CyberTech Rambler

March 6, 2009

IANAL, but I don’t really think NDA save you from your GPLv3 obligations …

Filed under: Uncategorized — ctrambler @ 1:49 am

One thing that Microsoft probably did not expect when it sued TomTom is people start digging into its FAT licensing program and reading more into it that meets the eye.

Steen J Vanughan-Nichols did dig into FAT licensing program and says that there are potentially Microsoft licensees that lose their their rights to redistribute GPL version 3 software when they signed on the program. I think that is probably true. He says that we do not see it because it is signed with a Non Disclosure Agreement in place. That is equally very likely the reason why we did not see it.

It will be interesting to see how these licenses are written. I am sure it is written in such a way that will at least allow the licensees the chance to argue in court in order to wiggle out their obligation.

I find it interesting when Vanughan-Nichols says “[This] license fees also increases the cost of commercially supported open-source programs” because if the companies did not pay it, the legal fees is likely to increase the cost even more, if it does not sink the company. As a company this put you in a catch-22 situation.

Do I think that will eventually hurt the company? In the long run. Yes. Why? Under GPL your source code can be used by anyone. Right now part of the calculation licensees take is if some other companies uses the same code, it has to pay Microsoft as well and that level the playing field for them. This is certainly true. However, what-if it is the non-business entity, e.g., the user community, that takes up the maintenance of the GPL code. In this case they will not have the additional burden of paying Microsoft licensing fee. The playing field now is not levelled. I am sure there is at least a gentleman agreement between Microsoft and its licenses that Microsoft is not going to rock the boat by suing the user community. After all, it does not serve the interest of either company if either sue the user because the first line of defense will be to ask BOTH companies whether they signed any agreement that would violate GPL v3 that is relevent. The defense lawyers will be able to write this interrogatory question so tightly that the NDA signed isn’t worth the paper it is written on.

Even better, not suing any user community only reduces your chances of being found out. The law of unintended consequences means the violations will be found out in ways that one cannot anticipate. I speculate it will be probably as a side effect of another, unrelated lawsuit, or a business entity decides not to settle and to challenge it in court. As I say, I cannot anticipate how the people who violated GPL v3 by signing any licensing agreement will be ratted out

Let’s also not forget copyrghts last much longer, i.e., at least 4 times longer, than patent.  Why is this important? This means thirty years from now, when the patents in question are no longer valid, GPLv3 copyright holders can STILL use any violation today as proof that a licensee automatically lost its right under the patent clause. And guess what? The presence of the NDA means the copyright holder can argue that he/she is entitle to litigate something that happens 30 years ago regardless of the statue of limitation because the clock does not start until he/she knows about the violation. Oouch!


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