Microsoft Tries to Spit Out the GPLv3 Hook

Opinion: Try as it might, Microsoft could find it very hard to wiggle out of its GPLv3 connection.

Microsoft wants everyone to understand that GPLv3 has nothing to do with the company, its Linux partnerships or anything else Redmond-based.

In other words, Microsoft is doing its best not be caught on the hook of GPLv3. Ah, Microsoft youd love to be able to do that, wouldnt you?

Horacio Gutierrez, Microsofts vice president of intellectual property and licensing, spelled it out: 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."

Im no lawyer, but let me spell it out for Microsoft. In Section 0, Terms and Conditions, of GPLv3 we find that "to convey a work means any kind of propagation that enables other parties to make or receive copies."

Moving along, we reach Section 3, where we find, "When you convey a covered work, you waive any legal power to forbid circumvention of technological measures to the extent such circumvention is effected by exercising rights under this License with respect to the covered work, and you disclaim any intention to limit operation or modification of the work as a means of enforcing, against the works users, yours or third parties legal rights to forbid circumvention of technological measures."

Notice that phrase "You waive any legal power." That sounds to me that if Microsoft were to convey a Linux distribution like Novells SLES (SUSE Linux Enterprise Server) to a customer and some of the included code was covered by GPLv3, Microsofts Linux patent threats go right down the toilet.

/zimages/4/28571.gifClick here to read the details about why Microsoft doesnt believe its bound by GPLv3.

Now Linux as a whole is almost certainly not going to go under GPLv3. But theres no doubt that some components found in almost all Linux distributions, such as Samba and the GCC development tools, will be covered by GPLv3. And to my nonlawyer mind, that means Microsoft is hooked.

Thats not just my far-from-expert opinion. Richard Fontana, counsel for the Software Freedom Law Center and one of GPLv3s authors, told me awhile back, "Now that Microsoft has effectively become a distributor of Linux, by distributing some 50,000 or so Novell SLES coupons, it has perhaps unwittingly restricted its ability to sue Linux users over its patents.

"While this is particularly clear under the forthcoming Version 3 of the GPL, the Microsoft lawyers who helped craft the MS-Novell deal appear to have overlooked the fact that, by procuring the distribution of lots of free software under GPL Version 2, among other licenses, Microsoft has already lost some of its power to assert patents against subsequent distributors and users of that software," Fontana said.

Microsoft is doing its best to wiggle out of this. Gutierrez said, "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."

Ah, Microsoft, you are so caught its not even funny.

As part of the Novell-Microsoft pact, Microsoft has been distributing, and it appears will continue, to "convey" SLES certificates to customers. In other words, congratulations Microsoft, youve been scooped up in the GPLv3 net.

If Microsoft is ever foolish enough to actually try whacking a Linux company or customer with a patent lawsuit, it doesnt matter what its lawyers say now. If that day ever comes, Microsoft knows darn well its going to have a heck of a time wiggling out of its GPLv3 connection.

I almost hope they do. Its been much too long since Ive seen Microsoft twist and squirm in a legal mess of its own makings.

/zimages/4/28571.gifCheck out eWEEK.coms for the latest open-source news, reviews and analysis.