Can the Gplv3 Make Microsoft Grant Patent Licences to the Free Software Community?
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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 Linspire5 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 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], 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 multi- year 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 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. Page 2 of 6 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, 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. Page 3 of 6 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 service27 or through library loan,28 is distribution under the Copyright Act.