[discuss] Implications of Microsoft-Novell deal on FLOSS

Tue Nov 7 11:24:26 EST 2006

Evan Leibovitch wrote:
> There are multiple separate discussions going on.
> 
> 1) How does this deal help/hurt Microsoft?
> 
> 2) How does this deal help/hurt Novell?
> 
> 3) How does this deal help/hurt corporate IT's acceptance of Linux and 
> other FOSS?
> 
> 4) How does this deal help/hurt the community producing FOSS?
> 
> The patent missus is only relevant in (4) and partially relevant to (3). 
> Many news articles are focusing on 1 - 3.

   I guess I see this differently, and don't see these as separately as 
you do.  (2) Novell is dependent on (4) the broader FLOSS community. 
While Novell has been a great contributor to FLOSS, FLOSS isn't 
dependent on Novell, but Novell is dependent on FLOSS.

   While (1) Microsoft likes non-copyleft FLOSS from the (4) developer 
community which it can use as free labour to launch proprietary 
derivatives, they are quite ideologically opposed to CopyLeft FLOSS. 
The fact that over 50% of FLOSS is under a GPL license has meant they 
have been looking for a way around it for a long time, and they are 
testing a current theory to find out if they have found a legal 
loophole.  It will be interesting to see how (4) the community will 
respond to (2) Novell in terms of lawsuits to put (1) Microsoft's theory 
to the test.

   I agree that (3) acceptance of FLOSS is a separate issue as this is 
based more on perception than reality.  The reality is that software 
patents threaten all software, whether FLOSS or non-FLOSS.  It isn't 
legitimate to use this as an excuse to choose one method over the other. 
  While it is true that you can't "license" (pay a royalty for) a 
software patent and have the software remain FLOSS, this doesn't mean 
that a non-FLOSS developer will automatically be given permission or 
will be able to afford the royalty.

   If being sued is seen as a credible threat then the client would pick 
larger vendors that offer indemnification to their customers.  In this 
there is a lot of competition from many vendors.

   If the size of the patent portfolio was a deciding factor then this 
would push you towards IBM's support of Linux, even if they claim that 
Linux indemnification is unnecessary. http://www.ibm.com/ibm/licensing/
http://www.ibm.com/ibm/licensing/patents/software.shtml

   We may want to have answers for those who think purchasing Microsoft 
is safer in this respect, reminding them that Microsoft does not have 
the largest software patent portfolio.  And there have been questions 
whether their patent indemnification is worth anything.

http://www.theregister.co.uk/2006/02/07/microsoft_office_access_infringement/
"This presents firms with a problem because there is a risk, according 
to Gartner, that if firms do not make the changes when they are 
technically obliged to, they will no longer be covered by Microsoft’s 
guarantee against patent infringement liability."

   I don't see the problem with what Microsoft is doing here, given it 
makes sense to limit indemnification to supported software and not to 
customers who refuse to install updates that don't infringe.

Note: I switched the subject line from "ITWorld Canada: Microsoft-Novell 
deal spells death knell for Open Source?" as I think the headline was 
overly sensationalist and wasn't backed up in the story.  It seems more 
likely to me that this deal could be the beginning of the end of 
software patents than Open Source.

>> This is common knowledge in the patent world.
> 
> Then we need to point to those sources rather than pretending to be 
> authoritative on that ourselves. Maybe CIPPIC can be of assistance here.

   I don't believe it is appropriate for us to wait on other 
organizations as Software patents are a low priority for other 
organizations.   As someone who has been paid by Industry Canada to do 
work in this area I believe it is fair for me to offer public policy 
views on this.

   This is the type of studies we need to be funding as CLUE grows.  We 
need to be able to hire recognized and qualified researchers to answer 
the types of questions that the Canadian FLOSS community needs to know.

   This is a public policy issue, not a legal issue, so shouldn't be 
punted to a law clinic to deal with.  Associations like ours are the 
right place to be making these statements from, just as it is valid for 
CLUE to be making the statements that were made in the CLUE brochure.

http://cluecan.ca/why-join

   The material under "the copyright threat" is far more controversial 
outside our community than the statement that the majority of currently 
granted software patents are of poor quality.  People can legitimately 
argue about the numbers 50%, 60% and 95% (which is why such a large 
range is given), but it is hard to have someone credibly argue that it 
is closer to 10%.

