FAT legal status?

[bzt]

You're saying that Samsung couldn't have licensed their software to you under the GPL unless Microsoft had given up their patent rights, therefore Microsoft does not have a valid claim.

That's absolutely not what I'm saying. I'm saying that MS agreed not to ask for royalty and agreed the exFAT driver to be licensed under GPL. And by the terms and conditions of GPL MS has no claim over derivative works of that code.


BTW, I've looked up, and MS did not licensed the patents to Samsung, they have explicitly licensed those to the Linux kernel, which is GPL. Here's the original announcement, and here's a legal statement from MS's tech licensing site.

They both say that MS has agreed for the exFAT driver to be included in Linux, which means accepting the terms and conditions of GPLv2, meaning they licensed their patents for free and for everyone using that code.

you're on the hook to defend your use and can't rely on the GPL2

Quite the contrary. You MUST rely on the rights granted by GPL. If you can prove on court that you adhere to the terms and conditions of the GPL, then there's absolutely nothing MS could do about it (legally).

The license remains valid, and the recipient may, for example, run the program.

That's not how GPL works. If you have the right to run the Program, then you also have the right to redistribute and make derivative works of it. That's the whole point of Free Software and GPL!

MS licensed the patent royalty free to OIN members for use with the Linux kernel only

Simply put, GPL does not allow that.

I'm going to quote the GPL license (again) for both of you:

Code: Select all

We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses

Code: Select all

if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

Because we're talking about the exFAT driver in the Linux kernel, here "Program" refers to the Linux kernel.

Cheers,
bzt

[eekee]

I evdently typed up a partial reply and forgot all about it. To post the bits I wrote:

Besides, I don't think a patent lawsuit over an independant implementation could have anything to do with the copyright on Linux's exfat driver.

Of course not, but we weren't talking about independent implementations. We were talking about MS suing a derivative work of the GPL'd Linux exFAT driver.

Ah, thanks.

(In my country's law you can't, copyright always belongs to the author and to the author only. A company or organization can only have the copyright if the software was created on a machine owned by them and written by an employee paid by them to write that particular software.)

In Britain and (I think) the USA, publishers are alowed to hold copyright as well as authors. As far as I know, it took centuries of lobbying (by printing publishers) for the law to give in and allow publishers to hold copyright. It's interesting it never changed in at least one country (2!). I'd forgotten about this when I asked my earlier questions.

To add a little:
It's interesting very interesting that MS licenced the patents to the Linux kernel. I guess Microsoft's lawyers thought the patent would hold anyway. The courts may decide differently. I'm wondering about 2 things:

* If MS sues over the GPL, would they lose their right to distribute WSL and any Android they may have? I imagine that could be a semi-serious blow to them.

* How far a driver in another operating system constitutes a modification of the Linux kernel. If a court judges it to be not a modification but a derivative work, things get complicated. I don't understand how the concept of "derivative work" works in copyright law.

[thewrongchristian]

You're saying that Samsung couldn't have licensed their software to you under the GPL unless Microsoft had given up their patent rights, therefore Microsoft does not have a valid claim.

That's absolutely not what I'm saying. I'm saying that MS agreed not to ask for royalty and agreed the exFAT driver to be licensed under GPL. And by the terms and conditions of GPL MS has no claim over derivative works of that code.


BTW, I've looked up, and MS did not licensed the patents to Samsung, they have explicitly licensed those to the Linux kernel, which is GPL. Here's the original announcement, and here's a legal statement from MS's tech licensing site.

They both say that MS has agreed for the exFAT driver to be included in Linux, which means accepting the terms and conditions of GPLv2, meaning they licensed their patents for free and for everyone using that code.

It then becomes a question of whether your work that includes this driver constitutes a Linux derivative. From a GPL point of view, yes, I'd agree that your work would include work derived from the Linux kernel under the GPL.

But patent law is unrelated to copyright, and Microsoft granted their patent license to OIN members in Linux.

I'm guessing you're not a OIN member, and your derivative work is not Linux.

you're on the hook to defend your use and can't rely on the GPL2

Quite the contrary. You MUST rely on the rights granted by GPL. If you can prove on court that you adhere to the terms and conditions of the GPL, then there's absolutely nothing MS could do about it (legally).

That's fine and dandy in court against Samsung. But your rights granted under the GPL with Samsung code have naught to do with MS, they're rights to Samsung's copyrighted code, and use thereof.

Remember:

• Patent law is distinct to Copyright law.
• Microsoft are not Samsung.

Therefore GPL will mean diddly squat against a patent lawsuit by Microsoft, or at least, it'd be a risky defense to attempt.

The license remains valid, and the recipient may, for example, run the program.

That's not how GPL works. If you have the right to run the Program, then you also have the right to redistribute and make derivative works of it. That's the whole point of Free Software and GPL!

MS licensed the patent royalty free to OIN members for use with the Linux kernel only

Simply put, GPL does not allow that.

Doesn't matter what GPL does and does not allow. All your defense might achieve would be to remove the ability for the Samsung code to be licensed under GPL within Linux.

It would not in any way invalidate a patent claim. In fact, without a valid GPL license, you've no rights to use or distribute the code in question period.

I'm going to quote the GPL license (again) for both of you:

Code: Select all

We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses

Code: Select all

if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

Because we're talking about the exFAT driver in the Linux kernel, here "Program" refers to the Linux kernel.

Cheers,
bzt

I'm no lawyer, and don't know the background on this portion of the GPL, but I suspect this is guarding against the copyright owner and the patent owner being the same entity.

Ie. Not allowing Microsoft to license their code under GPL, then a couple of years down the line coming after you with their patents that is covered by this code.

