Groklaw - Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)

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Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying)

Friday, May 18 2007 @ 01:25 PM EDT

This is news indeed. Todd Bishop has the story. Eben Moglen is saying that the SUSE vouchers Microsoft is distributing have no expiration date! I didn't know this. It's huge. This is, according to Moglen's remarks, another defense to any patent infringement claim by Microsoft, and it may well bring that campaign to a screeching halt.

Here's why. Someone, Moglen says, is bound to turn a voucher it got from Microsoft in after GPLv3 goes into effect and GPLv3 code is being distributed, and at that moment Microsoft comes under its terms. And that should mean the end of Microsoft's ability to successfully sue anybody over its alleged patents allegedly in Linux, or to phrase it more exactly, it provides a probable defense to all Linux users and vendors, not just Novell's paying customers, if Microsoft does sue.

Bishop contacted Microsoft, which declined comment. I'm sure this is something they didn't expect when they entered into the devilish "NotaDuck" patent peace agreement with Novell. Oops. I mean with Novell's paying customers. Their intent was to make Novell's paying customers the only anointed blessed Linux users allowed to breathe patent-threat free. But GPLv3 extends the peace to everybody.

Here's how I understand the legal argument. Microsoft is a distributor already under GPLv2, because of distributing the vouchers and some other unstated things FSF's Brett Smith hinted at when he stated the FSF view. So there is already a defense, thanks to GPLv2's implied patent license. But under GPLv3, it's not implied. Here is precisely what happens to Microsoft when someone hands in a voucher after the GPLv3 is in effect:

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 providing freedom to use, propagate, modify or convey a specific copy of the covered work to any of the parties receiving the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.

No wonder, as Moglen puts it, Microsoft has been tossing the vouchers wholesale out of airplanes "as though the coupons themselves were hot, as indeed they are". But now here comes Moglen saying even that won't work, because of the lack of an expiration date on the vouchers. And so, as the sun sets over the horizon, we may be bidding a fond farewell to Microsoft's patent bullying. I hope some friendly folks have bought a voucher. If so, you might just want to take a breather before you turn it in, huh? Then it's buh-bye to Microsoft's 235 patent claims, methinks. So nice of Microsoft to distribute under GPLv3. Hugs and kisses.

Ah! Lawyers at work. It'll be intriguing to see what Microsoft can do next. I told you law was like chess, but this is like watching a game played live. Isn't the law more fascinating than you thought? Let's take a look at what Moglen is saying specifically.

Here's a segment of Moglen's remarks from the online seminar hosted by OpenLogic and provided by Bishop:

"Novell's activity will be protected by the fact that it was complete as of the date in November, which is the effective date of their deal with Microsoft. [The GPL revisions won't be retroactive.] Microsoft's activity will begin to disperse patent defenses into the community. When GPL 3 goes into effect, every Microsoft coupon handed to somebody, which results in the shipment of a Novell Server Edition product to that coupon-holder, will result in a conveyance of broad patent defenses to parties throughout the community.
"The goal of this provision was to incent Microsoft to get out of the patent deal with Novell. Microsoft, which fully understands what we are doing and why we are doing it, has elected instead not to withdraw from the deal with Novell, but to throw coupons wholesale out of airplanes. You have been watching for months as Microsoft gave away these coupons -- which were supposed to be valuable to Microsoft, and for which it paid a lot of money -- as though the coupons themselves were hot, as indeed they are. All of this giving away coupons activity by Microsoft is meaningless and useless. The coupons have no expiration date, and Microsoft can be sure that some coupons will be turned into Novell in return for software after the effective date of GPL 3. Once that has happened, patent defenses will, under the license, have moved out into the broad community and be available to anybody who Microsoft should ever sue for infringement.
"Our goal, in other words, is to add one more layer of probable defense against the Microsoft patent aggression, which Microsoft has just been busy thumping its tub about this week. So, in summary, Novell will be protected for the long haul, and Microsoft will be endangered for the long haul by GPL 3, and that's as it should be."

So you can parse it all out carefully yourself, here's the entire patent clause in the current draft of GPLv3:

11. Patents.
Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims in its contribution, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contribution.
For purposes of the following three paragraphs, a "patent license" means a patent license, a covenant not to bring suit for patent infringement, or any other express agreement or commitment, however denominated, not to enforce a patent.
If you convey a covered work, knowingly relying on a patent license, and the Corresponding Source of the work is not available for anyone to copy, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means, then you must either (1) cause the Corresponding Source to be so available, or (2) disclaim the patent license for this particular work, or (3) arrange, in a manner consistent with the requirements of this License, to extend the patent license to downstream recipients. "Knowingly relying" means you have actual knowledge that, but for the patent license, your conveying the covered work in a country, or your recipient's use of the covered work in a country, would infringe one or more identifiable patents in that country that you have reason to believe are valid.
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 providing freedom to use, propagate, modify or convey a specific copy of the covered work to any of the parties receiving the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.
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[, unless you entered into that arrangement, or that patent license was granted, prior to March 28, 2007].
Nothing in this License shall be construed as excluding or limiting any implied license or other defenses to infringement that may otherwise be available to you under applicable patent law.

As you can see in the section I highlighted, the minute someone turns in a voucher after GPLv3 is in effect, Microsoft will be granting a patent license to everyone, not just Novell's paying customers: "the patent license you grant is automatically extended to all recipients of the covered work and works based on it". Voila. I hope your PHB understands this.

Will anyone enter into such a deal with Microsoft now? Doesn't this explain why Microsoft suddenly began talking publicly about patents and wanting folks to hurry up and enter into patent peace agreements fast? Will anyone buy SUSE for a patent peace, if they know the patent peace is shortly to be available to the world and his penguin? Novell, by the lack of retroactivity, gets to stay in business. But it loses its "we are the only ones that are not threatened by Microsoft's patents" standing. It can still differentiate itself in the market in other ways, the interoperability angle, which is fine.

Well, to each his own, and you no doubt will be talking to your lawyers if you are considering such a thing, but between Microsoft's lawyers and Moglen, who do you think understands the GPL better? Courts ultimately decide such matters but only if someone is dumb enough to bring it to court. GPLv2 has stood up just fine, by the way, in court challenges.

Moglen: SUSE Vouchers Have No Expiration Date! (Unlike MS's Patent Bullying) | 637 comments | Create New Account

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Corrections here

Authored by: lordshipmayhem on Friday, May 18 2007 @ 01:34 PM EDT

Not that I'm expecting many.