Will Sun blow up the Microsoft/Novell deal to Red Hat's benefit?

This is a Part 2 that goes with this Part 1.While the buzz around the Web 2.
Written by David Berlind, Inactive

This is a Part 2 that goes with this Part 1.

While the buzz around the Web 2.0 conference seems to be getting a majority of the technology industry's attention this week, two other issues have been gurgling below the surface that probably deserve to be connected, but haven't yet. One of these is the Microsoft-Novell make-nice deal which we've devoted plenty of ink to here on ZDNet's blogs. Here, in no specific order has been our coverage so far:

We actually had other blog coverage, but it was speculation that the deal was in the works. 

Then, there's the second issue, one that has gotten far less attention. This one has to do with Sun's open sourcing of Java.

As you can see, even amongst our own here at ZDNet, while we know that Sun is going to open source Java, there's some debate over what license Sun will pick: the Free Software Foundation-endorsed GNU General Public License (GPL) or the Sun-authored Common Development and Distribution License (CDDL, pronounced "cuddle") -- the same license under which Sun open sourced its Solaris operating system.  

Prior to Microsoft's deal with Novell, there was really no urgency regarding which license Sun might pick to open source Java. Just the fact that it was finally going to open source Java was in center court. But the open source Java landscape took a dramatic shift the day Microsoft and Novell announced their deal. 

In the intellectual property business, decisions are sometimes based on what other prominent companies have done. If for example, Amazon ends up respecting IBM's patents as a result of IBM's patent infringement suit, you can rest assured that most of the industry will follow suit without too much of a legal challenge. As I wrote back then:

It stands to reason that if Amazon, with all of its resources, can't defend itself against one of IBM's patent infringement suits, then no one can. At that point, the investment (in order to get others to pay up) drops significantly to the cost of a PC, a word processor, and someone who knows how to run mail merge.

Drive enough fear into the industry, and it's relatively easy to start printing money. Microsoft's deal with Novell sent a message to the industry that Novell respects Microsoft's intellectual property. So much so that it's willing to pay at least $40 million to ensure that Microsoft doesn't  sue Suse customers for patent infringement and potentially more depending on the sales of Novell's products (aka: royalties). So, even though Novell, in its deal FAQ, comes right out and says it doesn't believe its technology infringes on Microsoft's patents, not only is Novell respecting Microsoft's IP, it's setting a baseline for what that respect is worth. It makes the FAQ seem ridiculous.

No doubt, the news shot through Red Hat's legal and accounting offices as it tried to size up the potential impact should Microsoft's general counsel Brad Smith show up at the Linux distributor's executive offices looking for hand-outs. All the legal ducks are in a row, on both sides of Red Hat's red carpet, for Smith to walk up to the company's front door. Or are they?

Enter Sun's open source Java decision. Novell's Mono project -- essentially a Linux-based clone of Microsoft's .Net -- was apparently a major focus of the deal. For several years now, dating back to the days before Ximian was under Novell's wing, the open source sector has been wondering if Microsoft was going to drop a shoe on Ximian-founder Miguel de Icaza's brainchild (Mono). .Net has always been a bet-the-company gamble for Microsoft. Today, the company is taking heat on every single front and it can't afford a complete cave-in on one of its most important properties. There's no way it could let a .Net clone get away with murder. Sooner or later, this was going to come to a head. Well, now it has. 

But the game is not over yet. That's because Microsoft may not be holding the cards that some think it's holding. At least not all of them. One need only look back at Sun's 2004 stand-still agreement with Microsoft to realize that when it comes to .Net-like virtual machine environements, the real IP holder is probably Sun. I'm not a lawyer. But I'm willing to be that there's hardly anything -- probably nothing -- in .Net for which prior art doesn't exist in Sun's Java or something that came before it. In fact, looking across Sun's entire portfolio of IP as well as the larger world of older intellectual property, it's quite possible that some of the other software that's often packaged with Linux that could potentially be infringing on Microsoft's IP (i.e. OpenOffice, SAMBA, and Evolution) is actually doing nothing of the sort.

But for now, let's  assume Mono is the biggie. Again, Novell claims Mono doesn't infringe and its deal FAQ even says "This agreement does not impact the rights and abilities of other distributions to bundle and ship Mono."  But, in order to really take Novell's word for it, Novell would have to guarantee it. Is Novell willing to indemnify the distributors and users of those other distributions? No. Actually, Novell's statement is 100 percent correct. Whatever rights distributors had before (possibly none if Microsoft has a patent), the Novell-Microsoft deal doesn't change that one iota.  They still have no rights and may, until now, have been distributing Microsoft's IP, free of charge.

But let's suppose Sun is the actual IP holder.  And let's look at the options that Sun is currently facing when it comes to open sourcing Java. If it open sources Java the same way it open sourced Solaris -- under the CDDL -- then open source developers are much freer to do the open source thang with Java. But, because it's under the CDDL -- an Open Source Initiative-approved license -- there still a bit of a legal sandbox that keeps open source Java from being intermingled with Linux. That's because Linux is distributed under the GPL. The GPL and the CDDL are not compatible with each other. In fact, Sun's choice of the CDDL is what allowed the company to open source Solaris whilst preventing the IP in it from "leaking" into Linux which in turn could have marginalized Sun in its attempt to prove that Solaris is a better open source *ix than Linux. Had it GPL'd Solaris, then the Linux community also operating under the GPL could have gutted Solaris for everything Linux didn't have, thereby closing whatever gaps may have existed between the two. 

So, the CDDL is a way for Sun to open source it's technology without completely turning it over  to competitors. But now that Java is finally on the open source docket for real, one can't help but wonder what happens if Sun releases Java under the GPL (perhaps with some patent non-assertion covenants of its own). Then, quite frankly, all hell breaks loose and I'm not entirely certain how the dust would settle. 

For one, Sun might not be Red Hat's white knight -- but it sure would have just cast a life presever in North Carolina's direction. In fact, I wouldn't be at all surprised if executives from the two companies haven't exchanged notes at this point. Putting Java in the GPL clear would be like tearing a piece off the bottom off the .Net boat. To that extent, not only might the move legally neutralize a key part of the Microsoft-Novell deal, it could technically marginalize .Net's competitiveness. Why? Well, picture the boat. Sun just swam by and chewed a big hole in its bottom. The boat is in bad shape and the crew starts bailing out the water. But, things go from bad to much worse when a school of angry whales, the biggest of which has the letters I-B-M emblazoned on its side, flies out of the water and lands in the boat. Sun may not think of IBM and other Java licensees as the cavalry. But IBM has been laying in waiting for Java to be open sourced the way a starving Burmese python lays in waiting for a rodent to prance by. Here's a story that I wrote in 2002 about those very wishes. A GPL'd Java would be one of Big Blue's moments of glory. 

The bigger question for Sun is whether or not it's ready for such a bold opening of its software portfolio. For such a move to make sense, it would have to be completely confident that its hardware and services offerings are potent enough to comfortably put the company in the black and keep it there. It's a model that has worked pretty well for two of its biggest competitors: IBM and HP. Maybe it will work for Sun.

Disclosure: In the spirit of media transparency, I want to disclose that in addition to my day job at ZDNet, I’m also a co-organizer of Mashup Camp, Mashup University, and Startup Camp. Microsoft and Sun, both of which are mentioned in this story, were sponsors of one or more of those events. For more information on my involvement with these and other events, see the special disclosure page that I’ve prepared and published here on ZDNet.

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