In a statement issued today, the Free Software Foundation (FSF) has responded to Microsoft's assertion that selling SUSE Linux support vouchers doesn't make the company subject to the requirements of the new version of the General Public License (GPL 3).

The FSF has claimed in the past that Microsoft's sale of SUSE Linux support vouchers—which is part of the company's controversial agreement with Novell—constitutes conveyance of software, thus making Microsoft party to the license under which the software is distributed. Microsoft disagrees with this interpretation and argues that conveyance of software does not occur because the vouchers are for support services rather than software.

Although Microsoft does not believe that a GPL license is required to sell support vouchers, the company decided to avoid the legal questions that could emerge from the debate by issuing a statement last month saying 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 the GPLv3."

In a response issued today, the FSF argues that Microsoft would be bound to the terms of the GPL 3 if Microsoft causes conveyance of source code licensed under the GPL 3. Surprisingly, the statement does not say whether or not the FSF still thinks that Microsoft has actually caused code licensed under the GPL 3 to be conveyed. "Microsoft cannot by any act of anticipatory repudiation divest itself of its obligation to respect others' copyrights. If Microsoft distributes our works licensed under GPLv3, or pays others to distribute them on its behalf, it is bound to do so under the terms of that license. It may not do so under any other terms; it cannot declare itself exempt from the requirements of GPLv3," says the FSF. "We will ensure—and, to the extent of our resources, assist other GPLv3 licensors in ensuring—that Microsoft respects our copyrights and complies with our licenses."

The last line makes the statement sound like a legal threat, but that's not entirely clear. Note the use of the word "if" when the FSF describes the connection between distribution and GPL 3 obligations. The FSF doesn't say outright that Microsoft is party to the GPL 3, they say that Microsoft could be party to the GPL 3 if the company distributes source code released under the license.

In the past, FSF representatives have said that Microsoft could eventually be party to the GPL 3 under a specific set of circumstances, but it appears as though Microsoft's move to reject GPL 3 support for voucher recipients last month muddied the waters by ensuring that those circumstances could never transpire. At this point, it seems unlikely that Microsoft is currently party to the GPL 3 or will become party to the GPL 3 as a result of the voucher program, but that's still open to interpretation and probably will be until either an agreement is reached or it is addressed in court.