Stop bashing the Novell / Microsoft agreement

Fans of the GPL are still acting like Microsoft ran over the family pet in its recent agreement with Novell. This example from Groklaw, to which Miguel de Icaza responded, is a good example.

Fans of the GPL are still acting like Microsoft ran over the family pet in its recent agreement with Novell. This example from Groklaw, to which Miguel de Icaza responded, is a good example. In it, the author explains the effects, as he or she sees it, of the agreement:

1. Novell agrees to violate the clear intent and spirit of the GPL in an attempt to comply literally with the words but not with the actual known purpose of the license to make money off of code Novell didn't write and doesn't own. So instead of trying to prove the GPL isn't binding, they just kick it to the curb and step over it and dare the community to do something about it?

2. puts a FUD legal cloud over Linux (this time a patent cloud) or in any case an "IP" cloud, as per Steve Ballmer's vague wording -- and was Darl McBride's less vague?;

3. makes Novell's Linux cost more, because it has agreed to pay Microsoft royalties, whereas SCO asked for money for its license;

This bit was particularly juicy:

And until Novell fixes that agreement or pulls out, it will never be accepted by the FOSS community again, in my view. I certainly think I have enough input to form an educated opinion. So I hope they come to their senses. If not, GPLv3 will deal with it. But if it goes that far, then Novell's reputation will never be made whole. For that, it must act.

The original motivation for the Groklaw post was Novell's decision to ship a version of OpenOffice that includes support for Microsoft's new Office XML document format (recently ratified by the ECMA), which is, apparently, like Barnes & Noble printing a version of the Christian Bible containing the complete lyrics of all the songs ever sung by Ozzy Osbourne. Mr. de Icaza's responded to this supposed "problem" (or to be more specific, the contention that the inclusion somehow forks OpenOffice).

The Open Office dust-up aside (and do read de Icaza's response, as it makes a lot more sense than the one over at Groklaw), I still am annoyed at all the politically-directed venom spewed by FSF fans over the Novell / Microsoft agreement.

Yes, Steve Ballmer is on record as saying Linux probably infringes a few Microsoft patents. That's a bad thing™, because according to some, Microsoft is just itching to start firing patent-based legal bombs at Linux (for reasons why that is preposterous, check these thoughts on the subject). But, let's face it: Microsoft probably DOES own a few patents that intersect with technology found in Linux.

What are the odds that a company that spends billions of dollars writing an operating system used by most computer users in the world does NOT own patents that are relevant to Linux? Remember that study back in 2004 that claimed to find 283 potential patent risks in the Linux kernel? That list was hardly definitive, as who knows how a judge will choose to interpret the text of a patent, and besides, that's just the kernel. Add on the entire stack of software that makes up a typical Linux distribution, and you get potential risk galore.

The reason why this is the case shouldn't surprise anyone with even a passing familiarity with software patents and their abuses. Given the tangle of legalese designed to confuse examiners into thinking something really innovative is happening in a patent filing plus the sheer number of software patents curently floating around, the odds are high that MOST software potentially trips over a patent somewhere...Microsoft products included. I doubt Microsoft could have predicted the risk posed by the EOLAS patent, a patent that governed the ability to automatically use binary extensions in a web page. That's a patent which seems to me so staggeringly obvious that I fail to see why anyone would conclude that patents of that sort are useful, much less protectable innovations.

The question really isn't whether or not Linux infringes on some patents. It does, most likely, and Microsoft isn't the only "aggrieved" party (do note that I take a rather dim view of software patents myself). Rather, the question becomes "what is Linux going to do about it?"

Some think the best way to defend against patents is to create a bunch of traps within the license that will explode under anyone who attempts to leverage a patent against Linux. That may be effective against people who USE Linux, or companies that make money from services associated with it, but it wouldn't have amounted to a hill of beans should EOLAS have chosen to go after, say, Mozilla (which isn't GPL), instead of the dominant browser, Internet Exporer, because EOLAS didn't MAKE any software. A bunch of lawyers can't use Linux anymore due to the restrictions of the GPLv3?!? Big deal, as dollars to donuts, they didn't use Linux in the first place.

Some have suggested that the right thing to do would be for Microsoft to create a blanket "promise not to sue" vis a vis open source technology, much as IBM has done with a slate of patents it owns. To be sure, the community that develops and maintains Linux is not a patent threat. They don't own patents, and to their credit, take a strong line against the hindrances that software patents can pose to the software development process.

The threat, however, is not from the Linux development community, but the companies that either distribute the products that the development community produces or else makes money from services related to the same. Those companies include Novell, RedHat, and, of course, IBM...owner of more software patents than any other company in existence.

In other words, Microsoft merely gains more risk by issuing a blanket patent moratorium for Linux. As a fierce competitor to many companies that stand to benefit from Linux' success, they can be expected to be a target.

In exchange for laying down its patent nukes with respect to Linux, Microsoft would actually increase its patent risk given that companies with a stake in Linux may feel free to wage patent war in other areas of their business given that the risk to the Linux-based portion is removed. The ability to countersue is essential to a company's ability to defend itself against patent attacks.

If that approach bothers you, consider that it's par for the course in the world of patents. Nobody complained when IBM defended itself against SCO by countersuing based on what is, essentially, a patent on application menus (among other patents that under normal circumstances would make Richard Stallman's beard fall out). Patents are used most often, at least between software companies, in a defensive capacity.

Companies oriented around open source technology may be more politically correct, but they are still companies. Microsoft has extensive experience with close "friends" (read: people with a close business relationship with Microsoft) who turn around and sue Microsoft as a result of recent acquisitions that dumped patents into their lap. Private companies are profit-seekers, and often have fiduciary responsibilities to pursue all avenues of profit (patents included) even if that kind of activity isn't the sort of thing you'd do in social settings.

Going after the large piggybank that is Microsoft is simply too large a temptation for most companies to resist.

The only way out of this Catch-22 is for Microsoft to sign a mutual patent moratorium with owners of patented IP. Microsoft CAN'T do that with the open source community, as they aren't an organization with which Microsoft can negotiate a patent agreement. They CAN, however, do that with individual companies that distribute open source software, and own patents relevant to Microsoft.

Thus explains the reason Microsoft chose to sign an agreement with Novell. Microsoft entered into an agreement with Novell that ensured that both companies laid down their arms simultaneously. Microsoft could do the same with more companies, and has indicated an interest in doing so.

Why is that a bad approach in a world where patents ARE a problem, and need to be resolved somehow? Sorry, getting rid of patents is not a solution for even the longer term, if ever.

If the Novell / Microsoft agreement isn't the right approach, what is?