in a large enough portion of the market for software, does it matter all that much?
Thus, I strongly suspect that this will come to legal blows, and it won’t be pretty. I won’t try to predict who would win, as I don’t have enough information (I’m speculating in the previous paragraph, but it makes enough sense that it could be truth) but I do know with certainty that in US law (which is at least one major market where software patents are respected) you can’t be forced into new terms of a contract that you didn’t sign up for, and it may even be possible that Microsoft won’t have to disclose all of their patent claims in court, as it would only require a single patent that the court doesn’t knock down for the whole arrangement to have meaning.
So, I don’t think this will harm Microsoft in any real way: they aren’t beholden to GPLv3 with the deal they made, if only because you can’t change terms of a contract after the fact in US law without all parties agreeing to it, and that’s what anyone that’s had any real experience in US law and business will tell you: it may not matter much about the other details, because that one trumps them all.
This is not the way it works. Microsoft have no contract with the authors and copyright holders of FOSS software. Microsoft has no contract with, for example, the GNU Foundation, which is the copyright holder for about a quarter of the code that goes into any Linux distribution.
So, Microsoft are giving out vouchers for copyrighted works (parts of the Linux distribution called SuSe). What gives Microsoft the right or permission to do that? The GPL gives them the permission (not the right) … provided Microsoft stick to the terms of the GPL.
If Microsoft do not stick to the terms of the GPL, then they are, without permission of the authors, giving out vouchers for copyrighted works which they do not own.
That is a nono. There are laws against that. Microsoft are criminally liable if they do that.
I believe that how Microsoft will argue it is that the vouchers aren’t exactly for a distributed copy of the works in question that they distribute (that’s what the companies that signed this deal do, not Microsoft, exactly), so much as it is a piece of paper saying “As long as you’ve gotten your software with this piece of paper, we will not go after you legally for patent infringement or anything we might claim is ours” or in otherwords, it can be thought of as a patent/IP rights licensing deal.
I also can see Microsoft arguing “Not only did we not agree to the terms the GPLv3 would force on us, but we can’t be forced into violating the law by such an agreement being forced on us: thus, the agreement does not have any legal enforceability” and thus neatly stepping out of that with that escape clause. This is the sort of thing that in the US is explicitly stated in Landlord/Tenant laws as regards leases: nothing can be placed in a lease that would otherwise violate the laws, as that is unenforcible.
I say, break out the popcorn, and see if this patent cold war continues in much the same way the Cold War between the US and Russia went for so long: it was predicated on the concept of MAD (Mutually Assured Destruction) whereby the building of all the weapons was intended to only be used only if the other side stepped over the bounds expected, ensuring that even if they offensively attacked first, they could be sure that there would be no value in their “victory” that they wiped out their enemy. That’s how I think this is likely to go long-term.
Copyright law is certainly enforcible. Very much so.
How will Microsoft argue that they do have the required permission (under copyright law) to give out vouchers for someone else’s copyrighted works, while at the same time violating the clear terms of the only license for those same works?
Microsoft can do one or the other … they can challenge the GPL license and make patent deals, or they can give out their vouchers. They cannot do both at the same time.
If Microsoft successfully challenge the validity of the GPL v3, all that would mean is that Microsoft still do not have any permissions to give out vouchers for someone else’s copyrighted works.
(quote)How will Microsoft argue that they do have the required permission (under copyright law) to give out vouchers for someone else’s copyrighted works, while at the same time violating the clear terms of the only license for those same works?
Microsoft can do one or the other … they can challenge the GPL license and make patent deals, or they can give out their vouchers. They cannot do both at the same time. (/quote)
This is where the issue lies, most certainly: Microsoft has no interest in the copyright per se, and that’s not at all what Microsoft’s issue is: the issue is that the copyrighted software also happens (Microsoft claims) to violate 235 of their patents, so the copyright issue is a non-issue, and Microsoft is NOT giving out rights to copyright in any way, shape, or form, to GPL’ed work, but by making this deal with the various distributors of the GPL’ed work that’s claimed to infringe, they are giving permission (for a price) for them to keep on distributing work that they state violates their patent portfolio.
Copyrights and patents are two similar animals in some respects, but are different in others, and one could be considered a zebra while the other is a regular horse (an imperfect analogy, granted) and they are not tied together: it is possible to (in the case of software patents) to violate patent claims without violating copyright, though it could also be that, if the work is large enough, you could violate both copyright and patent rights at the same time, but Microsoft isn’t claiming copyright violations in this case (AFAIK). The massive copyright violation claim against GPL’ed software (mostly linux kernel) is something we can leave to SCO
Correct.
The copyright violation that is occurring here is a violation by Microsoft of FSF’s copyright.
The claims of copyright violation is this case would go against Microsoft.
Oh, and BTW, if Microsoft are silly enough to make patent claims against FOSS software, there is an array of patent counter-claims ready to be made against Windows.
http://www.openinventionnetwork.com/
http://www.openinventionnetwork.com/patents.php
http://www.patent-commons.org/
So if Microsoft challenged the GPL, they would end up in a positions where:
(1) they have no permissions to give out vouchers for copyrighted works, which they have been doing, and
(2) a raft of patent counterclaims would be made against Microsoft, and
(3) In discovery, Microsoft would have to show all of their code to the FOSS side, who would doubtless find a lot of FOSS code buried within Microsoft’s codebase …
This is not a winning position for Microsoft to get themselves in to. This is the “mutually assured destruction” scenario. The FOSS side could be in a position in this scenario to stop anyone in America from running Windows …
Microsoft are far better off taking either of two alternatives:
(1) drop all “patent deals” with Linux vendors, or
(2) take the deal offerred by OIN and the Patent Commons, and cross-license each others patents, and drop all patent threats against FOSS.
