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Are Microsoft¢s patent lawyers really this dumb?

 
 
Jonathan Walker
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      07-07-2007
http://blogs.zdnet.com/microsoft/?p=557 (Microsoft Watch)

Start quote:

Leave aside for a moment the question about whether Microsoft is trying to
coopt or cooperate with the open-source movement. From a legal standpiont,
here’s what doesn’t add up, to me. Microsoft employs hundreds (if not
thousands) of lawyers. How could these lawyers have:

* failed to forsee that the Free Software Foundation would find a way
to put a legal monkey wrench into the GPL to thwart Microsoft’s intent
to undermine Linux and the GPL?

* allowed the Novell support certificates that Microsoft has been
distributing to go out without an expiration date on t hem?

* expected Novell not to back the GPL v3, in spite of the money it
paid to Novell to cement its first patent-protection deal with a Linux
distributor?

End quote


--
Jonathan Walker

"You'll have to excuse me — I have a long
bath and a short dress to get into."
 
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Kurt Häusler
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      07-08-2007
Can someone give me a more concrete (real or made up) example of how the
gplv3 might affect Microsoft?
 
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Lawrence D'Oliveiro
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      07-08-2007
In message <(E-Mail Removed)>, Kurt Häusler
wrote:

> Can someone give me a more concrete (real or made up) example of how the
> gplv3 might affect Microsoft?


As soon as some components of SuSE (e.g. Samba) are updated to use GPLv3,
customers who got SuSE certificates from Microsoft will be able to redeem
them for the updated version. At this point, Microsoft becomes a "conveyor"
of GPLv3-licensed software. Therefore it becomes subject to its provisions.
One of which is, if you offer patent protection to some users, you must
offer it to all. From section 11
<http://www.gnu.org/licenses/gpl-3.0.html>:

If ... 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.
 
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Jonathan Walker
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      07-08-2007
On Sun, 08 Jul 2007 00:35:33 -0500, Kurt Häusler wrote:

> Can someone give me a more concrete (real or made up) example of how the
> gplv3 might affect Microsoft?


Microsoft can only distribute someone else's copyrighted software if that
third party licenses M$ to distribute it.

That third party can specify whatever conditions they like in the license,
and if M$ wants to distribute that software then it *must* agree to the
conditions in the license. There is no ambiguity in this point.

M$ purchased "vouchers" from Novell to distribute "SuSE Linux".

The vouchers do not specify what version of SuSE Linux. Nor to they
specify an expiry date.

Novell has stated that it will redeem that voucher for the version of SuSE
that is current.

If that current version contains, for example, the GCC

(the compiler that the linux kernel and almost all Linux programs and GUI
applications are compiled under)

and the version of GCC is one that has been released under the GPLv3, then
Novell has given Micro$oft's customer - on Micro$oft's behalf - software
that can only be distributed under the terms of the GPLv3.

This means that if M$ gives it's customer a voucher for software that is
only available under the GPLv3 at the time that the customer wants to
redeem that voucher, then M$ has distributed code released under the GPLv3.

What is the term in the license that M$ so loathes?

Any person who distributes GPL3 code cannot subsequently sue the recipient
of that code - or anybody else - for any alleged patent violations because
the GPL3 requires that or else that person is in violation of the license
which is the only right that person has to distribute that software.

There are other conditions - such as needing to also make the source code
as freely available as the object code that they're distributing.


--
Jonathan Walker

"You'll have to excuse me — I have a long
bath and a short dress to get into."
 
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Lawrence D'Oliveiro
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      07-08-2007
In message <(E-Mail Removed)>, Jonathan Walker quoted:

> http://blogs.zdnet.com/microsoft/?p=557 (Microsoft Watch)
>
> Microsoft employs hundreds (if not thousands) of lawyers. How could
> these lawyers have [****ed up]...


I think it's simple: they're not accustomed to doing this kind of deal.
Previous agreements they've done involved rights to exclusive trade
secrets, tightly-controlled copyrights in closed-source software, that kind
of thing. They were then able to screw those companies by going on to
develop competing products and generally muscle in on their markets.

With Open Source, the deals don't give them anything that everybody else in
the world can't get. The tables have been turned: now Microsoft is in the
situation of having made a deal which is effectively worthless. They have
no experience with this sort of situation, and no idea how to compete under
such rules.
 
