Microsoft: We're not a party to GPLv3

Microsoft: We're not a party to GPLv3

Summary: Microsoft says it's not a party to the third version of the General Public License and assumes it's not under any legal obligations under the license. The statement, made on Thursday, is the first remarks on the GPLv3, which was released in its final form June 29.

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Microsoft says it's not a party to the third version of the General Public License and assumes it's not under any legal obligations under the license.

The statement, made on Thursday, is the first remarks on the GPLv3, which was released in its final form June 29.

Here's what Microsoft says (see Techmeme discussion):

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. Furthermore, Microsoft does not grant any implied or express patent rights under or as a result of GPLv3, and GPLv3 licensors have no authority to represent or bind Microsoft in any way.

At this point in time, in order to avoid any doubt or legal debate on this issue, Microsoft has decided that the Novell support certificates that we distribute to customers will not entitle the recipient to receive from Novell, or any other party, any subscription for support and updates relating to any code licensed under GPLv3. We will closely study the situation and decide whether to expand the scope of the certificates in the future.

In other words, it's business as usual for companies that purchased certificates based on the Microsoft-Novell pact. Sun also demurred from adopting GPLv3 for OpenSolaris.

Update: Mary Jo Foley has another take worth checking out.

Topics: Microsoft, Open Source, Software

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49 comments
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  • They can say what they want - doesn't make it true

    Unlike an Emperor's fait, MS is bound by law and it seems to me their lawyers have just bought a GPLv3 cluestick. As PJ noted: "the vouchers it sold to Microsoft have no expiration date. And Eben Moglen has explained the significance of that fact" here http://blog.seattlepi.nwsource.com/microsoft/archives/115505.asp

    Moglen states: "The coupons have no expiration date, and Microsoft can be sure that some coupons will be turned into Novell in return for software after the effective date of GPL 3. Once that has happened, patent defenses will, under the license, have moved out into the broad community and be available to anybody who Microsoft should ever sue for infringement."

    My prediction - you will see a lot of squirming by Microsoft.
    BanjoPaterson
    • Thanks for the link

      Interesting points. I'm not sure about the squirming, but then again I'm no lawyer. But I can't believe that Microsoft hasn't thought about 5 steps ahead when it comes to GPLv3. It's not like it doesn't have the lawyers laying around.

      I can see the point about Microsoft's inability to sue for infringement. But that's an iffy point too as we don't know what patents Microsoft allegedly holds and what they cover. Aside from saber rattling details are hard to come by.
      Larry Dignan
      • Because GPLv3 is a legal document...

        ... and not many technical people, like myself, are very legal one has to rely on what lawyers think (!).

        I find it difficult to believe that MS has not considered the impact of the GPLv3, but then again it made the deal with Novell while the GPLv3 was being drafted, thereby giving Eblen M. a chance to change his move (a chess analogy is that I see my opponent's next move while I'm considering mine). I believe a smarter move on MS's behalf would have been to wait until the GPLv3 had been released before started to call in companies like Novell, Linspire etc. Hide your hand, so to speak.

        In the end MS have a lot of money which equals an awful lot of leverage, so I would not be one to predict the death of MS (http://paulgraham.com/microsoft.html); but it's going to be one interesting year! :-)
        BanjoPaterson
        • Not Legally Correct

          There is no such thing as "a legal document." What GPLv3 has the ability to become is a "legally binding agreement" between parties that accept it as such. So Company X releases its software and says that it does so on the basis that the user accepts to abide by the terms of the license - in this case GPLv3.

          Microsoft has a couple of plays up its sleeve: first, it legally isn't right to say that Microsoft and Novell have an agreement, Novell moves to GPLv3 for all its software, ipso facto Microsoft is now a party to GPLv3. That is simply incorrect legally and logically. Microsoft can simply say that it did not, and could not, legally enter into an arrangement, implied or otherwise, that binds it to the terms of GPLv3 because the terms of that agreement simply did not exist when they did their deal with Novell.

          Eblen is blowing smoke when he talks about vouchers cashed in after the release - he's too good a lawyer to not know the truth. Two quick points on this: one, he's said it to force Microsoft into stating a GPLv3 position (which he's done); and two, I think he is trying to force a legal confrontation between a large corporate and Microsoft so he gets a court precedent with which to work and tighten GPLv3.

