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.

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

  1. You write: “if opensuse isn’t infringing, why is Novell paying so much money?”. It would be better to write “if openSUSE isn’t infringing, why is Novell entering in such a deal?”.

    People are only paying attention to the net cash flow, which is Microsoft paying 285M to Novell and not the other way round.

  2. Let’s compare this to a wicked non-organic farmer who uses GM cattle kept in isolation and pumped full of antibiotics. He’s worried that the organic farmer’s are getting popular so he resorts to a bit of extortion and says to all the other farmers “I know and you know that all your fields have become contaminated with my GM grass seed, so unless you pay me a lot of money I’ll let your customers know they’d probably be better off getting their beef from a legit source – if you know what I mean”

    The extortionist GM farmer relies upon the preference of organic farmers to keep quiet, so he can pick them each off one by one.

    I think the only solution is for all GPL publishers to declare a catalogue of all the patents that their software infringes.

    The extortion strategy is relying upon the sustained political delusion that only one or two peices of GPL software infringe one or two patents, and that naturally, these should require licenses from the patent holders.

    I look forward to declarations such as “This software as at v4.7 on 5/3/07 infringes 293 patents, with an estimated per CPU license cost of $1,800,000pa”. Just think of all that money the US economy is losing through IP theft…

  3. Thanks Luis,

    for continuing your analysis of the deal, it is very much appreciated and makes an interesting read, also for us simple FOSS users. I’m curious about Canonicals position as well.

    #2: interesting thought

  4. Luis, since you’re a law student – just out of curiosity, do avenues exist in the US legal system for compelling Novell or Microsoft to disclose the terms of the deal?

    The scenario I’m imagining is someone (say the FSF) suing Novell for GPL non-compliance and in the process forcing the details of the deal to become public.

  5. Depends; you can always use disclosure to go after relevant documents in a case, but it is hard to see what such a case would be based on right now. You can’t just ask the courts to compel documents which might then prove you’ve got a case. Hypothetically, for example, if MS sues RH over a specific piece of code that RH has copyright to and Novell ships, but doesn’t sue Novell, RH could then follow up with a lawsuit against Novell alleging a GPL violation, and then get the exact text. But until MS sues RH (or the FSF, or some other copyright holder) it is hard to see how the case starts, and even then, as I said, it is hard to see the copyright holder winning.

    (To put it another way: this question highlights the fact that much of such a case would depend on trying to measure Novell and MS’s intent, and any time you try to do that, you’re in deep trouble. The law isn’t very good at coping with measuring intent, though it does have mechanisms for it.)

  6. OK, why 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. Am I confused?

  7. danw, the legislature and judiciary are blind, and the senate is in the hands of the lobbyists representing clients with vast patent portfolios – who remember, like patents, because they keep pesky entrepreneurs at bay.

    Only software engineers and those in this industry know the great farce that is software patenting, and that obviously includes MS and its ilk and all in bed with GNU/Linux – and all the businesses that are their customers.

    If you can’t choose between Suse and RH, but MS has offered an implicit amnesty to Suse, then the cloud of doom, the implicit threat that existed to all has now cleared to blue sky above Suse. It might make it seem like RH has suddenly got darker…

    Of course, what has actually happened is simply that MS has realised that GPLv3 is approaching and it has to move fast to capture at least one GPLv2-only distro before it’s too late. I suspect it realises that this will immediately put the pressure on for Linux and distros to quickly migrate to GPLv3 (ditching any Novell code of course).

    GPLv3 migration isn’t much of a defense after the horse has bolted though.

    The only remaining strategy is to call the bluff. Declare every possible patent that every piece of source code violates. Either patents are upheld and the entire Internet infrastructure is switched off or patents are abolished.

    I say we take off and nuke the entire site from orbit. It’s the only way to be sure.

  8. Crosbie: in a nutshell, I think that approach is madness; I’m afraid I don’t have much time to explain why.

    Dan: The answer to that is probably another long post; one I was trying to incorporate into this post (whose original title was ‘defection’) but had to nuke for lack of time. I’ll try to answer tomorrow morning, I promise.

  9. Luis: My prognosis is that all distros rush to find godfathers who say “Don’t worry lad, as long as you do what I say, I’ll promise your maintained customers I won’t sue them for patent violation, and that if anyone else sues them I’ll sue the other guy’s customers”. This is making GPL s/w companies proprietary by the back door. Every customer of any size has to pay their dues to the respective godfather.

    Tons of money will change hands and patents will be lauded as economic miracles.

    And this relies upon everyone pretending that no patents are actually being violated.

    So, what would happen if someone created a combination between Google Maps and Google Code Search, that enabled the public to collaboratively itemise each and every single instance of a patent violation within all published source code?

    All the godfathers would say they were tacitly licensed uses, and only proto-violations.

    Everyone outside the protection of a godfather would enjoy a sword of Damocles (unless they paid for some ‘insurance’).

    If that situation persisted for very long you’d polarise developers and users into ‘unprotected’ nebulous/anonymous entities on one hand, and ‘protected’ discrete/concrete entities on the other. And proprietary corporations thus reclaim their cash cows.

    Alternatively, a lot of companies migrate to the UK – until it adopts software patents…

  10. Luis, do you think enough people understand what the OIN is/does? It doesn’t seem to come up much and in the flurry of Novell-MSFT posts, I think you’re the first person to mention it. The reality is what user would even need Microsoft’s covenant not to sue? The OIN promises mutually assured destruction if that ever did happen.

    Further, I don’t see many people approaching this realistically. Microsoft has been given undue ability to shift the focus of patents and open source to ‘users that may get sued’ – sure SCO did it, and we know who was funding that now.

    Think of this. You go to a Ford dealership and buy a Taurus. Now that car is popular in the States – millions sold probably. That car probably has 2,000+ parts all of which are likely covered by one or multiple patents.

    Let’s say MSFT owns a patent on software that affects the Anti-Lock Breaking System (ABS). Would MSFT sue the car buyers? Would car buyers be expected to check every part and patents that may be covering them? That’s insane?

    So why do we let the FUD/thought of being sued by MSFT apply to Linux USERS? If Microsoft has a problem with SUSE or RHEL, Microsoft will sue Red Hat or Novell – not the users. And they left that option open in this agreement.

    So why again does this help or change anything?

  11. […] 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. […]

  12. Luis, do you think enough people understand what the OIN is/does?
    Mike: not at all. OIN is practically anonymous, and if they want to be effective, they shouldn’t be. They’re in a hard place, though- the MAD discussion is not a great one to be having publicly.

    Anonymous Monkey: I’m not sure you did, except perhaps in PR. If as PZB notes in another post, Novell still honestly believes in OIN and MAD, Novell could have coupled this with donations of more patents and money to OIN. They could have attempted to spin this as crying uncle to a patent blackmailer or a monopolist. It still isn’t too late for them to do either of those, really, and it would probably (in my mind) get rid of most of the damage. But yeah, letting Microsoft spin this as ‘normalizing’ their relationship with Linux smells like co-option bought with hush money, and not understandable capitulation to a patent-wielding monopolist.

  13. Lloyd: I meant their patent pledge, not their indemnification (which doesn’t affect most of us, as we’re not customers, just developers.)

  14. […] Via Luis, here’s a good analysis of the ominous aspect of the Microsoft-Novell deal: This is not a religious argument about open source, it’s a matter of respect for a community that works together, and the wishes of creators. If I write something and put it under the GPL, then I want it under the GPL where all of us working on it can use it. I don’t want it to be made proprietary, for someone else’s benefit, due to some shady deal and legal technicality. Commercial yes (and encouraged), proprietary no. […]

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