GPLv3 Myth #4: GPLv3 undercuts the Microsoft/Novell deal

In part 4 of a 5 part series on the new version of the most commonly used free/open source license, today we take a look at one of the reasons it took so long to create--the Microsoft/Novell patent deal.

In case you missed it, here are the other 3 myths covered so far:

• Myth 1: You can’t sell GPLv3 software
• Myth 2: You can’t mix GPL software with other software
• Myth 3: GPL forbids DRM

Disclaimer: This information was culled from a variety of sources, including the GPLv3 web site, interviews with experts involved in the process, and analysis from various industry watchers. However this isn’t intended as legal advice.

Myth 4: GPLv3 undercuts the Microsoft/Novell deal

In March 2007, the Free Software Foundation (FSF) released a long-awaited draft of GPLv3, writing:

Our original plan was to publish a third discussion draft in mid-autumn of 2006. The unforeseen agreement between Microsoft Corporation and Novell, Inc., announced in November, presents grave threats to users of free software. It was necessary for us to take the time carefully to develop mechanisms in GPLv3 that would deter agreements of this sort and provide strong defenses against their accompanying dangers.

In the final version of GPLv3 it says:

You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software,

[e.g., Microsoft,]

under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a discriminatory patent license (a) in connection with copies of the covered work conveyed by you (or copies made from those copies), or (b) primarily for and in connection with specific products or compilations that contain the covered work,

[However, there is a "grandfather clause":]

unless you entered into that arrangement, or that patent license was granted, prior to 28 March 2007.

So clearly, GPLv3 will have no effect on the MS/Novell agreement, which was completed in 2006. But what about other deals, such as the latest one between Microsoft and Linspire? Some in the free software community were hoping that MS would make more deals after Novell, so that they would be forced to swallow the "poison pill" in GPLv3 making any patent grants universal. Not so fast, says Microsoft. In July 2007 MS issued a statement saying it did not agree to this part of the license [emphasis mine]:

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. 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.

The case everyone is wondering about is this: suppose a third party tries to "piggyback" on Microsoft's patent grants to other companies like Novell and Linspire in order to claim they have the same rights by using the clauses to that effect in GPLv3. Given the two conflicting statements, one in the license and the other by Microsoft lawyers, it would be a tough call to say which way a court would decide.

My guess is, it'll never come to that, because both sides would be afraid of losing and setting a precedent. Meanwhile MS will continue to use this uncertainty to get more and more companies to enter into cross-license agreements. Though just to be on the safe side, they will undoubtedly be a little more careful about the wording of those agreements to specifically rule out any effect the GPLv3 license might have had.