Microsoft the copyright infringer

Microsoft the copyright infringer


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.

Category: 

Comments

Felipe Alvarez's picture

If they distribute software (or vouchers) they have implicitly agreed to the GPL.

"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."

So what? You are saying they will be violating copyright if they (re)distribute GPLed software. They don't break any rules, as long as they follow all the guidelines in the GPL. Did I overlook something in your article? What rule[s] is Microsoft 'violating'?

"Hence, Novell cannot through contracts give legal rights to Microsoft to redistribute other people’s software on terms different than Novell itself received. "

What 'different terms' are these?

ps - i haven't read the final draft of GPLv3 so excuse the ignorance.

Stan Tobias's picture
Submitted by Stan Tobias (not verified) on

1. If I buy a book, under the copyright law do I need a special license to sell it to someone else? Do I need to accept the book's license at all in order to buy and sell it? Why wouldn't Microsoft (or anyone) be able to sell programs they get from Novell (assuming no copying on their part, and that the copies from Novell are legal) without accepting the license which covers those programs?

2. IANAL. Why selling vouchers is considered a software redistribution? For example, if my friend counterfeited music CDs and gave them away, but it was I who collected the money for them, would I be distributing them? (Would I infringe the copyright directly at all, or would it be merely a contributory infringement?)

3. I have not seen Microsoft's vouchers, I don't know what they contain. Is Novell actually selling GPL software, or services? Couldn't Microsoft sell those vouchers only for Novell's services, too, (and perhaps, also for other items which Novell can license, like icons, pictures, sounds, restricted software etc.), not covering the bundled GPL software? Would GPL license bind them in this situation?

I don't defend Microsoft, I use and benefit from free software myself, I'm genuinely interested in answering my questions, and I'll be thankful if I can get an answer.

David Sugar's picture

When the bookstore sells you the book, they do not need to produce a new copy of the book on the spot, and when you resell your book, you are not duplicating a copy for resale. Now imagine if you tried to resell a copy of that book, say made with a photocopier, without an explicit license to do so from the copyright holder. That would be commercial copyright infringement. And such is the case with software, where copies of the original are being distributed. Some even go as far as to argue that executing a program, which involves transient loading into ram, is also creating a copy, and hence also subject to copyright.

Now imagine you tried to sell a copy of a book you have no license to duplicate through a voucher where you may have someone else sublicensed to duplicate the book for you...

Stan Tobias's picture
Submitted by Stan Tobias (not verified) on

Thank you for your reply, although I don't think it really answers my questions. In Microsoft-Novell setup it's not Microsoft that does the copying, but Novell does (further on I'll assume Novell has right to do it). Microsoft by selling vouchers is merely handing out a kind of new currency, for which you can buy something from Novell. Which exactly author's exclusive right is being trespassed by Microsoft?

I'll rehash my questions again, so that I'm clearly understood:

1. I question the assumption by which reselling copyrighted work automatically violates the copyright - see http://en.wikipedia.org/wiki/First-sale_doctrine and some example cases there. I simply don't believe that the copyright gives an author right to control subsequent resale of his work (I don't mean copying here!), and hence, no license is necessary to buy and sell, whatever way.

2. I question the assumption I often see, that selling vouchers is automatically a redistribution of a work; it's not even a sale of the work. I don't see a connection. As I said above, vouchers are a kind of currency for which you can buy something at Novell's. The act of selling is performed at Novell's - there you go and exchange money (or vouchers) for goods (software) or services. I don't see how Microsoft might be accused of redistributing anything; suppose, instead of vouchers, they were throwing out real money shouting "Buy yourselves SLES, or candies!", would you call that a redistribution, too? I wouldn't.

3. I question the notion that Microsoft is actually "selling" any GPL software via its vouchers at all. The vouchers cannot cover something Novell does not sell, that's why I asked the question: does Novell really sell GPL software, or merely bundle it with other things (services). Recently I read some place Microsoft stating explicitly it's vouchers won't cover GPLv3 software parts. So on what basis can we claim their "sale" involves GPLv3 soft, when they themselves deny it?

It's not that I'm attacking your article, I think it merely repeats the same arguments I saw many times in other places. I just thought someone at FSM might be able to clarify these issues for me. If you aren't able to give a precise explanation, please say so, I'll try asking somewhere else. Thank you again.

David Sugar's picture

I must apologize, I found your initial comment about second sale doctrine as you initially expressed it as ludicrous. Let's discuss what is actually done here.

