Free Software Foundation (FSF) lawyer Eben Moglen claims that the absence of an expiration date on SUSE vouchers distributed by Microsoft will make Microsoft subject to terms of the GPL3, thus undermining Microsoft's patent threats against Linux by forcing the company to provide nearly unlimited upstream patent licenses. During an OpenLogic online seminar last week, Moglen said that in his opinion, Microsoft is subject to the GPL because the company is distributing SUSE Linux vouchers. Although SUSE Linux is licensed under the current version of the GPL, which has only weak upstream patent licensing requirements, Moglen argues that since the vouchers have no expiration date, Microsoft would become subject to GPL3 requirements—including strong upstream patent licensing requirements—if a company that purchased a voucher from Microsoft holds onto it and redeems it after SUSE Linux software is released under the GPL3.
Moglen's argument is extremely obfuscated and moderately dubious, which puts it in a similar category with Microsoft's own patent infringement claims. According to Moglen, "The coupons have no expiration date, and Microsoft can be sure that some coupons will be turned into Novell in return for software after the effective date of GPL3. Once that has happened, patent defenses will, under the license, have moved out into the broad community and be available to anybody who Microsoft should ever sue for infringement."
Microsoft is not convinced that distribution of SUSE vouchers makes the company subject to GPL requirements. Richard Wilder, a patent lawyer for the Association of Competitive Technology (an organization partially funded by Microsoft), argues that Microsoft isn't subject to the GPL because the company isn't literally distributing Linux or any other piece of GPL-licensed software. Speaking to the Seattle Post-Intelligencer, Wilder said, "[Microsoft is] not distributing Linux. They're providing somebody access to a service, but they're not providing copies of Linux on a disk, and they're not providing somebody access to Linux for the purpose of download, and so they're not engaged in any distribution."
Another point worth mentioning is that the Linux kernel itself will not be transitioned to GPL3, so even if SUSE voucher distribution does make Microsoft subject to the requirements of the GPL3, it won't imply a grant to the community of the patents allegedly infringed by the Linux kernel itself.
Although I think that Microsoft's accusations of open-source patent infringement do not have much basis in reality, Moglen's argument doesn't seem to make much more sense. Although much is being made of Moglen's revelation in certain corners of the open-source community, I doubt that it has much actual legal weight. Moglen calls it "one more layer of probable defense against the Microsoft patent aggression," which is probably a relatively fair description. This isn't a slam-dunk defense against Microsoft patent-waving, but it will provide one more argument that can be used in court, and more importantly, it could change the perception of Microsoft's case in the public arena, which is where some of the more important battles are fought.
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