Microsoft Declares Immunity From GPLv3

Microsoft (Nasdaq: MSFT) has issued a statement about its position in regard to the Free Software Foundation's version 3 of the GNU General Public License (GPL), which was crafted in part to protect users from possible Microsoft patent infringement lawsuits. Microsoft's stance? The company, in four paragraphs of text, essentially thumbs its nose at the GPL.

"Microsoft is not a party to the GPLv3 license and none of its actions are to be misinterpreted as accepting status as a contracting party of GPLv3 or assuming any legal obligations under such license," Microsoft's statement reads.

"While there have been some claims that Microsoft's distribution of certificates for Novell (Nasdaq: NOVL) support services, under our interoperability collaboration with Novell, constitutes acceptance of the GPLv3 license, we do not believe that such claims have a valid legal basis under contract, intellectual property, or any other law," Microsoft explains. "In fact, we do not believe that Microsoft needs a license under GPL to carry out any aspect of its collaboration with Novell, including its distribution of support certificates, even if Novell chooses to distribute GPLv3 code in the future. Furthermore, Microsoft does not grant any implied or express patent rights under or as a result of GPLv3, and GPLv3 licensors have no authority to represent or bind Microsoft in any way."

No GPLv3 Code

However, in order to avoid doubt or legal debate on the issue, Microsoft also says it won't distribute Novell support certificates that might entitle the recipients to receive GPLv3-related code, support or upgrades.

Looking into the future, though, brings up the issue that Linux is not a static operating system. It will likely eventually contain features licensed under GPLv3, as will other open source solutions wanted by users,

Novell, for its part, immediately issued its own statement saying that it will continue to provide the relevant code, service and support for its solutions licensed under both GPLv2 and GPLv3.

"Nonetheless and independent of Microsoft's position, we would like to make clear our commitment to our customers that Novell will continue to distribute Suse Linux Enterprise Server with its full set of functionality and features, including those components that are licensed under GPLv3," Bruce Lowry, Novell's director of global public relations, noted.

"For those customers who will obtain their Linux via a certificate from Microsoft, Novell will provide them with a regular Suse Linux Enterprise Server subscription, regardless of the terms of the certificate provided by Microsoft. Customers who have already received Suse Linux Enterprise certificates from Microsoft are not affected in any way by this, since their certificates were fully delivered and redeemed prior to the publication of the GPLv3," he added.

Crafting the GPLv3

"The GPL was crafted so that Microsoft's certificates fall under their definition of conveyancing, but it will be up to a court to decide if they need a copyright license for what they call conveyancing. Copyright law has been fast evolving in terms of what people think it means," Dr. James Bottomley told LinuxInsider. Bottomly is CTO of SteelEye Technology, a member of the Linux Foundation, and the gatekeeper of the the Linux Kernel SCSI Maintainership,

If Microsoft required a copyright license in order to convey the GPLv3 covered solutions, Microsoft would likely be bound by the license; however, needing such a license in order to distribute vouchers for Novell service agreements is legally unclear, and it's hard to say how a court might rule.

"The key point to bear in mind is, the best legal minds that could be made available -- and they are pretty significant ones -- spent quite a good while trying to figure out how the could neutralize the Microsoft patent threat through the Novell deal , and the result is the GPL," Bottomley said. "It's certainly their best shot, so Microsoft merely saying they are not caught by it is not good enough.

"The current spat is over patents, and the only thing that would trigger it is if Microsoft tried to sue someone whose defense was, 'Well, you gave us the license through GPL,'" Bottomley explained. "However, to do that, Microsoft would have to sue someone, and I honestly don't believe they ever would. I've got a funny feeling all this will remain nebulous and about name calling for a long time to come."