RSSFSF: Microsoft is Bound by GPLv3 Terms If It Distributes GPLv3 Code
By Scott M. Fulton, III | Published August 28, 2007, 6:55 PM
Last month, Microsoft's legal department proclaimed it doesn't consider itself bound to the terms of version 3 of the General Public License, with respect to certificates it distributed for software, services, and support from Novell. Today, the Free Software Foundation responded by saying if Microsoft distributes software covered by GPLv3, then it's bound by the terms of that license.
"Microsoft cannot by any act of anticipatory repudiation divest itself of its obligation to respect others' copyrights, reads today's FSF statement. "If Microsoft distributes our works licensed under GPLv3, or pays others to distribute them on its behalf, it is bound to do so under the terms of that license. It may not do so under any other terms; it cannot declare itself exempt from the requirements of GPLv3."
The crux of the dispute centers around whether, when Microsoft agreed to issue certificates for Novell's customers, it effectively distributed software on Novell's behalf. Microsoft has made the case that Novell is the distributor in this case, and that it's just picking up the tab.
The reason why it all matters is because version 3 specifically declares that a licensee doesn't have the right to claim to hold anyone to whom it distributes that code free from patent obligations. The basic theory here is that no distributor can claim ownership of any part of the software, so it can't then presume to hold someone to whom it distributes that software free from liability or infringement for it.
FSF's motivation may be to find a way to legally extend some of that privilege Microsoft granted to Novell last year, to everyone else who might be a recipient of that same software even if Novell's not the distributor. That's probably why Section 11 of the new GPL reads, in part, as follows: "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."
Last July, Microsoft's proclamation contained the following: "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. In fact, we do not believe that Microsoft needs a license under GPL to carry out any aspect of its collaboration with Novell, including its distribution of support certificates, even if Novell chooses to distribute GPLv3 code in the future."
Microsoft went on to say its Novell agreement does not grant any patent rights to any of Novell's customers, through its distributed certificates or otherwise - meaning, it's not granting Novell's customers the rights to use software whose rightful ownership Microsoft wants to retain the right to contest later. However, the company did decide to rescind the portion of its certificates which grant recipients the right to receive support on GPLv3 licensed code from Novell - which was actually in compliance with an earlier FSF request.
But the FSF didn't want last month's proclamation to be the last word. "Microsoft has said that it expects respect for its so-called 'intellectual property' - a propaganda term designed to confuse patent law with copyright and other unrelated laws, and to muddy the different issues they raise," reads the close of the FSF's statement today. "We will ensure - and, to the extent of our resources, assist other GPLv3 licensors in ensuring - that Microsoft respects our copyrights and complies with our licenses."
In the meantime, the issue of whether issuing a certificate toward the purchase of software by someone else constitutes legal distribution of someone else's software, remains open.
It's a ridiculous stretch for the FSF to claim that Microsoft is distributing ANY kind of code under the Novell agreement, much less GPLv3 code. Microsoft is distributing certificates...essentially coupons. Just like your local newspaper distributes coupons. Do you hold the newspaper responsible for the laundry detergent you bought with a coupon?
Score: 0
|I think GPLv3 simple.
Programmer writes code and gets automatic copyright.
Programmer chooses GPLv3 as distribution license.
Everybody gets to use the program.
Everybody gets to distribute the program.
Only the original programmer can change the terms of the license.
If you add something to a GPLv3 program, like more code, or a patent license, you cannot change the license terms.
Everybody still gets to use the program.
Everybody still gets to distribute the program.
But now the code, or the patent license, you added is included.
GPLv3 is a great business opportunity, if you are willing to sell results. It's a lot harder to deliver results than it is to deliver permission, licenses, or imaginary property.
Score: 0
|Wait. Microsoft says that GNU/Linux violates their IP and patents, and they threaten to sue. Yet they make a coupon deal with Novell to distribute SUSE. Yet, if they knew of potential patent infringements in GPLed code, but still encouraged or caused distribution of Linux, that would be contributory copyright infringement at the least, and Microsoft would spend a SCO amount of money defending it, even if they won.
That's FUp.
Score: 0
|How can a company distributing it's own IP be guilty of infringing...on it's own IP?
Score: 0
|How can anyone be sure MS is NOT infringing on others open source IP if MS is 100% closed source?
Nobody can verify MS FUD campaign of Linux infringing MS IP's because MS is 100% closed source.
But on the article, I'm not sure if MS would be held responsible for the Novel coupons. If that is what it is, a "newspaper" savings coupon, then MS wouldn't be bound by the GPLv3. If that coupon can get you access to Novell's code in FULL, like a "free" FULL ticket, then MS would be bound by the GPLv3.
Score: 0
|Can I just write my code and not give a care about any of this? Why does code writing have to involve attorneys? I can't even follow what is going on here, I guess to do anything in this great country you need to have a degree in law - how horrible.
"Kill all the lawyers" - Shakepeare
(figuratively of course :) )
Score: 0
|Writing the code is no problem. It trying to prevent others from making money on their code that is the problem here.
Score: 0
|Funny, I don't see the FSF complaining about IBM making money off of the GNU or Linux ...
Oh wait, it's libre not gratis?
How could I have been so stupid!
Score: 0
|It has nothing to do with "...trying to prevent others from making money on their code".
It has everything to do with violating the license under which the code was released. Of course, you don't have to release your code under any license if you desire.
Score: 0
|I don't think it is a money problem. I think it is that MS is not respecting the license they are suppose to be distributing/supporting. MS publicy said they are not bound by the GPLv3, but depending on how this Novell "coupon" thing plays out, MS could be bound by the GPLv3.
At least that is the way I understand it. I don't think well sober.
Cheers.
Score: 0
|"The basic theory here is that no distributor can claim ownership of any part of the software, so it can't then presume to hold someone to whom it distributes that software free from liability or infringement for it."
This is somewhat muddled terminology. I think they are trying to say that no distributor can pass on a patent license. But that confuses ownership with the right to sub-license, which the distributor may have, depending on the terms under which the distributor may have received a license. And the owner of a patent is initially the inventor, not the distributor, though the inventor may assign or license it as he chooses. Maybe a subsequent discussion will clarify this, or maybe it accurately reflects muddled thinking.
Score: 0
|Absolutely superb comment, AlphaBetaGamma! You're right about how things would break down if they could be said more simply, but you're also right to point out that it isn't yet legally clear whether they can be broken down that way. If a legal challenge is ever mounted by someone to the terms of the GPL (that someone would probably be Microsoft...and there would be a price to pay there in the public mind), this would be the topic: Can a licensee pass on the right to license something whose actual ownership has never actually been firmly established?
-SF3
Score: 0
|"whose actual ownership has never actually been firmly established?"
Maybe I am not following this correctly. What is it that has uncertain ownership?
Every GPL distribution I have ever looked at has a copyright notice with the ownership clearly indicated. Some are the FSF most are the individual programmers that wrote the code. Ownership of copyright is the cornerstone of the GPL.
Score: 0
|