Selected comments from groklaw visitors http://www.groklaw.net/article.php?story=20070519090322431 (Moglen's Slides and Talk on SUSE Vouchers & GPLv3 Available)
------ Doubt it, there are 2 gotchas. Authored by: Anonymous on Saturday, May 19 2007 @ 11:38 AM EDT Firstly it is FAR from clear that distributing a coupon is an actof of distribution of Linux. For example, my ISP gave me a coupon for a ADSL router/modem ... and that particular one I got with the coupon uses Linux. Does that make my ISP a Linux distributor, along with all the requirements of the GPL? Nope, not a bit of it. The coupons thing is one-step-removed from an act of distribution. Secondly, there is no reason to suspect that Novell will distribute a GPL3 variant of Suse to coupon holders. There is NOTHING to stop them using current snapshot GPL2 code. Nothing. "heres my MS issued Suse coupon ... gimme the disks" "here you are, some nice and shiny 2007, pre GPL3 disks, all yours." In not so many words, Moglen is painting a picture that is only very very vaguely connected to reallity and simply will not come to pass. * * * The real danger from Microsoft Authored by: elcorton on Saturday, May 19 2007 @ 11:51 AM EDT As a sympathetic outsider to the Free Software movement and the Linux community, and an appreciative reader of Groklaw, I'm concerned about what I'm seeing in the reaction to the Microsoft- Novell deal. Although I'm not a lawyer, I like to think I'm of normal intelligence and that I've learned something about the law by following the SCO litigation. To be effective, the GPL has to be understandable to thoughtful lay people. I find the anti-patent provisions in the GPL v3 incomprehensible. The explanations and arguments in its favor on this site are no more clear to me. Moglen's "tutorial" is equally unenlightening. I don't think I'm ever going to see how a copyright license can bind a party that is not exercising any of the rights of the copyright holder. It sounds like Darl material to me. No doubt, most of the people who read these words will think I'm wrong, that I just don't get it. Maybe so. But if I don't get it, a lot of other people who are far less sympathetic than I am, and who make business decisions about software, won't get it either. The greatest danger posed by Microsoft's patent blackmail is not litigation. It's that Microsoft will provoke a self-defeating reaction by ideologues in the FOSS camp. The old GPL is clear, effective, and touched with a flash of genius. Replacing it with one that's more convoluted and tortuous than a Microsoft EULA is the sort of thing I'm afraid of. * * * Moglen's Slides and Talk on SUSE Vouchers & GPLv3 Available Authored by: Anonymous on Saturday, May 19 2007 @ 01:17 PM EDT Maybe I really am all that dense, but this whole thing still doesn't make any more sense than it did yesterday. Even if it somehow is true that by distributing the vouchers Microsoft is binding itself to whatever GPL3 is when it comes out, we as a community would be absolute fools to take advantage of the situation. The evident claim here is that by distributing vouchers (which amount to coupons) allowing somebody to purchase SLES at a discount (never mind that the discount is 100%) from Novell, they are binding themselves to the distribution conditions (licenses) of every package in every future version of SLES, even packages that don't exist yet and licenses that don't exist yet. As best as I can tell, that's all these vouchers are; they're basically like coupons or gift certificates. Now let's suppose that Novell's intentions toward Microsoft are in fact malicious. Suppose somebody in the community creates a package whose license terms explicitly forbid Microsoft from distributing the package. Suppose Novell now puts this package in SLES 11. Never mind that the terms clearly violate the definition of a free software license; a package's author has a right to license a package under whatever terms she wishes. Novell can distribute whatever they legally have a right to distribute in SLES 11; there's nothing that requires everything in SLES 11 to be GPL compatible (the boxed OpenSUSE 10.2 set contains things that aren't free source at all, such as acroread). Now we have a situation where Microsoft has agreed to "distribute" something (per the discussion here), but they aren't allowed to distribute it (per this hypothetical license). What now? Does Microsoft, caught in a contradiction, vanish in a puff of greasy smoke? Or do we look at it more pragmatically and say that Microsoft either isn't distributing it at all (they're merely distributing vouchers that can be redeemed by Novell), or that they can't be redeemed in a way that violates the license terms of any of the packages in the distribution, or something like that? Let's look at the coupon or gift certificate analogy a bit more closely. Suppose someone gives me a gift certificate to Micro Center or something, and I use that to purchase software. Does that mean that the person who gave me the gift certificate is now bound by the EULA on that software, just because Micro Center happens to be selling it and that person gave me the gift certificate (purchased from Micro Center) that I redeemed for that package? If the license terms on the package state that I'm not allowed to work on a competitive open source product (think Bitkeeper here), does that mean that the person who gave me the gift certificate is also not allowed to work on a competitive product? At this point, giving a gift that can be redeemed for anything with license terms means that the person who gave the gift is also bound by the license terms of whatever the recipient cares to redeem the gift for. If this really can be done, you can bet your bottom dollar that I am never, ever giving anyone a gift that could possibly be redeemed for something that might bind me, as a third party, to a possible future license that I might not want to be bound to. That basically means I wouldn't dare ever give anyone any gift at all. Much has been made here of the "or later" language that most packages using the GPL apply: This program is free software; you can redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation; either version 2 of the License, or (at your option) any later version. I believe that to be completely irrelevant here. For one, GPL3 is a different license than GPL2. It may be intended by the FSF to be similar in spirit, but that doesn't mean that it's the same license. Conceptually, releasing a new version of a package under GPL3+ vs. GPL2+ is releasing it under a different license, so in that regard it's no different from releasing it under a license outright forbidding Microsoft from distributing it. However, even if we finesse that, there's still the little problem that the distributor gets to pick the version of the GPL to distribute it under, not the recipient. So the recipient can't come back after the fact and say "I've decided that you distributed it to me under GPL3, so the new and improved patent language kicks in". In any case, even if an outcome like this is possible, this is a battle we really don't want to win, because it will come back to bite us hard. If we can and do bind someone to undisclosed future changes in license, we can be certain that a) nobody will ever want to do business with us again, and b) the proprietary software community will be the first to jump on the bandwagon. I can think of various possibilities, but one that comes to mind is something where you buy a mobile device and the vendor can upload new firmware with different and more onerous license terms, and you can't block that update. In any case, I suspect the deal between Novell and Microsoft is structured in a way that Microsoft really can plausibly claim not to be distributing software. They're distributing coupons that can be redeemed by Novell for product. Alternatively, they're actually buying boxed sets from Novell and exchanging those for their coupons. Since that activity is perfectly legal under copyright law -- they're not doing anything that "without permission would make [Microsoft] directly or secondarily liable for infringement under applicable copyright law" -- they can (re)distribute it without accepting the GPL. I didn't see anything in Eben Moglen's slides that affect any of this in any way. -Robert Krawitz [EMAIL PROTECTED] * * * The FSF cannot rewrite copyright law with GPLv3. Authored by: Anonymous on Saturday, May 19 2007 @ 01:51 PM EDT With its new version of the GPL the FSF gets to redefine what happens when someone needs a license "under applicable copyright law". What the FSF can not do is rewrite "applicable copyright law" to make it apply to situations the legislature never intended. Only the legislature can do that. Indeed this is recognized by the text of the GPL: To "propagate" a work means to do (or cause others to do) anything with it that requires permission under applicable copyright law, except executing it on a computer or making modifications that you do not share. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well. "Convey" is defined using "propagate" so the whole GPLv3 only applies to activities "that require permission under applicable copyright law". Will someone please tell me how it is that "distributing coupons" is an activity that "requires permission under applicable copyright law"? I see where copyright law refers to "copying", "distributing", and "creating derived works", but I just can't find where it refers to "distributing coupons". If "distributing coupons" is not an activity that requires a license, then MS does not require a license GPL or otherwise with respect to the Novell coupons. If MS does not require a license then it can not be restricted in any way by the terms of a license that it does not require and has not agreed to. I am for freesoftware, but I think a lot of people have been engaging in the wishfull tinking of "if only". "If wishes were horses beggars would ride." * * * The real danger from Microsoft Authored by: Cesar Rincon on Saturday, May 19 2007 @ 02:55 PM EDT PJ, I've been reading elcorton's posts for years now. He has always striked meas a remarkably lucid and rational man. His post above, in my very personal opinion, articulates clearly a previously vague concern I've had about the GPLv3. A concern that now, in light of this episode with the vouchers, and the reactions of many of your readers and you yourself, has only been exacerbated. I don't understand either how a copyright license can bind a party that's not engaging in any of the activities reserved for a copyright holder. Many people here seem to assume that Microsoft's vouchers are equivalent to distribution of the copyrighted work (or secondary infringement, as suggested by grouch's interesting link in this same thread). I think that may be a plausible theory, at best, but far from certain---and the way I see it being presumed as a given feels like SCO's "the APA clearly transfers the copyrights" nonsense. And if it ends up being that Microsoft is not distributing, then all this noise has been a huge exercise in, as you put it, FUD. Furthermore, and to be honest, this little stunt of the new GPL, trying to bind not only distributors, but now also "conveyors", feels close to abuse of copyright, to me. Of course, I'm not a lawyer, not even American, so what do I know, but it feels wrong. I don't know if a copyright holder's rights can reach that far, and if they legally can, I think they shouldn't. The GPLv3 actually lost a lot of its appeal for me, after seeing it "in action". * * * FUD, FUD, glorious FUD - a repost Authored by: Alan(UK) on Saturday, May 19 2007 @ 04:11 PM EDT Just imagine the following case: Jane did not have a pencil so she asked John who only had a spare pen. John asked George who said that he would exchange a pencil for a pen and if someone brought his pencil back he would give them a pen. John took George's pencil and gave it to Jane who took it back to George when she had finished with it. Meanwhile George had exchanged John's pen with one from Mary who had hidden drugs in it. George gives the pen to Jane and John is charged with trafficking in drugs. John is black so he gets sent down for 25 years without parole. But change John for Microsoft with a huge team of lawyers, replace the drugs with GPLv3 code, George is Novell, Mary can be FSF or anyone releasing code under GPLv3, Jane can just be Jane. The pencil and pen you can work out for yourself. Now, seriously, is any court going to find Microsoft 'guilty' of trafficking in GPLv3 code? ------ regards, alexander. -- "I am on leave from Columbia Law School for the academic year 2006-07. I can be contacted most easily through the Software Freedom Law Center. I will be holding sporadic office hours, for students only, at Columbia beginning September 15, 2006." -- Eben "Anarchism Triumphant"/"dot Communist Manifesto"/"Gates sufferes from autism" http://dartreview.com/archives/2005/04/08/intellectual_property_is_so_last_year.php Moglen _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss