Re: GPLv3 comedy unfolding -- ACT vs GPLv3

[Alexander Terekhov]

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(emphasis removed below) 

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Can the GPLv3 Make Microsoft Grant Patent Licences to the Free Software
Community? 

The FSF has finally released GPLv3,(*1) and Eben Moglen proclaims “the
time is rapidly approaching when the GPL is capable of leveling the
monopolist to the ground.”(*2) There is no secret that the target in
Moglen’s sights is Microsoft, which had the temerity to reach patent
peace agreements with Novell, LG Electronics,(*3) Xandros(*4) and
Linspire(*5) to give these companies’ customers some assurance that they
would not be liable for patent infringement for using Linux. The key
weapon in the GPL arsenal is a provision that Moglen says will result in
Microsoft’s patents being licensed to the free software community
against Microsoft’s will. Can they do that? 

The FSF apparently is quite confident that they can. We now know a
little more about the how FSF thinks that GPLv3 will do this. By
distributing certificates that enable the recipient to download Novell’s
SuSE Linux Enterprise Server (SLES),(*6) the FSF argues that Microsoft
is “conveying” a GPL-covered work, or at the very least “procuring
conveyance” of Linux.(*7) Moreover, the FSF claims, Microsoft cannot
avoid giving its patents away under GPLv3 because the certificates have
no expiration date!(*8) “Through its ongoing distribution of coupons,
Microsoft will have procured the distribution of GPLv3-covered programs
as soon as they are included in Novell SLES distributions, thereby
extending patent defenses to all downstream recipients of that software
by operation of [section 11] paragraph 6.”(*9) This argument relies on
the absurd proposition that a patent owner could be compelled to grant a
license without its permission through a legal instrument it neither
agreed to nor gets any benefit from.(*10) Thankfully for all of us, the
law is not so capricious. 

Novell has publicly released some of the details of its patent deal with
Microsoft in a recent SEC filing:(*11) Novell and Microsoft will market
a combined offering, [consisting] of SUSE Linux Enterprise Server
(“SLES”) and a subscription for SLES support along with Microsoft
Windows Server, Microsoft Virtual Server and Microsoft Viridian that
will be offered to customers desiring to deploy Linux and Windows in a
virtualized setting. Microsoft will make an upfront payment to Novell of
$240 million for SLES subscription certificates, which Microsoft may
use, resell or otherwise distribute over the term of the agreement,
allowing the certificate holder to redeem single or multiyear
subscriptions for SLES support from Novell (entitling the certificate
holder to upgrades, updates and technical support). 

Under this agreement, the certificates that Microsoft has paid Novell
for will entitle the recipients to maintenance and updates and upgrades
for Novell SUSE Linux enterprise server software. 

However, to actually receive the SLES subscriptions and support, the
recipient will still need to enter into an agreement with Novell, which
presumably incorporates the GPL as well as the terms of Novell’s support
and licenses for any non-GPL software included. 

As previously discussed in GPLv3 is a Contract and Why it Matters,(*12)
Eben Moglen, General Counsel of the Free Software Foundation, has long
argued that the GPL is not a contract, but a copyright license whose
terms do not require assent to be effective.(*13) Moglen is correct in
saying that the “copyright holder is legally empowered to exclude all
others from copying, distributing, and making derivative works.”(*14)
However, a distinction must be made between copyright license terms
(governing the scope of the permission to perform acts that would
otherwise constitute copyright infringement) and covenants requiring
mutual agreement (governing acts that are additional to or beyond the
scope of acts that constitute copyright infringement).(*15) The only way
that Microsoft may arguably benefit from the GPL is if Microsoft’s
distribution of SLES certificates would be construed as an otherwise
unlicensed distribution of Linux. 

GPLv3 Section 11, paragraph 6 states: 

If, pursuant to or in connection with a single transaction or
arrangement, you convey, or propagate by procuring conveyance of, a
covered work, and grant a patent license to some of the parties
receiving the covered work authorizing them to use, propagate, modify or
convey a specific copy of the covered work, then the patent license you
grant is automatically extended to 
all recipients of the covered work and works based on it. 

The FSF says that this provision 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.”16
Richard Fontana, counsel to the Software Freedom Law Center (SFLC),
says: “Now that Microsoft has effectively become a distributor of Linux,
by distributing some 50,000 or so Novell SLES coupons, it has perhaps
unwittingly restricted its ability to sue Linux users over its
patents.”(*17) He not only claims that GPLv3 will cause Microsoft’s
patents to be licensed to free software recipients, but “by procuring
the distribution of lots of free software under GPL Version 2, among
other licenses, Microsoft has already lost some of its power to assert
patents against subsequent distributors and users of that
software.”(*18) Let’s look at the “code.” GPLv3 defines “propagate” as
doing “anything with [a work] that, without permission, would make you
directly or secondarily liable for infringement under applicable
copyright law, except executing it on a computer or modifying a private
copy.”(*19) “Conveyance” is defined as “any kind of propagation that
enables other parties to make or receive copies.”(*20) The meaning of
the word “procuring” is not defined. The ordinary meaning of the word
“procurement” is “to cause to happen or be done; bring about.”(*21)
Because Novell was distributing Linux long before the deal with
Microsoft, Microsoft could hardly be considered to cause Novell’s
conveyance. In any event, whether the word “procuring” covers
Microsoft’s actions or not does not matter, because Microsoft has not
agreed to be bound by GPLv3. 

Microsoft’s distribution of SLES certificates would only invoke the
GPLv3 provision if this act would, without permission, make it “directly
or secondarily liable for infringement” under copyright law.(*22) 

Under U.S. copyright law, the copyright holder has the exclusive right
“to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or
lending.”(*23) There is an unsettled issue of law in the courts as to
what exactly is encompassed by distribution.(*24) In one view,
distribution, which is not defined in the Copyright Act, has been
equated to the term “publication,” which is. (*25) “Publication”
includes “[t]he offering to distribute copies or phonorecords to a group
of persons for purposes of further distribution.”(*26) There are cases
where the courts held that making copyrighted works available to the
public, either for download in a music share service(*27) or through
library loan,(*28) is distribution under the Copyright Act. On the other
hand, in a recent decision, the Ninth Circuit Court of Appeals held that
because Google was not actually disseminating copyright holders’ images
to users, rather pointing users to a source for the copyrighted images,
there was no distribution.(*29) 

The court distinguished Google’s activities from those of music sharers
and libraries by noting that Google did not actually possess a
collection of the images it was accused of making available.(*30) This
is similar to the Napster decisions, where “Napster users who upload[ed]
file names to the search index for others to copy” engaged in
distribution,(*31) but Napster itself did not directly violate the
copyright holders distribution rights by maintaining the search index
which enabled the users’ copying.(*32) The court held that unless
“actual dissemination” or “actual transfer” was done by the defendant,
there was no distribution.(*33) 

There is no doubt that Microsoft is distributing SLES certificates to
the public, but these certificates do not themselves contain a copy of
GPL covered software.(*34) While the certificates should probably not be
considered “procuring the conveyance of” Novell Linux, what matters is
whether Microsoft is distributing or offering to distribute the covered
work by way of the certificates. Unlike the music sharers who were held
to infringe by listing copyrighted songs, or the library catalog,
Microsoft does not have a copy of the covered work which it is offering
to the public. The certificates are offering Novell’s distribution of
the covered work, not Microsoft’s distribution, therefore Microsoft
cannot be directly liable for copyright infringement. 

And if Novell is not infringing someone’s copyright by this
distribution, then Microsoft cannot be indirectly liable for
infringement either. The U.S. Supreme Court has said “[i]n addition to
intent to bring about infringement and distribution of a device suitable
for infringing use, the inducement theory of course requires evidence of
actual infringement by recipients of the device, the software in this
case.”(*35) Microsoft’s distribution of the certificates (the “device”
in this instance) could only lead to secondary liability if Novell
infringes copyright by honoring these certificates (distributing SLES).
On this point, the FSF should be taken at face value when it says that
the cut-off date works to allow Novell to distribute covered works
notwithstanding the Microsoft deal.(*36) 

At a more basic level, whether you believe in software patents or not,
this is a policy issue to address in the public political sphere. While
the FSF claims to be against software patents in general, its sister
organization, the SFLC, is not above using software patents as a
competitive weapon. The SFLC claims that Microsoft pays $20 for every
copy of Windows to other patent holders, and trumpets the fact that
Linux distributions have not incurred this cost.(*37) It is extremely
unlikely that Linux would not be subject to some of the same
non-Microsoft patents Windows is, in addition to whatever Microsoft
patents may apply. 

