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Re: Eben wonders ("no comfort at all")

From: Alexander Terekhov
Subject: Re: Eben wonders ("no comfort at all")
Date: Fri, 03 Nov 2006 15:45:35 +0100

In other news^Wtalkbacks, Microsoft accused of inducing copyright 
infringment. LOL.

So it's okay with you that Microsoft is inducing copyright infringement

Without the GPL being valid and adhered to then under copyright law the 
distributor has no rights to distribute GPLed code.

Have you never read the GPL? It has this language in the current, not 
V 3.0, version:

in the preamble.

Finally, any free program is threatened constantly by software patents. 
We wish to avoid the danger that redistributors of a free program will 
individually obtain patent licenses, in effect making the program 
proprietary. To prevent this, we have made it clear that any patent 
must be licensed for everyone's free use or not licensed at all.

then again in section 7.

7. If, as a consequence of a court judgment or allegation of patent 
infringement or for any other reason (not limited to patent issues), 
conditions are imposed on you (whether by court order, agreement or 
otherwise) that contradict the conditions of this License, they do not 
excuse you from the conditions of this License. If you cannot 
distribute so as to satisfy simultaneously your obligations under this 
License and any other pertinent obligations, then as a consequence you 
may not distribute the Program at all. For example, if a patent license 
would not permit royalty-free redistribution of the Program by all 
those who receive copies directly or indirectly through you, then the 
only way you could satisfy both it and this License would be to refrain 
entirely from distribution of the Program.

Also read Moglen's, the FSF's attorney, take on it

The patent pact , if it does not extend to all Linux distros, for GPL 
code in fact violates the GPL, thus causing a copyright infringement.

Microsoft is inducing copyright infringement.

Now, speaking of copyright (albeit in misuse context), let's recall
Wallace's appeal reply brief (no ruling yet).

IBM et al. state [IBM Brief at 15, ¶1] “The ownership interests
contributors to software licensed under the GPL might have in their
modifications are seriously limited, given that any distribution of
those modifications must be done under the terms of the GPL”. This
statement constitutes a mea culpa with respect to the extension of
“intellectual property rights beyond those conferred by Congress”
[see IBM Brief at 15, ¶2].

The contractual extension of control to the copyrights of all third
parties who accept the GPL offer is an egregious misuse of copyright
that may rise to the level of an antitrust violation. (“[W]e left
open the question whether copyright misuse, unless it rises to the
level of an antitrust violation. . .”) (Assessment Technologies of 
WI, LLC v. Wiredata. Inc., 350 F.3d 640 (7th Cir. 2003)).

The GPL purports to extend it’s intellectual property control to all
third parties’ software patents as well as copyrights. (“Finally, any
free program is threatened constantly by software patents. . . To
prevent this, we have made it clear that any patent must be licensed
for everyone's free use or not licensed at all.”) [Ex A (GPL) at 1].

Alexander Terekhov wrote:
> Microsoft's Director says the deal (aka "bridge" build by Novell and
> Microsoft) is COMPATIBLE with the GNU GPL! LOL.
> -------
> From the start, a design principle of the agreement was to be compatible
> with the GPL.
> To do this, Novell and Microsoft are providing covenants to each other’s
> customers, therefore releasing each company from the other’s patent
> portfolio. This may sounds odd vs. a traditional patent cross-license
> agreement but it is one of the things that makes this deal so unique.
> -------
> Alexander Terekhov wrote:
> >
> > -------
> > Moglen: Microsoft-Novell raises GPL questions
> > November 2, 2006 4:58 PM PST
> >
> > It's possible that Thursday's deal between Microsoft and Novell could
> > conflict with a provision in the General Public License (GPL), according
> > to Eben Moglen, the attorney for the Free Software Foundation that
> > created and oversees the Linux license.
> >
> > "If you make an agreement which requires you to pay a royalty to anybody
> > for the right to distribute GPL software, you may not distribute it
> > under the GPL," Moglen told CNET Thursday. Section 7 of the GPL
> > "requires that you have, and pass along to everybody, the right to
> > distribute software freely and without additional permission."
> >
> > Microsoft and Novell announced Thursday a deal under which Novell's Suse
> > Linux Enterprise Server and Desktop customers need not fear Microsoft
> > will assert patent rights against them. In addition, Microsoft pledged
> > not to assert patents against unpaid open-source programmers or against
> > any open-source programmers contributing to Novell's OpenSuse.
> >
> > Whether the partnership precludes Novell from distributing Linux depends
> > on precise terms of the agreement that Moglen hasn't seen, he cautioned.
> > But he found other aspects of the deal troubling, too.
> >
> > Microsoft's pledge not to sue unpaid programmers is "no comfort at all,"
> > given the quantity of paid open-source programmers.
> >
> > "I and my firm don't take comfort from statement from Microsoft that
> > they won't sue programmers as long as they don't get paid," Moglen said.
> > "We represent developers of free and open-source software. If Microsoft
> > or anyone else attempts to sue our clients for doing what they do to
> > create software, because they're being paid for it, then the people
> > doing that will be sorry. We protect our clients."
> >
> > Posted by Stephen Shankland
> > -------


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