Novell got off to a bit of an awkward start with the free software
community; since then, the company has missed few opportunities to state
its support for the community's goals - and to back up those words with
actions. Releasing iFolder and Ximian Connector and jumping into the SCO
fray are a few examples of note. Now Novell has posted a policy
describing how it will respond to patent attacks on free
software. This policy may not be all that the community might ask for,
but, if Novell lives up to its words, the community may have just gained a
new, potent ally in the patent battle.
So what is Novell saying? The company makes its purpose clear at the
We believe that customers want and need freedom of choice in making
decisions about technology solutions. Those considering Novell
offerings, whether proprietary or open source, should be able to
make their purchasing decisions based on technical merits,
security, quality of service and value, not the threat of
litigation. Novell intends to continue to compete based on such
In other words, Novell wants to make the world safe for Novell products -
and their customers. Yes, this is a selfish motivation, but one should not
forget that this is a corporation we are talking about here. The important
point is that Novell sees litigious patent holders as a threat to its
interests, and is responding in the hope of heading them off.
Here is the stick intended to deter possible attackers:
As appropriate, Novell is prepared to use our patents, which are
highly relevant in today's marketplace, to defend against those who
might assert patents against open source products marketed, sold or
supported by Novell. Some software vendors will attempt to counter
the competitive threat of Linux by making arguments about the risk
of violating patents. Vendors that assert patents against customers
and competitors such as Novell do so at their own peril and with
the certainty of provoking a response.
It is a sort of intellectual property mutual assured destruction policy: if
you deploy your patent weapons in a way which threatens Novell's interests,
Novell will respond with "highly relevant" weapons of its own.
This promise is worth something, for a couple of reasons. The first is
that it is credible: Novell has truly committed itself to Linux, and is
indisputably threatened by anybody who brings threats against Linux or its
users. The company's own interests will compel it to respond to such
The other notable point here is that a threat against almost any package
shipped in the SUSE Linux distribution is a threat against Novell. The announcement
for SUSE Linux Professional 9.2 claims over 3500 packages. So, while
Novell has not committed itself to defending any free software project,
Novell customers have not been directly threatened, the fact remains that
the company must be prepared to step in and defend a large number of
projects if its promise to its own customers is to remain credible.
Anybody who considers launching an attack against any of those 3500
packages will have to include a possible response from Novell in their
calculations. The patent threat, while still very real, has just gotten a
little bit less scary.
There is one thing which Novell did not say, however: nothing in the
posted policy commits the company to not using its own patents to attack a
competing free software project. We asked Novell about whether the company
would make an IBM-style "no first use" declaration; we got this response
back from company PR Director Bruce Lowry:
Novell doesn't intend to use its patents against open source. What
we've said today goes beyond what IBM said, both in terms of scope
(not just the Linux kernel) and in terms of potential actions.
We're saying we're prepared to use our patents to protect our open
source offerings against potential patent claims by others.
That is good stuff, and what one would have expected to hear. But it would
have been nice if Novell's patent policy contained an explicit promise not
to attack free software with patents.
This point leads into another thing which is absent from Novell's patent
policy: any sort of commitment to work toward reform of the patent system.
The simple fact is that Novell, like IBM and others, appears to be
happy with the patent system itself. Novell has acquired enough
"highly relevant" patents to be confident in its ability to fend off
attacks from others. Having gotten into a position where just about
anybody in the industry is probably infringing upon at least one of its
patents, Novell has no particular motivation to drop its weapons. Such is
the nature of the U.S. patent system; at least those weapons are, for now,
deployed in the defense of free software.
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