The FSF should not be blamed for trying to keep its software free of
patent-related infringement and licensing issues – after all, that’s
what Microsoft and Novell were trying to do. But there is something
wrong about this “gotcha” approach to wrest someone’s property rights
away from them. Witness the crowing about the fact that the certificates
do not have an expiration date, which was thought to make Microsoft
inadvertently subject to GPLv3.38 Courts are not inclined to appropriate
property on a nonvoluntary and non-compensated basis and allow an entity
to take away its competitor’s property without that competitor’s consent
and without giving the competitor anything in return. You would not want
your competitor to do that to you. 

Today the target is Microsoft, tomorrow it could be you. You might be
able to rest easy in the belief that you would never do something that
would run afoul of the FSF, but we cannot. See, we are doing it now. 

*1 http://www.gnu.org/licenses/gpl-3.0.html 

*2 Stephen Shankland, Eben Moglen Predicts Broad Embrace of GPL 3, CNET
News.com, May 23, 2007,
http://news.com.com/Eben+Moglen+predicts+broad+embrace+of+GPL+3/2100-7344_3-6186025.html
 

*3 Paul McDougall, Microsoft Strikes Linux Patent Deal With LG
Electronics, InformationWeek June 7, 2007,
http://www.informationweek.com/news/showArticle.jhtml?articleID=199902101 

*4 Xandros, Microsoft, Xandros Broad Collaboration Agreement Extends
Bridge Between Commercial Open Source and Microsoft Software, June 4,
2007,
http://www.xandros.com/news/press_releases/xandros_microsoft_collaborate.html 

*5 Todd Bishop, Microsoft and Linspire find peace in patents, Seattle
Post-Intelligencer, June 13, 2007 [Linspire],
http://seattlepi.nwsource.com/business/319728_msftlinspire14.html 

*6 Microsoft may have reached a similar co-marketing arrangement with
Linspire; where the Novell SLES deal focuses on server-side Linux, the
Linspire co-marketing arrangement promotes Linspire as a Linux desktop
solution. See Linspire, supra note 5 

*7 See Groklaw, FSF's Brett Smith Answers Your GPLv3 Questions, May 1,
2007, (“Our lawyers have seen the terms of the deal under
NDA—unfortunately, they're still secret—but they're confident that
Microsoft is already conveying GPLed software under this agreement.”),
http://www.groklaw.net/article.php?story=20070501092619462 

*8 Free Software Foundation, GPLv3 Final Discussion Draft Rationale at
10 [hereinafter Rationale], http://gplv3.fsf.org/rationale; Todd Bishop,
Free Software lawyer discusses Microsoft patent claims, Seattle
Post-Intelligencer, May 17, 2007,
http://blog.seattlepi.nwsource.com/microsoft/archives/115505.asp 

*9 Rationale, supra note 8, at 10 

*10 See Microsoft Statement About GPLv3, July 5, 2007,
http://www.microsoft.com/presspass/misc/07-05statement.mspx 

*11 Novell 8-K November 2, 2006, at
http://www.sec.gov/Archives/edgar/data/758004/000075800406000109/novl-8k_110706.htm.
See also Microsoft-Novell Patent Cooperation Agreement, at
http://www.sec.gov/Archives/edgar/data/758004/000095013407012375/f26782exv10w35.htm
 

*12 Richard Wilder & Noah Clements, GPLv3 is a Contract and Why it
Matters, April 4, 2007,
http://www.actonline.org/documents/GPLv3-License-or-Contract.pdf 

*13 Eben Moglen, Free Software Matters: Enforcing the GPL I, Linux User
August 12, 2001 [hereinafter “Enforcing the 
GPL”], webcited at http://www.webcitation.org/5NgxqKm4Z or
http://old.law.columbia.edu/publications/lu-12.pdf 

