FSF: Microsoft cannot evade GPLv3

The Free Software Foundation has dismissed claims by Microsoft that it is exempt from provisions of GPLv3 and has vowed to make sure the software giant "respects our copyrights and complies with our licences".

The Free Software Foundation (FSF) announcement comes in response to a statement issued last month by Microsoft, which said the company was "not a party to the GPLv3 licence… 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".

According to the FSF, Microsoft cannot ignore the terms of GPLv3.

"Microsoft cannot by any act of anticipatory repudiation divest itself of its obligation to respect others' copyrights. 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 licence. It may not do so under any other terms; it cannot declare itself exempt from the requirements of GPLv3," the FSF said.

However, last month, Australian legal expert Kay Lam-Beattie, principal with intellectual property lawyers Idealaw, said that it was unlikely that Microsoft would be bound by GPLv3 because parties have to willingly enter contracts, and contracts can't be retrospective.

"An easy analogy is a car park with a sign that says you are bound to a given contract if you enter into that car park," she said. "Anybody can enter, but you have to accept the terms, and the signal of you accepting those terms is when you enter. You have to do something positive to accept the terms — you have to act."

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In this case, said Lam-Beattie, Microsoft never acted — never "entered" into the agreement — and the terms and conditions can only apply to new actions by Microsoft, not older ones. "Their actions so far are not enough to say that they are bound," she added.

Regardless of the arguments, the FSF said it is determined to ensure Microsoft complies fully with the GPLv3.

"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 licences," the FSF statement said.