I should create something and release a license with it that states that anyone can distribute it under only certain conditions and that if any third parties that communicate with those distributors, those third parties may never mention, whether verbally or in text, my product. And if they do, I can sue them for violating my copyright.
Hell yeah!
What exactly has this strawman got to do with anything?
If there is nothing worthwhile in your creation, why would any third party even mention it?
If your creation is trivial in IP terms, then you cannot extort people over it. (Eg. look at what happened to Microsoft when they tried to have a court case against Linspire, when it was called Lindows, over the common word “Windows”).
If your creation is worthwhile enough so that third parties want to include it in deals they make, why should you not have a say in the terms of said deals?
What if my creation IS worthwhile?
Nice job proving my point, hypocrite.
This: If your creation is worthwhile enough so that third parties want to include it in deals they make, why should you not have a say in the terms of said deals?
So, if the FSF’s GNU software is worthwhile, the FSF do indeed have a say in any deals made about that software. Not Microsoft, and not Novell, but rather the FSF get to decide how the FSF’s worthwhile copyrighted software is distributed.
Say what? Come again, sport?
What on earth do you think your point was?
You aren’t making much sense at all there. Please try to avoid blatant non-sequiturs like this in the future, it makes you look more than a little feeble-minded.
http://en.wikipedia.org/wiki/Non_sequitur_%28logic%29
Please try to remember that GNU/Linux is NOT Microsoft’s software, and it is also not Novell’s software. This simple concept will, I’m sure, help you a great deal to avoid similar recurring embarrassments to yourself in the future.
Edited 2007-07-19 14:39
I don’t think you understand that I can make terms in my license but they can only reach so far. I can’t have terms that reach farther than the people that have agreed to the license.
There is a fine line between license and contract and I can’t cross it.
Edited 2007-07-19 14:54
Nothing in the GPL license says you have to agree to it. It is a license, a conditional permission, it is not a contract.
If you want to have the permissions it grants, then you must abide by the terms it contains. If you don’t agree to its terms, then you don’t have the permissions it grants.
If Microsoft don’t agree to the terms in the GPL v3 license, then Microsoft have no permissions in respect of the software covered by the GPL v3 license, other than what is provided by copyright law.
The permissions granted by copyright law (without needing permissions of the copyright holder) don’t amount to much. The term “fair use” covers it. Microsoft, just like anyone else, has “fair use” permissions for software covered by the GPL v3 license.
“Fair use” rights certainly don’t cover giving out vouchers for something that is not yours.
To gain any rights beyond fair use for the software covered by GPL v3 license, the authors of the covered software have set out within the license the terms for gaining those permissions.
If Microsoft abide by the terms, then Microsoft are granted the permissions as stated in the GPL license.
If Microsoft do not abide by terms of the GPL, then the only permissions Microsoft have with respect to GPL v3 software is “fair use” rights.
That is the law. Period. The last bit, in the paragraph above, has nothing to do with the GPL. This is the law. The GPL cannot be “over-reaching” here, for this simple reason … this limitation on rights outside of the GPL terms has nothing whatsoever to do with the GPL.
So I’m presuming then that you agree with EULAs, especially Microsofts? They would stand up on court and are OK? After all, it is their copyright. You don’t have to agree to it.
What is good for the goose is good for the gander.
Microsoft cannot use copyright law to enforce Microsoft’s rights via a EULA and at the same time simply declare themselves exempt from the same laws applied to themselves.
I don’t agree with Microsoft’s terms in their EULA … so what I do about that is not run Microsoft software. It is a wonderful blessing to not run Microsoft’s software, let me tell you. No WGA, no spyware, no adware (heck, no ads at all), no license keys, no BSA audits, no viruses, no need of anti-virus software … the benefits to me are numerous and significant.
I don’t try to sue Microsoft, and I don’t pirate Microsoft software or try to otherwise sneakily get around what their EULA requires.
No is trying to subject Microsoft to the GPL3. All they have to do is never sell or release a version of Linux through coupons or in any other way that contains GPL3 software.
Just like Microsoft’s own software, there will be a license attached to some software, which Microsoft can choose to release or not at their leisure.
But if they do release it, they will be bound by it as the GPL is a distribution license and pleading ignorance doesn’t work for a corporation the size of Microsoft.
We are already at this point. The largest chunk of any Linux distribution is actually GNU software. Up to about a quarter of the code in a Linux distribution, maybe a bit more, is GNU software.
The GNU foundation is the author of the GPL license.
http://www.gnu.org/copyleft/gpl.html
The GNU foundation has just gone through the process of writing the GPL v3 license, so you can bet their own software will go under than license.
GNOME is GNU software. It doesn’t matter about the kernel or KDE, we are already at the point where it is just not possible to make a functional “Linux distribution” without GPL v3 software making up a large chunk of it.
Edited 2007-07-19 00:58
So, Microsoft wants to get rid of all GNU software? No problem. We can start by removing GNU libc from the system. Somehow I feel the rest of the to-be-removed packages doesn’t matter so much anymore.
I wouldn’t be surprised if this is what Microsoft was expecting to happen.
Well, it’s not. Microsoft envisioned an “intellectual property bridge” to certain blessed Linux vendors. The rationale being that they can “compete” with anyone they can get to bend over the negotiating table. They don’t want to compete with infinite community projects and vendors that proudly stand behind their products.
But now their vaunted creation looks like a fragile rope bridge with missing planks and patent lawyers poised to strike at either end. Nobody wants to cross the bridge. The bridge seems more dangerous than other ways of mitigating IP risks associated with Linux, like buying an insurance product or simply accepting the risk.
