Microsoft tries evading new GPL grasp

The Redmond, Wash.-based company long has objected to the GPL and generally prefers its secretive, proprietary software development practice. But a November partnership with Linux seller Novell, under which Microsoft sells certificates entitling customers to Novell's Suse Linux Enterprise Server support subscriptions and guarantees it won't sue those customers for patent infringement, brought Microsoft into closer contact with the GPL.

A new provision in version 3 of the General Public License (GPL), released last week, is designed to turn such patent-protection deals to the advantage of GPL software. But Microsoft said it's not affected and is steering clear of involvement with the license.

"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," the company said in a statement. "To avoid any doubt or legal debate on this issue, Microsoft has decided that the Novell support certificates that we distribute to customers will not entitle the recipient to receive from Novell, or any other party, any subscription for support and updates relating to any code licensed under GPLv3."

Novell, meanwhile, said the software is still supported. "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," it said in a statement.

The Free Software Foundation said that despite Microsoft's assertions, its behavior suggests the company is party to GPLv3.

"If they truly believe that GPLv3 presents no obstacle to their patent arrangements with free software distributors, why won't their coupons be good for GPLv3-covered programs?" said Brett Smith, the foundation's licensing compliance engineer. "It looks like they're spooked to me."

A variety of licenses govern the many components of Suse Linux Enterprise Server, and none in the existing product uses GPLv3. But one widely used utility, the "tar" command for compressing and decompressing files, already is under GPLv3, and Novell said it intends to incorporate GPLv3 components in updates

Microsoft's pre-emptive move highlights how seriously it takes the GPL since the free and open-source software movement has grown from an academic curiosity to a powerful force in the software industry. And it shows the complicated intellectual property questions software users must reckon with as proprietary and free software worlds collide.

Novell is at the center of this particular fracas. It sells both types of software; it has a controversial partnership with Microsoft that's providing much-needed revenue; and it has publicly disagreed with Microsoft's assertion that Linux and other free and open-source software infringe its patents.

"The question now for customers is what are they to make of the relationship, at this point, given that (Microsoft and Novell) differ on support, patents and the implications," said RedMonk analyst Stephen O'Grady.

Two major customers who bought the certificates, American International Group and Deutsche Bank, didn't immediately respond to requests for comment.

The Microsoft-Novell partnership threw a wrench in the GPLv3 works, but the Free Software Foundation threw one right back by adding new language to the new GPL.

"If you arrange to provide patent protection to some of the people who get the software from you, that protection is automatically extended to everyone who receives the software, no matter how they get it," Smith said in a statement. "This means that the patent protection Microsoft has extended to Novell's customers would be extended to everyone who uses any software Novell distributes under GPLv3."

Microsoft sees things differently.

"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," Microsoft said in its statement. "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."

Novell declined to say whether it agrees with Microsoft or the foundation about the patent issue. "We won't be making public legal interpretations," spokesman Bruce Lowry said.

An abstract debate becomes real when it comes to Microsoft's certificates for Novell SLES support. Open-source fan and Groklaw author Pamela Jones criticized Microsoft for backing out of its commitments, but Microsoft said its actions only apply to future certificates.

"There is no impact with respect to customers who have already consumed Novell certificates from Microsoft. These certificates were fully delivered by Novell and redeemed by customers prior to the existence of the GPLv3 license," Horacio Gutierrez, Microsoft's vice president of intellectual property and licensing, said in a statement. "These certificates are now part of a direct support relationship between Novell and its customers, to which Microsoft is not a party."