July 25, 2007 8:38 AM PDT

Attorney: GPLv3 may not bind Microsoft

Microsoft should be able to extricate itself from the implications of the General Public License version 3, according to a leading Australian intellectual property lawyer.

Kay Lam-Beattie, a principal with intellectual property lawyers Idealaw, said that based on the limited information available to the public, the open-source movement's efforts to hinder Microsoft's bullying over patents are likely to be fruitless.

In recent times, Microsoft has struck legal agreements with Linux distributors Novell, Xandros and Linspire, pledging not to sue users of these distributions over alleged patent violations.

These partnerships, in some cases, restrict the freedoms normally associated with the use and distribution of open-source software.

To combat this strategy, the Free Software Foundation (FSF), author of the General Public License, or GPL (the open-source license under which most future open-source applications are expected to be distributed), has included new provisions in the third version that are designed to turn such patent-protection deals to the advantage of the open-source community.

Under GPLv3, "if you arrange to provide patent protection to some of the people who get the software from you, that protection is automatically extended to everyone who receives the software," said the FSF's Brett Smith earlier this month.

"This means that the patent protection Microsoft has extended to Novell's customers would be extended to everyone who uses any software Novell distributes under GPLv3," he said.

While not all the details of the Microsoft-Novell deal are publicly available for analysis (parts of the deal filed with the Securities and Exchange Commission have words deleted and large chunks of text cut out), Lam-Beattie is dubious about whether the FSF's strategy will work.

"This (initiative) is squarely aimed at Microsoft," Lam-Beattie said. "The question is, do Microsoft's actions regarding the (support certificates) fall within the definitions in the GPLv3 of what makes them a party to GPLv3?"

Microsoft: We're not party to GPLv3
Microsoft recently issued a statement claiming it is "not a party to the GPLv3" and that "none of its actions are to be misinterpreted as accepting status as a contracting party of GPLv3 or assuming any legal obligations under such license."

"The GPLv3 is trying to bind Microsoft accidentally," Lam-Beattie said. "Microsoft is saying: I have no intention of being bound by these rules."

"Unless there is something more specific in the certificate or the collaboration agreement between Novell and Microsoft, I would be very surprised to see this upheld," she said. "It was a nice try on the part of GNU (the software system developed by FSF), but at this stage, I'd say it's not going to be an effective strategy. It will be tough to hold up in court."

The strategy, Lam-Beattie said, will ultimately fail because parties have to willingly enter contracts, and contracts can't be retrospective.

"An easy analogy is a car park with a sign that says you are bound to a given contract if you enter into that car park," she says. "Anybody can enter, but you have to accept the terms, and the signal of you accepting those terms is when you enter. You have to do something positive to accept the terms--you have to act."

In this case, she said, Microsoft never acted--never "entered" into the agreement--and the agreement's terms and conditions can apply only to new actions by Microsoft, not older ones. "Their actions so far are not enough to say that they are bound," she said.

Joseph Sweeney, adviser for analyst group Integrated Research Business Systems, came to a similar conclusion earlier this month.

Lam-Beattie also said she "can't see who would try" taking Microsoft to court to prove its actions did fall within the bounds of GPLv3.

"It really would require Microsoft trying to prosecute somebody in the open-source community on the basis of patent infringement, and that defendant using the GPLv3 to defend itself," she said.

That's a scenario unlikely to be played out, as the last thing Microsoft would want to do is have its patents challenged in court, said Lam-Beattie.

Patent litigation, she noted, is expensive and "fraught with danger."

"If you ever have to defend your patent in court, you have to prove that there wasn't any prior art. The other party is likely to cite similar ideas to your patent to disprove it. It's possible some could be struck down.

"These patents are worth more to Microsoft challenged than unchallenged," she added.

Brett Winterford of ZDNet Australia reported from Sydney.

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GPLv3, Free Software Foundation, Novell Inc., GPL, open source

29 comments

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The "GPLv3."...
... is most likely like the "Bermuda Triangle" (a Whirl Pool, a Black Hole, Worm Hole, Tornado... you enter and you are bound by its/their forces (within) except that if you have equal or more force to (escape) continue to chart your own course!
Posted by Commander_Spock (3123 comments )
Reply Link Flag
Correction: Last sentence was reversed
The last sentence should read: "These patents are worth more to Microsoft UNCHALLENGED than CHALLENGED," she added.

Otherwise, it doesn't make sense. MS (or any company) doesn't want patent litigation.
Posted by danxy (37 comments )
Reply Link Flag
And then again, it might
You know what they say opinions are like @sses, everyone has one. And the only one that counts belongs to the judge.

