Is Microsoft really “conveying” GPL software?

First – the basic history – Microsoft claims that Linux code is in violation of over 200 patents owned by Microsoft. Microsoft developed a technology partnership with Novell (Suse Linux) in which it would distribute Suse Linux support coupons to Microsoft customers.

Many pundits claim that this was Microsoft’s way of sheltering its Linux users (including powerhouses like Credit Suisse…) from potential Microsoft patent infringement suits. The further claim is that this was Microsoft’s way of paying over $300 million USD to Novell for the partnership (er license?).

This was all under GPLv2. Now that GPLv3 is out, the talk in the FOSS crowd is that if Microsoft  continues to distribute Suse Support Certificates then it is effectually “conveying” a GPLv3 work which (a GPLv3 distributor) which means that it would be suing itself for distributing patent protected works. Microsoft disagrees with this statement citing

[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,”
“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.
  -Horacio Gutierrez, Microsoft VP of Intellectual Property and Licensing

Here’s the rub, as I see it:

Is Microsoft distributing GPL software? I don’t understand how they are. They are selling support coupons to their customers. They are not selling or distributing code of any sort. THey are literally mailing their customer little slips of paper with a 10 digit number that they can redeem with Novell for new or continuing support of their Linux servers.

This is like holding the Girl Scout responsible for selling you The Coupon Book 2007, you tearing out a coupon for a free side salad at Red Lobster and subsequently suing the Girl Scouts because you got sick on some improperly prepared shellfish while you were there.

Now I’m no fan of Microsoft, but I don’t really see it. Maybe one of the readers here can enlighten me. What am I not seeing that the Free Software Foundation is seeing about Microsoft being in voiolation of the GPLv3?


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