* Current fallout concerns the promises not to sue for patent infringement
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Fallout from the Microsoft-Novell agreement continues unabated. Just about everyone who doesn’t work for Redmond or Waltham has jumped in and criticized the deal. Heck, even Microsoft’s own open source guru, Jason Matusow had some less then complimentary things to say about it! Even Novell’s open source honchos, Nat Freidman and Miquel de Icaza, admitted they weren’t consulted about the deal and would have structured it differently if they could.
Almost all of the current fallout concerns the promises not to sue for patent infringement, which Novell and Microsoft granted to each other and their users. The major sticking point appears to be Microsoft’s pledge not to sue noncommercial, individual open source developers while refusing to also make the same promise to commercial developers. That point was made very strongly by former Novellian Matt Asay who said:
“Microsoft has 3.2 bazillion patents. It makes lots of money selling the rights to these in the form of Office, Windows, etc. It doesn’t need to earn a nickel more through veiled threats and innovation surcharges on software it does not own, has no rights to, and would do well to embrace. If I’m wrong, and if there are real patent infringement issues in Linux and other open source projects, then I would like to personally invite Microsoft to champion its rights by suing the entire planet.”
Now I’ll be the first to admit that the U.S. patent system is broken. I’m not at all sure that patents have any place in the software industry. Software, code, is rightly covered by the copyright laws. There should be no need for patent protection.
That said, though, the patent laws are the laws. Patent holders can, and do, sue infringers and win. Someone, sometime may challenge the very nature of patents and software but Novell is not the someone and now is not the sometime. Novell has to answer to its shareholders who don’t take large legal fees and monetary awards for losing cases as signs of good fiduciary management. Perhaps one of the folks criticizing Novell so much could step up and become the test case.
Sun President Jonathan Schwartz wrote “I want to put one nagging item to rest. By admitting that one of the strongest motivations to select the GPL [Gnu Public License, chosen by Sun for the Open Source version of Java] was the announcement made last week by Novell and Microsoft, suggesting that free and open source software wasn’t safe unless a royalty was being paid. As an executive from one of those companies said, ‘free has to have a price.’ That’s nonsense.”
So perhaps Sun could challenge the notion that software is patentable. They’ve got deeper pockets than Novell, certainly. There’s only one impediment to that – back in the spring of 2004, at the same time Schwartz was named President, Sun and Microsoft signed an agreement to resolve patent issues with the companies agreeing to pay royalties to use each other’s technology. I watched the joint press conference with Sun’s CEO Scott McNealy and Microsoft’s Steve Ballmer held – just like last month’s Novell-Microsoft lovefest – in San Francisco.
Over the years I don’t think anyone has criticized Novell as frequently or as heavily as I have. But I have to say that the Microsoft-Novell agreement, while not ideal, was a win for Novell.
