Microsoft says it's not bound by GPL v3

It's been a week since version 3 of the GPL was released, and the ripple effect is starting to make some pretty big waves: Microsoft -- which has been essentially selling Novell's SUSE Linux since last year -- released a terse statement today claiming that neither it nor its customers are parties to any terms of the revised license. Furthermore, "to avoid any doubt or legal debate on this issue," Microsoft will decline to support any GPL v3 code that might be distributed with SUSE. Microsoft does have a point: since Linux remains under GPL v2 (and probably will for the foreseeable future), there's very little binding them to the terms of GPL v3 -- specifically, the patent protection terms that would essentially undo the major element of the whole MS / Novell agreement. How the inclusion of GPL v3 code with SUSE affects the overall license is another matter entirely -- one that will result in a lot of legal chest-pounding until the GPL finally gets tested in an American court.

Disclaimer: While the author of this post is a copyright attorney, its contents are not meant to constitute legal advice or analysis.

[Via CNET]

[dextro @ Jul 7th 2007 8:21AM]

Linux might still be GPLv2 but the gnu tools that are essential to any distro are being relicensed as GPLv3...

[l0ne @ Jul 7th 2007 8:34AM]

Yep, and that will kill many of Microsoft's patents (or its ability to redistribute GPL software, which it cannot since there's a standing promise to do so due to the coupons).

Well, not kill, but give the GPL utopian garden safe harbor from any litigation arising from them.

Cool!

[craig @ Jul 7th 2007 9:35AM]

Relicensing software under GPLv3 does not effect its availability under GPLv2. Future versions may be effected but existing ones are not. The result may be a lot of forking. No distro is obligated to abandon existing GPLv2 software in preference to GPLv3 versions if it does not desire to support GPLv3.

[stephen @ Jul 8th 2007 8:40AM]

While relicensing software under GPLv3 does not effect its availability under GPLv2 and future versions may be effected but existing ones are not, those who remain GPL2 cannot legally backport a GPL3 bug fix or enhancement into their fork. Those patches would have to be cleanroom reinvented.

The net affect will be those GPL2 versions will be frozen in time in regards to GPL3 licensed software.

[Tim @ Jul 7th 2007 8:40AM]

I find it hard to believe that this trick that's built in to GPLv3 will hold up in court. It sets a terrible precident that could be terribly misused in the future. We won't know for years probably what the outcome will be, but I really can't see how the GPLv3 is going to tie down Microsoft like some people are hoping.

[Lonnie @ Jul 8th 2007 3:44PM]

It would be interesting to see, but why wouldn't it work? You don't have to take the code, but if you do, you have to abide by the license. When GPLv3 code makes it into SuSE, Microsoft can choose not to support it, but then they won't be backing up the current version of Linux. And who wants to be using 3 year old code still licensed under GPL2? Microsoft? Wouldn't that be hilarious that they would have to create a whole group to update SuSE with GPL2 so that they can avoid v3.

But back to the point. I am not a lawyer, but from what I have seen with EULAs and other legal documents, just about anything is enforceable if you decide to use something under a license, whether or not you read the fine print in advance. Microsoft relies on this all the time. According to Microsoft's EULA, you don't own the software you have a copy of. They can discontinue it at any time, and when that happens, there is no more support for you as a user - think of those still using Windows 98. Imagine if your car company decided that when your car was obsolete they could prevent anyone from servicing your car, such as independent mechanics, and that you needed to right then buy a new car.

What makes this enforceable is that you don't have to choose the software. If Microsoft wants to prevent Novell from having to abide by v3, then Microsoft will have to make sure Novell never updates SuSE with new code, such as the GNU stuff that will be covered by the license. But then, when SuSE is about 2 versions behind RedHat, it will completely fail. What we're seeing here may be the result of the dance Microsoft tried to do with Novell. I'm beginning to think that Novell's president believed Microsoft when it said that Novell could abide by the Open Source rules, and Microsoft didn't have to, but they could work together. Sounds like a great deal for the two businesses. But Open Source isn't about the business. It's about the customer, then end user and owner of the code, and owner being anyone who makes a copy of the files.

[Branko Collin @ Jul 8th 2007 5:48AM]

"I find it hard to believe that this trick that's built in to GPLv3 will hold up in court."

Simple: Microsoft has no legal right whatsoever to distribute the software other people own copyrights to. Doing so would constitute copyright infringement.

The only way Microsoft can nevertheless distribute this software would be if it somehow got a license from the copyright owners. These copyright owners can decide at any time to change the license for future versions of the software. Once they do that, Microsoft has only two choices: abandon the software, or abide by the new license.

