By Brett Winterford, 26 July 2007 09:33
NEWS
Microsoft should be able to extricate itself from the implications of the new GPL 3, according to a leading Australian intellectual property lawyer.
Kay Lam-Beattie, principal with intellectual property lawyers Idealaw, said that based on the limited information available to the public, the Free Software Foundation's (FSF) efforts to hinder Microsoft's bullying over patents are likely to be fruitless.
While not all the details of Microsoft's patent deal with Novell are publicly available for analysis (parts of the deal filed with the SEC have words deleted and large chunks of text cut out), Lam-Beattie is dubious about whether the FSF's strategy will work.
She said: "This [initiative] is squarely aimed at Microsoft. The question is, do Microsoft's actions regarding the [support certificates] fall within the definitions in the GPL 3 of what makes them a party to GPL 3?"
Microsoft recently issued a statement claiming it is "not a party to the GPL 3 licence" and that "none of its actions are to be misinterpreted as accepting status as a contracting party of GPL 3 or assuming any legal obligations under such licence".
Lam-Beattie said: "The GPL 3 is trying to bind Microsoft accidentally. Microsoft is saying: I have no intention of being bound by these rules."
She said: "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. It was a nice try on the part of (the 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.
She said: "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. 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 terms and conditions can only apply to new actions by Microsoft, not older ones. She said: "Their actions so far are not enough to say that they are bound."
Brett Winterford writes for ZDNet Australia
Comments
There are 8 comments. Join the discussion
1. Sean DALY
Of course Microsoft's actions make it a party to the GPLv3. Those thousands of undated SUSE coupons Microsoft bought from Novell for distribution didn't waft through the transom onto IT managers' desks, they were sold or given (=distributed) by Microsoft salespeople. Moreover, for eight years now, Microsoft has distributed GPLv2 or later software in the Interix (now Services for Unix) package downloadable even today from microsoft.com. Their efforts to wiggle around copyright law are laughable, and they will discover to their cost that the GPL means business.
2. Andy Tai
Is this a view based on Australian law? It may not apply elsewhere... Specifically, the FSF has insisited the GPL is based on copyright law, not contact law...
3. R.Scaccia
It is because of the Linspire/micro small agreement I switched to UBUNTU. I know that in the end microBORG will end up buying Linux companies to end the Linux threat once and for all.
I so pity the lazy or unwilling to change crowd that will use windoze forever.
4. Michael Hughes
Copyright works in a DMCA world can only be distributed under the terms set-out by the rights holder - i.e. DVDs. If the rights holder say you've got to jump, then you either fail to access the content, or you jump. The GPL is doing it's job - the FSF are on target - the license is needed and adequate.
As an Australian, even I recognise that Microsoft have told the US Antitrust investigators and the EU Antitrust regulators that they won't follow the sovregin rules of those states (in some cases directly and others non-verbal). Why then would I expect Microsoft to announce that they'd follow rules put up by someone random collection of programmers? It's a nonsensical statement .. MS will be MS, their come-uppance will be when it is.
5. Jonathon Coombes
I don't see why this is even considered at this point based on how software agreements work? Firstly, IANAL, but my understanding is that Microsoft is not being "forced" or "tricked" into any agreement regarding GPL3 here. The GPL3 has only just been approved and is on very little, if any, software project at this stage - it is designed for future projects from this time on.
Microsoft's agreements to date have been based on licenses to date which so far have been GPL2. Just like any other company on the planet they have the right to limit their distribution to only GPL2 licensed software if they so wish. In other words, they can continue to use the older software, but any new software versions which are licensed under the GPL3 will require Microsoft to either accept that license just as any other software license is legally binding, or to not use the new version and stay with the older version of software.
The analogy of the car park applies just as equally in this case to the GPL agreements. Microsoft have now come to the entrance that is displaying the new license details for using the "car park". Now they have the option to "drive in" and accept the GPL3 agreement or try and find another car park somewhere else which suits their business.
6. Cynyr
" The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns.
Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation. "
would seem that some of the products they gave vouchers for would be bound by the gpl 3, regardless of what MS thinks.
7. arnuld
well, GPLv3 is designed as a new license. it can not be applied to Novell-M$ agreement because the agreement is designed around GPLv2 licenses softwares.
if Novell-M$ can not apply the present deal to a GPLv3 product. i speak of US law and Australian laws are different i think.
8. Shea Kauffman
This gets a little confusing.
Novell does not own most of the software that it is distributing. Microsofts redistribution agreement with Novell means that they have to follow their agreement with Novell. If they distribute GPL3 software that is not owned by Novell then either Novell has violated the GPL3 or Microsoft has.