   The USPTO claims that their "error rate ... has varied between 4 and 
7 percent over more than a twenty year period" 
http://www.uspto.gov/web/offices/com/strat2007/stratplan2007-2012_06.htm 
. This is not focused of information/mental processes where most of the 
problems are, and is the most conservative number possible from an 
organization that is least able to publicly admit a problem with their 
own processes.

For clarity:  I am talking specifically about software patents in my 
evaluation, not patents in general.  I believe the patent system works 
quite well when we are talking about human manipulation of the forces of 
nature.   While there may be ethical problems with some of these areas 
of patents, the majority of practical problems are focused on 
information/mental processes which have very different natural and 
economic traits.

>> It is quite unfortunate that the Novell announcement has overshadowed
>> the announcement of many of the largest software patent holders coming
>> together to suggest that "Open Collaboration Is Medicine for Our Ailing
>> Patent System".
> 
> Actually, this is perhaps something that we can point to as a nice 
> counterpoint to the threats. Having MS and Red Hat agree that most 
> patents suck -- including, likely, many of their own -- helps dull the 
> FUD of the Novell-related threat.

   Agreed.   We can put a positive spin on this. 
http://dotank.nyls.edu/communitypatent/

   It will also counter those who have been talking about this as an 
initiative where those who already have patents are trying to deny new 
competitors from getting patents.  While new patent applications is the 
first part of this initiative, helping evaluate already granted patents 
is an obvious next step.  Reducing the number of poor quality patent 
(largely information/mental process patents) is going to be of great value.

   I am of the personal belief that it will be impossible to have high 
quality information/mental process patents without massive expense (to 
the patent filing, patent office, and patent busing communities) that 
outweighs the value of patents in this specific subject matter.  I 
support any initiative that can help test this unproven theory, and I 
believe this Community Patent Review project 
http://www.communitypatent.org/ is a major step in that direction.

>>   I need help with interpreting this one.  What system has Microsoft
>> validated?
> 
> Linux.

   As a "technology", maybe.

   As being FLOSS, no.  They specifically devised a theory where they 
think they can exert their software patents to make the software 
effectively non-FLOSS (where permission and/or payment is claimed to be 
required to do the things that would otherwise make the software FLOSS) 
and yet skirt around the requirements of the GPL.

> Fedora development is most certainly directed by Red Hat. Time will tell 
> how long Oracle will be satisfied with Red Hat setting its release 
> timetable and technical direction,

   That is a decision for Oracle to make in the long term, and to 
compare building on top of RedHat to completely forking and doing their 
own ongoing development.  What I didn't understand was why people 
thought Oracle providing support for a derivative of an existing 
distribution was somehow bad for FLOSS or bad for the distribution they 
were based on.  It may not be a good decision for Oracle, but that 
doesn't make it bad for RedHat.

> I recently made a "great leap" from Mandrake (RPM-based) to Ubuntu. 
> While there are some interesting differences, they're hardly 
> insurmountable.

   I have some Ubuntu based customers.  It isn't insurmountable any more 
than supporting *BSD or OpenSolaris is insurmountable.  But it isn't 
familiar, and someone with less background in multiple OS's will find it 
much harder.

>> It is RedHat's support for that global FLOSS community and ecosystem
>> that I think is worthy of comment.  On this specific issue their patent
>> statement is clear and supportive  
>> http://www.redhat.com/legal/patent_policy.html
> 
> But Red Hat is not a non-profit; its shareholders could conceivably 
> force management to reverse that, just as Novell has done 180° turns on 
> multiple occasions.

   I believe they are in a different position.   RedHat started as a 
FLOSS company and built their company from that perspective.   Novell is 
in transition from being a fully proprietary company, and is having 
growing pains.  I also doubt that Novell's decisions are based on what 
shareholders wanted them to do, but confusion within current management.

   While anything is conceivable, and shareholders of Microsoft may one 
day demand that they move to a patent policy like RedHat has now, I 
don't think it is at all likely that RedHat's shareholders will convince 
them to back out of their support for the FLOSS ecosystem.  I don't 
think ShareHolders are generally that dumb to think there is money to be 
made going backwards.

> Hey, there are some people that want a transitional step before 
> considering 100% FOSS.

   Agreed.

   This is why I'm such a fan of OpenOffice.org and Mozilla.org software 
on Windows.  I see this as a great easy-steps towards FLOSS.  I guess 
I'm of the belief that the underlying OS is the last thing to switch, 
and that you migrate your applications over first.

-- 
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