Unless Microsoft had some sort of subscription to the software, I don't see how they can claim any rights to it.

According to your reasoning, Microsoft wasn't allowed to change the conditions under which it sold Vista from the conditions under which it sold XP.

[quandmeme @ Jul 7th 2007 9:59AM]

I puzzled over this when Slashdot covered the Groklaw article, what is is Microsoft trying to avoid, does it have to publish its own code under one version and not the other?

[Branko Collin @ Jul 8th 2007 6:13AM]

As long as Microsoft does not incorporate GPL-ed code in its own code and then distributes its own code, it does not have to GPL its own code.

What Microsoft is afraid of? Who knows. It's not as if they will tell. But it's likely that it has to do with the patent clause in GPL3. There is a patent clause in GPL2, so I am not exactly sure what makes the GPL3 one so dangerous to Microsoft.

[Wwhat @ Jul 7th 2007 10:21AM]

"Disclaimer: While the author of this post is a copyright attorney, its contents are not meant to constitute legal advice or analysis."

So from that I can conclude that all other articles are legal advise?
My point being that there is such a thing as too much caution, and I hope that line was tongue-in-cheek.

[James @ Jul 7th 2007 10:39AM]

No, he has to add that disclaimer to anything he posts about the law, just like stock brokers giving stock advice on the radio or TV have to disclose what stocks they own, and when lawyers answer legal questions on the radio, they always say "No attorney-client relationship is formed during this program" or something. There are laws regarding peoples' interaction with lawyers, so they have to add this boilerplate.

The other posts on Engadget are generally not written by lawyers, or are written by lawyers about things other than the law.

[James @ Jul 7th 2007 10:34AM]

IANAL, but I strongly suspect that all the GPLv3 will accomplish is to stifle the distribution of new stuff. Microsoft can continue to sell exactly what they're selling now; they just can't sell any new versions that release under v3. Who is that supposed to help, exactly?

[Bosco @ Jul 7th 2007 8:13PM]

This is an honest question, not a troll question. If existing software is licensed under GPL 2, can't downstream users continue to demand its availability under GPL 2? In other words, why isn't it a violation of GPL 2 to insist on upgrading the license to GPL 3? One of you IANALs, feel free to answer.

[Branko Collin @ Jul 8th 2007 6:02AM]

Nobody insists on upgrading to GPL3, but the "owners" of packages will release upgrades under GPL3. Microsoft is free to keep distributing 2007 code for decades to come, as per the GPL2.

[KirbyMeister @ Jul 7th 2007 9:58PM]

>>Bosco: Correct. Any existing GPLv2 licenses are still active and not affected by GPLv3. However, 99% of GPLv2 license declarations include a statement saying you can upgrade to v3 at any time. That 1% is the Linux kernel itself, and upgrading to v3 would require the permission of anyone who has their patches in the Linux source repository.

Either way, I'm pretty disappointed by not just the patent deal, but M$'s actions... At first, I thought M$ was willing to back off on a full scale patent war. But now their hotshot claims of "238 PATENTZZZZz OMG LOL" have established that M$ is back to their usual game of non-compete.

Full disclosure: I'm typing this on my Vista box. My other box runs Debian. And they have hot, drive-and-drive SMB action every night. ;)

[SH @ Jul 8th 2007 2:04AM]

MS doesn't even feel it is bound by the court's decision concerning antitrust. Why would they bother binding themselves with a mere legal document?

[Branko Collin @ Jul 8th 2007 6:02AM]

Because this is copyright law, and copyright law is the one law to rule them all, to find them, and in the darkness bind them.

[Wout Mertens @ Jul 9th 2007 8:49AM]

But... Many open source projects are licensed under GPLv2 _or any later version of the users' choosing_.

http://www.fsf.org/licensing/licenses/info/GPLv2orLater.html

In other words, Microsoft doesn't have a say in this at all. As soon as the FSF published GPLv3, those software packages got licensed under GPLv3 as well.

Of course, IANAL. YMMV. IMHO.

[Chris Woodall @ Jul 12th 2007 3:44PM]

I have lost all respect for Novel, SUSE, Mono and Miguel DeIcaza *cries in corner* and I had such big hopes for Mono...

But seriously M$ or Nov€l will probably just fork off at the latest GPL v2 and develop their own version of it. Maybe they will even convert it over to Mono. The main problem here is that by loseing SUS€ we lose a major part of the battel, good thing though that Ubuntu is more or less fiercely open source.

My suggestion just stop supporting SUS€ because its just like supporting M$