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 providing freedom to use, propagate, modify or convey a specific copy of the covered work to any of the parties receiving the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.

Or as Eben Moglen puts it:

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 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.

Since Microsoft is unlikely to find that appealing, and since that is a precise description of its voucher activities, it may well try to find a way to get out of the deal as constituted. It seems to have thought that if it dumped its remaining vouchers on Dell, it could escape the GPLv3 consequences. But Moglen's revelation that vouchers already distributed by Microsoft have no expiration date makes that strategy useless. Don't ask me what Microsoft can do. I see no solution for them except to exit the patent peace agreement business. I'm not a lawyer, of course, and I'm sure Microsoft's are working on this, trying to figure out what to do next.

Today, you can get the slides from Eben Moglen's talk as a PDF. You can also listen to the webinar [zip download], but ironically maybe not all of us, because the webinar organizer, OpenLogic, requires that you use a Raindance Player, and although they make a light version of the player available [RaindancePlayer.exe], it requires Windows to view the .rmv file. So there you are. A touch of irony. The biggest news for the FOSS community breaks, and we can't access it. But Microsoft's lawyers can, and I think they are the ones who truly need this information. Our thanks must go to Todd Bishop of Seattle PI, who broke this story and made portions of the text available.

So those are the two motions SCO is opposing in the new filings, and here are the docket entries, which we can read together:

05/18/2007 - 299 - Plaintiff's MEMORANDUM in Opposition re 271 MOTION for Partial Summary Judgment on the Copyright Ownership Portions of SCO's Second Claim for Breach of Contract and Fifth Claim for Unfair Competition filed by Counter Defendant SCO Group, Plaintiff SCO Group. (Normand, Edward) (Entered: 05/18/2007)

05/18/2007 - 300 - Plaintiff's MOTION for Leave to File Excess Pages filed by Counter Defendant SCO Group, Plaintiff SCO Group. (Attachments: # 1 Text of Proposed Order Order Granting Ex Parte Motion for Leave to File Excess Pages) Motions referred to Brooke C. Wells.(Normand, Edward) (Entered: 05/18/2007)

05/18/2007 - 301 - Plaintiff's MEMORANDUM in Opposition re 273 MOTION for Partial Summary Judgment on SCO's Non-Compete Claim in its Second Claim for Breach of Contract and Fifth Claim for Unfair Competition filed by Counter Defendant SCO Group, Plaintiff SCO Group. (Attachments: # 1 Exhibit Unpublished Cases)(Normand, Edward) (Entered: 05/18/2007)

The eagle-eyed among you will have noticed that the numbering of the PDFs on Novell's second motion are odd. It's because of the glitch I earlier pointed out, that Novell had filed identical motions as numbers 271 and 273, although the memos in support made it clear, along with the docket text, that they were supposed to be two separate motions. So, now Novell has filed the corrected motion for 273, the memo for which was already correct, so it is still 274, while the corrected memo it supports is 282 now. Just explaining so you don't go around in circles. And all of the above need to be OCR and put into HTML, if any of you are willing and able. Thanks if you can.

Here's why. Someone, Moglen says, is bound to turn a voucher it got from Microsoft in after GPLv3 goes into effect and GPLv3 code is being distributed, and at that moment Microsoft comes under its terms. And that should mean the end of Microsoft's ability to successfully sue anybody over its alleged patents allegedly in Linux, or to phrase it more exactly, it provides a probable defense to all Linux users and vendors, not just Novell's paying customers, if Microsoft does sue.

Bishop contacted Microsoft, which declined comment. I'm sure this is something they didn't expect when they entered into the devilish "NotaDuck" patent peace agreement with Novell. Oops. I mean with Novell's paying customers. Their intent was to make Novell's paying customers the only anointed blessed Linux users allowed to breathe patent-threat free. But GPLv3 extends the peace to everybody.

Here's how I understand the legal argument. Microsoft is a distributor already under GPLv2, because of distributing the vouchers and some other unstated things FSF's Brett Smith hinted at when he stated the FSF view. So there is already a defense, thanks to GPLv2's implied patent license. But under GPLv3, it's not implied. Here is precisely what happens to Microsoft when someone hands in a voucher after the GPLv3 is in effect:

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 providing freedom to use, propagate, modify or convey a specific copy of the covered work to any of the parties receiving the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.

