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Editor's Note: The Persistence of Memory

Nov 03, 2006, 18:15 (34 Talkback[s])
(Other stories by Brian Proffitt)

By Brian Proffitt
Managing Editor

I was wondering last week why Novell had been so quiet regarding Oracle's sucker punch on Red Hat. Now we know, they were preparing a sucker punch of their own.

Regardless, I now have definitive proof that human memory actually fades in one week. Seven days... that's all it takes for people to forget. Not just little things like what was I supposed to buy at the grocery store today... I mean important things, like lessons that should smack you upside the head and sink in.

The proof came last night at 5:24 p.m., EST, when the press conference announcing Microsoft and Novell's new partnership began, broadcast live over the Internet as a webcast. And as I sat there, watching the scene fade up with a row of Microsoft, Novell, and customer executives all lined up on stage, only one thing ran through my head: is that what it looked like back in 1999, when Oracle and Red Hat first announced the first of their strategic partnerships, in which Oracle 8i would be certified to run on Red Hat Linux?

Perhaps it wasn't such a big hooplah. There were no webcasts or customers trotted out before the press. But I do remember attending several Linux events as both a reporter and a show organizer and seeing first hand the level of cooperation between Red Hat and Oracle. The endless briefings from Oracle highlighting how important Red Hat was to their business strategy.

On October 26, a mere week before yesterday's announcement, we all saw how well that partnership turned out. Apparently, Novell has forgotten the lessons learned when a small, growing company allies itself with a larger industry force.

How, in the name of common sense, does Novell expect to survive such a partnership with Microsoft?

Forget, for a moment, that this is Microsoft that we are talking about. This is about subjugating control of one company to another, all for the sake of short-term gains against a bigger competitor. After listening to the press conference, it is clear to me that is exactly what has happened.

The premise behind this partnership is to allow Microsoft and Novell to jointly handle customers with mixed, heterogeneous environments. Of which there are, no doubt, many in the real-world IT arena. For the customers, I honestly believe that this deal is going to benefit them greatly. I know many IT shops with mixed environments that are going to look at this and jump for joy. And if it were just the technical aspect of this deal we were talking about, I would be lining right up with all the cheerleaders and saying congratulations, Linux has finally recognized as a real contender.

But it's not just the technology interoperability we're talking about, is it? No, because in order to work on the technology side of things, Microsoft had to get its comfort level settled around the licensing and intellectual property (IP) issues. And that, according to CEO Steve Ballmer, was the thing that took the longest to hash out when Novell and his company started talking in April, 2006.

And in their efforts to form a legal framework that would make Redmond feel all nice and cozy, Novell may have inadvertently set themselves up for a huge GPL violation. The problem stems from the disparate "values" each of the companies have placed on the worth of their individual patent portfolios.

Here's the passage from the press release that outlines their "solution":

"Under the patent cooperation agreement, both companies will make upfront payments in exchange for a release from any potential liability for use of each other's patented intellectual property, with a net balancing payment from Microsoft to Novell reflecting the larger applicable volume of Microsoft's product shipments. Novell will also make running royalty payments based on a percentage of its revenues from open source products."

When I first heard the term "running royalty" coming out of Microsoft General Counsel Brad Smith's mouth during the press conference, several expletives ran through my own brain, which all boiled down to "they can't do that, can they?" It turns out that such an arrangement may indeed be in violation of Section 7 of the GPL. That that is indeed the case, that's a huge mistake on the part of Novell's legal team, and perhaps a result of the the fact that when all is said and done, Novell is not really a Linux company.

Sure, they have a Linux distribution, but they bought that, didn't they? They didn't build a Linux distro from scratch... just picked one up on the open market, and then (unfortunately) turned around and alienated many of the people who could have helped them out with the legal nuances of the GPL. Those people have left the company in a huff, and left Novell trying to figure out that to do with this German Linux company they acquired.

Maybe there's something I am missing, and this isn't a potential GPL violation. After all, I am not a lawyer--or a paralegal, for that matter. But there is one aspect of this IP protection plan that I don't get from a business and development sense.

According to the arrangement, Microsoft hereby promises not to assert its patents against any non-commercial open source developers. So, all you hobbyists out there can breathe a sigh of relief. Where it gets murky is the part where Microsoft further asserts that "every customer purchasing a [Novell] subscription will get a patent covenant from Microsoft," according to Smith. "Novell is the only company with a patent covenant for their customers."

Which means, if I heard right, that because of this pledge, any one who writes code for Novell (such as openSUSE) will also be protected from patent assertion.

So, here's my question. If I write something for, say, Mandriva Linux and license it under the GPL, then if Novell chooses not to include my app in their distribution, then it's potentially a patent violation? But if Novell picks it up, then it's protected? How lovely. Or worse, what if Novell decides to drop something from their distribution? Do I, as the project leader for that dropped application, suddenly have to worry if I've accidentally tread upon one of Redmond's patents?

Novell and Microsoft have both made the pitch that the IP agreements are so customers won't have to worry about legal issues, if they choose the "right" Linux. I am wondering if the implication also extends to the development side of the equation. If Microsoft decided to ever make good on its threats on IP enforcement, then wouldn't I, as a hypothetical developer, have a vested interest in making sure my project meets Novell's expectations? It's now implied that I should either code for Novell or go non-commercial in order to avoid a patent suit from Microsoft.

At first, I thought the actual Linux kernel would at least be safe from any legal threats from Microsoft. It's the core of all Linux distros, after all. You can't sue Canonical, for anything in the kernel, since Novell is using it, too. But some distros have their own flavors of Linux, with special modules tied into their own kernels. Novell likely doesn't have the same kernel components as Red Hat, does it?

The one bright thing here is that I don't seriously think Microsoft would launch a barrage of patent litigation. While Microsoft may have just co-opted Novell's patent portfolio, there's still IBM and other ISVs out there that might launch their own litigious responses.

Even if none of these doomsday scenarios ever happens, it cannot be denied by anyone that Microsoft has just gained no small measure of direct influence over the direction of Linux business and development.

If only memory lasted.