Can you elaborate what you mean? What risk is there to what Microsoft is doing?
This issue has popped up a number of times for Linux kernel modules, and at what point they are a derived work - https://lwn.net/Articles/13398/. Here is an email thread concerning this http://yarchive.net/comp/linux/gpl_modules.html.
If somehow MS can't make and open source clean compatibility layers for their own software, then that's a big problem.
Is that distinct from being copyrightable?
I'm sure that if it becomes a big enough problem, the problem will be buried in lawsuits once Microsoft or IBM or similar stub their toes on it.