Microsoft has rejected the idea that its deal last year with Novell ties it to the new General Public Licence Version 3 (GPLv3) and said it will not support any software distributed under the just-released open source licence.
The Microsoft-Novell partnership signed in November 2006 featured promises to make Windows interoperable with SuSE Linux, a pact in which Microsoft vows not to sue Novell for any potential patent infringement, royalty payments on the part of Novell to Microsoft based on Linux sales, or a major purchase of Linux support contracts by Microsoft.
In a statement, Microsoft disavowed any link between itself and GPLv3.
"Microsoft is not a party to the GPLv3 licence 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 licence," said Horacio Gutierrez, Microsoft's vice president of intellectual property and licensing.
GPLv3, which was unveiled only a week ago, has been touted by its creator, Richard Stallman, as a poison pill that will prevent future deals like the one Microsoft made with Novell.
"GPLv3 is designed to turn [a few mistakes in the Novell deal] against Microsoft, extending that limited patent protection to the whole community," Stallman wrote in an essay published at the end of May. "[And] releasing a programme under GPL version 3 protects it from Microsoft's future attempts to make redistributors collect Microsoft royalties from the programme's users," he added.
Later, assertions surfaced that GPLv3 would make Microsoft a Linux distributor, and so legally bound to the licence, if, for example, it provided or sold support contracts to software covered by GPLv3. As the legal counsel to the Free Software Foundation argued in May, that would extend the patent protection Microsoft gave Novell to everyone in the open source community.
Microsoft has voiced its disagreement with that before, and now, has done so again. "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 licence, we do not believe that such claims have a valid legal basis under contract, intellectual property, or any other law," Gutierrez said.
"In fact, we do not believe that Microsoft needs a licence 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," Gutierrez continued. "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."
"Microsoft clearly has some concerns about the provisions of GPLv3," said Mark Radcliffe, a partner with the law firm DLA Piper. Radcliffe, who co-chairs the technology and sourcing practice group, said that Microsoft was laying some legal groundwork. "There may be parts of the Novell distribution that are under GLPv3 [in the future], but Microsoft doesn't want to be tangled up in that."
Microsoft's Gutierrez spelled it out. "In order 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," he said.
Although a spokesman for the Free Software Foundation, the non-profit organisation founded by Stallman, declined to comment on Microsoft's most recent move, Novell was quick to set out its position.
"Microsoft's current position, taken unilaterally, is intended to eliminate any perceived ambiguity about the applicability of GPLv3 to Microsoft," said Novell spokesman Bruce Lowry in a posting on the company's blog Friday. "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."
Novell will, added Lowry, include technologies licensed under GPLv3 if it sees fit, and will deliver whatever version of SuSE Linux is current – including a future edition that includes GPLv3-licenced code if that's what makes it into the operating system – when customers redeem certificates obtained from Microsoft. "Novell will continue to put the needs of our customers first and ensure that they can take advantage of the latest version of SuSE Linux Enterprise to run their business," said Lowry.
Although at times Lowry's blog post read as defiant of Microsoft – using the loaded word "unilateral" and stating that, as opposed to Microsoft, "For us, it's business as usual" – Novell did stake out some of the same territory as its partner: GPLv3 doesn't change any of the won't-sue provisions in the deal it cut last year.
"Regarding the applicability of the covenants not to sue in the Novell-Microsoft agreement and their applicability in a GPLv3 world, our respective customers will continue to have the benefit of those provisions," said Lowry. "For Novell customers, all Novell products are covered by the Microsoft covenant not to sue, independent of their channel of distribution, including both server and desktop and whether they are licensed under GPLv2 or GPLv3."
"This is all a continuation of the battle between Microsoft and the open source community," said Radcliffe. "Volley one was Microsoft rattling the patent saber. Volley two was GPLv3. The tennis game continues."