Microsoft sells vouchers for a good that does not exist yet. It is clearly the seller because it is establishing terms of sale, and offers additional terms of it's own which include a patent use license.

Since the goods being sold do not yet exist, they have to be "created". This means a copy is manufactured by Novell and "conveyed" as part of the sale. Microsoft has no legal right to bring this copy into existence because it is not a copyright holder. Second sale does not apply to copying because there was no first sale of copyright ownership anywhere in the chain. Therefore the only legal instrument enabling it to do so and thereby complete the sale is the GNU GPL. Whether Novell is licensed to do so or not does not mean Microsoft is, unless it does so under the terms of the license that permits it to do so, whether they make the copy themselves or subcontract someone else, which in effect is the relationship they have established with Novell.

Microsoft does not seem to (at least at present) represent it's vouchers as a second sale of a Novell CD but rather as a funny kind of first sale, and this is their problem. There are actually other significant problems they would face if they did choose to claim they are second selling existing Novell CD's rather than conveying newly minted ones as part of a sale that also includes a patent use license, and should that happen, I would be happy to write about the folly of that approach as well :).

Stan Tobias's picture
Submitted by Stan Tobias (not verified) on

> Microsoft sells vouchers for a good that does not exist yet.

So how can they *now* infringe the copyright on software which will exist only in future?

> It is clearly the seller because it is establishing terms of sale,

Yes, they sell something, they can establish the price for example. In my view they sell Novell's promises, not software, but in legal terms I'm might be wrong here.

> and offers additional terms of it's own which include a patent > use license.

They cannot set any additional terms on software which is not of their own, or they have no right to. Adding their patent license is orthogonal to the precise issue under discussion. (They may always give their patent license to anybody under any circumstances.)

> This means a copy is manufactured by Novell and "conveyed" as > part of the sale.

But it's "conveyed" by Novell, not by Microsoft. I thought copyright governed certain *physical* actions. For example, if I would illegally "distribute" software through mirrors, it's the mirrors (and downloaders) that would be responsible for their copying action; they couldn't claim that only I was guilty, because it was only I who did the distribution. For another example, those who make links to unauthorised copies, are not sued for trespassing copyright, but rather for inducing copyright infringement, which is a different matter.

> Second sale does not apply to copying because there was no first > sale of copyright ownership anywhere in the chain.

Microsoft bought those vouchers from Novell, didn't they? If you equal selling vouchers to selling software (which I don't, yet) then Microsoft are reselling whatever they bought from Novell, and they don't need a license for that, just as well they wouldn't need a license to resell books. And Novell has license (GPL) to sell the software, it is not bound by contract to ascertain that the buyer accepts its terms (or is it?).

For the second thing, I believe licitly downloading (copying) software from FSF constitutes kind of legal transaction, a first "sale for free", price doesn't matter (it might be a present), and selling or giving away these same copies (without further copying) might not require license under copyright. But this is only my projection, IANAL, I might be wrong here.

> whether they make the copy themselves or subcontract someone > else, which in effect is the relationship they have established > with Novell.

I rather view it as a partnership relation, not a subcontract - Microsoft didn't make a contract with, and is not paying Novell to produce software for Microsoft. Those vouchers are issued by Novell, not by Microsoft, isn't that right?

Anyway, if something is not right with the current Microsoft-Novell contract wording, they may still be able to amend it to "make it right". I'm sorry, your arguments haven't convinced me. It's not specifically GPLv3 that might be faulty, I think it's been a good advancement, but I believe that copyright law itself might be a too weak weapon. I hope that FSF has good lawyers and they know what they're doing; but OTOH in court cases roughly half the attorneys are usually proved wrong. Microsoft's lawyers aren't stupid either. Thank you for the nice talk, I'll be waiting for your next article.

Michael Fötsch's picture

So how can they *now* infringe the copyright on software which will exist only in future?

As I said, Microsoft doesn't necessarily infringe on anyone's copyright. It's all about the patent license. It's only when they refuse to grant the required patent licenses that they're infringing (and who doubts that they'll voluntarily comply? ;-) )

Richard Stallman said this during the launch event (http://gplv3.fsf.org/rms_gplv3_launch_transcript)

However, instead of simply saying that Novell can't distribute GPL version 3 covered programs under their deal, we found a cleverer thing to do with it. When Microsoft updates to versions that are covered by GPL version 3, GPL version 3 will extend this patent protection from the customers of Novell to everybody who uses those programs. [...] So, it's extremely important for free software to upgrade the license to GPL version 3. So that, Novell, in the course of time, will put in the new versions, and thus our community will get this benefit. It has to be done fairly soon, because if we wait too long, Microsoft may distribute all its coupons and then we won't be able to turn the deal against them anymore. So, get your programs relicensed soon, it's very important.

