Painting over the patent earthquake

The Microsoft-Novell deal is already looking shaky. Given the forces at work beneath, that's not surprising
Written by Leader , Contributor

The paint is barely dry on the Microsoft-Novell intellectual property deal, and already cracks are showing through the décor. Subsidence is always a worry for home owners. In this case it's much more serious. The MS-Novell deal has been built on a fault line, one under strain from three tectonic plates.

The first plate is technology. It has long been apparent to kernel-level programmers that Windows and Linux are converging at the lowest level. Both do the same job in much the same way on the same machinery. As Microsoft kernel guru Marc Russinovich said two years ago, "The two operating systems are very similar from a kernel perspective, because as engineers work on problems they look around to see what's working elsewhere. So you end up with a lot of similarities".

The second plate is legal. Software patents remain the smouldering volcano at the heart of the industry. Many thousands exist, largely untested in court, that purport to cover basic software techniques. Companies with major open source strategies such as Red Hat, IBM, Sun and Novell itself have committed not to use their relevant patents except defensively. They've agreed indemnities for their users and complied with the GPL rules that no such restrictions be placed on user distribution and modification rights.

The third plate is timing. Microsoft is on the verge of launching Vista, and must swiftly move the industry over. Yet open source is far stronger now than it was when Windows 9X and 2K moved aside for XP and 2K3, and the benefits of Vista far less clearly defined.

The pressure point where the first two meet comes from the observation that if, as Ballmer claims, Linux contains Microsoft IP, then Vista contains open source IP. The two kernels have grown together; both sides control software patents. It is much easier for MS to claim on Linux — after all, Linux is open to inspection — but no operating system is closed to expert analysis.

If that is so, then the third plate — Vista's timing — adds almost intolerable extra pressure to an already volatile situation. Microsoft cannot afford to see a legal challenge to Vista creating yet another barrier to adoption. But if it does take action against GPL (General Public License) code, a counterclaim is inevitable.

When two major blocs find themselves facing a patent war, they normally form a cross-licensing pact to exclude others and strengthen themselves. This may well be what Microsoft thinks it has with the Novell deal; without specifics, it's hard to tell. But it looks rushed, built on deadline rather than solid legal foundations. It does not match reality.

The reality is: open-source code under the GPL cannot be made part of such a deal. That is the chasm which is opening up, one which cannot be painted over. It may be West Coast hubris to build with imagined impunity in earthquake zones, but nature always enforces the ultimate rule. Adapt to reality, or die in the fire.


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