          The second big play Microsoft has is that it can alter its licensing arrangements contractually with people. The one flaw I've always felt existed in the FSF approach to GPLv3 is the concept of priority. They arrogantly assume that their license will always take precedent which is legally incorrect. Microsoft could simply write into its licensing and contract documents that the licensee/third party accepts that the agreement they are entering into with Microsoft supercedes and takes priority to all other license agreements signed by the third party, including GPLv3. This would be hugely complicated to sort out legally, but the end result would be Microsoft not exposed to GPLv3 and the GPLv3 licensees turning on each other legally.

          That last point is the one that exposes the weakness in the GPLv3 is that under GPLv2 you didn't have alot of cross-licensees suing each other for breach of the license. In that regard, the GPLv2 seems to be a fairly passive legal document. GPLv3 is a very aggressive license that appears intended to setup all sorts of legal stoushes.

          Here's a potential scenario: Company X signs a contract with Microsoft that indemnifies Microsoft from any exposure that it may come into over GPLv3 or any other license agreement that Company X is party too. This is a fairly standard clause in most contracts, it prevents one party from being sued because of other contracts that the second party has with third parties. Company X and Microsoft share technology and explicitly in the license contract it says that Microsoft retains all rights to its intellectual property and it cannot be distributed further without Microsoft's expressed consent.

          The exposure exists between Company X and the people who have licensed their technology under GPLv3. That said, what could they be sued for? There have been no damages, no consequential losses, nothing. If Company X use third party technology in their technology that is licensed under GPLv3, the third party technology company has no claim either, how have they been injured or prejudiced in anyway? More importantly, how is Microsoft exposed? They aren't is the short answer - they would point back to their contract and say they have an indemnity and warranty from Company X, go speak to them. So the outcome is you have open source licensors challenging each other in court not over money, but over the principle.

          No matter what, it looks like it will be interesting.
          SuperSean
          • You Sound Like a Lawyer for Microsoft...

            ... certainly you (appear) to know more about law than most of the other posters and you are responding to every point. You sound like a lawyer, you respond to every criticism against Microsoft... I can't help but think you're an astroturfing lawyer - I could well be wrong, of course.
            BanjoPaterson
          • If he makes sense, call him names.

            Yup, sounds like open source...
            No_Ax_to_Grind
          • Since when has the word "lawyer" been name calling?

            If I really wanted to be cruel there are many other names I could have used - starting with a Microsoft Certified Systems Engineer
            BanjoPaterson
          • Read what you wrote.

            "I can't help but think you're an astroturfing lawyer"

            astroturfing lawyer" Let me guess, you thought that was a term of endearment...
            No_Ax_to_Grind
          • IF he is a lawyer AND...

            ... IF it is a firm associated with Microsoft THEN I would consider it a form of astroturfing. IF these were true THEN SuperSean would be an astroturfing lawyer.

            To be honest, I am only suspicious because:
            1. Until today I have not seen a post by him whereas I have been posting here long enough to remember Don Rupert (and Bit - I really liked old Bitty)
            2. Unlike either of our posts in the past on law (and I remember some of your legal posts), "SuperSean" actually appears to know what he's talking about

            I could well be incorrect, heck, it's even been known for me to say that some of your posts make sense. But as a person who has been around the traps the fact that SuperSean has shown up, today, to talk about the legal aspects of the GPLv3 in terms that sound legally knowledgable just strikes me as too much of a coincidence.
            BanjoPaterson
          • If he were...

            ... I still wouldn't scare him away. Even information supporting an argument with which one disagrees is still worthwhile information.

            At very least, there'd be less credence given to doubtful legal theories that supposedly protect open source. Remember the view that if Microsoft doesn't assert a patent in certain circumstances, the company loses it?

            I suspect that the company has examined that issue, probably requiring only the third team of lawyers. And that there is not a problem. But having specifics would help the discussion.

            As an aside, legal logic pretends to sound like clear, every day logic. Don't fall into the trap of believing it, especially when considering contracts. The unwary find the experience costly.
            Anton Philidor
          • Agreed...

            whoever he is or was - he seems to have stopped posting.

            I once was involved in a boardroom legal brawl in a startup about 7 year's ago. After nearly 60,000 pounds it ended in a settlement that no one was happy with (which I guess was a win all around), but which we probably could have arrived at over several pints of strong larger.

            I figured it was a bad mistake when I got xmas cards from our legal firm... ugh!
            BanjoPaterson
          • Good One

            Nah, I'm not a lawyer for Microsoft and in fact I don't even live in the US. I sign very high value and many IT contracts, so I'm familiar with licensing, copyright, etc...

            I don't particularly agree with Microsoft's position on things either, but legally, their strategy is sound on this matter. I also think its ironic that the FSF are spreading so much FUD when it comes to GPLv3 and Microsoft - it smells like the old lawyers trick of coming out on the offensive when you've done a bad deal. Not to say that they have, it just means that they are setting the framework of the debate which steers clear of the weaknesses in what they've crafted.