No wonder, as Moglen puts it, Microsoft has been tossing the vouchers wholesale out of airplanes "as though the coupons themselves were hot, as indeed they are". But now here comes Moglen saying even that won't work, because of the lack of an expiration date on the vouchers. And so, as the sun sets over the horizon, we may be bidding a fond farewell to Microsoft's patent bullying. I hope some friendly folks have bought a voucher. If so, you might just want to take a breather before you turn it in, huh? Then it's buh-bye to Microsoft's 235 patent claims, methinks. So nice of Microsoft to distribute under GPLv3. Hugs and kisses.

Ah! Lawyers at work. It'll be intriguing to see what Microsoft can do next. I told you law was like chess, but this is like watching a game played live. Isn't the law more fascinating than you thought? Let's take a look at what Moglen is saying specifically.

It’s been a hard week. First Bill Hilf, open source program manager at Microsoft (talk about a tough job), tells the world that ?Linux doesn?t exist in 2007″ and that Linus has a job. (For the Linux Foundation no less. Can’t believe we didn’t keep that a secret.)

Then, Microsoft dropped a patent FUD bombshell on unsuspecting news readers everywhere. While my response (and many others) were picked up the press, exposing it for the FUD it was, there is one Microsoft patent that really alarms me. This one from 1998: Microsoft Patents Ones, Zeroes

(It?s from the Onion, a humorous and fully tongue in cheek magazine.)

So, we decided to change out name. The receptionist at the Time Life Building in New York suggested this one, and I think it?s catchy. Welcome to the Lenux Foundation.

All kidding aside, I’m leveling a full-scale FUD alert on the referenced Bill Hilf article above. I’m sure he’s a reasonable man, but he’s certainly talking to different open source developers than I am when he says this: “When I talk to open source developers, at least half are talking about Windows, from SugarCRM, MySQL, PHP. Every single one,” he said.”

We talk to a lot of developers and Windows doesn’t even enter into the conversation, especially the new breed of Web 2.0 start-ups. Open source is enabling their business in ways inconceivable ten years ago. (I remember.)

Microsoft is losing developer mindshare, and stunts like the latest patent scare certainly aren’t going to help get it back. The latest PR stunt on “choice” around ODF and Microsoft’s competing document standard won’t either. Both Bob Sutor and Andy Updegrove expose this latest announcement for just what it is. Or as Bob Says: “I?m not a cynical person by nature and I tried to watch my tone here, but a stunt is a stunt. I had hoped for better.”

Wow, Microsoft, you’re two for two this week.

If you can call it an offer. "Nice restaurant you've got here. It'd be a shame if anything happened to it."

Ask those companies today if they'd buy a SCOsource license again, if they had a chance to relive it. What did they get for their money? Other companies put off switching to GNU/Linux systems, because of SCO's threats. Think of the savings lost to them because of letting themselves be intimidated. So who were the smart ones, the companies that caved in to the threats or those who saw through them?

Now Linux users are being offered a "patent peace" with Microsoft in a very similar way, only this time, it's supposedly patents backing up the threat. Or is it? Let's see if we can quantify. First, on the patent study Microsoft misquotes, here's what it actually found:

No court-validated software patent is infringed by the Linux kernel.

None. That may be why there has never been a patent infringement lawsuit against Linux. That means that to date, Linux doesn't infringe anybody's court-validated patents.

The best part is, we know exactly what we'll be doing for the next year, thanks to Microsoft.

.....Having tons *more* fun.

Novell wants the testimony disregarded on various grounds from all those folks who swore under penalty of perjury that the APA doesn't mean what it plainly says. "Novell's objections are based on five grounds: inadmissable parol evidence, lack of personal knowledge, hearsay, the best evidence rule, and improper authentication."

Man, this litigation has a little taste of absolutely everything. You'll also see on page one why the Novell team added a California lawyer. I couldn't have picked a better case to explain how litigation works.

