Bonum Certa Men Certa

No Need to Wait for GPLv3, MS Already is Granting Linux Patent Rights

With all of the hubbub regarding recent realizations about whether Microsoft is a Linux distributor bound by the GPLv2, and the lack of an expiration date on the coupons exposing Microsoft to potentially be bound by the GPLv3, we should also consider the possible defenses already provided under the current version of the license under which MS is currently distributing SUSE.

Some time back, right around when the latest GPLv3 draft was coming out, Groklaw had a posting regarding the implied patent defenses in GPLv2.

Essentially, the GPLv2 requires you to pass on the rights to use, modify and redistribute the software you receive without imposing further restrictions. It can be argued that Microsoft would also need to grant any necessary rights to its "IP" in order to make this so.

The article discusses four doctrines of implied license, legal estoppel, equitable estoppel, conduct and acquiescence. Regarding the first, legal estoppel, which just means you can't grant a legal right and then snatch it away, the article says:

In the hypothetical case above, the accused infringer has an argument that the elements of legal estoppel are met. Through the GPL, the patentee has granted the accused infringer the right to make and distribute the invention. While usage rights may not be explicitly granted under the GPL, it can be argued they are necessary to effectively practice the rights that have been granted. Both the right to practice the invention (through the GPL) and an attempt to derogate that right (by claiming the licensee has no right to use the licensed invention) are present.

Satisfying the legal estoppel theory also requires showing that the licensor received valuable consideration for the license. One possible item of consideration received under the GPL is the reciprocity agreement -- the promise by the licensee to license any further distribution of the program and any works based on it under the terms of the GPL. In Wang, the proliferation of the plaintiff's technology and adoption of it as an industry standard were enough to form consideration under legal estoppel. The licensee may be able to argue that the benefits any licensor receives from agreeing to comploy with the licensee form sufficient valuable consideration to imply a license by legal estoppel.


Let's imagine, for a moment, that Novell, instead of being a GPL bumbler, turned out to be a Ninja. Then the fact that Microsoft was persuaded to distribute vouchers for SUSE, which is distributed under the GPL, might be a way to tie their hands. It could be argued, as I understand the article to be indicating, that you could argue that Microsoft can't help distribute SUSE and then sue over folks using it. N'est-ce pas? And that would be entirely separate from any patent peace nonsense. And Novell helping Microsoft make Open XML a standard might, in Ninja land, be a way to force it to lose its patent rights.



This sorta reminds me of the argument that SCO couldn't distribute under the GPL and then claim infringement, I can't believe Microsoft fell for it again (assuming they thought up the SCO debacle, as it has seemed). I suppose MS could argue they never accepted the terms of the GPL, but that means they willfully committed 40,000+ instances of copyright infringement against each of the hundreds (thousands, likely) of the authors of the code in SUSE.

Recent Techrights' Posts

Europe Won't be Safe From Russia Until the Last Windows PC is Turned Off (or Switched to BSDs and GNU/Linux)
Lives are at stake
Links 23/04/2024: US Doubles Down on Patent Obviousness, North Korea Practices Nuclear Conflict
Links for the day
Stardust Nightclub Tragedy, Unlawful killing, Censorship & Debian Scapegoating
Reprinted with permission from Daniel Pocock
 