When Linspire gives their pitch, and they explain about the bridge, the prospective customers think, “well, I really hope I won’t be needing that bridge…” It makes all of the involved parties look disingenuous and more than a bit silly.
I should doubt anyone is really surprised by this move. Microsoft serves itself. I’m with Linus Torvalds: Microsoft needs to either put up or shut the f**k up!
What interests me most is the ‘clone products’ exception to the patent coverage. Microsoft is basically saying “We will idemnify you from any incidental infringement of our patents, unless you knowingly and willingly rip off someone else’s work.”
(… unless that odd use of capitalization is not legalese, but indicates that ‘Clone Products’ is a company I am unaware of …)
A lot of Microsoft’s software is actually ‘clone software’ itself. Microsoft’s networking protocols, for example, are simply a heavily-obscured extension of IBM’s Server Message Block protocol.
To have a patent, one must disclose how the “invention” covered by the patent actually works. This must be done on the patent application. In return for disclosing how it works, the patent gives you a monopoly on that invention for 20 years.
OK, so clearly there are no patents involved where Microsoft have simply obscured how something works. This applies not only to their network protocols, it also applies to their document formats. These are not protected by patents, they are trade secrets.
OK, the thing about a trade secret is that it is perfectly legal for another party to try to discover the secret. “Reverse engineering” of trade secrets is perfectly legit. Microsoft have no leagal “angle” via which to attack Samba, for example, or OpenOffice’s import of Microsoft legacy formats. Microsoft has no patent on these things.
This means that all that Microsoft can do is not license other ‘clone products’ of Microsoft products, even though in most cases Microsoft’s software is itself a ‘clone product’, albeit obscured.
BTW, although Microsoft say that they will ‘not indemnify a clone product’ … this is actually meaningless, it is semantic nonsense. Microsoft cannot leagally attack such a ‘clone product’ in the first place, because the only IP protection that product has is that it is a trade secret. Once the secret is out, that is it … no more protection.
for shame!
In the software industry it is something I suspect is very, very hard to hold a candle on court.
I guess not. I’m happy it happened this early and hopefully not too many people bought into all this
All of GNU software will be going to GPL v3. (The GPL license text is actually authored by the GNU Foundation).
So how much of Linspire or Xandros is GNU?
http://www.gnu.org/gnu/linux-and-gnu.html
The answer is: “A big chunk”. More than enough to make Linspire or Xandros utterly useless without the GPL v3 bits.
I think ms did just sidestep the GPL3 hook simply by excluding those products from coverage. Good move microsoft!
But that simply means that if you use gplv3 code (along with cnr apps, freespire, foundry apps) you are back on the hook even if you are using MS approved Linspire.
I just find it funny that linspire user accounts and freespire user accounts are tied together. So if microsoft wanted to sue a end user for freespire usage or for CNR application usage etc… I wonder where it could get a list of names from?
And it appears, by using Linspire that you are under the requirement to “providing Microsoft, upon its request, with sufficient information to verify which copies of Client Offerings are Covered Products subject to the covenant”
So is Linspire the moral high ground yet freespire is just as pirate-ish as the rest, along with CNR apps, foundry apps and so forth?
Hardly. Microsoft vouchers for SuSe Linux have no expiration date, and they do not stipulate what version of SuSe the voucher applies to, and they include “five years support” terms.
SuSe will in the near future distribute a new version of SuSe Linux, which will inevitably contain a large chunk of GPL v3 code.
If then anyone, anyone at all, hands in a voucher and obtains the new version of SuSe, then Microsoft have given out a voucher for GPL v3 code.
The only permission Microsoft have to give out such a voucher is the GPL. If Microsoft deny accepting that permission and all of its terms, then they are in breach of copyright law.
I was discussing the linspire deal…
I cannot decide if they could issue the same type of exclusion in the novell deal. But it likely doesnt matter since I assume they could cancel the previous deal and redo a new one with the gplv3 code excluded.
Either way the Linux companies doing the deal(s) are getting bent over the worse IMO….and rightly so IMO.
Edited 2007-07-19 02:46
There is no point … such software would be non-functional.
Neither SuSe, Xandros nor Linspire have any functional product offering at all without gplv3 code.
If Microsoft tried to “re-do a deal excluding gplv3 code” (BTW this most decidedly is NOT what any of the current deals say) … what would anyone on the other side of the table from Microsoft be dealing with, exactly? Certainly such a deal would not encompass anything anyone could reasonably offer to an end customer downstream.
If there is to be no end customer indemnification offered, why would anyone deal with Microsoft at all?
exactly….
Either they include gplv3 code and as such have a unsafe product again OR they dont and they have a non-functional one.
too funny…
The problem with this is that Microsoft have already signed a deal with these companies which indemnifies the customers of those comapnies … and the deal that Microsoft signed makes no mention at all of GPL v3 as far as we know.
In other words, the existing signed deal does not force this conundrum on to the Linux companies … as far as we know the Linux companies (especially SuSe) are perfectly free to release gplv3 code and still fully expect Microsoft to abide by their agreement.
Microsoft are desperately trying to back out of these deals. It remains to be seen if they are actually able to.
As you say, too funny.
Edited 2007-07-19 03:29
No, they’ll get an unmaintained one.
They can still stay at the current level of functionality by forking the latest GPL2 licenced version of the respective libraries and applications.
But they’ll have to maintain those forks either themselves or share the maintenance between those companies that have similar agreements.
No, they will get a current, maintained, GPL v3 one.
http://www.novell.com/prblogs/?p=365
I think the main reason for the deals from the Linux vendors’ point of view must be that MS is paying them an undisclosed amount of money.
Edited 2007-07-20 17:56
Since you seem to be such a self-proclaimed expert on copyright law, how about you cite the relevant passages that require MS to agree to GPLv3 in order to give out vouchers, while retailers that sell the same distribution do not have to agree to GPLv3.