Monday morning started out well — a continuation of the sunny day we had Sunday, a few hours to concentrate on my actual work — until the phone rang. Microsoft had unleashed a FUD storm with more vague patent threats. While a few articles have been published with Linux Foundation statements, I wanted to elaborate on our public comments so far.

First of all, customers we talk to know Microsoft is too smart of a company to take a page out of the SCO handbook and sue their own business partners and customers. Before believing the Microsoft saber rattling machine ask yourself two questions: would Microsoft sue its own customers? Is Microsoft certain they have not infringed upon the patents of the companies who represent the entire open source ecosystem?

There is just as much potential patent infringement in Windows than there is in open source, or any other operating system. Microsoft is certainly not the only owner of patents in this area, and perhaps not even the owner of the largest number of patents, in these areas. Microsoft will need to be careful what it starts, given that it cannot know where this will end. I think most knowledgeable software users see this posturing for what it is: empty threats from a scared giant whose monopoly is being challenged.

Granted, if you were making $1billion in profit *per month,* how would you react? Because that’s precisely how much Microsoft makes per month on its Windows and Office monopolies, both of which are directly and substaintially threatened by Linux and Open Office.

Second, let’s ask ourselves why Linux is being singled out here, and not AIX or Solaris or any other operating system. I’m not a lawyer, but patents cover functionality, not the way the technology is distributed. Their focus on Linux and OpenOffice shows two things: 1. how much Linux and Open Office threatens them and 2. that this is an aggressive PR campaign and nothing else. In fact, we think of this as merely an extension of their advertising campaigns. I’ve worked at large public relations agencies for large clients: I know how the Microsoft PR machine works. It’s incredibly well funded and well run. They have generated a lot of clips with this PR blitz, but fortunately for us, more reporters and journalists are seeing through these tactics.

Microsoft, our members and software users know that a patent war guarantees only one sure outcome: mutually assured destruction for all involved. By leveling vague threats against open source, Microsoft hopes to extend their monopoly a little longer. Given that every day Microsoft makes $34,000,000 in profit, it’s not surprising Microsoft resorts to a well-orchestrated, well-funded PR campaign to scare software users, especially when those software users are recognizing that open source is simply a better way to develop software.

I urge everyone to see this for what it is: a FUD campaign. Don’t let Microsoft or anyone else get away it it.

~ Amanda McPherson

Say, this is becoming sort of like the Cuban missile crisis. Hopefully some brainiac will figure out a neat walkaway from this brink too. Litigation is a waste of everyone's resources. But don't forget, business folks, that Red Hat offers you indemnification, so you don't have to get involved in any of this. Nor do you have to give in to bullies. I think it's also fair to say that giving in to bullies may have unfortunate consequences. First, GPLv3 is just around the corner, so what are you going to do for updates down the road? And second, if you are treated like this *before* you become a customer, how will you be treated afterward?

Here's SCO's Sur-Surreply Memorandum in Further Support of its Objections to the Magistrate Judge's Order on IBM's Motion to Confine (PDF), as text, which is, I believe, SCO's alibi as to why it did not put all its "materials" on the table by the deadline. I think I'd like to call this SCO's "what is truth?" memorandum.

At first, I was putting them in News Picks, but this one is too great not to put right here. It's a librarian in Vermont, USA, who installs Ubuntu on two rickety old donated computers in less than an hour and then shows Ubuntu off. The computers didn't come with valid licenses to any operating system, so she tried Ubuntu. As you will see, she is impressed at all the applications that come with it, including OpenOffice, and she shows you how to save an OpenOffice document as Microsoft Word format. Here's the Ogg version of her video.

If you would like to do the same, and she does make it look fun, here are some instructions she posted afterwards, but as you will see in the video, Ubuntu does the ubuntuing without much input from you. You can even ask and they'll send you a free CD in the mail of Ubuntu, Edubuntu, or Kubuntu, if you don't want to burn your own. I use Kubuntu myself. Edubuntu is for schools. If you are a business, this page about applications tested to run on Ubuntu and where support is available will interest you. But Ubuntu, as they say, is and always be free of charge:

Ubuntu is and always will be free of charge. You do not pay any licensing fees. You can download, use and share Ubuntu with your friends, family, school or business for absolutely nothing.

