Mark Driver

Its been two years since Novell and Microsoft cuddled up with one another.

The agreement covers a range of technical initiatives such as increased interop between Windows and SUSE Linux for virtualization, server manageability, and even document compatibility.  On this anniversary they’ve announced additional server management technologies and an official beta release of Mono’s Moonlight (the Linux Silverlight client).  Good stuff all around.

But depending on which side of the hype you fall on, the agreement has either been landmark alliance that has made Windows and Linux work better together for the benefit of most everyone in IT.   Or it has been  a marriage made in hades wherein Novell sold their soul to the “empire” for shiny babbles and a spiked collar.

Much of outrage from the OSS community has been centered not on the technical partnership (that stuff is generally good for everyone) but rather on the software patent deal struck between the two companies as part of the overall agreement.  After two years that firestorm has not abated.

The short story is that as part of this deal Microsoft has agreed not to sue Novel SUSE customers for potential Microsoft software patents that Linux *might* infringe upon.

The problem is…

It only applies to Novell customers.  To the community Linux is Linux. By holding out one distribution for special privilege it creates an unlevel playing field and in the community’s eyes damages the ‘unified’ front presented by Linux.  In other words, if I’m an IT shop that wants to deploy Linux and I choose Novell over Redhat for this reason then Novell has created an unfair advantage.

Secondly and most importantly, Microsoft didn’t actually say which of its patents are violated by Linux. This of course sparked outrage among the community who’ve cried “tell us about your *expletive* patents and we’ll fix them!” It was later leaked that Microsoft believes various open source projects (a list that includes Linux of course) violate over 200 of its patents.

But of course it doesn’t work that way.  Microsoft doesn’t want the Linux community as a whole to know the details of these patents for one simple answer.. it doesn’t want the Linux community to fix the infringements.  Where’s the $$$ in that?

On an aside keep in mind that many patents cannot be fixed by coding around them.  Unlike copyright infringement many patents infringements can only be remedied by removing the feature altogether. So fixing patents through code is wishful thinking.

Instead of disclosing these details to the whole world, Microsoft wants to talk about the patent details behind closed doors with lawyers from Linux vendors under strict NDAs.  The simple strategy is to show the other guy your patents, convince them that they are valid, and strike a deal that makes it cheaper to license them rather than face the cost of potential court expenses.

So when Novell agrees to a patent deal you can bet they’ve looked long and hard at Microsoft’s secret box of patent goodies and decided its in their best interest to write a check.

But this is way the patent game works.  All vendors do this.

We can argue whether software patents are good or bad but all major software vendors leverage them.  IBM alone makes over $1 billion a years in patent licenses alone.  Its big business.  There’s been some recent court activity that seems to show some reform in this area.  I would personally love to see software patents stricken from the industry but until that happens vendors are going to leverage them for fun and prizes.

The mistake that Microsoft made here was underestimating the tight relationship between the open source Linux “community” and commercial Linux vendors .

Microsoft’s whole point is that if you are a vendor making money with technology that violates one of their patents then you should pay them.  That’s the same message you’d get from IBM, SAP, Oracle, or hundreds of other IT vendors.

To Microsoft, the fact that Novell is selling an “open source” product is meaningless.  But to the community Novell is just another member of the Linux family.  When they break rank make a deal like this, in the mind of the community it weakens the Linux value proposition as a whole.  They don’t like that.  It makes Linux seem legally risky. They don’t like that either. And last but not least they just don’t like software patents.  I don’t blame them.

The mistake the Linux community makes here is not accepting that there are a set of rules that apply to the members of the commercial software industry — these rules good or bad include patents.  If a vendors is selling an open source product they don’t get a free pass because its “open source”.

In other words when the goals of commerce and open source collide the guy with shareholders is going to pay more attention to the commerce side of the argument.  If its cheaper to sign a patent deal than to go to court then the lawyers are going to exactly that.

Keep in mind that Microsoft hasn’t actually sued anyone over Linux patent infringement. And I don’t think they every will.  IMHO its an empty threat.

In this case, my guess is that Novell *really* wanted the tech interop relationship and comarketing and the patent issue was a deal breaker for Microsoft.  On the other hand, in two years we haven’t seen a lawsuit against Redhat and we never will.

In the end we need to see some explicit policy from Microsoft similiar to what they’ve done with their open specification promise.  They need to create a specific patent covenent with the Linux community that says individuals or companies wont get sued for using Linux EVER.  On the other hand, commercial vendors selling or embedding Linux in their own products are fair game.