Not agreeing to GPLv3 means it falls back on copyright law. Now go ahead and prove your claims using ONLY copyright law.
Where did you get this from?
Novell agrees with the terms of the GPL v3 and is happy to abide by them, and so are Xandros and Linspire as far as I know.
http://www.novell.com/prblogs/?p=365
http://www.itwire.com.au/content/view/13393/53/
“Novell welcomes and supports GPLv3, and intends to include code licensed under GPLv3 in its distribution.”
The terms that are causing Microsoft some angst are the condition in the GPL v3 that you agree to refrain from suing anybody over the software covered by the license, even those users of the software who got it from elsewhere (ie. those to whom you did not distribute the software to, but who have the software nevertheless).
Novell, Linspire or Xandros have no trouble at all complying with this … none of them want to sue any Linux users.
Novell has even given patents in support of Linux. Read about it here, if you want:
http://www.patent-commons.org/
Exactly.
Pfft. Easy peasy. Copyright law requires that you get permission from the copyright holder to do almost anything with a copyrighted work.
I don’t have to prove anything, copyright law is quite explicit. If you are going to distribute copyrighted material (or even if you just assist in its distribution, such as a Bittorrent tracker site does), then you need permission from the copyright holder to do so.
That much is crystal clear. It is the law everywhere on the planet.
It is beholden on Microsoft to prove they do have permission in order to be giving out vouchers for someone else’s copyrighted work.
So, where do Microsoft get permission from for their Linux vouchers? From Novell? Well, that would only be good for Novell’s software … software for which Novell is the copyright holder.
What about GNU software? GNU software is some 25% of SuSe Linux, or more. Where have Microsoft got permission from to give out vouchers for that?
I just happen to know that there is a document wherein the holders of the copyright for GNU software, namely the FSF, do agree to give out such permissions, providing one abides by the terms in said document. This document is the GPL license.
That license is in fact the ONLY place where anyone can get the required permissions.
Novell, Linspire and Xandros all abide by the provisions of this document, so they all do have the permissions the GPL grants.
Edited 2007-07-19 06:34
Novell’s patent pledge with respect to patent claims against Linux:
Novell Statement on Patents and Open Source Software
http://www.patent-commons.org/commons/pledgesearch.php?displaypledg…
Read and enjoy.
Edited 2007-07-19 06:54
You may want to read up on the First-sale doctrine before you continue trying to make your case.
Note that the vouchers are all paid for by MS. One voucher – one copy of SLED (or only one instance of the support agreement, as it still seems to be unclear exactly what the voucher entitles the buyer to get).
If you don’t agree, I suggest you show why the First-sale doctrine wouldn’t apply.
And since you seemed to miss it, with retailer in my original post, I did not talk about Novell, but actual RETAILERS that sell a lot of stuff.
You may want to read up on copyright law.
Here is a google search for you to ponder, that generates 433,000 hits.
http://www.google.com.au/search?q=bittorrent+bsa&ie=utf-8&oe=utf-8&…
OK, so obviously Microsoft and its agent the BSA believe they have a right to try to stop Bittorrent tracker sites from having a role in spreading copies of Microsoft software … even though there are no copies of Microsoft’s software actually on the Bittorrent sites themselves.
The reason why Microsoft believe they have this right is because of copyright law. Microsoft are the copyright holders for Microsoft software, and Microsoft have not given permission for their software to be copied in this way. The critical consideration here, remember, is that the Bittorrent sites do not actually have any copies of Microsoft’s software themselves.
OK, so now you get to try to explain how Microsoft giving away vouchers for software for which Microsoft are not the copyright holders, and for which Microsoft does not have permission from the actual copyright holders to distribute vouchers, is in principle any different to the situation with Microsoft’s own software and Bittorrent sites. Even though Microsoft are not actually distributing the GPL software directly, it is in principle no different from the actions of the Bittorrent sites that Microsoft themselves believe they have a right to stop.
I am looking forward to seeing you try to explain all this away. This will be good.
Here are a couple of links for your embarrassment:
http://en.wikipedia.org/wiki/BitTorrent#Copyright_enforcement
http://www.zeropaid.com/news/8292/BSA:+%22Move+over+RIAA,+we‘re+gonna+keep+an+eye+on+BitTorrent!%22
http://torrentfreak.com/bsa-monitoring-bittorrent-traffic/
Edited 2007-07-19 12:21
So now you don’t even know the difference between
1) unlawful copying, distribution of unlawful copies and the facilitation of said distribution (which is the only point that may be legally questioned)
and
2) reselling of vouchers that were legally obtained and paid for and which are intended to be resold from the start
You completely ignore that there is no provisions in copyright law that makes 1) legal, while there’s nothing in copyright law that makes 2) not legal.
Not only that, you ignore that it is from Novell that MS bought these vouchers. And that these vouchers are not by and in themselves the software and/or support that they entitle a voucher holder to get.
Go to Slashdot or Groklaw if you want people to pat you on the back for your arguments that are filled with inaccuracies. Or better yet, try it on Ars Technica where there’s more than enough people that would be willing to teach you about the things you pretend to know so much about.
Before I end this, are you seriously so clueless as to believe you’re actually right? Do you seriously believe that MS lawyers have no clue about what GPLv3 actually means for MS? Have you seriously not understood that the reason MS go out and say that these covenant deals does not cover GPLv3 licensed software is to clear up confusion over whether or not that software is actually covered?
Now begone and take your drivel elsewhere.
Yes there is. You have to get permissions from the copyright holder. Novell is not the copyright holder.
Monies paid to Novell do not buy permissions from the copyright holder of GNU software. You have to deal with the GNU foundation to get permissions for GNU software.
