Microsoft Statement About GPLv3 II

To answer a question I posed in a previous post about how Novell was going to handle the fact that Microsoft does not want to be a party to the GPLv3 (from the Novell PR Blog):

Shortly after the GPLv3 license was released, Microsoft issued a statement in which they expressed their view that Microsoft is not a party to the GPLv3 and it is therefore not applicable to them. Yesterday, they also articulated that, “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 that includes the receipt of any code licensed under GPLv3.”

Microsoft’s current position, taken unilaterally, is intended to eliminate any perceived ambiguity about the applicability of GPLv3 to Microsoft. Nonetheless and independent of Microsoft’s position, we would like to make clear our commitment to our customers that Novell will continue to distribute SUSE Linux Enterprise Server with its full set of functionality and features, including those components that are licensed under GPLv3.

For those customers who will obtain their Linux via a certificate from Microsoft, Novell will provide them with a regular SUSE Linux Enterprise Server subscription, regardless of the terms of the certificate provided by Microsoft. Customers who have already received SUSE Linux Enterprise certificates from Microsoft are not affected in any way by this, since their certificates were fully delivered and redeemed prior to the publication of the GPLv3. Novell will continue to put the needs of our customers first and ensure that they can take advantage of the latest version of SUSE Linux Enterprise to run their business.

Novell and Microsoft plan to continue our technical collaboration efforts which include our joint development work on virtualization, standards-based systems management, identity interoperability and document format translators. Regarding the applicability of the covenants not to sue in the Novell-Microsoft agreement and their applicability in a GPLv3 world, our respective customers will continue to have the benefit of those provisions. For Novell customers, all Novell products are covered by the Microsoft covenant not to sue, independent of their channel of distribution, including both server and desktop and whether they are licensed under GPLv2 or GPLv3.

Whether things end up playing out that simply remains to be seen. It should also be noted that just because Microsoft doesn’t want to be party to the GPLv3 doesn’t necessarily make it so. I’m not a lawyer and won’t venture a guess as to if certificate distribution binds them legally. The issue is getting plenty of coverage, though, if you’re interested. It does strike me as odd how much ambiguity the huge Microsoft legal team continues to leave, but if that’s intentional or accidental I’m not sure. I also surprised how short sighted and unimaginative Microsoft continues to be. I guess it’s all part of protecting the cash cows. Stephe sums it up nicely:

“The (July 5) Microsoft statement seems a bit premature and over reaching,” Walli said. “Stating outright that they aren’t a party to it, means they’ve cut themselves off from using it in some future circumstance where it might be genuinely business beneficial. They would need to unmake this statement. By saying they can’t envision such a situation arising shows a lack of imagination, and makes them as religious on the issue as (Free Software Foundation founder Richard) Stallman. They remain ‘committed to working with the open source community’ without actually wanting to participate in it.”

–jeremy

Microsoft Statement About GPLv3

A quick follow up on my previous GPLv3 coverage. Here’s the official Microsoft statement:

Microsoft is not a party to the GPLv3 license and 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.

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.

It’s obvious why Microsoft wouldn’t want to be a party to the GPLv3, so their official position is not at all surprising. I’m not sure how Novell is going to handle the fact that a certificate that Microsoft gives out does not include support or even updates for GPLv3 software, though.

–jeremy

GPLv3 Coverage

For all the coverage the process has gotten to date, the final GPLv3 was released to relatively little fanfare on Friday, June 29th. The reality, as with any legal document, is that it’s going to take a while for company and project lawyers to read through and digest their perceived implications. As anyone who’s worked in a large corporation knows, legal departments take their time on this. That means the reality is that we won’t see adoption by major projects for a little while. That’s not a bad thing, it was to be expected.

One thing that struck me about the GPLv3 process is just how much mainstream press it got. We’re talking about a software license after all. This has to be a first. Also, whether or not you like the end result of the GPLv3 I think you have to give the FSF credit. The GPLv1 was pretty much just Stallman and even the GPLv2 process was fairly closed. The GPLv3 draft process, however, was much more open and it’s clear that feedback was considered very seriously. You can even see demonstrable evidence of RMS making compromises in some places. That’s significant and credit should be given where credit is due.

I’m not a lawyer and haven’t had a change to even read the final GPLv3 from beginning to end, so I’m not going to comment on specifics at this time. I hope to set aside time for that in the near future. In the mean time, here are some of the links I’ll be using to base my research on. Please feel free to add quality links you’ve found in the comments. Thanks.

