FSF gives Microsoft stern warning on GPLv3

IN A STATEMENT released yesterday, the Free Software Foundation (FSF) placed Microsoft on notice that it cannot unilaterally exempt itself from the requirements of the Gnu General Public Licence version 3 (GPLv3).

The FSF believes it needs to defend software freedom from attacks by Microsoft, stating:

"Microsoft has engaged in anticompetitive conduct in the software industry for many years, and has sought to attack free software for almost as long."

Drafting was already underway to develop an updated version of the widely used GPLv2 when Microsoft surprised the free and open source software (FOSS) communities by entering into a Linux software distribution and patent cross-licensing agreement with Novell SuSE in November 2006.

Microsoft later made similar deals with the second tier Linux distributors Linspire and Xandros.

The FSF characterises these agreements with only some Linux distributors as discriminatory and anticompetitive, writing:

"In its November 2006 deal with Novell, Microsoft attempted to use its patent portfolio to divide and conquer the free software community. It did so by extending narrow and discriminatory promises not to sue certain classes of Novell SUSE GNU/Linux customers for patent infringement, while leaving others vulnerable to attack, including noncommercial developers and users of other GNU/Linux distributions."

Further, the FSF statement claims that the Vole's intention was to impose unnecessary conditions and costs on the users of free software or in other words, in effect, to proprietise it:

"Microsoft's ultimate aim in this scheme was the de facto proprietization of free software: it hoped that frightened users would be willing to pay one favored distributor just to be safe from lawsuits."

In its subsequent final drafting of the GPLv3, the FSF added language specifically to prevent Microsoft from splitting the free software community into two camps, those that have its blessing and those that don't, based upon Microsoft's implied threats of patent litigation. As the FSF puts it:

"We, the Free Software Foundation, responded to Microsoft's threat by revising the draft of version 3 of the GNU General Public License (GPLv3). In particular, we added a provision to ensure that, if any user receives a discriminatory patent promise from Microsoft as a result of purchasing a copy of a GPLv3 program from a Microsoft fulfillment agent, Microsoft would be bound by [the] GPLv3 to extend that same promise of safety to all downstream users of that software."

The FSF notes that the Vole then withdrew its anticompetitive promises:

"In its press release dated July 5, 2007, Microsoft announced that it was withdrawing discriminatory promises of patent safety it previously made to certain Novell customers. We regard Microsoft's decision with satisfaction. FSF first requested the withdrawal of those discriminatory promises in a meeting with Microsoft's general counsel, Brad Smith, on November 9, 2006. (We have no opinion on Microsoft's legal obligations to the intended beneficiaries of the repudiated promises, or to Novell.)"

That's the background, and if you've been following this story all along you've probably skimmed ahead up to here. Then, the FSF places Microsoft on notice that it cannot exempt itself from the licensing terms of the GPLv3:

"We do not, however, agree with Microsoft's characterization of the situation involving 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 license. It may not do so under any other terms; it cannot declare itself exempt from the requirements of GPLv3."

The Linux kernel is still and will continue to be licensed under the GPLv2, according to Linus Torvalds. However the kernel is only a relatively small part of most Linux distributions. GNU software licenced by the FSF, along with various other user space applications, make up the majority of most available versions of Linux, which will in time increasingly comprise a mixture of both GPLv2 and GPLv3 licensed software.

The FSF press release ends with this rather strong statement:

"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. 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."

So, we're not lawyers here of course, but if the Vole tries to play fast and loose with GPLv3 licensed software, it clearly sounds as though the FSF might sue. µ

L'INQ
Free Software Foundation