Microsoft's GPL v3 Stance Puts Future of Novell Pact in Doubt

Published: July 17, 2007

by Alex Woodie

Microsoft has issued a statement that it does not consider itself bound by GPL v3, the new open source license that was designed, in part, to put a kibosh on the types of partnerships Microsoft has signed with Novell and other Linux distributors. With Novell intent on supporting GPL v3, it appears to put important elements of the Microsoft-Novell deal on a collision course.

Microsoft roiled the open source community late last year when it signed a deal with server operating system rival Novell in which it promised never to sue users of SuSE Linux, the version of Linux that Novell distributes, over the supposed violation of Microsoft patents that is embodied in all Linux distributions. Microsoft maintains that the Linux kernel is in violation of at least 42 of its patents--other Linux add-ons violate dozens more--while it has counted at least 235 violations of its intellectual property in free and open source software as a whole.

Also as part of the deal with Novell, Microsoft signed a five-year distribution deal to sell about $240 million worth of "coupons" for SuSE Linux Enterprise Server (SLES) 10 licenses. By the end of April, the company had sold $91 million worth of the licenses. It's this cross-licensing and SLES coupon deal that has drawn Microsoft into the netherworld of open source licensing and GPL v3, which was just released last week.

Following Novell's deal with Microsoft, the group in charge of the GPL, the Free Software Foundation, recommended changing the terms of the GPL license in version 3 in a way that would put end Microsoft deals with Linux distributors. It would do this by defining any group that has a distribution deal with a Linux distributor--i.e., Microsoft--to be a distributor of Linux themselves, and thereby bound by the terms of the GPL. Obviously, because Microsoft doesn't practice open source software development, it would be in violation of the GPL v3 by default, which would undoubtedly lead to legal action being taken. Past versions of the GPL have held up to legal scrutiny.

With GPL v3 now out on the streets, Microsoft believed it was important to let the world know exactly what it thought about the new open source license. In two words, not much.

"Microsoft is not a party to the GPL v3 license," the company says in a statement published on its Web site. "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 GPL v3 license, we do not believe that such claims have a valid legal basis under contract, intellectual property, or any other law."

Currently, the Linux kernel is distributed under GPL v2, and therefore the guts of all Linux distributions are governed by GPL v2, although it is up to open source software developers if they want to license Linux add-ons under GPL v3. Linus Torvalds, the man who leads the development of the Linux kernel, has expressed concerns about GPL v3, namely that there doesn't appear to be a good reason to move the Linux kernel to GPL v3 from GPL v2, which he has said is simply a better license at this point.

While one could reasonably infer that Microsoft is a Linux distributor (despite the fact that Microsoft actually sells coupons or certificates for Linux support, not bits and bytes or support itself), there is little reasonable doubt that Microsoft is a party to GPL v3. Because the Linux kernel is still under GPL v2, even if Microsoft was a Linux distributor, it would only be bound by GPL v2.

However, if and when Torvalds decides to make the shift to GPL v3, it would likely result in the matter of Microsoft's status as a distributor of Linux or Linux support under GPL v3 being decided by a court. To forestall that from ever happening, Microsoft decreed that it would never touch a product licensed under GPL v3 with a 10-foot pole.

"At this point in time, 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 GPL v3," Microsoft stated.

Even if Torvalds and the Linux community do not make the move to GPL v2, other products commonly included in Linux distributions are being licensed under GPL v3. While SLES does not currently include any GPL v3 components, some commonly used Linux programs, such as the "tar" utility, are being distributed under GPL v3.

Also, Novell has said it would include some Linux add-ons distributed under GPL v3 in future versions of SuSE Linux. "Given the terms of GPL v3, we reaffirm Novell's ability to include technologies licensed under GPL v2 or GPL v3 in SUSE Linux Enterprise, openSUSE, and other Novell offerings and to deliver these technologies to our customers," the company said in a statement published on its Web site Friday.

With Novell intent on moving to GPL v3, and Microsoft intent on not touching anything remotely related to GPL v3, it appears that the situations is coming to a head--one that seems likely to result in Microsoft ceasing its Linux distribution deal with Novell.

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