Novell playing the patent game and shifting the burden of proof

Dan Winship (who needs to blog more often ;) asked in a comment on my last post:

[W]hy is the implying-that-Linux-infringes-patents thing even controversial? I thought everyone agreed that because of the way the USPTO hands out software patents like candy, that basically every program larger than “Hello World” infringes more patents than there are atoms in the observable universe.

This after I said:

[There is a] 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?)…

Dan’s question is a fair one, because I didn’t explain myself. I think what is at issue is not that Novell tacitly admitted it, but in particular the way Novell admitted it.

Past tacit admissions have always come with one of three disclaimers: (1) this admission demonstrates that the system is insane and should be reformed (e.g., the European anti-software patent movement) (2) this tacit admission comes in the context of a Mutually Assured Destruction pact (e.g., OIN) (3) the tacit admission comes in the context of a discussion of monopoly power in the software industry being compounded by a competitor’s refusal to license patents (e.g., Microsoft’s patents on Office Open XML.) In each case, the disclaimer made it clear that the patent (and not the patent infringer!) was the real source of the problem.

Novell’s admission came with none of those disclaimers, and as a result looks like a tacit acceptance not just of the patents, but of the patent system and the monopolistic patent owner. It can even be read to weaken all of these disclaimers when the rest of us use them: (1) the patent system must be sane, after all, it led to protection of all these nice volunteers, in a nice market-oriented way (2) we don’t have enough weapons for MAD (3) MS is now reasonable and the onus is on commercial GPL users to cooperate.

[This last one, IMHO, is the most damaging one; it will absolutely come out the next time MS has discussions with EU antitrust regulators, and frankly, with justification. Once you grant the legitimacy of the patent system (which antitrust regulators must do), explaining why GPL users shouldn’t negotiate with MS is suddenly damn hard to do if MS is publicly willing to negotiate, no matter how false that willingness is.]

Using these disclaimers, free software potential patent infringers were effectively on the offensive- those counter arguments put the burden of proof was on MS and other large patent holders to prove that the patent system was reasonable. This move has potentially shifted the burden of proof- the question now may well be ‘why isn’t RH signing the same deal? After all, Novell did’. I suspect that MS did this deliberately (given how quickly after the deal they started discussing using this against others) but of course have no proof, and have no idea if Novell thought this through or just got caught unaware.
It will be months or years before we know if all this has actual concrete impact, or if it is just a temporary distraction. But it is there, and I suspect that a lot of people understand this, which accounts for a lot of the anger, even if they can’t fully articulate what it was that Novell ‘sold out’.
[Tangentially, you can argue that the patent system is overall valuable and correct, or at most needs to be corrected, and that hence all of these things are (overall) not a bad thing. This is certainly the position of some of erstwhile free software allies, like IBM. But the Novell agreement is still potentially a bad thing for them, too; but that’s another blog post (quite possibly a blog essay ;) and hence it’ll have to wait for another day.]