FSF: Microsoft is Bound by GPLv3 Terms If It Distributes GPLv3 Code

Last month, Microsoft's legal department proclaimed it doesn't consider itself bound to the terms of version 3 of the General Public License, with respect to certificates it distributed for software, services, and support from Novell. Today, the Free Software Foundation responded by saying if Microsoft distributes software covered by GPLv3, then it's bound by the terms of that license.

"Microsoft cannot by any act of anticipatory repudiation divest itself of its obligation to respect others' copyrights, reads today's FSF statement. "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 crux of the dispute centers around whether, when Microsoft agreed to issue certificates for Novell's customers, it effectively distributed software on Novell's behalf. Microsoft has made the case that Novell is the distributor in this case, and that it's just picking up the tab.

The reason why it all matters is because version 3 specifically declares that a licensee doesn't have the right to claim to hold anyone to whom it distributes that code free from patent obligations. The basic theory here is that no distributor can claim ownership of any part of the software, so it can't then presume to hold someone to whom it distributes that software free from liability or infringement for it.

FSF's motivation may be to find a way to legally extend some of that privilege Microsoft granted to Novell last year, to everyone else who might be a recipient of that same software even if Novell's not the distributor. That's probably why Section 11 of the new GPL reads, in part, as follows: "If, pursuant to or in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of, a covered work, and grant a patent license to some of the parties receiving the covered work authorizing them to use, propagate, modify or convey a specific copy of the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it."

Last July, Microsoft's proclamation contained the following: "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. In fact, we do not believe that Microsoft needs a license 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."

Microsoft went on to say its Novell agreement does not grant any patent rights to any of Novell's customers, through its distributed certificates or otherwise - meaning, it's not granting Novell's customers the rights to use software whose rightful ownership Microsoft wants to retain the right to contest later. However, the company did decide to rescind the portion of its certificates which grant recipients the right to receive support on GPLv3 licensed code from Novell - which was actually in compliance with an earlier FSF request.

But the FSF didn't want last month's proclamation to be the last word. "Microsoft has said that it expects 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," reads the close of the FSF's statement today. "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."

In the meantime, the issue of whether issuing a certificate toward the purchase of software by someone else constitutes legal distribution of someone else's software, remains open.