July 25, 2007 8:38 AM PDT

Attorney: GPLv3 may not bind Microsoft

By Brett Winterford

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Kay Lam-Beattie, a principal with intellectual property lawyers Idealaw, said that based on the limited information available to the public, the open-source movement's efforts to hinder Microsoft's bullying over patents are likely to be fruitless.

In recent times, Microsoft has struck legal agreements with Linux distributors Novell, Xandros and Linspire, pledging not to sue users of these distributions over alleged patent violations.

These partnerships, in some cases, restrict the freedoms normally associated with the use and distribution of open-source software.

To combat this strategy, the Free Software Foundation (FSF), author of the General Public License, or GPL (the open-source license under which most future open-source applications are expected to be distributed), has included new provisions in the third version that are designed to turn such patent-protection deals to the advantage of the open-source community.

Under GPLv3, "if you arrange to provide patent protection to some of the people who get the software from you, that protection is automatically extended to everyone who receives the software," said the FSF's Brett Smith earlier this month.

"This means that the patent protection Microsoft has extended to Novell's customers would be extended to everyone who uses any software Novell distributes under GPLv3," he said.

While not all the details of the Microsoft-Novell deal are publicly available for analysis (parts of the deal filed with the Securities and Exchange Commission have words deleted and large chunks of text cut out), Lam-Beattie is dubious about whether the FSF's strategy will work.

"This (initiative) is squarely aimed at Microsoft," Lam-Beattie said. "The question is, do Microsoft's actions regarding the (support certificates) fall within the definitions in the GPLv3 of what makes them a party to GPLv3?"

Microsoft: We're not party to GPLv3
Microsoft recently issued a statement claiming it is "not a party to the GPLv3" and that "none of its actions are to be misinterpreted as accepting status as a contracting party of GPLv3 or assuming any legal obligations under such license."

"The GPLv3 is trying to bind Microsoft accidentally," Lam-Beattie said. "Microsoft is saying: I have no intention of being bound by these rules."

"Unless there is something more specific in the certificate or the collaboration agreement between Novell and Microsoft, I would be very surprised to see this upheld," she said. "It was a nice try on the part of GNU (the software system developed by FSF), but at this stage, I'd say it's not going to be an effective strategy. It will be tough to hold up in court."

The strategy, Lam-Beattie said, will ultimately fail 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 says. "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."

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

Joseph Sweeney, adviser for analyst group Integrated Research Business Systems, came to a similar conclusion earlier this month.

Lam-Beattie also said she "can't see who would try" taking Microsoft to court to prove its actions did fall within the bounds of GPLv3.

"It really would require Microsoft trying to prosecute somebody in the open-source community on the basis of patent infringement, and that defendant using the GPLv3 to defend itself," she said.

That's a scenario unlikely to be played out, as the last thing Microsoft would want to do is have its patents challenged in court, said Lam-Beattie.

Patent litigation, she noted, is expensive and "fraught with danger."

"If you ever have to defend your patent in court, you have to prove that there wasn't any prior art. The other party is likely to cite similar ideas to your patent to disprove it. It's possible some could be struck down.

"These patents are worth more to Microsoft challenged than unchallenged," she added.

Brett Winterford of ZDNet Australia reported from Sydney.

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