Novell, buyer's remorse, and the patent threat

For an example, consider this widely-distributed bit of fun:

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:

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 a mistake.

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:

This ground-breaking, innovative work was patented in 2004; presumably, nobody ever thought of such a technique before 1999, when the patent was originally filed.

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 position.