Pfft. Read the copyright law.
Sorry, but you simply cannot buy from Coke permission to make Pepsi … you have to get that permission from Pepsi.
Edited 2007-07-19 15:25
Want to use an analogy? Fine.
What if Coke says.. here is where you can get the recipe for Pepsi. That recipe is available from sources other than Coke. Coke says if you buy this voucher, we will tell you where to get the recipe and we will provide support to you for using that recipe to make Cola.
No problem.
However, Coke cannot also say … “we will sue you if you get your Pepsi recipe from anywhere other than where we say you can get it, or if in your Cola venture you accept help from anyone else other than us”.
Coke cannot make such a threat because Coke do not have any rights to Pepsi’s recipe other than what Pepsi grant them, under terms set by Pepsi. This is true even if Pepsi publish their recipe in plain sight for anyone to read.
After all, people can read as many Harry Potter books as they want … it does not mean that said people get publishing rights for Harry Potter stories of their own.
Edited 2007-07-19 16:01
However, Coke cannot also say … “we will sue you if you get your Pepsi recipe from anywhere other than where we say you can get it, or if in your Cola venture you accept help from anyone else other than us”.
Relevance? None. Microsoft is not doing that. It’s more like.
Coke says Pepsi ingringes on some of their patents, but if you buy the voucher, they promise not to sue you for using the pepsi recipe in addition to the support.
They are NOT saying “we WILL sue you if you dont buy this voucher.”
You may think they are implying it, but they are not explicitily saying that, so you are only assuming.
Edited 2007-07-19 16:15
If Microsoft do not intend to retain (at least the appearance of) the intent to sue Linux users, then there is no point in Microsoft distancing themselves from GPL v3.
http://www.microsoft.com/presspass/misc/07-05statement.mspx
So what is it that has Microsoft worried? If they aren’t going to sue over patents, why worry about the provisions in GPL v3, which after all amount only to: “you agree that you won’t sue anybody over patents”.
Hmmmmm?
I’d agree, this is all about Microsoft keeping up a certain appearance of threatening to sue Linux, even though everyone knows they won’t sue, and it would be insane for Microsoft to sue.
Unfortunately (for Microsoft), Microsoft run a strong risk also of finding themselves on the wrong side of anti-trust law here. RICO also comes to mind, as does the Lanham act.
Edited 2007-07-19 16:31
So what is it that has Microsoft worried? If they aren’t going to sue over patents, why worry about the provisions in GPL v3, which after all amount only to: “you agree that you won’t sue anybody over patents”.
To protect themselves just in case. It’s still a legal grey area, untested. No reason to leave themselves vulnerable.
And RICO? Wtf. RICO has nothing to do with Microsoft. At all.
http://en.wikipedia.org/wiki/Racketeer_Influenced_and_Corrupt_Organ…
Microsoft asking for money from people for Linux, in any way, shape or form, is certainly a candidate for a charge of extortion.
Microsoft have already been found out asking for money from people for Linux.
And RICO? Wtf. RICO has nothing to do with Microsoft. At all.
On the contrary, whether Microsoft can be convicted under RICO is a decades old, recurring question. In the latest recurrence, see, e.g., how the top hit on the search ‘Microsoft RICO’ mentions RICO in the context of the 235 alleged patent violations and reminds us that Microsoft and Best Buy are currently being tried for racketeering under RICO:
http://riskman.typepad.com/perilocity/2007/05/microsoft_rico.html
(FWIW, from the site, “Mr. Quarterman has 26 years of experience in internetworking, beginning with work on ARPANET software at BBN.”)
Edited 2007-07-19 18:19
Since YOU seemed to miss it, I will point it out again. In order for the retailers to abide by the terms of the GPL it basically means that they must give recipients the same rights they themselves got when they got the GPL software, and they must not sue downstream recipients for their use of the software.
Microsoft are the ONLY party who seem to be struggling with the latter concept.
Its not hard, Microsoft. If you enable people to get a copy of this software, you cannot sue them for it, nor can you sue anyone else for using the selfsame software.
Hey Microsoft … the GPL v3 is saving you from accusations of “entrapment”. Pretty cool, hey!
Edited 2007-07-19 12:33
http://en.wikipedia.org/wiki/First-sale_doctrine#Computer_software
“The first-sale doctrine as it relates to computer software is an area of legal confusion. Software publishers claim the first-sale doctrine does not apply because software is licensed, not sold”
This non-applicability applies doubly for GPL software, where there is no bill of sale of the software from the copyright holders, only a license to use it.
Novell did not buy the GNU software from FSF in the first place, so Novell cannot then sell it to Microsoft to thereby give away the FSF’s interest in the software.
There is no first sale.
…is all I have to say. If you weren’t subject to the GPLv3 like you said, Microsoft, then why are you distancing yourself from it?
They werent subject because they knew they were going to exclude gplv3 code from the deal(s).
Sort of a half truth that makes them look a bit better.
Funny really!
Microsoft said that they will let lawyers analyze GPLv3 and decide if it is threatening them or not. Until then no GPLv3 products included. Sounds reasonable.
They seemed to have suckered/tricked/coerced Linspire into paying for limited protection in exchange for some codecs and who gets the short end of the stick — the Linspire customers.
I am guessing that the *patent sku* purchase is included in the price of Linspire, that is why you can only install Linspire on one computer and so forth.
On top of that a Linspire customer is under the requirement to “providing Microsoft, upon its request, with sufficient information to verify which copies of Client Offerings are Covered Products subject to the covenant”
And any gplv3 covered code in Linspire, any clone products, and cnr apps,freespire OS, and foundry products are also not covered.
Man what a deal IMWO….