Which is why MS will probably do everything they can to stay out of court.
Posted by rcrusoe (1305 comments )
Reply Link Flag
Australian Law?
Geez an Australian lawyer is the best place to go for a comment on something which will hit in the US courts first?

Think about this for a second.

True, in court, Microsoft does have some compelling arguments about not being party to GPLv3. However we don't have a clear and clean copy of the contract so it will remain to be seen.

It is interesting that Microsoft even made that statement in the first place.
Posted by dargon19888 (412 comments )
Reply Link Flag
Not as daft as it sounds
It's not as daft as it sounds. All of the legal systems based on
English law (which, in legal jargon, are referred to as Common
law systems due to their use of the idea of a legal precedent) are
broadly similar since they all started out the same. Obviously
they have diverged, in many cases significantly, since then, but I
think you can still expect a lawyer from one of the various
Common law systems to have a basic grasp of most of the
others.

I'm no lawyer, but I think the analysis, by the way, is spot on.
There's no reason that Microsoft would be a party to GPLv3,
since they aren't distributing anything under GPLv3 and when
they made their agreement with Novell, GPLv3 didn't even exist.
Also, a lot of commentators seem to assume that all GPLv2
packages magically became GPLv3 when it was released. That is
emphatically not the case, and even where this has happened,
Novell and indeed Microsoft are perfectly free to fork those
projects at the last GPLv2'd version and to continue to maintain
them on that basis.
Posted by ajhoughton (133 comments )
Link Flag
Visa (oops VISTA and other APPS...) Please!
... In with a ticket (oh no, not again! - GPL v2 COUPON) in for a chance. All those with GPL v3 the other gates please!
Posted by Commander_Spock (3123 comments )
Reply Link Flag
In other words...
... unlike the easy analogy of "a car park with a sign that says you are bound to a given contract if you enter into that car park,"; and, where she also says, "Anybody can enter, but you have to accept the terms, and the signal of you accepting those terms is when you enter. You have to do something positive to accept the terms--you have to act..." putting it this way, the scenario is that you have got to have your "GPL v2 COUPON" (VISA) first before you enter the arena to play the games. So, at least this is one way of differentiating from the same "competition" that the (SOCIALISTS) GPL v3 TEAMS have also entered. Just which sides win at "the championships" are indeed left to be seem. Let the "GAMES" begin.
Posted by Commander_Spock (3123 comments )
Link Flag
Good Analogy
Lets take a look at the analogy:

"An easy analogy is a car park with a sign that says you are bound to a given contract if you enter into that car park," she says. "Anybody can enter, but you have to accept the terms, and the signal of you accepting those terms is when you enter. You have to do something positive to accept the terms--you have to act."

So if MicroSoft chooses to do business with it's partners using GPS 3 knowing full well the terms of GPL 3 then they would have "entered" the car park. Since MicroSoft clearly has the option to only do business with GPL 2 Linux (but then would watch it's partners lose market share on newer versions of Linux) they choose to embrace GPS 3.

Yeah, an army of lawyers fight over it, but that fight works both ways.
Posted by Renegade Knight (13748 comments )
Reply Link Flag
Is it just about Tuxedo "Clad" Birds with....
... their GPL v3 who think that they can take over the world when it is all too well known that "In the Beginning" it was "DOS"!

<a class="jive-link-external" href="http://www.os2bbs.com/os2news/OS2History.html" target="_newWindow">http://www.os2bbs.com/os2news/OS2History.html</a>

Remember always - "It Is The Economy Stupid!" So, why have three hundred and sixty (and counting) distributions (Linux) when the "Ice-Caps" are melting quickly! Just take a look at what happened in Sheffield, England a few days ago and determine what the world's priorities should be???
Posted by Commander_Spock (3123 comments )
Reply Link Flag
Yes, but it's too late.
Having contracted with Novell and Linspire, the company has already established that two major Linux vendors (one corporate, one consumer) know that the OS violates patents. Essentially, they have established the ground for future lawsuits against Linux for patent infringement. Really either way, the open source movement is screwed in the long run.
Posted by WJeansonne (480 comments )
Reply Link Flag
What is with the outright lying???
Novell explicitly stated that Linux violates no patents.

I guess you are correct if you consider Ballmer to be a reliable and credible source of information.

