OneAndOneIs2

It was bad enough when various columnists were doing it. But now even PJ herself has done it: Tried to prove that MS is now bound by the GPL v3 by quoting chapter and verse of the GPL v3.

For crying out loud! Are people so desperate to see MS trapped by the GPL that they're willing to throw their brains out the window to convince themselves that it's happened??

Let's take a really simple and clear-cut hypothetical situation. And then see if it's even worth worrying about MS and it's vouchers.

Here's our situation: A while down the line, MS wants to show off how good its virtualization is so they start selling Vista with a complete virtualized Linux distro installed on it. A Linux distro with all the GNU tools installed, all under GPL v3.

Never going to happen, I know, but just imagine

So MS is now distributing copies of GPL v3 software. So far so good.

Now somebody else starts selling GPL'd software covered by MS's patents. MS promptly sues them. The victim smugly holds up GPL v3's patent protection and declares itself immune.

MS says "We've never agreed to the GPL v3" and thus their patents can still be used.

The defendant points to their distribution of GPL v3 code, and MS simply shrugs and says "Not our problem"

With no proof that MS has accepted GPL v3, the defendant loses and is found guilty of patent infringement.

The FSF hears about this case, and says "Hey, that's our GNU stuff they're selling!" and promptly sues for copyright infringement. MS now has two choices.

They can refute the GPL v3 again. This makes them inarguably guilty of copyright infringment, and they're faced with the usual penalties, but because they simply made illegal copies of copyrighted works, they still aren't bound by the GPL v3.

Or, they can argue that they didn't violate copyright because they did in fact have a license to distribute: They had the GPL v3, in fact.

Only if MS takes the latter and makes a legally-binding statement that they have accepted the terms of the GPL v3, do they become bound by its terms. Before that, they are under no onus to obey the terms, because they can claim to be illegally distributing pirate software.

Either way, they're doing something wrong. But they can't be bound by the terms of the GPL v3 until they're forced to chose one or the other.

That being the case, let's look at these vouchers. MS sells vouchers for Novell's SuSe Linux. The GPL v3 says that this is enough to qualify as putting you under the GPL's terms.

But that's irrelevant. It's copyright law that will determine when the GPL is in force, not the GPL itself. If the GPL could decide when it applies, we could expect GPL v4 to say "By using any GPL'd software, ever, you agree to open source all code you posess"

It's copyright law that determines when you need a license in order to copy a work. MS will only be bound by the terms of the GPL v3 if and when they get taken to court, where it is found that distributing vouchers DOES count as "making a copy", and they then chose to say "We did it under the GPL" rather than saying "It's a fair cop, we've been pirating the software, we'll pay the fines and stop selling the vouchers."

Until MS says it's accepted the GPL v3, it's not bound by it. It really is that simple. Whatever the GPL v3 may say.