Edited 2007-07-19 02:47
so you pay for a CNR subscription….
you provide your name and info…
and are entered in a contest where the grand prize may be a MS lawsuit….
sucks
I really can’t understand why this buzzing is going on.
Agreement Microsoft made has two parts:
1) distributing vouchers which entitle users to get a copy of software. Microsoft promise not to sue people acquiring Linux this way. But they’re not a part of any GPL agreement (v2) nor they distribute the software. So it’s easy to verify that they’re not bound to GPL terms as they’re not entering any agreement with users, except for a mere promise not to sue them if this software infringes their patents. Easy to understand.
2) since GPL v3 requires that patent protection you give to someone needs to be extended to all GPL v3 software distributed by others (giving, in effects, access to their patents from all OSS world), they simply clarified that GPL v3 software is excluded from their agreement and they won’t provide any patent protection to such software. This is also very easy to understand and it looks perfectly in their rights. Plus, you can’t bind subjects to new versions of an agreement unless they “agree” to be bound. You can’t simply say “what was GPL v2 now it’s GPL v3” so now you’re bound to GPL v3 because they never entered that agreement.
Again, to me this concept looks pretty simple to understand. GPL v3 was designed to stop Novell-MS agreements so it’s not a surprise that they excluded GPL v3 software from their agreement.
I’m amazed how people could state that Microsoft doesn’t want to bind itself to GPL v3 when it’s the opposite! GPL v3 didn’t exist when Microsoft made Novell deal and it was *then amended* to prevent such deals. Which is what it’s happening now.
The real problems will be in Novell / Linspire / Xandros camp because they won’t be able to offer patent protection if they switch to GPL v3 software but they would put themselves out of OSS community if they refuse to distribute GPL v3 software. Not easy to handle.
Plus, an article posted on OSNews in past days also hints that GPL v3 could possibly be considered more like a contract rather than a copyright notice. This would be a disaster for OSS community because a contract cannot be enforced if not agreed by both parties. So that would mean you cannot distribute GPL v3 software and think user should check license before they use. You would need to be sure that user accept GPL v3 terms before they use, the same way MS requires you to accept EULA before you install Windows, or you won’t be able to enforce GPL v3 terms because users could simply state they didn’t know and they didn’t want to accept such terms.
That would a disaster, if proven right (I really hope that guy is wrong), requiring you to accept terms before use or download software, which would be an hell given big number of different software you can find in a distribution nowadays (accepting GPL v3 terms wouldn’t mean you accept BSD or GPL etc.).
I fully stand on Torvalds’ side, even if I’m not a Linux user. GPL v3 was a bad design and it goes much further its scope. We’ll see what happens.
Edited 2007-07-19 07:23
This is where you get it wrong.
It is not within Microsoft’s rights to assist anyone in any way to get a copy of a copyrighted work without Microsoft being the copyright holder themselves or without Microsoft obtaining permission from the actaul copyright holder.
This is what the word “copyright” actually means. The holder of the copyright has these rights, not Microsoft.
The GPL v2 license did not make it clear that indirect actions aiding distribution of the covered software required the copyright holder’s permission. GPL v3 simply does now make this clear.
Edited 2007-07-19 12:16
It is not within Microsoft’s rights to assist anyone in any way to get a copy of a copyrighted work without Microsoft being the copyright holder themselves or without Microsoft obtaining permission from the actaul copyright holder
Definitely wrong. Most of all because Microsoft is not helping or assisting anyone. Microsoft is just promising not sue anyone getting Linux and GPL2 covered software included in Novell distro. As a proof of this (since a promise is a promise… plus you might want to limit number of such promises) users get a vouchers. GPL2 software allow free distribution, if certain criteria will be met, which is definitely right for Novell and Microsoft.
Microsoft cannot be bound by GPL3 by any mean, unless they distribute GPL3 software and promise not to sue users on the ground.
Plus, if everyday more and more convinced that GPL3 is contract, not a copyright notice. And in that meaning, GPL2 might be too.
As a preemptive move, Microsoft won’t extend its promise to GPL3-covered software, in order to stop any speculation about this (which IMO groundless anyway). Could not be simpler than this.
Speculating about Microsoft being tied to GPL3 is a nonsense which will bring nothing to OSS community.
As I said, I think real problems will be in Novell camp and also in Linux camp since, as it looks probable, Linux itself (kernel) won’t switch to GPL3.
This doesn’t matter, in any way at all.
It doesn’t matter if Microsoft withdraw their promise not to sue for GPL v3 software, or not … Microsoft still need permission from the copyright holders to give away vouchers for copyrighted software.
It doesn’t matter what Microsoft say on the topic … the permission that Microsoft require by law can be granted to Microsoft only by the copyright holder, which is FSF for GNU software. FSF’s terms for granting permission is explained in a document called the GPL.
If Microsoft don’t sue anyone for their use of Linux, then Microsoft are not in violation of the terms of the GPL, so Microsoft are granted permission to distribute the vouchers, and all is fine and dandy.
If Microsoft attempt to sue anyone for their use of any Linux distribution, then Microsoft’s permission is withdrawn, and Microsoft will then (and only then) be in violation of FSF’s copyright on the FSF software that Microsoft are giving away vouchers for.
It doesn’t matter if Microsoft withdraw their promise not to sue for GPL v3 software, or not … Microsoft still need permission from the copyright holders to give away vouchers for copyrighted software.
You’re talking about something which won’t happen. Microsoft won’t distribute vouchers which can be used for GPL v3 software. That’s all. Why are we talking about this nonsense while they already stated their agreement won’t be extended to GPL v3 software? It looks to me that FSF-supporters like to mess things while things are clear.
The point here is if Microsoft, because they distributed GPL v2 vouchers, will be bound to GPL v3, whose answer is simply no.
