Re: GPLv3 comedy unfolding -- Herr Professor: "giving away coupons activity by Microsoft is meaningless and useless"

[Alexander Terekhov]

Eben "Anarchism Triumphant"/"dot Communist Manifesto"/"Gates sufferes 
from autism"***) Moglen...

http://blog.seattlepi.nwsource.com/microsoft/archives/115505.asp

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legal counsel to the Free Software Foundation, discussed the details of
the draft General Public License Version 3 -- including its defenses
against the Microsoft-Novell deal -- in an online seminar hosted by
OpenLogic Inc. today. It was a timely discussion, given Microsoft's
assertion earlier this week that Linux and other open-source programs
violate 235 of its patents. (The GPL is the license under which many
open-source programs are distributed.) 

Moglen said the recent "saber-rattling" further illustrated the
importance of protecting against Microsoft's attempts "to disrupt free
software production through the inculcation of a large inventory of
most-likely invalid patents." 

In basic terms, as Moglen explained to the online audience, the new
version of the license would make Microsoft subject to the GPL, because
of its distribution of Novell Suse Enterprise Linux coupons. Under the
language of the license, Microsoft would then be prevented from pursuing
patent claims against the broader Linux community. Not just Novell's
Linux users would be protected. 

As reported by Fortune, Microsoft disputes the notion that its
distribution of Novell coupons would make it subject to the GPL. See
this earlier post for Microsoft's position and explanation of why it
decided to go public with its patent claims. 

The current draft of the GPL v. 3 also includes what Moglen described as
the "dancing with wolves provision." It's meant to prevent other Linux
distributors from striking deals similar to the one Novell made with
Microsoft. (The companies agreed not to pursue patent claims against
each other's customers.) 

Here's how Moglen explained the provision: "If you make deals with a
party having patents, to pay tribute to that party, in return for
protecting some but not all of your customers ... you are violating the
license, and you must stop distributing altogether."

Read on for an extended excerpt from Moglen's remarks:

"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."

Update, 3 p.m.: Microsoft declined to comment on Moglen's remarks.
Patent lawyer Richard Wilder, intellectual property counsel to the
Association for Competitive Technology (of which Microsoft is a member)
disputed the assertion that Microsoft's distribution of Suse Linux
service and support coupons makes it a Linux distributor.

"They're not distributing Linux," Wilder said. "They're providing
somebody access to a service but they're not providing copies of Linux
on a disk, and they're not providing somebody access to Linux for the
purpose of download, and so they're not engaged in any distribution."

Posted by Todd Bishop at May 17, 2007 1:07 p.m.
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regards,
alexander.

***) 
http://dartreview.com/archives/2005/04/08/intellectual_property_is_so_last_year.php
(Intellectual Property Is So Last Year)