Microsoft to FSF: Our Position on GPLv3 Is Unchanged

Redmond has very little to say in response to the Free Software Foundation's comments about its obligations under GPLv3. "We are aware of the FSF's comments relating to the GPLv3 license, and our position -- that we are not bound by GPLv3 -- remains unchanged," is all that Horacio Gutierrez, a vice president and Microsoft's deputy general counsel for intellectual property and licensing, would say to me on the issue.

What's interesting is that it took the foundation nearly two months to issue its five paragraph response to Microsoft's July claim that it is not bound by GPLv3.

On July 5, Gutierrez said that Microsoft was "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 that license."

But, to avoid any doubt or legal debate, the software maker said it would not provide support or updates for GPLv3 under the deal it penned in Nov. with Novell to administer certificates for SUSE Linux Enterprise Server.

Gutierrez went on to add that "while there have been some claims that Microsoft's distribution of certificates for Novell 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."

In fact, Microsoft does not believe that it even 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," Gutierrez said.

Needless to say, the FSF completely disagrees with that assessment. "Microsoft cannot by any act of anticipatory repudiation divest itself of its obligation to respect others' copyrights," the foundation said.

If Microsoft distributed its works licensed under GPLv3, or paid others to distribute them on its behalf, it was bound to do so under the terms of that license. "It may not do so under any other terms; it cannot declare itself exempt from the requirements of GPLv3," the FSF said in a statement.

"We will ensure -- and, to the extent of our resources, assist other GPLv3 licensors in ensuring -- that Microsoft respects our copyrights and complies with our licenses."

The patent indemnity agreements Microsoft has entered into with several prominent Linux vendors have also created enormous controversy in the open-source community, with Ubuntu leader and Canonical CEO Mark Shuttleworth telling me Microsoft has successfully used the agreements to fracture the Linux and open-source community.

But the question of what Microsoft's exact legal responsibilities are under GPLv3 has yet to play out; perhaps it will in the courts.

This is not necessarily a bad thing, as there are currently few legal rulings in place that interpret open-source licenses, Mark Radcliffe, the co-chair of the Technology Practice at global law firm DLA Piper and the General Counsel for the Open Source Initiative, said to me earlier this week when discussing a preliminary court ruling that was a setback for open-source licensing.