Re: GPLv3 comedy unfolding -- Herr Professor: "giving away coupons activity by Microsoft is meaningless and useless"

[Alexander Terekhov]

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
-rlk@alum.mit.edu

* * *

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