Samsung cannot grant those patent rights reserved for Microsoft. It's as simple as that.

Of course, I'm no lawyer, this is not legal advice, and this forum is not the place for that. If I were you, I'd seek legal counsel on this issue.

[Solar]

* If MS sues over the GPL, would they lose their right to distribute WSL and any Android they may have? I imagine that could be a semi-serious blow to them.

Violating the GPL with regards to work A derived of work X does not make you a "GPL pariah" with regards to work B derived of work Y. It might not even touch work C derived of work X.

[bzt]

* If MS sues over the GPL, would they lose their right to distribute WSL and any Android they may have? I imagine that could be a semi-serious blow to them.

Violating the GPL with regards to work A derived of work X does not make you a "GPL pariah" with regards to work B derived of work Y. It might not even touch work C derived of work X.

You're completely missing the point.

GPL mandates that only royalty-free patents can be licensed under GPL.
The exFAT driver in the Linux is GPL licensed, meaning MS must have given up royalty (and they have announced that they have given up)
Now if someone creates a derivative work of the Linux exFAT driver (allowed by GPL), and MS tries to ask for a patent royalty for that modified code, that would be a violation of the original code's GPL license
GPL explicitly states, if that's the case, then redistribution under GPL is forbidden (meaning the original exFAT code that violates GPL must be removed from the Linux source)

If you can't copy, modify, redistribute and create derivatives of the Linux exFAT driver without restrictions (other than the terms and conditions of GPL), then the Linux exFAT driver couldn't be licensed under GPL in the first place.

Cheers,
bzt

[Solar]

I was answering eekee's point regarding repercussions on other GPL'ed software MS is using, not your point about exFAT.

[Kazinsal]

This is still going? Damn.

bzt, if you're not an OIN member you do not have rights to use the exFAT patents unless otherwise granted those rights by Microsoft Legal. If you are an OIN member, then enjoy! You can implement the art covered by the exFAT patents without fear of legal reprisal. Any further "problems" to "solve" are legal ones that I'm pretty sure nobody here has the claim to any authoritative voice on, unless we happen to have patent lawyers in our midst, but if we did, I suspect they would have jumped on this and sorted the thread out on page one.

But based on my knowledge of the legal status of copyright and licensure:

The exFAT driver in the Linux is GPL licensed, meaning MS must have given up royalty (and they have announced that they have given up)

Your statement is incorrect, because you can slap the GPL on just about any work you want. Whether or not it itself complies with the GPL is another matter. It may entirely be the case that Linux is in violation of the GPL due to the exFAT patents not being "royalty-free" by the definition of the GPL! We're not patent lawyers, so we can't be authoritative on that, but it universally known that the application of a license to derivatives of something does not affect its predecessors, so we cannot say "this patent is royalty-free because an implementation of it is open source and the implementer paid no royalties on the patent".

This is however not the place to discuss fringe law and "it depends on what the meaning of the word 'is' is" grade legal nitpicking.

[bzt]

you do not have rights to use the exFAT patents unless otherwise granted those rights by Microsoft Legal.

Which they had. MS explicitly granted rights to use their exFAT patents in the GPL'd Linux code for free.

Your statement is incorrect, because you can slap the GPL on just about any work you want.

That's most definitely not true. GPL has conditions telling when you can use it.

It may entirely be the case that Linux is in violation of the GPL due to the exFAT patents not being "royalty-free"

Nope, it can't be under no circumstances, because MS made it clear they are royalty-free, so the exFAT driver in Linux does not violate GPL. Hence the topic BTW.

This is however not the place to discuss fringe law and "it depends on what the meaning of the word 'is' is" grade legal nitpicking.

No, this is a place to discuss whether a hobby OS developer can port the a Linux driver to their OS or not. I say they can, others seem to disagree.

FYI: I know it's beyond your capabilities to comprehend the problem in all of its aspects, so to close this issue once and for all, I went directly to the source and I've asked the legal department of Free Software Foundation days ago. I'm still waiting for their answer, I will let you know when it arrives and I'll copy their answer here.

Cheers,
bzt

[iansjack]

Surely it's the legal department of Microsoft that you need to ask?

[bzt]

Surely it's the legal department of Microsoft that you need to ask?

Definitely not. The exFAT driver in Linux is licensed under GPL. MS has agreed to that, so this is a purely GPL only matter.

Cheers,
bzt

[iansjack]

But the licence from Microsoft only applies to Linux. If you want to use it in another OS you will need permission from Microsoft.

[bzt]

But the licence from Microsoft only applies to Linux. If you want to use it in another OS you will need permission from Microsoft.

Not so, MS cannot impose further restrictions on the GPL (like "only applies to Linux" for example).

Let's wait and see what FSF has to say about this!

Cheers,
bzt

[eekee]

Um... not sure if this is applicable but it looks like it: Stallman never intended the GPL to restrict the author of a work, so MS can't be restricted in their distribution of code they authored. (Old news, may not apply to GPLv3.) I was wondering if they might lose their rights in respect to linked code, but it's starting to look a bit tenuous. (I'm confused, anyway.)

* If MS sues over the GPL, would they lose their right to distribute WSL and any Android they may have? I imagine that could be a semi-serious blow to them.

Violating the GPL with regards to work A derived of work X does not make you a "GPL pariah" with regards to work B derived of work Y. It might not even touch work C derived of work X.

I agree with the B-Y clause, that makes perfect sense. I was trying to ask about derivative M of work N which is linked to and dependent on work O, all of which are GPLv2 licensed. If the author of N attempts to restrict distribution of M, does he lose his rights to distribute O?