But it's "conveyed" by Novell, not by Microsoft. I thought copyright governed certain *physical* actions.

I'm not a lawyer either, but it seems that if two parties conspire to infringe someone's copyright, they're both liable for infringement (or whatever that's legally called). Maybe a bad comparison, but if one guy aims with a gun and one pulls the trigger, neither one can claim they didn't intend to shoot.

The FSF says this interpretation worked in the past, for example in this case (citing RMS from "Free Software, Free Society"):

Consider GNU Objective C. NeXT initially wanted to make this front end proprietary; they proposed to release it as .o files, and let users link them with the rest of GCC, thinking this might be a way around the GPL's requirements. But our lawyer said that this would not evade the requirements, that it was not allowed.

I was also puzzled how NeXT distributed anything or created derivatives of anyone's work--but I assume they wouldn't have released their code without a compelling reason. The keyword seems to be "subterfuge for distribution," whatever this means. (Does someone know the legal meaning of this phrase?)

Stan Tobias's picture
Submitted by Stan Tobias (not verified) on


It's only when they refuse to grant the required patent licenses that
they're infringing

No, they would be infringing if they accepted GPLv3, and refused patent
grant (which is sort of contradictory), or were required to accept GPLv3
but did not do so. It's even not enough if they acknowledge legitimacy
of license from Novell, because Novell cannot grant someone else's patents.
They themselves must issue this license or be made to act within its
regime for GPLv3 to take effect. If they say they're not bound by GPLv3,
it means they have not accepted it. The crux of this discussion is
whether copyright law requires them at all to have a license for
whatever they are doing. I'm sure, if they had to choose between bad
and worse in court, they would choose "infringing" and pay up, rather
than let their weapons be taken away - after all they don't really need
to distribute those coupons, do they?


Richard Stallman said

I like this guy, too, to some extent, but, first, it's not an argument
what he said; and second, it's important what the judge thinks, not
what RMS says - he cannot (well, he can, but it'd be irrelevant anyway)
"extend" his license beyond what copyright law restricts (license is
not a contract).

Since we came to authorities, if I could make a small suggestion.
Could some FSM author, in pursuit of his journalistic mission,
bring this discussion to the attention of some relevant people
from FSF circle, simply ask them, and make a small interview and
present it here, so that all readers could read it?


if two parties conspire to infringe someone's copyright, they're both
liable for infringement (or whatever that's legally called)

I agree, but first either Novell or Microsoft would have to
infringe something, and we haven't proved that yet.

The third possibility is, technically, that what they do separately
is perfectly legal, but together they break the law. I don't really
know, IANAL, we should ask someone knowledgeable if this is possible.

(They say "we'll turn their contract against Microsoft, but save Novell"
- I don't think conspiracy is meant, or else both would be held liable.)


they proposed to release it as .o files, and let users link them with the
rest of GCC

Yes, but that was "distribution of derived work" (whether is was or not;
I could argue this, too), and at least the copyright claim made by FSF
lawyers was clear. I still don't understand what the claim is against
what Microsoft are doing (and if it's a valid claim), and why everyone is
sure they cannot escape it and continue what they do one way or another.

[ I'm leaving tomorrow, I might not be able to participate in
this discussion discussion for some time. ]

Michael Fötsch's picture

There are two questions here:

1. Does Microsoft/Novell violate the GPLv3 if they distribute GPLed software?

Not necessarily. But they'd have to follow the patent requirements. Otherwise, it would be infringement. (Which they could accept as the lesser evil, as you hinted at, but that's an entirely different question.)

2. Do these coupons constitute distribution?

You're right, that's the tough question. I can't say for sure, you can't say for sure, the FSF can't, Microsoft can't, Novell can't. A judge could say for sure, until the appeals court says for surer, ...

I like [Richard Stallman], too, to some extent, but, [...] Since we came to authorities, [...]

There might have been a misunderstanding. My argument was not, "The coupons are distribution, because RMS said so." My point was this:

All the talk about "Microsoft/Novell might be in trouble" rests on the assumption (granted, an assumption) that this coupon arrangement requires permission under copyright law, and therefore, that the GPL applies. The RMS quote (and also what Eben Moglen wrote in the GPLv3 rationale documents) clearly shows what the FSF's interpretation is--namely, that it does.

