http://lamlaw.com/tiki-read_article.php?articleId=23
------ Microsoft's illegal conduct in the patent agreement I have mentioned this before but it bears repeating. When Microsoft agreed with Novell to cross their promises not to sue customers, Microsoft (and Novell) have likely violated the law. They can both stand up and make it sound like it is just another cross marketing agreement. But, that might not be the case. As for Novell, the charge is rather simple. The agreement violates GPL 2. It certainly does so in spirit if not the letter. But, I think a case can easily be made that it also violates the letter. As for Microsoft it is a bit more complex. Microsoft has not signed the GPL license (as no licensee or redistributor does). But, it is also not bound by the GPL terms since it does not distribute it. Actually, I am sure Microsoft is in possession of a number of copies of Linux and I am sure they were not all boxed sets. And I am sure they (their Linux lab) has not limited themselves to those distributions available in boxed sets either. So legally speaking Microsoft most likely has not violated the GPL. It is not doing anything with Linux other than what is granted to it under the GPL. As least as far as their lab is concerned. But what about making an agreement with Novell? At first blush this is likely to be an intentional tort. A tort is like a civil wrong. Taking someone's property could be theft. But it is also conversion. Simply put, conversion is taking the property of someone else. And you may sue someone for doing so in civil court. In other words, the cops are not involved at all. You just sue them for taking your stuff. The remedy is that they must give it back or pay for its value. But, if it is an intentional tort (such as conversion), punitive damages may also apply. So when Microsoft engages in an intentional tort they do run the risk of punitive damages. And I would think that punitive damages for attempting to take or harm IP of a competitor could be substantial indeed. But, what tort has Microsoft committed? And does it matter that Novell apparently called them first? At the present time intentional interference with contractual relations comes to mind. I have mentioned this before. And while you rarely see this cause of action as the sole reason for a law suit it is often times tossed in on top of other major litigation. Intentional interference is an intentional tort. When you have parties A and B in a contract and a third party C comes along making an agreement with A with the intent to destroy the relationship with B (or cause A to breach the agreement with B), then you have the basis for such a charge. And what has Microsoft done here? Microsoft has entered into an agreement with Novell with the intent of sabotaging the GPL. Microsoft clearly has the intent to disrupt the deal between the FSF and Novell. At least they have certainly done that since the FSF is claiming it may have been breached and Novell is claiming at least publicly that it has not. And it does not matter that Novell thought it made monetary sense to violate the GPL. In almost all of these cases, the third party, company C, does make a tempting offer to seal the interference. And the eventual test is whether or not company C (Microsoft) sought to disrupt the preexisting relationship. Of course, the harm is felt by B (i.e. FSF). In Microsoft's case, this could also be the basis for an antitrust violation. Almost any act can form the basis for a violation of the antitrust laws if the act was intended to preclude a competitor from the marketplace or seriously disadvantage a competitor. Of course, the details are more complex than that. But, that is the basic premise. Microsoft just can not restrain itself from illegal activity. As far as the antitrust angle is concerned, Microsoft engaged in illegal acts when it caused SCO to be financed. Its only interest in that case was to finance someone attacking a competitor. And normally that is not a problem. But when a monopolist does so with the intent to restrain a competitor, the situation is different. That is why Microsoft came up with their "we are just licensing UNIX" argument. But, of course, that argument does not apply to the financing Microsoft "backedup". Now it would appear that the FSF (Free Software Foundation) as holders of many of the copyrights relating to the Linux kernel and other applications has decided not to pursue legal redress against Novell or even Microsoft. Or, at least that is the current position. That may change however. And, of course, the FSF does not hold all of the copyrights related to possible GPL violations. I fully assume that many individuals hold their own copyrights. But, individuals are less likely to engage in major litigation in order to protect their own interests. They do have that right however. And, of course other copyright holders include Red Hat, IBM, Novell itself and other well known Linux distributors. But, I assume the FSF is going to take the lead position here. Keep in mind that I do agree with the apparent FSF strategy of trying to work with Novell on this issue and at the same time amending the wording for GPL 3 to be more clear on just what conduct is acceptable for licensees. And as for those individuals holding copyrights on work contributed to the Linux kernel or other applications, this patent agreement puts some extra emphasis on the care to be used in drafting GPL 3. In summary, has Microsoft again engaged in illegal conduct? Yes, they have. And has Novell violated the GPL? I think that is true as well. Although it may only have violated the spirit rather than the letter. However, Linux distributors have to learn that when their business relies upon the redistribution of work contributed by others, the spirit of the agreement is just as important as the letter. Otherwise, those contributions can cease. And if the letter is likewise violated, the right to distribute can terminate completely. It is nice to see Novell do as much as they do in regard to patents. However, working with patents does not permit nor excuse violations of the GPL. And in that regard, it is the perception of the violation that is important. It would not matter if a court of law approved the patent deal or agreed it did not violate the GPL if contributors see it another way. And I have to risk saying the obvious. If a third party such as Microsoft (a non-contributor) is collecting royalties on Linux sales, independent contributors will always see that as a violation of the rights they have extended. That would be true even if IBM (for example) were collecting royalties on Linux. Novell needs to wake up and realize what market it is in. And the benefits it receives for being in that market. And it has to respect the rights of those who have contributed the work that Novell distributes and supports. Their recent agreement with Microsoft does NOT do that. That agreement only disrespects the work contributed by others. ------ He he. regards, alexander. _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
