On Novell and Microsoft

Parts of the agreement are reasonably easy to understand. Microsoft will now officially recommend SUSE Linux to its customers who are determined to run something other than Windows on some of their machines. Microsoft will also hand out "coupons" for Novell support. A joint "research center" will be set up to work on projects of interest to both companies; virtualization, network management, and document formats are on the list of topics to be addressed. Among other things, this work could result in better support for documents in Microsoft formats, an area of active interest for many years.

The part of the agreement which has attracted the most attention, however, is the patent deal. This is also the hardest part to understand, and its real implications may take years to become clear. These seem to be the relevant points:

• The two companies have entered into a "covenant not to sue" each others' paying customers for patent violations. So SUSE (but not OpenSUSE) users should be free of the fear of being hauled into court by Microsoft's lawyers, and Windows users need no longer stay awake at nights worrying about a legal attack from Novell.

• The companies are making patent royalty payments to each other. It appears that the net cash flow is in Novell's direction, because there are more Windows products shipped than SUSE products. But the fact remains: Microsoft has succeeded in collecting a tax on every SUSE Linux distribution supported by Novell.

• Microsoft has made a promise not to sue individual developers for patent violations - sort of.

The text of the covenant not to sue has been posted. It would appear to cover Novell's paid customers for their particular use of SUSE Linux. It's not clear that the term "use" extends to the ways some of us "use" Linux - distributing it to others, for example. Microsoft can tweak or terminate the agreement at any time "pursuant to the terms of the Patent Cooperation Agreement between Novell and Microsoft that was publicly announced on November 2, 2006"; of course, the terms of that agreement are not publicly available. The agreement is currently slated to end in 2012, however.

To some, this agreement represents a total sell-out of Linux users by Novell. To others, it is simply Novell trying to eliminate a specific source of FUD against its customers. How it will really play out remains to be seen.

Novell insists that it has not licensed any patents from Microsoft - that the "covenant not to sue" is an entirely different thing. It is somewhat hard to believe that a courtroom would come to the same conclusion, especially given the fact that royalty payments are being made. The distinction may become very important to Novell. Many observers have pointed out section 7 of the GNU General Public License:

What this text means is that, if Microsoft is asserting patents against GPL-licensed code, Novell cannot distribute that code to its customers just because it has a "license" from Microsoft. There is some suspicion that Novell is trying to use the "covenant not to sue" as a way of weaseling out of this restriction, but it is difficult to imagine such a strategy succeeding. If Novell's customers cannot redistribute Linux, then Novell cannot distribute it to them.

So, should Microsoft ever go after a user of GPL-licensed code, Novell will find itself in a difficult position. Either distribution of the code in question in the lawsuit must be stopped, creating potential problems for Novell's customers, or Novell can continue distribution under its non-license with Microsoft, inviting suits from copyright holders. Either way, a Microsoft patent suit against Linux would not be a comfortable experience for Novell, even with this agreement in place.

Adding to the non-license claim, Novell's Kurt Garloff told LWN:

This is a clear position which contains all the right words. It is still hard to square the claim that no patents have been acknowledged with the royalty payments, however. If Novell acknowledges no patent infringements, what, exactly, is it paying royalties on? Perhaps it is just naked protection money for its customers. Or, perhaps, this is a concession Novell had to make to obtain the royalty stream from Microsoft.

One of the criticisms of this deal centers on the implicit acknowledgment of patent problems in Linux. Companies pursuing patent shakedowns often use the existence of paying licensees as evidence in their favor. If, however, Novell has in truth not licensed (or obtained "covenants not to sue") on any specific patents, then the value of Novell as evidence, especially in court, will be small.

A separate - and very interesting - question remains: how, exactly, does Novell's "covenant not to sue" affect the patents which Novell donated to the Open Invention Network (OIN)? Those patents are at the core of OIN's deterrent power, and it is the promise of protection from OIN which enabled the inclusion of Mono-based software into the Fedora Core distribution. If Novell's non-license covers those patents, then OIN's credibility as a deterrent to lawsuits by Microsoft will take a large hit. Your editor was unable to get an answer from Novell on this question in this article's time frame (getting answers from lawyers takes time). It would seem, however, from an inexpert reading, that the relevant patents have been truly assigned to OIN, and are no longer Novell's to non-license to anybody. If that reading is correct, then OIN's position is just as strong as it was before.

That question has not been settled, however, and there is a lot of concern in the community. The Fedora Project is actively considering the future of Mono in its distribution - one of many interesting decisions that project will be making in the near future.

Finally, there is the matter of Microsoft's promise not to sue individual developers. Anybody who is interested should just go read the text of the promise. As long as individual developers stay in their own basements and don't try to do anything rash - like distribute their code - they will be safe. For anybody who is trying to actually be a part of the free software development community, however, Microsoft's promise has no value at all. There is no point, even, in getting worked up about the fact that Microsoft reserves the right to change its promise at any time. For individual developers, nothing has changed at all.

In fact, for most of us, nothing has really changed. Software patent suits were a serious threat before, and they are still a serious threat. Some argue that Novell's agreement has made a patent attack from Microsoft more likely (Steve Ballmer's latest FUD is often quoted), but that is not at all clear. It is hard to see Microsoft suing Linux users; those whose pockets are deep enough to make them worth suing are certainly Microsoft customers too. A patent suit against another Linux distributor would leave Novell in a seriously uncomfortable position, and likely shatter this new partnership. The threat is there, certainly, just like it was before.

To your editor's eye, the deal looks like the following. Novell, despite trying to do a lot of the right things, finds itself a distant second in the corporate Linux market. Red Hat has proved hard to beat, and the entry of Oracle into this market - supporting Red Hat's distribution - seems unlikely to help. In this context, the deal with Microsoft must look like it has some real advantages: it might help SUSE Linux to achieve the best interoperability with Microsoft products, bring in a few more sales, provide a new royalty revenue stream, and eliminate a source of FUD which might just, still, be bothering a few potential customers. All of these could help to solidify Novell's position in the market, for a while at least.

So, the claims that Novell has sold out Linux for its own advancement are probably overblown - assuming that OIN retains its power. Most of the community will probably be unaffected, and, if we're really lucky, we might get a bit of code out of the deal. What Novell has done to itself will take longer to work out. Walking into Microsoft's embrace has not always led to long-term joy for the companies involved. On the other hand, some sort of engagement between Microsoft and Linux must happen at some point; it is not as if Microsoft will simply vanish. Novell has taken that step; whether it turns out to be a good thing (for Novell, and for the community) is something we will have to see over time.