July 6th, 2007

Are Microsoft's patent lawyers really this dumb?

Posted by Mary Jo Foley @ 6:47 am

Categories: Corporate strategy, Legal, Linux, Novell

Tags: Novell Inc., Patent, Open Source, Microsoft Corp., Mary Jo Foley

Are Microsoft’s patent lawyers playing possum? Or are they really as clueless about what makes open-source software tick as they seem?

Consider the latest patent-related statement Microsoft published to its Web site on July 5 a statement claiming it is not party to the GPLv3 and is not bound by it.

“While there have been some claims that Microsoft’s distribution of certificates for Novell support services, under our interoperability collaboration with Novell, constitutes acceptance of the GPLv3 license, we do not believe that such claims have a valid legal basis under contract, intellectual property, or any other law. 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.”

Curious (and nervous) customers — and possibly other Linux vendors with whom Microsoft is still hoping to cut patent deals — must have started asking Microsoft about what it plans to do once Novell adopts the GPLv3, as its officials have indicated it plans to do.

Microsoft’s short answer: We’re trying to back out of the distribution part of our Novell deal as fast as we can. The Novell certificates distributed by Microsoft currently cover GPLv2-protected versions of SuSE Enterprise Linux. But, given these Linux certificates reportedly have no expiration date, there seems to be a chance that customers could use them for future GPL v3-covered Novell software. That’s why Microsoft’s adopting a poison pill now:

“Microsoft has decided that the Novell support certificates that we distribute to customers will not entitle the recipient to receive from Novell, or any other party, any subscription for support and updates relating to any code licensed under GPLv3,” according to the July 5 Microsoft statement.

Open-source expert and former Microsoft employee Stephen Walli wondered about Microsoft’s real open-source intentions, based on Microsoft’s latest legal statement:

“The (July 5) Microsoft statement seems a bit premature and over reaching,” Walli said. “Stating outright that they aren’t a party to it, means they’ve cut themselves off from using it in some future circumstance where it might be genuinely business beneficial. They would need to unmake this statement. By saying they can’t envision such a situation arising shows a lack of imagination, and makes them as religious on the issue as (Free Software Foundation founder Richard) Stallman. They remain ‘committed to working with the open source community’ without actually wanting to participate in it.”

Leave aside for a moment the question about whether Microsoft is trying to coopt or cooperate with the open-source movement. From a legal standpiont, here’s what doesn’t add up, to me. Microsoft employs hundreds (if not thousands) of lawyers. How could these lawyers have:

* failed to forsee that the Free Software Foundation would find a way to put a legal monkey wrench into the GPL to thwart Microsoft’s intent to undermine Linux and the GPL?

* allowed the Novell support certificates that Microsoft has been distributing to go out without an expiration date on them?

* expected Novell not to back the GPL v3, in spite of the money it paid to Novell to cement its first patent-protection deal with a Linux distributor?

Is Microsoft legal holding a trump card that no one knows about? Or is Microsoft really as inept in fighting off open source as it currently seems?