Balkan women & Debian sexism, WeBoob leaks
Reprinted with permission from disguised.work
Martina Ferrari & Debian, DebConf room list: who sleeps with who?
Reprinted with permission from Daniel Pocock
Links 24/04/2024: Advances in TikTok Ban, Microsoft Lacks Security Incentives (It Profits From Breaches)
Links for the day
Gemini Links 24/04/2024: People Returning to Gemlogs, Stateless Workstations
Links for the day
Meike Reichle & Debian Dating
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 23, 2024
IRC logs for Tuesday, April 23, 2024
[Meme] EPO: Breaking the Law as a Business Model
Total disregard for the EPO to sell more monopolies in Europe (to companies that are seldom European and in need of monopoly)
The EPO's Central Staff Committee (CSC) on New Ways of Working (NWoW) and “Bringing Teams Together” (BTT)
The latest publication from the Central Staff Committee (CSC)
Volunteers wanted: Unknown Suspects team
Reprinted with permission from Daniel Pocock
Debian trademark: where does the value come from?
Reprinted with permission from Daniel Pocock
Detecting suspicious transactions in the Wikimedia grants process
Reprinted with permission from Daniel Pocock
Gunnar Wolf & Debian Modern Slavery punishments
Reprinted with permission from Daniel Pocock
On DebConf and Debian 'Bedroom Nepotism' (Connected to Canonical, Red Hat, and Google)
Why the public must know suppressed facts (which women themselves are voicing concerns about; some men muzzle them to save face)
Several Years After Vista 11 Came Out Few People in Africa Use It, Its Relative Share Declines (People Delete It and Move to BSD/GNU/Linux?)
These trends are worth discussing
Canonical, Ubuntu & Debian DebConf19 Diversity Girls email
Reprinted with permission from disguised.work
Links 23/04/2024: Escalations Around Poland, Microsoft Shares Dumped
Links for the day
Gemini Links 23/04/2024: Offline PSP Media Player and OpenBSD on ThinkPad
Links for the day
Amaya Rodrigo Sastre, Holger Levsen & Debian DebConf6 fight
Reprinted with permission from disguised.work
DebConf8: who slept with who? Rooming list leaked
Reprinted with permission from disguised.work
Bruce Perens & Debian: swiping the Open Source trademark
Reprinted with permission from disguised.work
Ean Schuessler & Debian SPI OSI trademark disputes
Reprinted with permission from disguised.work
Windows in Sudan: From 99.15% to 2.12%
With conflict in Sudan, plus the occasional escalation/s, buying a laptop with Vista 11 isn't a high priority
Anatomy of a Cancel Mob Campaign
how they go about
[Meme] The 'Cancel Culture' and Its 'Hit List'
organisers are being contacted by the 'cancel mob'
Richard Stallman's Next Public Talk is on Friday, 17:30 in Córdoba (Spain), FSF Cannot Mention It
Any attempt to marginalise founders isn't unprecedented as a strategy
IRC Proceedings: Monday, April 22, 2024
IRC logs for Monday, April 22, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Don't trust me. Trust the voters.
Reprinted with permission from Daniel Pocock
Chris Lamb & Debian demanded Ubuntu censor my blog
Reprinted with permission from disguised.work
Ean Schuessler, Branden Robinson & Debian SPI accounting crisis
Reprinted with permission from disguised.work
William Lee Irwin III, Michael Schultheiss & Debian, Oracle, Russian kernel scandal
Reprinted with permission from disguised.work
Microsoft's Windows Down to 8% in Afghanistan According to statCounter Data
in Vietnam Windows is at 8%, in Iraq 4.9%, Syria 3.7%, and Yemen 2.2%
[Meme] Only Criminals Would Want to Use Printers?
The EPO's war on paper
EPO: We and Microsoft Will Spy on Everything (No Physical Copies)
The letter is dated last Thursday
Links 22/04/2024: Windows Getting Worse, Oligarch-Owned Media Attacking Assange Again
Links for the day
Links 21/04/2024: LINUX Unplugged and 'Screen Time' as the New Tobacco
Links for the day
Gemini Links 22/04/2024: Health Issues and Online Documentation
Links for the day
What Fake News or Botspew From Microsoft Looks Like... (Also: Techrights to Invest 500 Billion in Datacentres by 2050!)
Sededin Dedovic (if that's a real name) does Microsoft stenography
Stefano Maffulli's (and Microsoft's) Openwashing Slant Initiative (OSI) Report Was Finalised a Few Months Ago, Revealing Only 3% of the Money Comes From Members/People
Microsoft's role remains prominent (for OSI to help the attack on the GPL and constantly engage in promotion of proprietary GitHub)
[Meme] Master Engineer, But Only They Can Say It
One can conclude that "inclusive language" is a community-hostile trolling campaign
[Meme] It Takes Three to Grant a Monopoly, Or... Injunction Against Staff Representatives
Quality control
[Video] EPO's "Heart of Staff Rep" Has a Heartless New Rant
The wordplay is just for fun
An Unfortunate Miscalculation Of Capital
Reprinted with permission from Andy Farnell
[Video] Online Brigade Demands That the Person Who Started GNU/Linux is Denied Public Speaking (and Why FSF Cannot Mention His Speeches)
So basically the attack on RMS did not stop; even when he's ill with cancer the cancel culture will try to cancel him, preventing him from talking (or be heard) about what he started in 1983
Online Brigade Demands That the Person Who Made Nix Leaves Nix for Not Censoring People 'Enough'
Trying to 'nix' the founder over alleged "safety" of so-called 'minorities'
[Video] Inauthentic Sites and Our Upcoming Publications
In the future, at least in the short term, we'll continue to highlight Debian issues
List of Debian Suicides & Accidents
Reprinted with permission from disguised.work
Jens Schmalzing & Debian: rooftop fall, inaccurately described as accident
Reprinted with permission from disguised.work
[Teaser] EPO Leaks About EPO Leaks
Yo dawg!
On Wednesday IBM Announces 'Results' (Partial; Bad Parts Offloaded Later) and Red Hat Has Layoffs Anniversary
There's still expectation that Red Hat will make more staff cuts
IBM: We Are No Longer Pro-Nazi (Not Anymore)
Historically, IBM has had a nazi problem
Bad faith: attacking a volunteer at a time of grief, disrespect for the sanctity of human life
Reprinted with permission from Daniel Pocock
Bad faith: how many Debian Developers really committed suicide?
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 21, 2024
IRC logs for Sunday, April 21, 2024
A History of Frivolous Filings and Heavy Drug Use
So the militant was psychotic due to copious amounts of marijuana
Bad faith: suicide, stigma and tarnishing
Reprinted with permission from Daniel Pocock
UDRP Legitimate interests: EU whistleblower directive, workplace health & safety concerns
Reprinted with permission from Daniel Pocock