[ossig] Bruce Perens on the (Un-?)holy matrimony of Novell and Microsoft

[Ditesh Kumar]

>From http://technocrat.net/d/2006/11/2/9945 :

Today Novell and Microsoft announced a partnership in which Microsoft
has made some unlikely-seeming promises regarding Linux. What aren't
they telling you? First, you can be sure that Microsoft's not out to
help a competitor. This announcement paves the way for Microsoft to
implement significant control over commercial customer's use of Free
Software. And it has significant negative implications for Open Source
in general.
  * There are two significant announcements. First, that Novell and
    Microsoft are entering into a patent cross-license, and second, that
    Microsoft is promising not to assert its patents against individual
    non-commercial developers. The bad part is that this sets Mirosoft
    up to assert its patents against all commercial Open Source users.
    There are also some little bonuses for Microsoft, like Novell will
    help Microsoft turn back the Open Document Format and substitute
    something Microsoft controls. 
 

When we say "commercial", it's interesting to note that there are really
few non-commercial users: people who only use their computer for a
hobby. Buying something on a web site, for example, is a commercial use.
Most individuals use their computers in some aspect of making their
livelyhood. There will now be a Microsoft-approved path for such people
to make use of Open Source, an expensive subscription to Novell SuSe
Linux that costs as much or more than Microsoft Windows and that comes
with a patent license.

So, the protection of non-commercial individual contributors means that
you can make Open Source, but if anyone actually uses it for something
other than a hobby or a non-profit organization, there is an implicit
threat that Microsoft can bring a software patent lawsuit against them -
unless they are a customer of Novell.

One of the questions yet to be settled is whether Novell will violate
the GPL, the license of the Linux kernel and other important software,
by offering patent protection that is exclusive to Novell customers. The
press release pretty much stated that. On that topic, the preamble of
the GPL says it best:

        We wish to avoid the danger that redistributors of a free
        program will individually obtain patent licenses, in effect
        making the program proprietary. To prevent this, we have made it
        clear that any patent must be licensed for everyone's free use
        or not licensed at all.
Novell has clearly accepted that license. But it appears that they are
now out to make patent protection a business differentiator. 

Even if everyone were to be protected regarding software that Novell
distributes, there's the tremendous collection of Free Software that
they don't distribute. A logical next move for Microsoft could be to
crack down on "unlicensed Linux", and "unlicensed Free Software", now
that it can tell the courts that there is a Microsoft-licensed path. Or
they can just passively let that threat stay there as a deterrent to
anyone who would use Open Source without going through the
Microsoft-approved Novell path.

With this agreement, Microsoft also secures Novell's assistance in
pushing a pro-Software-patenting agenda in Europe and elsewhere. On a
panel that I led at the AlwaysOn conference this summer, Novell's
president made clear their support for software patenting - a policy
that works to the detriment of any Open Source developer who wants to
have users without Novell's blessing. You can be sure they'll be at
Microsoft's elbow now in meeting with legislators and asking for
increases in patent protection.

The timing of this agreement is significant. Microsoft and Novell are
said to have been working on this agreement for some time, and sped up
its announcement to take attention away from Oracle's recent
announcement and to further depress Red Hat in the stock market. The
timing of the SCO case is also significant. Recent testimony in that
case revealed that Microsoft offered to "backstop" VC firm Baystar's
investment in SCO, essentially asking Baystar to be a front through
which Microsoft funded SCO's attempt to... charge a royalty to users of
Linux. SCO's case is foundering, so here's Microsoft's next scheme to
charge a royalty to users of Linux, and to make Novell into the next
SCO. Groklaw, a widely-respected journal of technology law, probably
said it best with their headline on this story: Novell Sells Out.

This entire agreement hinges around software patenting - monopolies on
ideas that are burying the software industry in litigation - rather than
innovation. If we've learned one thing from the rapid rise of Open
Source, it's that intellectual property protection - the thing that Open
Source dispenses with - actually impedes innovation. And the
Novell-Microsoft agremeent stands as an additional impediment.

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