–jeremy

Linus on GPLv3

Linus made a couple interesting comments on LKML a few days ago regarding the GPLv3:

I was impressed in the sense that it was a hell of a lot better than the disaster that were the earlier drafts.

I still think GPLv2 is simply the better license.

I consider dual-licensing unlikely (and technically quite hard), but at least _possible_ in theory. I have yet to see any actual *reasons* for licensing under the GPLv3, though. All I’ve heard are shrill voices about “tivoization” (which I expressly think is ok) and panicked worries about Novell-MS (which seems way overblown, and quite frankly, the argument seems to not so much be about the Novell deal, as about an excuse to push the GPLv3).

and

Btw, if Sun really _is_ going to release OpenSolaris under GPLv3, that _may_ be a good reason. I don’t think the GPLv3 is as good a license as v2, but on the other hand, I’m pragmatic, and if we can avoid having two kernels with two different licenses and the friction that causes, I at least see the _reason_ for GPLv3. As it is, I don’t really see a reason at all.

I personally doubt it will happen, but hey, I didn’t really expect them to open-source Java either(*), so it’s not like I’m infallible in my predictions.

If you’ve been following this you’ll notice that Linus’ opinion of the GPLv3 has gotten slightly more positive with each draft, which is a good indicator that the FSF really has been proactively responding to criticisms and valid objections. I’d guess that the definitive addition of Apache compatibility will lead to some additional adoption (which is my guess on why they added it in the end). Linus is pragmatic as usual in his above comment about OpenSolaris. If Sun does indeed release it under the GPLv3 and Linux is able to follow, that would be a huge win for both. There’s a ton of innovation on both sides that would finally be able to flow back and forth. Whether that will happen remains to be seen, but at least now it’s a possibility.

–jeremy

Closing notes on the first day of OSBC

Overall I have to say I’ve really enjoyed the first day of OSBC. I’m getting an entirely different perspective on many things, which is good. It’s easy to get a bit insular when you are only exposed to a single side of an argument. After my last post, I noticed many more “community” members too, which is great. It’s amazing how often a few general themes have been brought up, even in sessions with widely disparate topics. A few notes from attended sessions:

What’s Next: Emerging Opportunities + Strategies
* It’s interesting that many Open Source projects do very little or no marketing, but have extremely powerful and well known brands. That’s one of the power of ubiquity.
* The value that can be derived from non-paying users should not be underestimated.
* Transparency, at all levels, is critical in an Open Source community. So is respecting user privacy and data.
* One reason cost per customer acquisition is less expensive is due to customer self-selection through quality experiences via gratis downloads.

A New Breed of P&L: The Open Source Business Financial Model
Larry gave an interesting look at the current state of Open Source software in relation to what he calls the golden age of software (mid80′s through late 90′s). His assertion is that things, such as the percentage of revenue spent on sales and marketing, have gotten way out of whack in the software industry. Open Source may be bringing us back to that golden age. Red Hat was one of his primary examples. More data will be available in the coming years, as the current crop of Open Source companies have a chance to mature.

Copyleft Business Models: Why it’s Good Not to Be Your Competitor’s Free Lunch
Eben is such a phenomenal speaker that I really can’t do this talk justice with a simple summary. However, here are some highlights:

* When he worked at IBM, software was a free lunch… used to sell hardware. Customers often submitted patches with their bug reports. For a variety of reasons this has changed in the current day and age, much to the determent of general software quality.
* An example of this is the comparison of how far hardware has comes since 1979. When IBM had 29G is took massive space and was very expensive. Now it takes up 2.5″ and is $40. Software on the other hand has almost become worse. He describes the situation as deplorable.
* An analogy for what the lack of standards can do. During the civil war, the north had a standard gauge for railroad ties. The south did not. This meant items often had to be unloaded just to be reloaded in the south. This became crippling and is an example of how much work can be wasted when there are no open and available standards.
* In his opinion, community adds a huge amount of value to a project, for a variety of reasons.
* The next draft of the GPLv3 should be Apache license compatible.
* With regard to the recent speculation about Microsoft, the GPLv3 and the fact that the Novell coupons do not expire; he can not say as much as he’d like, due to an NDA (one he thought would have expired by now, but hasn’t due to a Novell SEC filing delay). What he did say was that you need look no further than his actions and the actions of Microsoft to see what the Microsoft opinion on the matter is. He asserts they are quite concerned.

More to come tomorrow. Now to partake in the very nice spread that has been offered to all attendees.

