Microsoft, Novell, and Software Patents

by on November 9, 2006 · 6 comments

Via Luis, here’s a good analysis of the ominous aspect of the Microsoft-Novell deal:

This is not a religious argument about open source, it’s a matter of respect for a community that works together, and the wishes of creators. If I write something and put it under the GPL, then I want it under the GPL where all of us working on it can use it. I don’t want it to be made proprietary, for someone else’s benefit, due to some shady deal and legal technicality. Commercial yes (and encouraged), proprietary no.

In Novell’s world, if I write something and GPL it, Novell will try to convince customers to buy support from Novell instead of from me (the original author) because of some nebulous, unspecified, almost-certainly-bullshit “IP issues” hinted at by Microsoft and legitimized by Novell for the price of $348 million.

In proper open source, Novell (or anyone) is welcome to take my code and convince customers to buy support from them because they are a big company and I’m just some guy on the Internet. But Novell (or anyone) is not welcome to proprietarize my code. If I wanted them to take my code proprietary I’d choose a BSD license and not the GPL. I want them to compete with me on a level playing field by offering a better value.

I suppose we can’t blame Novell’s executives. I imagine they needed the money, so asked Microsoft “what would it take for you to give us a few hundred million?” – and then did what Microsoft asked.

The rest of us should be asking why Microsoft asked for what they got. Here’s my speculation: Microsoft is much more threatened by open source as a model than they are by the Linux kernel or Novell specifically, and they’re very happy to throw a technical bone – especially one that involves Linux running virtualized on Windows – if in their mind it could help “proprietarize” open source software and spread doubt about it.

The fundamental problem here is that every software project of non-trivial size infringes on dozens, probably hundreds, of patents. Identifying them all is a practical impossibility, and an open-source project wouldn’t have the resources to license them all even if they knew what they all were. Luckily, so far patent holders haven’t found it worth the bother to sue open source projects, so the community has mostly been allowed to grow unmolested.

Microsoft would doubtless like it if open source software were strangled by software patents. But they can’t afford to mount a frontal assault on all open source companies because that would generate an enormous backlash. So the fear here is that Microsoft is laying the groundwork for splitting the open source community in two. On the one hand, you’ll have a handful of “open source” companies that sell products like Linux under the umbrella of cross-licensing agreements with Microsoft and other big patent holders. On the other hand, you’d have the rest of the open source community. This would give Microsoft cover to sue medium-sized open source firms and say “all we’re asking is for company X to go legit like Novell.” Once they’ve collected a few scalps, they might be able to scare the business community away from buying open source software from vendors that haven’t joined the protection racket.

The result could be that open source software in general would end up under a legal cloud similar to the legal cloud that now hangs over open source MPEG playing software. The software exists, and is being actively developed (largely outside of the United States) but it can’t be integrated into larger open source projects because the MPEG-LA’s licensing terms are incompatible with the GPL and other open source licenses.

The really scary thing about this, from a libertarian point of view, is that this could be an entering wedge for wider government regulation of the software industry. Right now, regulating the software industry is difficult because there’s no clear line between professional programmers and hobbyists. You can’t impose burdensome regulations on some guy who’s writing code in his basement on the weekends. But once there’s a clear line between “legit” software companies (those that have paid protection money) and grey-market volunteer efforts, it would become feasible to impose new regulatory requirements on the former.

Fortunately, I think the good guys have some weapons at their disposal. Perhaps most potent is the fact that Novell’s business model depends on the goodwill of the open source community. Novell effectively gets a great deal of free labor from third party programmers who are happy to help Novell out based on the perception that Novell is a good corporate citizen. Once that goodwill dries up, Novell will have to do a lot more of the work themselves, putting them at a serious disadvantage compared to Red Hat or Ubuntu.

Also, for many open source projects, it’s not obvious that there’d be anybody to sue. Apache, for example, is overseen by a relatively small non-profit organization. Microsoft could probably sue the Apache Foundation out of existence, but that wouldn’t get rid of Apache the software. The developers would just move their infrastructure overseas and the American contributors would just have to be discreet about their contributions. It’s unlikely that Microsoft would file individual lawsuits against individual programmers, and they certainly wouldn’t sue the millions of organizations that use Apache for their web sites.

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