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By Brian Proffitt Today's revelation that Microsoft, despite what Novell was telling us, really does think that Linux and open source software infringes upon Microsoft's intellectual property is about as surprising as the news that if you toss a human being into the middle of the ocean, he has just unfortunately become part of the food chain. In such an environment, without protection and without help, he's going to get eaten in a relatively short time. I hope Novell enjoys their swim, because it is increasingly apparent that they won't be swimming much longer, having been tossed off the Good Ship Microsoft. Or was that walked off the plank? Oh, the metaphors... they spin in my head. Whatever euphemism you prefer, it is clear to most people in the open source community that, having watched proxy agent SCO bumble their way through its own intellectual property (IP) fight with IBM, Red Hat, and Novell, Microsoft has now put Novell in the part of a bewildered Michael Myers to Microsoft's Kayne West as Redmond goes way off Novell's scripted FAQ: "Patent concerns did not drive our entry into this agreement. Novell makes no admission that its Linux and open source offerings infringe on any other parties' patents." Right. Pull the other one. I'm not going to launch into a torrent of invective on Novell. But I do feel obligated to extend an apology to Sun Microsystems. Last week, I speculated that they might be the ultimate winners in a Microsoft/Linux legal tussle because they (a) could and (b) didn't have anything significant licensed under the GPL. Now, a week later, I stand corrected. While I don't think for an instant that Sun would rather sell purple boxes with Solaris on them than Linux, it is more apparent that Sun's commitment to the cause of free software is more concrete than I thought. Mrs. Proffitt's boy knows when he's wrong. Along this same vein, doesn't anyone else find it interesting that it's Sun jumping up and defending Free Software rather than IBM, which I believe has a much bigger stake in Linux? Where is IBM, anyway? All we've heard out of them this week is a sour-grapes statement about the open source Java Harmony project when Sun announced the release of Java under the GPL. To be honest, it sounded kind of whiny. Where are the public calls of "BS" about the Microsoft patent implications? I have three theories. IBM no longer cares at all about the future of Linux (which seems very unlikely) or IBM has gone into pre-litigious silent running mode, like they did the instant SCO served them in 2003 (which seems a bit more likely). But neither of these is as dark as my third postulate: what if IBM wants to forego a patent war and enter into a patent agreement with Microsoft on its own? This makes some sense to me, especially when you consider the real target of Microsoft is not really Linux. Because of the GPL, you can never kill Linux, not even through litigation. Let's pretend that you are an injured party with actual IP infringement in the Linux kernel. Who are you going to sue? Linus Torvalds? Richard Stallman? The developer you think stole your code? Okay, go ahead, take them to court. Even if you win, what happens? You get some money for damages, and the infringed code is excised from Linux. But is Linux killed? No. It's not even very hurt. You cut the code and life (in the form of the kernel) goes on. Linux, on its most basic level, can one die by one cause: complete and utter apathy. Everyone knows this, including Microsoft. So what's the real target? Commercial Linux. By entering into patent agreements, Microsoft is basically declaring war on the one part of Linux it can affect: commercial Linux vendors. With Red Hat right at the top of the list. Why else did Steve Ballmer wait until Red Hat rejected its patent pledge offer to start talking IP smack about Linux? If Red Hat had taken the bait, I can guarantee we would not have heard those statements from Ballmer this week. They would have been inside Microsoft's sphere of control, just like Novell is now. Microsoft is trying to systematically dismantle commercial Linux by scaring away customers and developers. It's like orcas herding penguins onto the beach--drive them all to one place that seems safe and then roar in with mouth wide open. In this case, there are two "safe" beaches: one for the customers and one for the developers. The customers' beach is Novell itself. Microsoft says that if you'd really rather use Linux, then use Novell's SUSE Linux. It's supported, it will be more interoperable, and you will be safe from pesky lawsuits. The developers' beaches are the safe havens of non-commercial development or development for Novell's projects. Either way, it represents a place where you can work on open source code without worrying about legal action from Microsoft. But while the penguins are safe on the beach, they are effectively contained. They won't get eaten by the orcas, but neither will they be able to get into the water and food for themselves (otherwise known as more customers). As an orca, Novell is safe, too, at least while this partnership lasts. By that time, I am sure they hope they will be the biggest Linux vendor of them all, while Red Hat, Mandriva, Canonical, and all the other commercial vendors are weakened or perhaps even dead. Just so they remember that when the partnership is over, they too, become a penguin--one that is now out in the water amongst the orcas. So where does this leave IBM? Entering into a patent agreement with Microsoft casts them in the role of the orca. They avoid a patent war, and they can either partner with Novell for their Linux needs, or take the Oracle approach and support Linux on their own. And, since IBM has invested so heavily in Linux development (both monetarily and developmentally), the Linux community would have a much harder time extricating themselves from doing business with Big Blue than with Novell. Remember, like Sun, all IBM wants to do is sell boxes. They are big enough and well-versed in Linux enough now to deploy Linux on those boxes whether the commercial Linux vendors are around or not. A patent pledge agreement with Microsoft would allow IBM to keep this business going without any legal hassles from the one company on Earth able to hire more lawyers than them. More than anything, I hope Mrs. Proffitt's boy is wrong again. But the lack of a clear message of defiance from IBM has left me, and a lot of other people, wondering: will IBM be an orca or a penguin?  
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