–jeremy

Microsoft takes on the free world

Some thought it was inevitable, while other thought it would never happen. From a recent Fortune article:

Free software is great, and corporate America loves it. It’s often high-quality stuff that can be downloaded free off the Internet and then copied at will. It’s versatile – it can be customized to perform almost any large-scale computing task – and it’s blessedly crash-resistant.

A broad community of developers, from individuals to large companies like IBM, is constantly working to improve it and introduce new features. No wonder the business world has embraced it so enthusiastically: More than half the companies in the Fortune 500 are thought to be using the free operating system Linux in their data centers.

But now there’s a shadow hanging over Linux and other free software, and it’s being cast by Microsoft. The Redmond behemoth asserts that one reason free software is of such high quality is that it violates more than 200 of Microsoft’s patents. And as a mature company facing unfavorable market trends and fearsome competitors like Google, Microsoft is pulling no punches: It wants royalties. If the company gets its way, free software won’t be free anymore.

The conflict pits Microsoft and its dogged CEO, Steve Ballmer, against the “free world” – people who believe software is pure knowledge. The leader of that faction is Richard Matthew Stallman, a computer visionary with the look and the intransigence of an Old Testament prophet.

Then come the details:

Microsoft counters that it is a matter of principle. “We live in a world where we honor, and support the honoring of, intellectual property,” says Ballmer in an interview. FOSS patrons are going to have to “play by the same rules as the rest of the business,” he insists. “What’s fair is fair.”

Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez sat down with Fortune recently to map out their strategy for getting FOSS users to pay royalties. Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents.

The 235 number is fairly close to the previously given (and disputed) 228. While the lengthy article does get some minor details wrong, it’s a good way to get up to date on the situation if it’s not one you’ve been following. On to why Microsoft choose to do this now. It could be that they think the GPLv3 has teeth and are trying to get out ahead of its release. It could be that they’ve not been as effective as they thought they’d be at battling Open Source and Linux more directly. Regardless of the reason, I agree with Larry:

If Microsoft believes that Free and Open Source Software violates any of their patents, let them put those patents forward now, in the light of day, where we can all evaluate them on their merits. If not, then stop trying to bully customers into paying royalties to use Open Source. It’s time for Microsoft to put up or shut up.

(Tim put it nice and succinctly: Four Words for Microsoft: Litigate or shut up

It appears that the battle lines are being drawn and the cold war of software patent world may be coming to an end. The players involved here are huge and the amount of money astronomical. Who has the most to lose? I’d say Microsoft. How will this play out? We’ll all be watching closely, that’s for sure. One has to wonder how Novell feels about their recent deal right about now.

–jeremy

Eben Moglen Steps Down From Free Software Foundation

(Via an InformationWeek article) It looks like Eben Moglen has stepped down from the FSF. From the article:

The Free Software Foundation has lost one of its best-known leaders.

Board member Eben Moglen announced this week that he is stepping down from the board and his position as general counsel now that the latest draft of GPLv3 has been released. A spokesman for the Software Freedom Law Center said that the two organizations will continue working together. Moglen gave a keynote speech at the MySQL Conference and Expo in Santa Clara, Calif., Wednesday and spoke as a leader of the Software Freedom Law Center during a phone interview afterward.

Moglen said he discussed his plans with others at the foundation before posting a blog explaining his reasons for leaving. FSF president Richard Stallman could not be reached immediately for comment, but Moglen said he left on good terms.

“This is not the consequence of disagreement about anything,” he said during an interview Wednesday.

Moglen said timing and other commitments drove his decision and that Stallman remains a friend.

“I have my own young, growing nonprofit to take care of,” he said. “We have a long alliance on working on things that we both consider very important: free software, technological liberty in the 21st century, and free society. I don’t think that can be changed, and I certainly don’t think this does it.”

While interesting that he didn’t stay through the completion of the GPLv3 process, it’s good to see that he left of amicable terms. He’ll surely be missed. I’ve had the pleasure of seeing Eben speak a number of times and it’s always a worthwhile event. This is great news for any student at Columbia who now has a chance to get into one of his classes. Good luck with the SFLC Eben!

–jeremy

GPLv3, Linux and GPLv2 Compatibility

Allison continues her fantastic coverage of the GPLv3 process in this post.

A third possibility is that the Linux kernel developers will decide that it’s not worth the hassle and just accept the GPLv3. I suspect that this is what the FSF is hoping will happen. Depending on the changes in the next two drafts of the GPLv3, it still might. But, it’s not looking likely that the kernel developers will yield. Frankly, if I were in the kernel developers shoes, I wouldn’t either. The GPLv3 serves to further the goals of the FSF, but the current draft actually hinders Linus’ goals and the goals of Linux in general.