If Microsoft had a legitimate case they would have brought it years ago, instead of throwing out transparent and desperate threats in the public arena. Remember the MS sponsored SCO debacle?
Posted by The_Decider (3097 comments )
Link Flag
The agreements are for something else
In each instance, the agreeing party got a lot of much needed cash and involvement in an interoperability project, so who wouldn't sign so MS could continue their FUD Linux marketing, because so far their efforts have achieved a lot of interest in Linux that wouldn't have been there otherwise, and people say they might as well have a look because it's not going to cost any money.

If you look back far enough at the history of computing, just about everything important in Windows is the result of prior art, so even if they have registered patents, they would know as well as any historian, that they couldn't successfully sue, so their old management regime who made FUD strategy an art form, would see it as the best way forward, and not see that they are achieving a lot of free marketing for Linux.

Only those who make money from their products would choose to see fire behind the smoke. These days we are all too well informed to really believe what CEOs and Presidents say.
Posted by Stomfi (52 comments )
Link Flag
Too late for you, that is ;)
1) Novell has stated publicly and officially that their products do not violate MSFT patents.

2) So have the rest of those who contracted with MSFT.

3) QED - you're full of it, my dear astroturfer.

/P
Posted by Penguinisto (5042 comments )
Link Flag
Oh, yeah... the linspire deal...
<a class="jive-link-external" href="http://www.groklaw.net/article.php?story=2007072014373817" target="_newWindow">http://www.groklaw.net/article.php?story=2007072014373817</a>

Funny one... that...
Posted by Hudkjfdkj (1 comment )
Reply Link Flag
Hi Folks! Keep watch perpetually...
... on those "Tuxedo "Clad" Birds folks they have landed on the U.S. Constitution (that guarantees certain rights and privileges) and United States Laws that have declared "Software Patents for Methods of Doing Business?A Second Class Citizen No More". Read some of it for yourself by following the below attached link:

<a class="jive-link-external" href="http://www.tms.org/pubs/journals/JOM/matters/matters-0012.html" target="_newWindow">http://www.tms.org/pubs/journals/JOM/matters/matters-0012.html</a>

With the Tigers and the 800lb Gorillas all available - there are other choices To Boldly Go rather than following those Tuxedo "Clad" Birds blindly!

Prepare To Beam Up Scotty!
Posted by Commander_Spock (3123 comments )
Reply Link Flag
Australian attorney comments on GPL3
It is ludicrous for the attorney Kay Lam-Beattie to make a public statement, particularly since they stated that they have litte information to claim "a principal with intellectual property lawyers Idealaw, said that based on the limited information available to the public, the open-source movement's efforts to hinder Microsoft's bullying over patents are likely to be fruitless."

If Australian attorneys make such judgments based on little or no supporting evidence -as indicated in statelent, they they are either (a) helping to spread FUD through ignorance, incompetence or some advantage ties to Microsoft, or (b) blowing smoke for attention or both.

C/Net has always been out of touch with anything not-microsoft in the past.
Posted by wanderson (17 comments )
Reply Link Flag
even if Microsoft is not in violation...
even if Microsoft is not in violation, Novell, Xandros and Linspire may be. One other way to invalidate this deal is to attack the companies that decide to sign these deals with Microsoft.

Microsoft may or may not be covered by GPL V3, however Linux distributors are.
Posted by ralfthedog (1589 comments )
Reply Link Flag
He is right and wrong all at once.
He is correct in that MSFT is not bound by GPLv3... so long as they do no business with or around GPLv3-licensed software.

BUT...

MSFT is going to be stuck. If they continue their contracts w/ Novell (the other two are tiny players, so we can almost safely ignore them), and Novell (or the others) release or distribute any GPLv3 software, MSFT is stuck with having to honor it for the software and source code in question.

If MSFT does not honor it, they are in violation of contract, and can have the crap sued out of them (they've lost quite a few lawsuits to Novell already - the biggest IIRC involved DR-DOS).

Bound nice and tightly they certainly are... and no amount of chair-throwing will change that.

Now here's the kicker - MSFT has [i]sold[/i] vouchers for SuSE... this makes them a distributor. If so much as one holder of a voucher redeems so much as one voucher after Novell releases any GPLv3 software, then *poof* - MSFT is bound by GPLv3 for the specific software that was licensed as such in the SuSE distro.

Sucks to be MSFT :)

/P
Posted by Penguinisto (5042 comments )
Reply Link Flag
Not quite
Your making assumptions about the legal status of the vouchers and also about the contract that is associated with the reciept and use of the vouchers.
Posted by sal-magnone (162 comments )
Link Flag
 

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