Sure, we could talk about what would happen if Earth was flat… but since it isn’t, it looks like a waste of time. We don’t need to talk about what “would” happen if, because Microsoft won’t distribute vouchers for GPL v3 software. Dot.
Microsoft have already given out large numbers of vouchers for SuSe Linux. The vouchers have no expiration date, the vouchers do not stipulate or limit the version of SuSe Linux for which they are redeemable, the vouchers include support for five years from the time of redemption of the voucher, and the vouchers are not all yet redeemed.
SuSe have clearly stated that maintenance updates to current versions of SuSe software, and future versions of SuSe software, will definitely include GPL v3 software.
Microsoft don’t have any means to stop this all from happening. The cat is already out of the bag. The horse has bolted. There is no point crying over spilled milk. There are, I’m sure, a great many other similar sayings that apply.
No, they didn’t. They distributed vouchers for SuSe Linux. The vouchers don’t stipulate the version.
Edited 2007-07-19 15:19
Microsoft have already given out large numbers of vouchers for SuSe Linux. The vouchers have no expiration date, the vouchers do not stipulate or limit the version of SuSe Linux for which they are redeemable, the vouchers include support for five years from the time of redemption of the voucher, and the vouchers are not all yet redeemed.
SuSe have clearly stated that maintenance updates to current versions of SuSe software, and future versions of SuSe software, will definitely include GPL v3 software.
Microsoft don’t have any means to stop this all from happening. The cat is already out of the bag. The horse has bolted. There is no point crying over spilled milk. There are, I’m sure, a great many other similar sayings that apply.
There is no way to extend an agreement to something which wasn’t previously agreed upon. Things changed since when Novell and Microsoft made the deal and Microsoft can easily argument they won’t provide any backing to new conditions. As I said, you can’t bind people to terms of an agreement which you didn’t agree upon.
Let me clarify this by using an example: suppose that starting from tomorrow, OSNews will state that they will charge their users for articles they read. Can OSNews do that? Sure. Can you stop visiting OSNews? For sure.
Suppose that OSNews will ask for payment for all articles you read since when you signed here, based on their database and your user ID. Could they ask such payment? Hell no, because it wasn’t in effect when you started reading articles. There’s no way OSNews could ask for payments of all articles you read in past years, the same way there’s no way Novell could ask Microsoft to support SuSe when terms changed and Microsoft didn’t agree to extend its deal to new terms. What they printed on thouse vouchers is irrelevant and Novell knows that. That’s why they “expect” Microsoft to support new SuSes and they don’t say Microsoft is forced to do that.
This is fine, and I do understand retro-activity and why it is a complete nonsense.
So we actually agree on this … the Novell/Microsoft deal is dead. Dead as a DoDo. It has ceased to be. It has left its mortal coil. It is an ex-parrot … sorry, but I got a little carried away there.
Since the Novell/Microsoft deal is dead, and since Xandros and Linspire have no patent clout … the Microsoft FUD attack Linux has also temporarily died.
It is back to the drawing board for all you Microsoft weenies, I’m afraid. You are all simply going to have to think of something else now.
So we actually agree on this … the Novell/Microsoft deal is dead. Dead as a DoDo. It has ceased to be. It has left its mortal coil. It is an ex-parrot … sorry, but I got a little carried away there.
Ah well 😉 Yes, Microsoft-Novell deal is dead for new Linux distros providing GPL v3 software. But remember kernel will stay with GPL v2 and what if Novell will provide a forked SuSe version based on GPL v2 with no GPL v3 software in but using new kernels? That could be perfectly legal.
What is sure is you cannot drag Microsoft inside a GPL v3 war. Rest in unsure because, besides Torvalds and kernel developers, other people are expressing arguments against GPL v3. I think we must wait and see which faction will be the winner side.
And I don’t need think to something else: I couldn’t care less about this. My open-source code never used GPL so I don’t care a dime.
Perhaps … but it isn’t going to happen.
Novell have another perfectly legal plan instead:
http://www.novell.com/prblogs/?p=365
So there you go.
Why do you imagine this might be a problem? Linux itself (kernel) is only about 3% of the code of a Lnux distribution. The biggest chunk of any Linux distribution is GNU software.
Here is a more reasoned view on what will probably happen:
http://rcpmag.com/blogs/weblog.aspx?blog=1102
“Nobody truly knows what they’re up to,” Bottomley says. “It won’t be an attack on Linux until Microsoft sues somebody.”
True.
“If [Microsoft] found the knife, they’d use it — but I don’t think they found the knife,”
Indubitably.
“Patent law is supposed to protect people who wish to publish their ideas. I suspect these ideas were never published.”
Precisely. Microsoft keep their software a secret, they won’t tell anyone how it works … ergo, Microsoft have no applicable patents.
Why do you imagine this might be a problem? Linux itself (kernel) is only about 3% of the code of a Lnux distribution. The biggest chunk of any Linux distribution is GNU software.
I’m talking about licensing problems, plus the “could-be” fact GPL 3 will be declared a contract.
But I wouldn’t be so sure GNU software is so important to Linux distros. I read somewhere people (from the Linux community) discussing about GNU software removal from a Linux distro. If I understood the thing well, the only critical pieace of GNU software is libc library. They were specifically talking about what to do if they needed to remove GNU software and that was sort of conclusion. I remember someone to have a solution for libc too but I honestly can’t remember which one it was.
GNU folks have all to loose by loosing Linux while I’m not so sure Linux will loose that much. But I’m not an expert here so these are just speculations coming from what I read.
“Nobody truly knows what they’re up to,” Bottomley says. “It won’t be an attack on Linux until Microsoft sues somebody.”
