Editor's Note: The Persistence of Memory
Nov 03, 2006, 18:15 (34 Talkback[s])
(Other stories by Brian Proffitt)
Desktop-as-a-Service Designed for Any Cloud ? Nutanix Frame
By Brian Proffitt
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
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
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,
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
"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
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
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
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
If only memory lasted.