Microsoft sought to avoid tangling itself up in the GPL license when it struck a deal with Novell. Rather than pay Novell, it agreed to hand out SUSE Linux coupons to consumers. It stayed at arms length from distributing the code… But did Microsoft circumvent the trap of GPLv2 by stepping into the snare of GPLv3?

Those coupons don't really have a set of contractual limitations built into them. For example, there's no expiration date. Microsoft has been scattering millions of dollars of purchasing power for GPL code to the four winds, and having done so, it's issued a press release saying it certainly doesn't want to subsidize GPLv3 purchases.

Is that really within its power at this point? If Novell's customers are free to decide how the coupons are used, what's to keep its coupons from being used for GPLv3 code in future SUSE Linux subscriptions?

Or perhaps you say, so what if a Novell customer uses a Microsoft coupon to line up a three-year subscription for SUSE Linux? Microsoft still isn't a distributor of the code, is it? It's the distributors who are banned from suing users of GPL code for patent infringement. Microsoft knows if it's caught in those terms, they will render its patent portfolio harmless, something it doesn't want.

But the language in the GPL changed between Version 2 and Version 3. Instead of "distributing," Version 3 of the license refers to "propagating" and "conveying," new terms that have yet to have their day in court. Those terms are defined in the license more broadly than distribution, which was basically associated with an Internet download or a set of disks shipped off to the buyer. It's conceivable the Free Software Foundation could assert that Microsoft is "conveying" GPLv3 code when its vouchers are used and is thus subject to the terms of GPLv3.

Would a judge agree? Microsoft sounds like it doesn't want to find out. "Microsoft is not a party to the GPLv3 license and 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 company said July 6.

It seems to me that Microsoft, which has been so good at exploiting gray areas of the law, has engendered one for itself. What if it's caught in a legal quandary that can't be dismissed by the PR department. Courts try to adhere to the letter of law [and license], not the letter of the press release.

There's nothing on the coupons that limit their use to GPLv2. Novell, its erstwhile partner, has gotten a black eye from going along with Microsoft at a time when Steve Ballmer started talking about patent infringement. Novell now says it won't hold back from issuing GPLv3 code. If its customers want GPLv3 code, they're going to get it.

Well, of course Linux customers want the latest version of Samba and other open source code. Jeremy Allison, lead developer of Samba says it will be issued under GPLv3 shortly—within the next 6-8 weeks. That may be about the amount of time Microsoft has to get those coupons back, a task something like unspreading butter.

When they first came out, I predicted those coupons would be used by Microsoft sales reps to light fires in their fireplaces in the Cascades. That might have been a little hasty. Microsoft in the Novell pact wanted to strengthen a weak Linux competitor and weaken a strong one, Red Hat. It wanted to steer a certain percentage of Linux customers to SUSE.

Now it looks like it may have been too clever for its own good. Watch for the smoke of fires, not in the Cascades, but on the Redmond campus. They will be a book burnings—not Stengel and Proust—just SUSE coupon books.