Microsoft won’t sue Linux. We’re perfectly aware about this, because:
1) Microsoft never sued anyone about patents nor they like to do that. They stated that many times.
2) They would be the “even eviler” guy.
3) Any counrt will first force Linux to remove offending code before anything else. After that, Linux will be free to go on.
4) Why suing? And most of all, whom to sue? Sueing kernel developers would have no effects since they’re a movement, not a company itself. Microsoft could not sue IBM, Red Hat or others which could easily claim they got code from kernel developers and they’re not responsible for thidy-parties code. So what’s the point in suing anyone?
This simply won’t happen. However, the thing here is not actually suing anyone but if Microsoft could really do that. Would companies invest millions or billions in something Microsoft could harm if they wish? By letting people know they could (and I believe they could, even if I believe they won’t), they’re essentially trying to harm Linux business by uncertainity. That’s what companies do against other companies, nothing new.
Precisely. Microsoft keep their software a secret, they won’t tell anyone how it works … ergo, Microsoft have no applicable patents.
Saying that closed source code cannot be patented is a joke. C’me on… let our feet be on the ground.
P.S. … which doesn’t mean patent laws are always applicable In EU, patenting a software is not allowed so a case would have no ground here. We’re of course talking about crazy systems where software can be patented…
GCC
GNOME
binutils
coreutils
All of the above bar GNOME are absolutely critical.
GCC, for example, produces executables in ELF format. Binutils includes the ELF loader so that the kernal can run the executable.
Without the above GNU software, you could have a kernel which had no desktop, no means to load any executables to run, and no means to make executables in the first place.
I’ll leave it as an exercise for the reader to determine exactly how critical these bits of GNU software are to any Linux distribution.
Everyone knows Microsoft won’t sue Linux. As you say, there is little point, and a whole load of risk for Microsoft.
Since Microsoft won’t sue, and everyone knows it, then their FUD threats have no weight.
I did not say that. What I said was that in order to get a patent, the patent has to describe how the invention works. The patent must disclose the method (not the code per se, but the methods used in the invention).
http://en.wikipedia.org/wiki/Patent
“A patent is a set of exclusive rights granted by a state to a patentee for a fixed period of time in exchange for a disclosure of an invention.”
Microsoft have not disclosed the major methods of their software (for things like network protocols and document formats) … therefore they have no major patent which covers those things.
GCC
GNOME
binutils
coreutils
All of the above bar GNOME are absolutely critical.
As I said, I’m not able to tell, besides a general knowledge. You might be right but the fact I read many posts around the Internet about this idea makes me believe that there is a chance this could be done. We’ll see.
Microsoft have not disclosed the major methods of their software (for things like network protocols and document formats) … therefore they have no major patent which covers those things.
No this is baseless. While I think patents are evil, saying that Microsoft cannot have them assigned is wrong. They hold several patents and US system allows them too. Plus a patent could be assigned retro-actively based on prior art. So even when they didn’t provide enough details for a patent filing, they could do now and have that patent assigned. Plus, that patent only needs to be described, not specified. Stating that Microsoft cannot have patents assigned is baseless and infacts Microsoft enforced many of them when it really wished.
But blaming Microsoft for patents is very ingenuous. Almost all big corporations have lots of patents and you can be they enforce them and make money out of them. IBM is probably largest of them . Fighting Microsoft patents and forgetting to do the same with others is not a balanced behaviour.
As I said, I’m not able to tell, besides a general knowledge. You might be right but the fact I read many posts around the Internet about this idea makes me believe that there is a chance this could be done. We’ll see.
Considering that, in general, “posts around the Internet” are likely mostly a bunch of nonsense, yet another opinion based on the mere existence of such posts is highly dubious. At best, you are committing the popularity fallacy [1]. Please state some kind of argument without fallacies.
While I think patents are evil, saying that Microsoft cannot have them assigned is wrong.
While that may be true, he said merely “have no”, not “cannot”. Please read more carefully. This mistake invalidates your entire point about picking on Microsoft.
Fighting Microsoft patents and forgetting to do the same with others is not a balanced behaviour.
Since when is “balanced behavior” the highest criterion of how to act? Should I be equally trusting of a known murderer and my spouse? That’s unbalanced. In particular, since it is highly unlikely that all companies handle their patents equally responsibly, it is dubious to address all companies in a balanced way, especially a convicted monopolist such as Microsoft with indisputably highly controversial business practices.
[1]: http://en.wikipedia.org/wiki/Argumentum_ad_populum
I am sooo glad and happy to be a dane, living in denmark.
This fuss, these uncertainties about wether patents are holding water or not, are none of my concerns.
Patents are none excistent here, we only have copyright law… Sooo, what does this cold-war means for me??
Nothing… 😀
I stick to the posibillity, that these claims of patents are none excistent.. There are no patent violations as I see it…
What does the law say in usa, when u claim, that someone have stolen something from u?? Are u free to just claim, or does the law clearly say, that u have to provide evidence in order to claim that your propperty have been violated?? What does the law say explictly??
I must confess that I am pleased to see Microsoft stepping and fetching to avoid getting bit by the GPLv3 crocodile.
a Novel project these days?
Nope.
http://www.gnome.org/about/
That was easy. You would think that people could find these things out for themselves, it is so easy …
I want to point out with a comment regarding having to take out GNU software… and I don’t know whether or not it has been pointed out yet… but a vendor who agreed to a version of the GPL to distribute the GNU software before the change is not liable to the license change—until they change it again to include another aspect of GNU software.
So MS needn’t worry about gnulib or what not until it is updated with source from GPL3 software. Which Novell said it will do, and in response MS said the new parts aren’t covered. MS is not caught in any sort of snag until they change that.
Edited 2007-07-21 22:55