            As for previous participation - long time listener, first time caller - is the phrase you hear alot. Actually, I have sporadically contributed over the years, but mostly the debate on here is very low brow, this one had taken on the air of an actual debate, so I was interested.

            I don't get involved in fanboi flame wars. My team runs hundreds of Windows servers, hundreds of Linux boxes, we have heaps of Solaris and I work off a MacBook Pro, so I'm technology agnostic - whatever does the job.

            Hopefully that background prevents people getting distracted from my arguments/comments.
            SuperSean
          • Fair Nuff (nt)

            ...
            BanjoPaterson
          • PS: SuperSean - you're wanted at the Mary Jo discussion! :-)

            ... where she's talking about Microsoft's patents lawyer. I accept you're not a lawyer, but I think you can add good quality to the debate!

            PS: I may not agree with your opinion, but heck you state it well. Guy's gotta get credit for that.
            BanjoPaterson
          • Third party rights

            You wrote:

            "Company X signs a contract with Microsoft that indemnifies Microsoft from any exposure that it may come into over GPLv3 or any other license agreement that Company X is party too. This is a fairly standard clause in most contracts, it prevents one party from being sued because of other contracts that the second party has with third parties.

            Company X and Microsoft share technology and explicitly in the license contract it says that Microsoft retains all rights to its intellectual property and it cannot be distributed further without Microsoft's expressed consent."


            Just as Microsoft has rights over further distribution, so the GPLv3 confers rights over further distribution of that software as well.

            Would your protective clause assure that Company X will have to indemnify Microsoft should Microsoft break the GPLv3 rules? "Break any provision you like; we've got you covered." says Company X.

            I know you didn't mean that, and I think I can guess what you're arguing, but clarification would be useful.
            Anton Philidor
          • Normally

            In any contract you infer indemnity on your counterparties for any breach that you commit that exposes them. So technically, yes, it would be a breach if Microsoft used something that was covered under GPLv3 in their software.

            Day one of law school, indemnities and warranties usually work both ways. :-)
            SuperSean
          • So, as you continued:

            "The exposure exists between Company X and the people who have licensed their technology under GPLv3.

            [As I think you agreed, Microsoft would be responsible for its own breaches of the conditions on the software when Company X provided it.]

            That said, what could they be sued for? There have been no damages, no consequential losses, nothing.

            [There have been Court cases in which companies have been sued for unattributed use of open source software alone. Absence of acknowledgement is itself an offense.]

            If Company X use third party technology in their technology that is licensed under GPLv3, the third party technology company has no claim either, how have they been injured or prejudiced in anyway?

            [The subsequent use of the software is controlled. If the rules are violated, any previous provider with rights - or the organization representing the rightsholders - can demand that the product no longer be used.
            That would force a company like Novell to become honest, and write the sofware it sells.]

            More importantly, how is Microsoft exposed? They aren't is the short answer - they would point back to their contract and say they have an indemnity and warranty from Company X, go speak to them.

            [Still arguing Company X gave Microsoft carte blanche to violate rules?}

            So the outcome is you have open source licensors challenging each other in court not over money, but over the principle.

            [Or not.]



            The GPL's primary purpose is to prevent people from making money on software. It may be evaded, but it can't be ignored.
            Anton Philidor
          • Your's Not legally corect as well

            Although I join in late and probably no one will read this, I decided to post anyway.

            ?There is no such thing as "a legal document." What GPLv3 has the ability to become is a "legally binding agreement" between parties that accept it as such. So Company X releases its software and says that it does so on the basis that the user accepts to abide by the terms of the license - in this case GPLv3.?

            It is already a legally binding agreement for all those who use ?GPLv2 or later? licence since either version is applicable. All programs and applications that bear this are capable of being bound by GPLv3.

            ?Microsoft has a couple of plays up its sleeve: first, it legally isn't right to say that Microsoft and Novell have an agreement, Novell moves to GPLv3 for all its software, ipso facto Microsoft is now a party to GPLv3. That is simply incorrect legally and logically. Microsoft can simply say that it did not, and could not, legally enter into an arrangement, implied or otherwise, that binds it to the terms of GPLv3 because the terms of that agreement simply did not exist when they did their deal with Novell.?