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Kurt Häusler
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      07-08-2007
On Sun, 08 Jul 2007 19:15:48 +1200, Jonathan Walker wrote:


> Any person who distributes GPL3 code cannot subsequently sue the recipient
> of that code - or anybody else - for any alleged patent violations because
> the GPL3 requires that or else that person is in violation of the license
> which is the only right that person has to distribute that software.


Interesting. I am involved quite a bit in interoperability and the legal
issues are quickly making the technical issues seem trivial in comparison.

I am a bit worried myself as I used to work for a company writing open
source linux drivers (but not in the kernel or any distros) implementing
patented protocols and algorithms with permission, under the gpl2 (or any
later version), just trying to do the right thing, currently I and a
couple of others are still distributing them (and won't be suing anyone
for using it!). I think the patents have since been sold. Who knows what
the legal consequences are, it might be a good idea to stop distributing
them, which seems somewhat counter to the goals of software freedom to me.
On the other hand, I like the idea of protecting the users (and other
coders) from patent lawsuits so updating the gpl to version 3 seems
tempting too but is it my right to do so?
 
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Peter
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      07-08-2007
Kurt Häusler wrote:
> I am a bit worried myself as I used to work for a company writing open
> source linux drivers (but not in the kernel or any distros) implementing
> patented protocols and algorithms with permission, under the gpl2 (or any
> later version), just trying to do the right thing, currently I and a
> couple of others are still distributing them (and won't be suing anyone
> for using it!). I think the patents have since been sold.


Is the software that you are distributing covered by patents? If so, who
owns the patents?

> Who knows what the legal consequences are, it might be a good idea to
> stop distributing them, which seems somewhat counter to the goals of
> software freedom to me.


If you don't have the right to distribute the software, then that isn't a
fault of GPL.

> On the other hand, I like the idea of protecting the users (and other
> coders) from patent lawsuits so updating the gpl to version 3 seems
> tempting too but is it my right to do so?


Who has copyright to the software? AFAIK, you can put whatever licence on
the software that you create.

IANAL


HTH

Peter

 
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Peter
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      07-08-2007
Kurt Häusler wrote:
> Can someone give me a more concrete (real or made up) example of how the
> gplv3 might affect Microsoft?


As always, Mettler has some vitriol to spread on the subject ...
http://www.lamlaw.com/tiki-read_arti...?articleId=196
http://www.lamlaw.com/tiki-read_arti...?articleId=301
http://www.lamlaw.com/tiki-read_arti...?articleId=298

HTH

Peter


 
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Kurt Häusler
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      07-08-2007
On Sun, 08 Jul 2007 21:16:11 +1200, Peter wrote:

> Is the software that you are distributing covered by patents? If so, who
> owns the patents?


In the sense that the software implements patented algorithms and
protocols, yes. (It couldn't have been done any other way, in order to
function with the hardware) By permission of the patent owner at the
time of course, who was my employer at the time. I believe ownership may
have changed since.

>> Who knows what the legal consequences are, it might be a good idea to
>> stop distributing them, which seems somewhat counter to the goals of
>> software freedom to me.

>
> If you don't have the right to distribute the software, then that isn't a
> fault of GPL.


The software (linux driver) was intended to be a fully open source
project, licensed under the GPL right from the start, and according to the
terms of that license anyone may distribute it as long as they comply with
the license. I just want to know what further implications gpl 3 might
introduce regarding the patent aspects.

>> On the other hand, I like the idea of protecting the users (and other
>> coders) from patent lawsuits so updating the gpl to version 3 seems
>> tempting too but is it my right to do so?

>
> Who has copyright to the software? AFAIK, you can put whatever licence on
> the software that you create.


We assigned copyright to the free software foundation which seems to be
standard practice with the gpl.
 
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Jonathan Walker
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      07-08-2007
On Sun, 08 Jul 2007 03:21:27 -0500, Kurt Häusler wrote:

> On the other hand, I like the idea of protecting the users (and other
> coders) from patent lawsuits so updating the gpl to version 3 seems
> tempting too but is it my right to do so?


If *you* own the copyrights, then *you* can choose what license you want
to release the software under.

If your company owns the copyrights, then your company can choose what
license it wants to release the software under.

Copyright ownership is the important thing - not patents.

Besides, mathematics is not patentable - and software is applied
mathematics.


--
Jonathan Walker

"You'll have to excuse me — I have a long
bath and a short dress to get into."
 
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