* A closer look at the recent Microsoft and Novell agreement
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It was just two weeks ago that Novell announced its unprecedented deal with Microsoft bringing in much needed revenue and (supposedly) making SuSE Linux the preferred Linux distribution for Microsoft Windows networks. There was the predictable outcry from the more rabid anti-Microsoft fringe element of the open source community. Even the usually more even-tempered open source advocate Bruce Perens told The Register: “Coming just as the SCO case is winding down, the timing is interesting. Novell is the new SCO.”
What the open source crowd is upset about are the intellectual property provisions of the agreement. Under terms of the agreement, Microsoft promises not to sue Novell’s Linux customers for patent infringement. Additionally, Microsoft has agreed not to sue “individual, non-commercial developers” contributing to open source.
Novell explains what this means: “The terms of the individual, non-commercial developer patent non-assert are on http://www.microsoft.com/interop. You are covered if you are doing non-commercial open source software development. This includes individual enthusiasts, such as a student or a developer who does work on his own time on a project of personal interest to him. If you are compensated for your development, then your activities are considered ‘commercial’, and you would not be covered.” Linux is licensed under the Gnu Public License (GPL). A new version of the GPL, Version 3, is soon to be published which will explicitly prohibit distributors from asserting any patent claims against open source developers – commercial or otherwise. That could create difficulties for Novell.
But there’s an even bigger obstacle to be overcome, some say. Current distributions of SuSE Linux are distributed under Version 2 of the GPL. According to the Novell and Microsoft joint press release: “If you cannot distribute so as to satisfy simultaneously your obligations under this license and any other pertinent obligations, you may not distribute the program at all,” the GPL (Version 2) license states. This provision would prevent Novell from making it mandatory for users to pay a license fee for its Linux distribution if Microsoft had required this as part of the patent agreement. But, according to Novell, “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.”
It thus appears that Novell will be making license fee payments to Microsoft on behalf of its customers. Whether or not Novell charges the customer separately for this is moot. Under the “if it quacks like a duck, it’s a duck” philosophy a judge could rule that a royalty payment is a royalty payment no matter what you call it. This could have a chilling effect on the agreement until it is tested in court.
On balance, though, the agreement is probably good for Novell. If nothing else, it got more publicity out of this than anything else it has done over the past few years. Plus, the collaboration agreement on virtualization and document formats could be a decided boon for all of us. I’ll look at that more closely in the next issue.
