Microsoft patent claims complicated by GPLv3

By Elizabeth Montalbano, IDG News Service, 05/16/07

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The expected approval of the GNU General Public License version 3 (GPLv3) could further muddy the waters for Microsoft Corp.'s claims it will collect payment on its patents for Linux technology as there is a question about whether the company's interoperability deal with Novell Inc. will violate the forthcoming final draft.

The current version of the GPL, the open-source license for Linux, does not have specific protection against patent litigation for companies distributing Linux. However, GPLv3, which is expected to be in final release in the next couple of months, has a provision promising patent safety to those who receive software, such as Linux, distributed under the license.

The provision was put in specifically to make deals like the one Microsoft struck with Novell "useless" to Microsoft so it cannot make similar pacts that include royalty payments with other companies, said Eben Moglen, chairman of the Software Freedom Law Center and a Columbia University professor of law and legal history who co-wrote the GPLv3 draft with the Free Software Foundation's Richard Stallman.

"Rather than discriminating among parties so customers feel safe [from litigation] and not developers, we instead will be turning the Microsoft-Novell deal into a patent-insurance factor for everybody," he said.

The catch is that no one is sure if Microsoft's agreement to distribute coupons for Suse Linux Enterprise Support through the Novell deal would deem it a Linux distributor and require the company to be compliant with the GPL. And Moglen, who has examined the Microsoft-Novell deal but is under a nondisclosure agreement forbidding him from revealing specifics, said that the answer will remain unclear unless Microsoft and Novell go public with that element of their deal.

Microsoft declined to comment on the issue Wednesday through its public relations firm on the grounds that GPLv3 is still in draft form. However, Moglen thinks the company is being deliberately vague about compliance with GPLv3 for the same reason it said this week it would seek royalties on technology in Linux it claims to hold patents for: To cause fear among customers who want to adopt Linux and other open-source software over its commercial products.

The IDG News Service is a Network World affiliate.

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