We issue a new desktop and server release every six months. That means you'll always have the the latest and greatest applications that the open source world has to offer.

That's what makes it perfect for librarians to put on donated computers in a little library in Vermont. She installed the desktop, but there is a server edition too, and if you're thinking of Linux because of security concerns, here's a handy page with things you will find useful, like setting up a firewall. Yes, it comes with Ubuntu. And if you are on a really old computer, you might be interested in Xubuntu. There are lots of other variations too, in various languages as well. Enjoy.

1055 - SCO's Sur-Surreply Memorandum in Further Support of SCO's Motion to Amend its December 2005 Submission

1056 - SCO's Sur-Surreply Memorandum in Further Support of its Objections to the Magistrate Judge's Order on IBM's Motion to Confine

Yes, two sur-sur-replies in which SCO begs the court to let it use some more of its theories and evidence that it didn't reveal by the deadline, please. Except they aren't all that polite, I don't think. SCO wasn't obligated, it argues in 1056, to have its experts finish their analysis by December 22, 2005:

The Magistrate Judge's Order confuses the obligation to disclose misused material with the accumulation of supporting evidence and with the theories of literal and non-literal infringement that are naturally found in experts, and are clearly allowed by law in this Circuit.

Well, that's a winning argument: the judge got confused. Another argument is that the court's orders were not clear. Right. That's the ticket. SCO didn't know it was supposed to do what all those court orders said it should do.

What SCO wants is what it always wants, to get to do what it wants:

SCO respectfully submits, for the reasons stated above and in SCO's previous memoranda, that the Court should reverse the Magistrate Judge's Order and permit SCO to proceed with all theories of liability disclosed in its expert reports, including copyright infringement based on both literal and non-literal elements of the copyrighted works as well as the selection, arrangement, and coordination of elements in the copyrighted works.

This wouldn't be about trying to avoid having to pay for all those public comments by Darl about a mountain of copyright infringement, by any chance, would it?

Joost, an Internet-based TV service being launched by the creators of Skype and Kazaa, said Thursday it has raised $45 million from five investors including CBS Corp. and Viacom Inc. and an influential Hong Kong telecommunications executive....

No copyright troubles are envisioned with Joost, which has gone the mainstream route by signing deals with major content providers, including its new investors. Viacom, for example, has agreed to let Joost show content from MTV, Nickelodeon, Paramount and Comedy Central. Overall, Joost says it now has 150 channels of video.

Hmm. No copyright troubles are envisioned with Joost. Unlike, say, YouTube? It struck me because I was just reading the complaint and answer in Viacom's copyright infringement litigation against YouTube and Google. It looks to me like the entertainment industry is trying to move the goalpost again. So, I decided we will cover this litigation here, as I have the time. To get started, here are Viacom's complaint [PDF] and YouTube/Google's answer [PDF], as text, thanks to Groklaw volunteer numist.

According to sources, Dell will be selling SLES (SUSE Linux Enterprise Server) certificates, which it will obtain from Microsoft. As part of the Novell/Microsoft deal, Microsoft received 75,000 SLES licenses.

[Emphasis added by me.]

We have newly confirmed speakers and many great participants for the first ever LF Summit in June.

Confirmed speakers:

• Andrew Morton, Linux kernel maintainer
• Jim Zemlin, Executive Director of the Linux Foundation
• Mark Shuttleworth, Founder of the Ubuntu Project
• Legal leaders Karen Copenhaver and Andrew Updegrove
• Chris diBona, Open Source Program Manager at Google
• Mike Milinkovich, Executive Director of the Eclipse Foundation

If you’re interested in attending, please apply here.

We’d like to congratulate Dell, a Linux Foundation member, on listening to its customers and doing this work to bring Linux to consumers. This will broaden the Linux support and offerings from Dell’s industry-leading partners, and allows many professionals to experience at home the benefits of Linux they’re already familiar with in the work environment. We look forward to working with Dell, distros, and the community to make Linux an even better OS.