Editor’s Note: IBM–Orca or Penguin?

By Brian Proffitt
Managing Editor

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’

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

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

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