Has Microsoft violated the GPL?

Sam Varghese
Monday, 21 May 2007 08:19

Opinion and Analysis

There are more angles to this can of worms which Steve "Monkey Boy" Ballmer and Horacio Guttierrez have opened. Let's assume that a patent suit is filed the other way around - for example, company A sues Microsoft, claiming that the Windows maker has violated its (company A's) patents. What happens then?

I asked a patent expert about this; Dan Ravicher is a fresh-faced young New Yorker, head of the Public Patent Foundation, and a patent lawyer to boot. He's also one of the legal fraternity who believes that there is a bit more to life than money.

Says Ravicher: "Well, (company A) would have to get the other company to participate in negotiations and then propose the opening of their source code as a wayof settling the dispute.  In that way - through private negotiation - it is (and virtually anything is) possible."

Into this increasingly complicated mix, throw in the fact that Novell recently admitted that it had looked at Microsoft's IP as part of the infamous November 2 deal. Does this mean that contributions from Novell to Linux and other FOSS projects should be regarded with suspicion?

Ravicher says there may possibly be no implications for Novell. "It appears from this report that Novell was allowed to look at Microsoft's code for technical reasons related to the possibility of building interoperability, not legal reasons related to possible infringement of third party rights."

But there is a catch. "While code licensed by Novell under an open source licence is formally as available as any other open source code, since they are free to incorporate elements that may infringe Microsoft patents, but not pass on a licence to those patents to persons other than their customers, third party developers should be mindful that such code may subject them and their distributees to risk of liability to which Novell is not exposed," Ravicher says.

"However, GPLv3 may end up containing a clause that addresses this situation. The first draft of GPLv3 did, in that it required distributors of GPLv3'd code to pass on the same protections from patents that they have to all their distributees. However, that clause was altered in the second draft of v3 and we'll have to see what ends up being in the final version."

Now all this stuff is good and logical but then it won't necessarily play out this way. Logic isn't of much use in the US of A, lobbying and political connections make things happen. So expect a lot of the latter and very little of the former. Either way, this battle has just begun. May 14, 2007, was a red letter for Microsoft. On that day, it may well have put its foot too far inside its mouth to avoid choking.