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David Sugar [opinions]

Microsoft the copyright infringer [microsoft] [novell] [copyrights] [gplv3] [gpl]

When we consider the situation Microsoft finds itself in with regard to the GNU General Public License (GPL), it is important to consider how one determines when someone has accepted the GNU GPL and, hence, when someone is actually bound by its terms. Many people receive software that has been licensed under the terms of the GNU GPL all the time. However, simply receiving software licensed under the GNU GPL does not, in itself, mean that one has accepted the terms. Indeed, there is no contract to sign when receiving said software and certainly no “End User License Agreement”. Furthermore, for someone that refuses to accept the GNU GPL license, the freedom to use such software is not constrained except for the right to further copy or otherwise redistribute, whether in whole or in derivative form or through combined works.

The reason that the GNU General Public License works this way is because it is a copyright license—not a contract. Without using the GNU GPL, someone receiving said software has no legal right (outside of the scope of fair use) to further redistribute the software, since copyright law automatically prohibits this. Assuming that the copyright holder has attached no additional license or conditions, then the only legal instrument to convey and legally redistribute such software is by accepting the terms of the license. Hence, the act of redistribution is itself proof that such acceptance has occurred.

The problem Microsoft faces is that its vouchers are, in fact, a form of redistribution, and one certainly outside the scope of fair use. While Microsoft has a contract with Novell, the fact remains that Novell is not a copyright holder for most of the software that is redistributed as part of Novell SuSE GNU/Linux. Hence, Novell cannot through contracts give legal rights to Microsoft to redistribute other people’s software on terms different than Novell itself received. When Microsoft distributes vouchers it is engaging in an act of redistribution and its only legal means to do so for many of the packages it distributes as part of Novell’s GNU/Linux distribution is by accepting the terms of the GNU GPL. Given that their vouchers do not expire and may be redeemed for software that is later distributed under the GNU General Public License Version 3, this means they become through the same act of redistribution legally bound by the terms of the license.

If Microsoft indeed intends, as publically stated, to continuedistributing GNU GPL licensed software while at the same timerepudiating that is bound by the terms of the license, then it's onlyoption is to do so illegally, for it has no other rights to do sooutside of the GNU GPL itself. Certainly Novell cannot convey rights to Microsoft it itself does not possess. The only option remaining is that Microsoft is engaged in willful copyright infringement. This does not mean, contrary to what some seem to think, that the BSA could then go in and raid Microsoft’s so called “Linux” labs. Microsoft, like anyone else, whether accepting the terms of the license or not, would remain free to use the software they receive. However, they immediately become liable as a copyright infringer for their present (and future) acts of redistribution. I suppose they could cancel their contract with Novell and choose to break their vouchers. This would also make their illegal act a problem for their partners and customers, while potentially exposing them to other forms of liabilities. However, even if they did, this would not remove the liability they already would have created for engaging in copyright infringement.

Some may think that Microsoft is wealthy enough to risk the potential specter of thousands of individual copyright holders pursuing copyright infringement claims in civil courts, and perhaps even use this for additional FUD. While I agree the process of launching civil litigation could be potentially daunting, this would not be necessary. While most forms of copyright infringement are a civil matter, knowingly doing so for commercial gain is actually a federal crime. Should they choose to redistribute or otherwise convey software I am a copyright holder for while repudiating the license they are given to do so, I will simply need to call the FBI and DOJ and let them handle this for me. Those from other nations may potentially avail themselves of U.S. trade treaties that allow for shutting down commercial copyright infringers.

Indeed, I am left to ponder the genius of the GNU General Public License, and the fact that it continues working as intended, to assure that those who receive free software give to others the same rights and privileges they themselves have received.


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