            What do you mean they don?t have an agreement. That sounds like someone saying it is just a damn piece of paper. If so, then tell me, why was it signed and money paid among the parties involved? It is your lack of understanding that makes you make such statements. If Microsoft sells Novell coupons for Linux, this is not distributing Linux. So, if I sell vista copies to customers, am I not a distributor? If not, then why is it illegal to do so without paying royalties or whatever to Microsoft? Does it matter, if the sale is through a coupon to a distributor somewhere in china such that I personal never really sell the software? Please rethink your statement. The GPLv3 may not have existed but the clause ?GPLv2 or later? did exist and I think GPLv3 can be considered ?or later? don?t you think.

            ?Eblen is blowing smoke when he talks about vouchers cashed in after the release - he's too good a lawyer to not know the truth. Two quick points on this: one, he's said it to force Microsoft into stating a GPLv3 position (which he's done); and two, I think he is trying to force a legal confrontation between a large corporate and Microsoft so he gets a court precedent with which to work and tighten GPLv3.?

            Eben does know what he is talking about, because after GPLv3 release, there will be programs that will be covered by GPLv3 automatically, particularly those written by Stallman himself. Did you stop and wonder why it is said that the Linux Kernel may or may not migrate to GPLv3? Hint ? it is covered by ?GPLv2 only? there is no ?or later clause?. Please read the licences before commenting on things that you do not have first hand information. I cannot comment further on you presumptions as to why Eben said what he said because your analysis of his statements is already flawed.

            ?The second big play Microsoft has is that it can alter its licensing arrangements contractually with people. The one flaw I've always felt existed in the FSF approach to GPLv3 is the concept of priority. They arrogantly assume that their license will always take precedent which is legally incorrect. Microsoft could simply write into its licensing and contract documents that the licensee/third party accepts that the agreement they are entering into with Microsoft supercedes and takes priority to all other license agreements signed by the third party, including GPLv3. This would be hugely complicated to sort out legally, but the end result would be Microsoft not exposed to GPLv3 and the GPLv3 licensees turning on each other legally.?

            Now, this is hilarious. If it were true, would not the reverse also be possible? That an FSF licence can be written to override a Microsoft software licence. You are funny. No such thing can exist. The software licence is binding to the user and distributor. That is why an agreement is necessary to say things like ?no enforcement?. For example, that is why, an agreement was written between Microsoft and Novell, for non-suing for patent infringements. This was done, not to invalidate the so called patents but to not enforce them (if that is possible). Now, you see Microsoft cannot write such an agreement because who would they sign it with? Even if they signed it with FSF (taking the extreme example to illustrate the point), GPLv3 supersedes FSF. FSF would have to try and invalidate it by writing another licence which may not necessarily work because, if I am a Linux distro, I could choose to use my distributions with only GPLv3 or earlier and reject the later licence and that agreement between Microsoft and FSF would not apply to me. ?Microsoft not exposed to GPLv3 and the GPLv3 licensees turning on each other legally?. Could not stop laughing at its absurdity. Priceless.

            ?Here's a potential scenario: Company X signs a contract with Microsoft that indemnifies Microsoft from any exposure that it may come into over GPLv3 or any other license agreement that Company X is party too. This is a fairly standard clause in most contracts, it prevents one party from being sued because of other contracts that the second party has with third parties. Company X and Microsoft share technology and explicitly in the license contract it says that Microsoft retains all rights to its intellectual property and it cannot be distributed further without Microsoft's expressed consent.?

            Your argument is already flawed from your assumptions about contracts and licences. You cannot write a contract that can invalidate an intrinsic licence. What do I mean? I cannot make an agreement with Dell concerning their laptops that have Microsoft OEM?s that can invalidate Microsoft?s EULA software licence. It cannot be done otherwise it would have been done. No contract can be written that can invalidate GPLv3 from those programs it applies to just as no contract can be written to invalidate Microsoft?s EULA. No need to respond to your last paragraph as that argument is thoroughly discredited from here.
            goxk@...
          • We used to call SuperSean's type

            Sh*thouse lawyers in my neck of the woods.

            Pass the paper, wipe, and move on.

            Pay no attention to what he says.

            Good comeback, though. Thanks!
            Ole Man
          • Microsoft's ONLY advantage

            (SPEAKING IN LAYMENS TERMS, AND NOT LEGAL
            DOUBLESPEAK)

            Other than enough money to take out a
            contract (remember the Mafia?) on anybody
            they choose, is NOT neccesarily having the
            smartest lawyers, BUT in having the slyest
            most devious lawyers, and more of them.

            Unless Microsoft buys out the courts
            (remember the lobbying and bribes?), and
            unless their lawyers are devious enough to
            pull the wool over EVERYBODY'S eyes, we will
            see whose lawyers are the smartest when the
            time comes.
            Ole Man