One cannot help but wonder if Novell's executives aren't having second
thoughts about that company's recent deal with Microsoft. Since the
announcement, there has been quite a bit of hostile commentary in the
community, and there are signs of increasing levels of unhappiness within
the ranks of Novell's free software developers. The increase in Novell's
stock price turned out to be short-lived. And Microsoft CEO Steve Ballmer
has used this deal as his excuse to embark on a FUD campaign which brings
back memories of Darl McBride's heyday.
For an example, consider this
widely-distributed bit of fun:
And we agreed on a, we call it an IP bridge, essentially an
arrangement under which they pay us some money for the right to
tell the customer that anybody who uses Suse Linux is appropriately
covered. There will be no patent issues. They've appropriately
compensated Microsoft for our intellectual property, which is
important to us. In a sense you could say anybody who has got Linux
in their data center today sort of has an undisclosed balance sheet
liability, because it's not just Microsoft patents. Because of the
way open-source works, there's nobody who's been able to do patent
coverage or patent indemnification behind that.
Mr. Ballmer is clearly claiming that Linux infringes upon Microsoft's
patents, and that Linux users owe money to Microsoft. Novell is fairly
clearly seen as having agreed with and validated that claim - otherwise,
what, exactly, is Novell paying for? In an attempt to change that
perception, Novell has sent out an
open letter to the community, saying:
Since our announcement, some parties have spoken about this patent
agreement in a damaging way, and with a perspective that we do not
share. We strongly challenge those statements here.
We disagree with the recent statements made by Microsoft on the
topic of Linux and patents. Importantly, our agreement with
Microsoft is in no way an acknowledgment that Linux infringes upon
any Microsoft intellectual property. When we entered the patent
cooperation agreement with Microsoft, Novell did not agree or admit
that Linux or any other Novell offering violates Microsoft
Microsoft has responded with a
letter of its own.
It seems that, perhaps, Novell got a slightly different deal than it was
expecting at the outset. Presumably Novell's management is smart enough to
understand that, if it throws away its community goodwill and runs into
problems with the GPL, Novell's Linux business will have a dark future.
Presumably, Novell's managers did not want to see their company be the
enabler for a new flood of anti-Linux FUD and attempts to divide the
community. Seemingly, however, those managers did not think through the
consequences of signing this non-license with Microsoft. Thus the open
letter and the IRC meeting about
the deal, scheduled for November 27.
Microsoft's claims have been met with a "show us the patents" response in
parts of the community. Novell's open letter, which refuses to acknowledge
the existence of patent issues, is a very similar sort of response. This
approach worked well in the SCO case, for a simple reason: there was no
substance to that company's wild claims. It is natural to think that the
same sort of challenge will work this time around, but that thinking may be
The SCO case was, at least in certain phases, based on copyright.
Avoidance of copyright problems is relatively easy for a free software
project; all that is required is to not accept code of uncertain origin.
Truly original work cannot have copyright issues.
Microsoft, however, is talking about patents. Anybody who thinks that
Microsoft holds no patents which can be applied to Linux has, perhaps,
failed to understand the scope of the software patent problem. There is no
clear way for a free software project to avoid software patent issues - at
least, in parts of the world where such patents are recognized.
An incredible number of patents have been issued covering trivial
techniques. One of your editor's favorites is #6,732,359,
the primary claim of which is:
A computer system having a memory, an operating system, a computer
application instantiated in a work space in the memory as managed
by the operating system, the application including a plurality of
application processes running in the work space, and an application
monitor monitoring whether each of the plurality of application
processes is in fact running and automatically attempting to remedy
an occurrence where any of the plurality of application processes
is not in fact running.
This ground-breaking, innovative work was patented in 2004; presumably,
nobody ever thought of such a technique before 1999, when the patent was
In the real world, anybody trying to enforce a patent like this would be
immediately buried in prior art. But there is little comfort to be found
there. Even a relatively large company like Novell can only afford to
defend so many patent suits, and there are a lot of patents like
this one out there. Even if Microsoft does not currently own any patents
which could be applied to Linux, there is no doubt that it could acquire
some without great difficulty. Unlike SCO's claims, the patent problem is
real, whether Novell publicly acknowledges it or not.
If Microsoft had wanted to mount a patent attack against Linux, it could
have easily done so by now. There's plenty of reasons which may explain
why this has not happened so far. The fact that software patents are not
recognized worldwide could well be part of the equation; that is why
continued resistance to their imposition in Europe is so important. An
attack against Linux certainly would not help Microsoft's position with
antitrust authorities. Chances are that almost any company which is buying
Linux support services is also a Microsoft customer, and Microsoft might
just be smart enough to want to avoid upsetting its own customers. A legal
campaign against Linux might well bring together a fearsome coalition of
large companies with an interest in defending Linux and blood in its eyes.
There is also the simple fact
that Microsoft has not, to date, acted much like a patent troll; it has,
instead, spent more time on the defendant's side of the courtroom.
None of this gives any sort of real assurance that Linux is safe from such
attacks by Microsoft, certainly. One should never underestimate corporate
unpredictability - or stupidity. But it does suggest that the risk of a
patent attack has not really changed as a result of Novell's arrangement.
That risk existed before, and it still does. And, as Mr. Ballmer pointed
out, it's not just Microsoft's patents. When the patent attack comes, it
will likely originate from a small litigation company which has no
customers to offend and no assets to countersue for. Novell (and its
customers) will be no safer than the rest of us when this attack happens.
So one might, indeed wonder what Novell thought it was buying. The answer,
perhaps, lies in the fact that the net cash flow is very much in Novell's
direction. Hundreds of millions of dollars can be hard to turn down. One
can hope that this money ends up benefiting both Novell and
the free software community that Novell depends on. At the moment,
however, it looks like Novell has put itself into a bit of an uncomfortable
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