Another possibility, complete speculation on my part, is that the Linux Foundation becomes more than just a loose consortium of companies sponsoring Linux kernel development. It becomes the copyright holder for the Linux kernel, not taking copyright assignments from contributors like the FSF, but copyright licenses like Apache does, so the kernel developers still hold their copyright on the code. The Linux Foundation releases a license with basically the same terms as the GPLv2, but without the legal ambiguities, obscure language, and anachronisms. Like the GPL, this license is copyleft. Like the GPL, this license requires the release of modified versions under the same license. This license clearly defines the concepts of linking and modified works, making it easier for Linux distributors to be sure that their segmented distribution trees are in compliance. Over time, more and more projects currently released under the GPL adopt the Linux license, because it is more legally precise and more comprehensible to the average developer than either the GPLv2 or GPLv3. Eventually, Linux distributions switch over to the Linux license, leaving only a small branch of GPLv3 (or v4 or v5) code to be downloaded separately (if the user chooses to do so).

It had occurred to me that it might be nice if the FSF did a sort of updated draft of the GPLv2 that included very minor improvements while not introducing the major fundamental shifts of the GPLv3. It’s clear they wouldn’t do this now, as it would hinder the adoption of the GPLv3. I hadn’t thought of the possibility of someone else improving on the GPLv2. Seems unlikely, but maybe just the thought of it will smooth some things over in the GPLv3 process.

–jeremy

Open source expert speaks out on GPLv3

If you’re following the GPLv3 draft process (previous coverage) here’s an extremely informative post by Mark Radcliffe. From the post:

Mark Radcliffe joins us this week to give his expert opinion on the latest draft of GPLv3. Mark is a friend and one of the industry’s premier IP attorneys, especially with open source licensing questions. He is outside counsel for the OSI and chairs Committee C in the GPLv3 drafting process.

In other words, he knows his stuff.

Dave and I invited Mark to contribute to Open Sources on GPLv3. Here’s his response:

The most recent draft of the GPLv3 was released on Wednesday, March 28. This guest blog will summarize the legal issues in the draft and some of the open issues. I have been involved in the process since the beginning because I am the chair of Committee C, the Users Committee, and I serve as outside general counsel on a pro bono basis for the Open Source Initiative. These comments are mine alone and do not represent the views of any of my clients.

The draft is part of a year long process of preparing the first new version of the GPL in fifteen years. The existing version of the General Public License (“GPLv2″) is, by far, the most widely used open source license: more than 70% of open source projects on SourceForge are licensed under GPLv2. GPLv2 is used by many well known programs such as the MySQL database and the Linux operating system.

He then goes on to detail, at a high level, the changes that have been made in this draft. He also explains what the rest of the draft process will look like.

–jeremy

GPLv3, Microsoft/Novell language

A quick follow up to this post, Allison Randal has posted a good piece of some of the GPL modifications over at the O’Reilly Radar. From the post:

The core of the added language is:

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, and under which the third party grants, to any of the parties who would receive the covered work from you, a patent license (a) in connection with copies of the covered work conveyed by you, and/or copies made from those, or (b) primarily for and in connection with specific products or compilations that contain the covered work, which license does not cover, prohibits the exercise of, or is conditioned on the non-exercise of any of the rights that are specifically granted to recipients of the covered work under this License.

Translating that into plain English, it says: If you distribute GPLd software and make a deal with another company who also distributes (some kind of) software, we will stop you from distributing the GPLd software if:
a) you pay the other company
b) the deal mentions the GPLd software
c) you get a patent license
d) the patent license mentions the GPLd software
e) the patent license has more limited terms than the GPL license on the software

She then goes through some of her objections with the terms. The part that I most agree with and have covered before is:

My fourth objection is embodied in the old adage “When all you have is a hammer, everything looks like a nail.” The FSF had success in the past accomplishing one goal with a license, so now they’re trying to accomplish a broad range of goals using the same tool. But a license really isn’t the best tool to accomplish some of these goals. Particularly, it’s not a good tool for attempting to abolish software patents or prevent companies from making patent agreements.

A license is simply not the place for every battle. That being said, it’s very good to see things moving in the right direction. The FSF seems to be taking feedback very seriously and this draft has been received much better than previous ones. I’m hopeful that when the final draft hits, most items will have been ironed out.

–jeremy

Follow

Get every new post delivered to your Inbox.

Join 3,838 other followers