Give Novell a Break

I just read the Open Letter to the Community from Novell’s probably rather flummoxed CEO Ron Hovsepian, and if you’re someone who’s been wringing your hands over the collaboration and patents pact that Novell and Microsoft announced recently, you should read it too.

I sort of blew off the deal when I first read about it because I tend to assume that big historic deals that don’t include some sort of acquisition aren’t going to make much of a difference beyond the tech headlines of the day. However, a lot of people are taking the deal much more seriously, and around the Internet’s forum, blog, mailing list and IRC water coolers, open-source fans seem to be nominating Novell to be the new SCO.

It’s understandable that making a deal with Microsoft would stir up some heated chatter, but what’s really fanning the flames is the chatter coming from Microsoft. Microsoft is spinning the deal as a way for Novell customers to take shelter from some vaguely imminent Microsoft patent liability hammer. Steve Ballmer came right out and said that Linux violates Microsoft patents, but that Microsoft would really like to clear everything up by giving Red Hat and other vendors a chance to offer their customers the same cover Novell’s given their users.

Novell’s Open Letter, among other things, attempts to make clear that the whole patent protection bit was Microsoft’s idea, and that Novell holds that Linux and all the open-source projects that cluster about that kernel to form a complete operating system do not necessarily infringe on Microsoft patents.

Give Novell a break. Sure, they’ve–in my opinion, inadvertently–given Steve Ballmer grist for his FUD mill, but I believe that Novell thought they’d get good play from corporate IT customers for sitting down with Microsoft to sort out some of the annoying interoperability issues that exist between Linux and Microsoft.

Microsoft probably approached the table with a different agenda, which looks to have been to use Novell to raise questions about the viability of open-source software by playing the indemnification card. Microsoft needs to figure out how to compete with free, which is tough, because free is intrinsically better for users than non-free, and given a free and non-free piece of software that does a similar thing, the free software will win, eventually, at least.

Microsoft sees that it owns many patents, and that there’s an argument to be made that Linux OSes infringe on some of Microsoft’s patents. I bet this is true, by the way.  I bet that Linux OSes infringe on some of Microsoft’s patents, and that Microsoft could probably go after any arbitrary party they chose, including some individual user of Linux–RIAA-style, except on software patent grounds, rather than on copyright grounds.

However, Microsoft is not going to become a patent troll, and this shadowy threat of patent litigation against Linux will never become a reality because, among other things, Microsoft’s software itself surely violates patents.

Microsoft’s products and future products probably infringe on some Novell patents, and some Red Hat patents, and some IBM patents, and some Sun patents, and probably some unbelievable number of other patents, because the reality of patent regulation in the U.S. is that almost anything can be patented, and the U.S. patent bureaucracy seems to regard its primary goal as handing out as many patents as it can.

Novell, as its CEO points out in his open letter, has a patent policy in which the firm promises to use its own patent portfolio to go after those who’d attack the open-source projects that Novell distributes or otherwise supports. In its Linux distributions, Novell distributes the work of hundreds of different open-source projects, so, according to Novell’s stated policy, these projects aren’t alone in the patent cold war.

If Microsoft came after popular open-source projects, however they might do it, Novell, Red Hat and any number of other patent-holding groups would fall over themselves to join the fray, because such an attack on open source would be a direct attack on these firms, and counterattacks would be an opportunity to curry favor with the customers Microsoft would be threatening.

If Microsoft is really serious about interoperability, innovation and serving customer needs, they should dump the vague threats about patents and indemnification and lawsuit exposure for users of Linux and open source and get back to work on their own products. Better yet, rather than spend time figuring out how subtly to undercut free software, Microsoft should use those resources figuring out how to make money from free software themselves.

After all, free software is as free for Microsoft’s taking as it is for ours.