more thoughts on MS and Novell (with a dash of Oracle, Sun, and Ubuntu)

Havoc, slightly edited:

In proper open source, Novell (or anyone) is welcome to take my code and convince customers to buy support from them because they are a big company and I’m just some guy on the Internet. But Novell (or anyone) is not welcome to proprietarize my code. If I wanted them to take my code proprietary I’d choose a BSD license and not the GPL. I want them to compete with me on a level playing field by offering a better value.

In Novell’s world, if I write something and GPL it, Novell will try to convince customers to buy support from Novell instead of from me (the original author) because of some nebulous, unspecified, almost-certainly-bullshit “IP issues” hinted at by Microsoft and legitimized by Novell for the price of $348 million.

(emphasis mine)

Havoc buries this gem in the middle of his post, but he has nailed the core sentiment people have expressed- the sense that Novell is now competing on unfair terms; terms that amount to a tacit acceptance that “our” code is patent infringing (if opensuse isn’t infringing, why is Novell paying so much money?); terms which require other distributors to answer ‘when did you stop beating your wife?’‘when did you start infringing patents?’ if they want to get the same treatment. Is this a violation of our social contract? Who knows. It feels like one, though, and that is what matters when talking of trust and PR.

Are they actually license-violating? It isn’t really clear. Almost certainly it violates the spirit of GPL section 7, by creating the impression that Novell’s users are licensed and others are not. Given the complexity of the issue, though, and the inherently unsympathetic position a GPL enforcer would be cast in (effectively encouraging Novell to avoid patent laws) I’m skeptical that any judge would find that Novell has violated the GPL. Not to say it is impossible, and I’m sure very smart lawyers are looking hard at the problem, but the thing is vague enough, and the claims abstract enough, that it would probably be a crapshoot at best in court, depending on interpretations of Novell’s actions on one side and what is clearly a loophole in the GPL on the other side.

Some other notes:

  • It is instructive to compare and contrast the reaction to Oracle’s move- certainly a ripoff of RH’s hard work, but done within the context of our social contract, so people saw it as validation and fair competition. In contrast, Novell tried hard to present this as validation, but that message has been overwhelmed by the other questions raised.
  • Having done something very similar with OOo (arguably worse, given that it only covers the proprietary derivative and not the open source project), it takes incredible gall for Sun and Sun employees to criticize Novell on this issue. Pot, meet the kettle.
  • Red Hat has spoken clearly and forcefully on the patent issue, which is to their credit. If Ubuntu wants to be taken seriously as a competitor to Novell and Red Hat, they need to step up and also make their patent position clear- are they going to sidestep the issue, as they’ve done on driver freedom? Or are they going to stand with Red Hat, and perhaps start supporting OIN? Or some other path? Whatever you think of what Novell has done, they’ve clearly forced the patent issue front and center, and the Ubuntu community should demand clarity on the situation from Canonical.
  • It is clear that mature open source communities are going to have to come clearly to grips with patents, trademarks, and potentially other mechanisms of control in the near future. In the past, it has been enough to license our copyrights so as to prevent corporate defection, and hope that would be enough. If Novell’s actions force us to come completely to grips with the patent problem, and deal with it more explicitly in our licenses, they will have done us all a big favor.