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BrainShare: Mountains Out of Molehills?

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Thus far, I have not seen Novell spare a lot of expense on the glitz for this show. Massive catered meals, audio-visual extravaganzas, a concert by the Goo Goo Dolls. They certainly want to treat their customers and vendors right.

The proof is in the pudding, and the substance of the pudding was rolled out for the crowd of about 5,000 faithful on Monday morning, when the keynotes were presented in all their visio-technical glory.

Basically, the thrust of Novell's plan for the future is to focus on two areas: Linux in the enterprise and their enterprise management services. The first part is fairly straightforward: Novell wants Linux (theirs) in as many different machines as possible.

The second prong, highlighted by CEO Ron Hovsepian in his keynote, is where the whole interoperability plan with Microsoft falls. And while Hovsepian was pretty soft-spoken during his entire keynote, you could hear a little steel in his voice when he emphasized that the entire reason for the partnership with Microsoft was entirely done for the customers.

The fact that it also kicked open a lot of big-name customer doors? That was like friends with benefits.

Novell's executives are all pretty much staying on message about their business plan, and they made a modicum of product announcements to demonstrate their sincerity. But the press corp wanted to focus on the elephant in the room, Microsoft. It didn't help that several of the demos in the General Session emphasized interoperability with Microsoft products.

So when the Novell press conference went to Q&A, I thought I would approach the elephant, and asked Hovespian and CTO Jeff Jaffe what they thought about the impending GPL3 and the public comments from the Free Software Foundation about how the license would intentionally be crafted to put a stop to such patent agreements. Both execs gave the standard legally framed answer, which you would expect: the GPL3 isn't done yet, and they have no way of answering any questions about it, yet.

Fair enough. After I got that reply, I ran over across the street to the Shioh Inn, where Bruce Perens was holding a catered press conference intended to tear down the agreement between Microsoft and Novell and expose it for the protection racket that it was (his term, not mine).

Basically, Perens' problem with the arrangement is purely on the legal side. In fact, he said to the gathering, that if it were just a technical agreement, then he would be up on stage in the keynote with Jaffe and Microsoft Chief Research and Strategy Officer Craig Mundie touting the partnership too.

Perens painted a very scary picture of what he feels would likely happen if the Novell-Microsoft deal were allowed to continue with the present patent pledge agreement in place. It was a world in which anyone who did not use Novell's Linux would end up getting sued by Microsoft and other proprietary vendors. In essense, Novell is running a protection racket with "Big Mikey" running around making threats.

Perens is not alone in his views. Beyond the 3,000 petitioners that signed the statement disagreeing with the partnership, he also read a statement from someone who historically hasn't always seen eye-to-eye with Perens: Richard Stallman, Executive Director of the Free Software Foundation, and author of the GPL. Here's Richard's statement in full:

"Free software means software that respects users essential freedoms,

including the freedom to change the software so it does what you wish,

freedom to run it, and freedom to redistribute copies. The denial of

these freedoms is what makes proprietary software unethical. To make

these freedoms a reality, we set out 23 years ago to develop the GNU

operating system, which is the basis of all today's quote Linux

unquote distributions, including that of Novell.

"In 1983, a few free programs existed, and unscrupulous middleman

eagerly took them and made non-free modified versions. It was clear

that to deliver freedom to every user we would have to find a way to

defend the users' freedom. The method we developed is the GNU General

Public License. The purpose of the GNU GPL is to ensure that

redistributors of the program respect the freedom of those further

downstream. The GPL defends the freedom of all users by blocking the

known methods of making free software proprietary.

"Novell and Microsoft have tried a new method: using Microsoft's

patents to give an advantage to Novell customers only. If they get

away with scaring users into paying Novell, they will deny users

the most basic freedom, freedom zero: the freedom to run the program.

"Microsoft have been threatening free software with software patents

for many years, but without a partner in our community, the only thing

it could do was threaten to sue users and distributors. This had

enough drawbacks that Microsoft has not yet tried it. Attacking in

combination with a collaborator in our community was much more


"If nothing resists such deals, they will spread, and make a mockery of

the freedom of free software. So we have decided to update the GNU

General Public License not to allow such deals, for the future

software releases covered by GPL version 3. Anyone making a

discriminatory patent pledge in connection with distribution of

GPL-covered software will have to extend it to everyone.

"In the mean time, let's make it clear to Novell that its conduct is

not the conduct of a bona-fide member of the GNU/Linux community

So, clearly something will be in the GPL3 to combat deals like this when the license is finally released. No one really knows for sure what, including Perens. He speculated that it would likely be a clause that said if a company entered into some kind of patent agreement for a certain group of customers, that agreement would apply to all users of GPL3 software.

Perens sets up a gloomy world, but I had to ask the question: is there any clear evidence that Microsoft would actually try to sue individual developers, as he suggests? Perens thinks that litigation will be the primary weapon that Microsoft will use to stifle innovation from the open source community.

I had a briefing with Hovsepian himself later this afternoon, and had a chance to pose these concerns to Novell's CEO. While he still could not comment on the actual GPL3, since it isn't done yet, he did point out that Novell has set up a lot of protections for its developers already: from its own indemnification program to the Open Inventors Network.

And here's the thing that I found interesting: there is nothing in the current agreement between Novell and Microsoft that prevents them from suing each other for patent infringement.

Now, let's think about that for a minute. The current patent agreement only pledges that Microsoft will not sue Novell customers. No developers. Customers. Perens and the rest of the community are afraid for the developers, and are working to set up the GPL3 to, in Perens' own statements, protect developers.

So now I have to think that Perens is not wrong here; but he may be missing some salient facts. The fact is that if Microsoft wanted to sue any developer, Novell or otherwise, for patent infringement, they could do so right now. Today. If that's what they wanted. The agreement with Novell does nothing to prevent that. Which means, I fear, that any attempts to change the GPL3 to set up IP protections for developers, which seems to be Perens' main concern, would do absolutely no good at all.

You could also make an argument that says that suing individual developers is not what Microsoft wants to do anyway. They even mentioned that in one part of their patent pledge: small developers would never have to worry about being sued by Redmond.

The Novell arrangement is only designed to protect customers. Whether you agree with it or not, if the GPL3 is going to be fixed to prevent this kind of deal, it will still leave developers just as vulnerable as they were under the GPL2.

Tomorrow: actual product demos and Novell customers speak.

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