> they proposed to release it as .o files, and let users link them with the rest of GCC

Yes, but that was "distribution of derived work" (whether is was or not;
I could argue this, too)

No, from all I know, that was not the FSF's claim. Just like in the Microsoft/Novell case, the situation seems to have been more complex. But the FSF's position prevailed. I, for one, would hope the same will be true with regards to Microsoft/Novell.

Michael Fötsch's picture

Felipe Alvarez said:

So what? You are saying they will be violating copyright if they (re)distribute GPLed software.

They don't. Microsoft has the right to distribute GPLed software just like everybody else. The point that the article misses entirely is that the GPLv3 has a patent clause that says, if you distribute GPLed software, you are granting implicit patent licenses to anyone who receives a copy--with the GPL, that's everyone.

The way I see it, what this means for Microsoft: They can't claim GNU/Linux infringes on their patents and at the same time distribute software under the GPLv3, because the act of distribution grants a patent license.

Stan Tobias said:

For example, if my friend counterfeited music CDs and gave them away, but it was I who collected the money for them, would I be distributing them?

What if you founded a company that produces counterfeited CD? One guy would hire the workers to produce the CDs. One guy would organize the transportation. One guy would cash in the checks. I guess the answer in both cases is clear. No matter how many people work together, it's still infringement.

David Sugar said:

Some even go as far as to argue that executing a program, which involves transient loading into ram, is also creating a copy, and hence also subject to copyright.

What do you mean by "far"? Methinks this interpretation is fairly standard...

Terry Hancock's picture
David Sugar:
Some even go as far as to argue that executing a program, which involves transient loading into ram, is also creating a copy, and hence also subject to copyright.
Michael Fötsch:
What do you mean by "far"? Methinks this interpretation is fairly standard...

IANAL, but it is my understanding that this interpretation has been formally rejected. IIRC, it may actually be one of the better sections of the DMCA (yes, there are some!) that clarifies this. Running a program is "using" it, not "copying" it.

It had previously been used to try to prosecute people for things like unlocking ebooks in order to read them, but since the DMCA makes such activities illegal by direct proscription, the point is moot today. There's no need for such obtuse arguments to support such lawsuits. (Of course, the cure is worse than the disease)

Michael Fötsch's picture

IANAL, but it is my understanding that this interpretation has been formally rejected. IIRC, it may actually be one of the better sections of the DMCA (yes, there are some!) that clarifies this. Running a program is "using" it, not "copying" it.

Whatever you call it, I was always under the impression that loading a computer program into RAM still requires the copyright holder's permission. I.e., even if you have permission to store a copy on your hard disk, "using" it is a different thing. How else could a license agreement place restrictions on "commercial use", or "not to be used in a virtual machine" once you already have that copy?

IKYNAL (I know you're not a lawyer), but any information you have is greatly appreciated.

Michael Fötsch's picture

Running a program is "using" it, not "copying" it.

I still think the interpretation is fairly standard--since 1993 it seems.

By accident, I stumbled upon what seems to be relevant case law: 991 F.2d 511 (9th Cir. 1993)

[...] a "copying" for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer's RAM. [...] "the loading of copyrighted computer software from a storage medium (hard disk, floppy disk, or read only memory) into the memory of a central processing unit ("CPU") causes a copy to be made. In the absence of ownership of the copyright or express permission by license, such acts constitute copyright infringement." [...] Peak argues that this loading of copyrighted software does not constitute a copyright violation because the "copy" created in RAM is not "fixed." However, by showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer. MAI has adequately shown that the representation created in the RAM is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."

I'm not an attorney. I don't know whether there are any Supreme Court decisions that state the opposite, but I'd say we shouldn't rely on "using" not being "copying".

Big Dave's picture
Submitted by Big Dave (not verified) on

to take the book analogy its more like, what the book contains you are only allowed to read it and sell it to other people if you passed on any punctuation/grammar corrections to the original author and make available the original writers book plan and in no way held them liable for using any corrections you submit or for redistributing copys containing your restrictions.

Author information

David Sugar's picture

Biography

David Sugar is an active maintainer for a number of packages that are part of the GNU project, including GNU Bayonne. He has served as the voluntary chairman of the FSF’s DotGNU steering committee, as a founder and CTO for Open Source Telecomm Corporation, and currently owns and operates Tycho Softworks.