MS-Novell patent deal analysis - MS going to lose bigtime.

[benanzo]

Linux.com has posted a 2 min 25 sec video of Eben Moglen (http://www.linux.com/article.pl?sid=07/05/17/1640207), the primary author of GPLv3, explaining the options MS has moving forward with the patent indemnification deal they struck with Novell. He says he informed Microsoft, and that they therefore knew, of the ramifications of such a deal and opted to continue on their chosen path. He stated that as far as the GPLv3 is concerned, MS is a distributer of Linux and is therefore subject to the patent provisions it expressly states.

MS has to back out of the deal with Novell before GPLv3 goes platinum (scheduled for next month), or risk licensing their (alleged) 235 patents to anyone and everyone.

PJ at Groklaw has some wonderful insight and analysis (http://www.groklaw.net/article.php?story=20070529151256367).

It seems to me that the game's up for MS. They were obviously caught off-guard and now must throw away a $200 million cross-licensing deal or risk the Penguin's wrath. Love it.

[23meg]

More from Moglen on the same subject:

http://www.redhatmagazine.com/2007/05/14/summit-2007-eben-moglen-on-microsofts-summer-of-fear/

[jrusso2]

If you believe that's going to happen I got a bridge to sell you.

[benanzo]

The only way MS could escape this is if they go to court and claim they weren't "distributing" GPL code, that they weren't the purveyors of the product. This argument is negated by the (now public) terms of the Novell-MS agreement which stated that MS pre-paid for the coupons and were therefore entitled to resell them in the marketplace. That means they were distributing the software. That means they will be bound to the terms of any of that code that accepts GPLv3 (namely GCC and libc).

MS has already claimed that they are not "distributing" any code from Novell. That is to say, they are not bound by the license. That may be true for code under GPLv2, but as soon as one of those coupons gets turned in to redeem code which has since adopted GPLv3, the license game will play out. The FSF and the Linux Foundation will likely file suit claiming breach of license terms and request compliance regarding the patent liability of their supposed 235 patents.

This all stands on two things:

1) MS has to be deemed by the courts to be a distributer of GPL code.
2) MS has to deliver and Novell has to accept that fateful coupon for code which contains GCC and/or libc licensed under GPLv3.

[jrusso2]

Your thinking the courts are fair. Are these not the same courts that determined Microsoft is not a monopoly despite having a 95% market share?

[Adamant1988]

Your thinking the courts are fair. Are these not the same courts that determined Microsoft is not a monopoly despite having a 95% market share?

Perhaps, before you speak, it would be wise to bother googling a little bit. The courts DID find Microsoft to be a monopoly, and they were punished as such. The extent of that punishment was altered thanks to Microsoft finding a friendly appeals court. So far as I can tell, the label of Monopoly has never been removed.


The 'courts' are still forced to abide by the law, or they will be eaten up in an appeal court and some lashing will be handed out. The GPL has teeth, and should Microsoft force this into a court room, those teeth will be used. Obviously, if Microsoft is a reseller, they are a distributor and the courts will find them as such.

[saulgoode]

Your thinking the courts are fair. Are these not the same courts that determined Microsoft is not a monopoly despite having a 95% market share?

I think you've been reading the wrong history books (http://www.wired.com/politics/law/news/2000/04/35378).

[jrusso2]

Its what happens in the end not the first battle.

On November 2, 2001, the DOJ reached an agreement with Microsoft to settle the case. The proposed settlement required Microsoft to share its application programming interfaces with third-party companies and appoint a panel of three people who will have full access to Microsoft's systems, records, and source code for five years in order to ensure compliance. However, the DOJ did not require Microsoft to change any of its code nor prevent Microsoft from tying other software with Windows in the future. On August 5, 2002, Microsoft announced that it would make some concessions towards the proposed final settlement ahead of the judge's verdict. On November 1, 2002, Judge Kollar-Kotelly released a judgment accepting most of the proposed DOJ settlement. Nine states (California, Connecticut, Iowa, Florida, Kansas, Minnesota, Utah, Virginia and Massachusetts) and the District of Columbia (which had been pursuing the case together with the DOJ) did not agree with the settlement, arguing that it did not go far enough to curb Microsoft's anti-competitive business practices. On June 30, 2004, the U.S. appeals court unanimously approved the settlement with the Justice Department, rejecting objections from Massachusetts that the sanctions are inadequate.

The dissenting states regarded the settlement as merely a slap on the wrist. Some people in the computer industry agreed with dissenting States, especially those who advocated open source and alternatives to Microsoft. Many believed that free market competition can only be restored by government intervention to break up the Microsoft monopoly. Others believe that government intervention is antithetical to free market principles, maintaining that Microsoft was not, and is not, a coercive monopoly. Industry pundit Robert X. Cringely believes a breakup is not possible, and that "now the only way Microsoft can die is by suicide." [13] Andrew Chin, an antitrust law professor at the University of North Carolina at Chapel Hill who assisted Judge Jackson in drafting the findings of fact, wrote that the settlement gave Microsoft "a special antitrust immunity to license Windows and other 'platform software' under contractual terms that destroy freedom of competition." [14]

Microsoft's obligations under the settlement, as originally drafted, expire on November 12, 2007. [15] However, Microsoft later "agreed to consent to a two-year extension of part of the Final Judgments" dealing with communications protocol licensing, and that if the plaintiffs later wished to extend those aspects of the settlement even as far as 2012, it would not object. The plaintiffs made clear that the extension was intended to serve only to give the relevant part of the settlement "the opportunity to succeed for the period of time it was intended to cover", rather than being due to any "pattern of willful and systematic violations". The court has yet to approve the change in terms as of May 2006.[16]

[macogw]

The only way MS could escape this is if they go to court and claim they weren't "distributing" GPL code, that they weren't the purveyors of the product. This argument is negated by the (now public) terms of the Novell-MS agreement which stated that MS pre-paid for the coupons and were therefore entitled to resell them in the marketplace. That means they were distributing the software.

Logical fallacy. They're distributing coupons. Can you shove the coupon into your computer and run the coupon? No? Are there ways to get the software other than the coupon? Yes? Then the coupon isn't equivalent to the software. They're not distributing GPL software. Go ask the resident moderator / law-student, Brunellus.

[Bachstelze]

Unless the contributors change their mind, Linux is not released under the GPLv3 and never will be...

[information_entropy]

If the coupon defense would actually work, then the street corners of America would quickly be populated by individuals selling candy bars for $100. Along with each candy bar you would get a coupon that entitled the redeemer to a specific quantity of cocaine/heroin/whatever. The seller would of course NOT be distributing illegal drugs, only giving away free coupons that the owner could redeem somewhere else.

This analogy has appeared on several law related forums.
It may even be in one of the linked articles, which I only glanced at.

[benanzo]

Did you actually read the relevant print in the current draft of the GPLv3?


You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work...

This describes what MS is doing with the SLED coupons. And if you watched Eben Moglen in the interview, he expressly stated that their position (the FSF's) is that MS is a distributer of GPL code:


Our legel position will be that they have distibuted GPLv3 code and as distributers of GPLv3 code they have given patent assurance to some but not all people who received some but not all copies but knowing they were distributing under a license whose effect is to give the same assurance to all recipients of all copies that they gave to some. The consequence would be that the patents they are trying to reserve the right to use would become the patents they cannot use and that would be a very deep uncertainty for Microsoft.

According to Moglen, MS knows what is happening and what is going to happen.

And as for the Linux kernel not going GPLv3...that doesn't matter if GCC and/or GLIBC, both copyrights owned by the FSF and currently released under GPLv2 or any later version, adopt GPLv3, which they likely will.