| FSF to Microsoft: Not so fast with the GPLv3! |
Aug. 28, 2007
Shortly after the GPLv3 was released, Microsoft declared that it was "not a party to the GPLv3 license." Now, on Aug. 28, the Free Software Foundation is spelling out why it "cannot declare itself exempt from the requirements of GPLv3."
Ordinarily, Microsoft avoids any connection or use of software under the GPLv3 license. As Steve Ballmer, Microsoft's CEO, said after launching Office XP in 2001, the GPLv2 and Linux were a "cancer that attaches itself in an intellectual property sense to everything it touches."
In Nov. 2006, Microsoft partnered with Novell. As part of that deal, Microsoft received 75,000 coupons for SLES (SUSE Linux Enterprise Server). In turn, Microsoft sold or gave these SLES certificates to enterprise customers like Deutsche Bank AG, Credit Suisse and AIG Technologies in 2006. In May 2007, Dell began selling SLES certificates, which it obtained from Microsoft.
After the GPLv3 was formally passed on June 29, Horacio Gutierrez, Microsoft's vice president of intellectual property and licensing, quickly on July 5, declared that 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 went on to say that its agreement with Novell, as well as those with Linux rivals Xandros and Linspire, would be unaffected by GPLv3. Many onlookers were unconvinced by Microsoft's flat statement that the GPLv3 had nothing to do with it.
Even earlier, SFLC (Software Freedom Law Center) Chairman Eben Moglen, and co-author of the GPLv2, said in an online seminar, that the Microsoft/Novell agreement will run afoul of the GPLv3's "dancing with wolves provision." Moglen's position is that as soon as a customer gets a copy of SLES via a Microsoft SLES certificate after the GPLv3 is released, Microsoft will becomes subject to the GPLv3 and all its potential patent restrictions.
Now, the FSF is taking a whack at Microsoft's position. According to the FSF, "Microsoft cannot by any act of anticipatory repudiation divest itself of its obligation to respect others' copyrights. If Microsoft distributes our works licensed under GPLv3, or pays others to distribute them on its behalf, it is 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 went on to say that Microsoft request for "respect for its so-called 'intellectual property'—a propaganda term designed to confuse patent law with copyright and other unrelated laws, and to muddy the different issues they raise. 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."
At this time, the FSF has not spelled out what it might do to make sure that Microsoft toes the GPLv3 line. Moglen's position though is that since the SLES "coupons have no expiration date, and Microsoft can be sure that some coupons will be turned into Novell in return for software after the effective date of GPLv3. Once that has happened, patent defenses will, under the license, have moved out into the broad community and be available to anybody who Microsoft should ever sue for infringement."
In other words, if Microsoft were ever to try to enforce its vague patent claims over software covered by the GPLv3—say a Linux distribution containing the GPLv3 covered Samba Windows-compatible file system server—Microsoft would immediately lose the right to sue for their unauthorized use.
Moglen argues that thanks to the GPLv3 and Microsoft's Novell SLES sales, Microsoft has become a de jure Linux distributor. This, by Moglen and the FSF's logic, means that Microsoft is in a Catch-22: If they attempt to use their patents against another GPLv3-using company, they'll lose them. If Microsoft doesn't try to use its patents in court, then, of course, other companies can continue to use them.
—Steven J. Vaughan Nichols
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