Microsoft ups ante on GPLv3 in apparent challenge to license's reach

Any attempt to tag Microsoft as being "it" on its support coupons for Novell SUSE Linux, and therefore now fall under the terms of the new open source license, will apparently be fought ... or at least sidestepped.

Despite assertions that the new GPLv3 released June 29 closes loopholes with GPLv2, and therefore binds Microsoft as a Linux distributor of some kind, appears headed to legal -- not to mention PR -- brinkmanship.

Microsoft said Thursday that it is not affected by the new license, even if it's partner Novell and the users of SUSE Linux are. Can't touch me with that license business, they seem to be saying.

"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," said Horacio Gutierrez, Microsoft's vice president of intellectual property and licensing in a statement.

One side says the license binds, the other says it does not. Between any resolution sits months or years, perhaps millions of dollars and hoards of what my son calls Lawbots on Toontown. Maybe we should just throw gags at the lawyers and they will blow up and go away.

Or perhaps this sets up a meaty legal challenge by the Free Software Foundation (FSF) to Microsoft's bevy of deals with open source support providers. Perhaps it could blow up into an outright challenge of open source licenses writ large -- or even conversely become a flanked challenge to intellectual property law as applies to any software. The stakes could be quite high as this may escalate to a huge legal level ... an industry wide event. Microsoft is no stranger to long legal tussles, for sure.

In any event, Microsoft has achieved its near-term goals: Confuse the market and insert doubt about Linux and GPL usage, drag lawyers into every rack-mounted closet, increase the perceived risk of using open source code. Even if Microsoft has no legal footing (and I have no idea), they win on the perception clause.

Why? We can go from here only to more obfuscation and FUD. Let's say FSF vigorously challenges Microsoft, and Microsoft, of course, aggressively resists. Or let's say FSF does nothing and Microsoft, of course, aggressively resists. Or let's say Microsoft double-downs and not only aggressively resists but also ups the challenges in legal mumbo jumbo press release volleys.

Guess what Joe Procurement Officer at Enterprise XYZ will say: "Play it safe. Wait. Pay Microsoft for Windows and pay Microsoft for Linux, too. Next."

Maybe enterprises should just break the Microsoft-defined rules and then count on a Presidential commutation of any penalties.

And like I said the other day, SaaS is the real worry for Microsoft anyway. The open source challenge has become a worldwide force that no U.S. legal wrangling can mute. My survey on the topic so far bears out Microsoft's perceived downside risk.