*14 Id 

*15 2 Raymond Nimmer, Information Law § 11:53 (2006); Graham v. James,
144 F.3d 229, 237-38 (2d Cir. 1998) 

*16 GPLv3 Discussion Draft FAQ, http://gplv3.fsf.org/dd3-faq 

*17 Steven J. Vaughan-Nichols, Microsoft vs. Open Source: Setting the
Battle Lines, eWeek, May 14, 2007,
http://www.eweek.com/article2/0,1895,2129973,00.asp 

*18 Id 

*19 GPLv3 § 0, http://www.gnu.org/licenses/gpl-3.0.html 

*20 Id 

*21 Procure: “to cause to happen or be done: bring about.” Webster’s
Third New Int’l Dictionary 1809 (1981) 

*22 See Enforcing the GPL, supra note 13; GPLv3 § 0,
http://www.gnu.org/licenses/gpl-3.0.html 

*23 17 U.S.C. § 106(3) 

*24 The World Intellectual Property Organization (WIPO) Copyright
Treaty, to which the U.S. is a party, defines the right of distribution
by providing that “[a]uthors of literary and artistic works shall enjoy
the exclusive right of authorizing the making available to the public of
the original and copies of their works through sale or other transfer of
ownership.” WIPO Copyright Treaty Art. 6(1),
http://www.wipo.int/documents/en/diplconf/distrib/94dc.htm. This
definition does not tell us any more about what “making available” means 

*25 Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 299 (3d
Cir. 1991) 

*26 17 U.S.C. § 101 (emphasis added). Although the difference in
statutory language might imply that the exclusive right of distribution
is more limited than the definition of “publication,” this difference
may not have been intended to create a distinction. 1 Nimmer on
Copyright § 4.04; see also Harper & Row Publishers, Inc. v. Nation
Enters., 471 U.S. 539, 552 (1985) (using the terms interchangeably) 

*27 E.g., Arista Records LLC. v. Greubel, 453 F.Supp. 2d 961, 969 (N.D.
Tex. 2006); Interscope Records v. Duty, 2006 U.S. Dist. LEXIS 20214, at
*7 (D. Ariz. 2006); Marobie-FL, Inc. v. Nat’l Ass’n of Fire Equip.
Distrs. 

*28 Hoteling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d
199 (4th Cir. 1997) 

*29 Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 718-19 (9th Cir.
2007) 

* 30 Id. at 719 

*31 A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir.
2001) (emphasis added) 

*32 In re Napster, Inc. Copyright Litig., 377 F.Supp. 2d 796, 804 (N.D.
Cal. 2005) 

*33 Id. at 802. The court held that the expansive language in the
“offering” and “make available” cases could not apply to cases like this
where the offeror never transferred the work itself. Id. at 804 (“[T]he
plain meaning of the statute strictly limits the circumstances under
which [the offering to distribute copies would constitute publication]
to those in which ‘further distribution, public performance, or public
display’ of the work is contemplated.”) 

*34 This means that the coupons are also not derivative works of GPL’d
software, as derivative works must “incorporate a protected work in some
concrete or permanent ‘form.’” Lewis Galoob Toys, Inc. v. Nintendo of
Am., Inc., 964 F.2d 965, 967 (9th Cir. 1992) 

*35 Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, LTD., 545 U.S. 913,
940 (2005) 

*36 See Rationale, supra note 8, at 10 (“We believe we can do more to
protect the community by allowing Novell to use software under GPL
version 3 than by forbidding it to do so.”) 

*37 Software Freedom Law Center, Windows vs. Linux: The Patent Tax,
April 16, 2007,
http://www.softwarefreedom.org/resources/2007/patent-tax.html 

*38 See Groklaw, Moglen: SUSE Vouchers Have No Expiration Date!, May 18,
2007, http://www.groklaw.net/article.php?story=20070518124020691 
------ 

regards, 
alexander. 

--
"Mathematics is primarily a language for ensuring reliable results 
in human social activity. "

         -- Columbia Professor Eben Anarcho-Dot Communist Moglen