Microsoft new attack on open source

Hiawatha Bray, in today's Boston Globe reports on the uproar in open source circles over a clause in the agreement whereby Microsoft purchased Novell, a Linux distributor.

Last year's surprise partnership between software titan Microsoft Corp. and leading Linux distributor Novell Inc. was supposed to be a kind of peace treaty. Instead, it's brought the open-source software community to the brink of civil war, over a provision that could help Microsoft sue other open-source software companies for patent violations.

As part of the deal, Novell agreed to compensate Microsoft for features in Linux that Microsoft claims to have patented. Critics say Novell has betrayed other Linux vendors and made it easier for Microsoft to threaten Linux companies with patent infringement suits.

"Anybody who has not signed a deal now . . . is somehow under a cloud," said Peter Brown, executive director of the Free Software Foundation, a group that oversees the creation of most Linux code. "When will Microsoft act against them?"

But for renowned open-source programmer and former Novell employee Jeremy Allison, the deal came at too high a price. Allison helped develop Samba, a popular program that lets Linux computers interact with machines running Windows. In December, Allison quit . "I left Novell over the deal because I felt it was not consistent with the responsibilities of an open-source company or an open-source programmer," Allison said. (snip)

But it's Novell's $40 million patent payment to Microsoft that infuriates open-source specialists. That's because Novell's SUSE Linux, like all versions of Linux, is made up of hundreds of pieces of software produced by the GNU Project, an open-source development group led by the Free Software Foundation in Cambridge. Linux companies like Novell and Red Hat compete by selling support for their Linux products. Meanwhile, the Free Software Foundation insists that no version of Linux violates patents held by Microsoft or anybody else.

Brown, the foundation's executive director, said that those who buy Novell's version of Linux will be shielded from Microsoft patent litigation. But people who buy from other Linux companies are still exposed to patent lawsuits, even though all versions of Linux are nearly identical. (snip)

within days of signing the deal with Novell, Microsoft chief executive Steve Ballmer told guests at a software industry conference that Linux contains Microsoft intellectual property. "In a sense you could say that anybody who has got Linux in their data center has an undisclosed balance-sheet liability," he said, suggesting that Microsoft might demand compensation from Linux users not covered by the Novell agreement. Microsoft agrees that Novell did not concede any patent violations in Linux, saying that the companies have "agreed to disagree" on the issue.

Leaders of the open-source movement are at work on a legal strategy that could let Novell retain the benefits of the deal, while preventing Microsoft from using it to attack other open-source firms. They're drafting a new version of the General Public License or GPL, the Free Software Foundation's legal rulebook, which governs how Linux and other open-source code can be used.

Under the new license, called GPL3, if a company waives its patent rights over GPL software distributed by one company, that waiver will apply to all other companies distributing the software. If the provision had been in place when Novell and Microsoft struck their deal, the patent protection won by Novell would have applied as well to Red Hat, Ubuntu, and other Linux versions. Microsoft would have forfeited its patent infringement claims against all Linux distributors.

The foundation hopes to have the new license completed within a couple of weeks. It can then issue future versions of Linux code under the license. As they're upgraded over time, the hundreds of programs that make up Novell's Linux will be covered by the new license.

Brown said GPL3 would ensure that no other Linux company will be able to make a separate peace with Microsoft. "We want to attempt to stop these type of deals being struck," he said.

Here is a link to a story on ZDNet/Australia, reporting Microsoft Chief Executive Steve Ballmer's talk to financial analysts in which he states

... the company's partnership with Novell, which it signed in November 2006, "demonstrated clearly the value of intellectual property, even in the open-source world." (snip)

In a clear threat against open-source users, Ballmer repeated his earlier assertions that open source "is not free", referring to the possibility that Microsoft may sue Linux vendors. Microsoft has suggested that Linux software infringes some of its intellectual property, but has never named the patents in question.

Ballmer said: "I would not anticipate that we make a huge additional revenue stream from our Novell deal, but I do think it clearly establishes that open source is not free, and open source will have to respect the intellectual property rights of others just as any other competitor will."

And IT World Canada reports here on an interview with programmer Allison, about his leaving Novell in protest:

Don Marti, LinuxWorld.com: You’ve been in the news lately for leaving Novell over the controversial Novell/Microsoft patent licensing deal.

Jeremy Allison: That’s true.

LinuxWorld: Now, when I talked to you a while ago, you said, "I don’t give away my software. I cooperate with people who cooperate with me. How does that relate to what’s going on here, patent licensing-wise?"

Allison: Well, kind of peripherally really. Essentially, this is going back to the misnomer of "free software." A lot of people, corporations included, hear the word free, and they don’t think about the second meaning of the word free. They just think, "oh, it’s without cost." And, of course, it isn’t. And the cost is you have to reciprocate. You have to give exactly the same terms to people you give it to that you get yourself. It’s the share and share a like kind of license.

So, when somebody violates that essentially by negotiating favorite terms for themselves, that they don’t want to give to other people, then that I object to strenuously, up to and including leaving a company because of it. (snip)

LinuxWorld: Now the reason that you left Novell has to do with Microsoft and Novell setting up a deal to in effect pay Microsoft a patent royalty on copies of Linux sold.

Allison: That’s right. I mean essentially, it’s a patent cross license. They don’t call it that. They call it a covenant not to sue with customers. But when you boil it down, and you look at it really closely, it is a patent cross license. And section seven of the GPL specifically states that you can’t cut yourself a special patent cross license deal. Essentially it’s one of those situations where everyone has to hang together not separately, as it were. So, in other words, you can’t cut yourself special deals. And as I said, I wanted to like the deal. I had no objections. People were claiming, "oh, we just hate Microsoft." And this is not true. I actually had no objections whatsoever to any of the parts of the deal other than this one. But this one just killed it for me -- totally and completely I’m afraid. (snip)

LinuxWorld: One of the persistent rumors that’s going around is that certain large IT customers have already been paying Microsoft for patent licensing to cover their use of Linux, Samba and other free software projects. And the Novell deal -- isn’t it just taking that and doing the same kind of thing wholesale?

Allison: Yes, that’s true, actually. I mean I have had people come up to me and essentially off the record admit that they had been threatened by Microsoft and had got patent cross license and had essentially taken out a license for Microsoft patents on the free software that they were using, which they then cannot redistribute. I think that would be the restriction. I would have to look quite carefully. So, essentially that’s not allowed. But they’re not telling anyone about it. They’re completely doing it off the record.

The problem with the Novell deal is -- Novell gave Microsoft what Microsoft dearly wanted, which is a public admission that they think that Linux violates the Microsoft patent. So, that’s the difference between this and the sort of off-the-record quiet deals. This one is public. This one is Novell admitting, "yes, we think that Linux violates Microsoft patents." Now, of course, Novell has come out and said, "no, that’s not what we said at all. We don’t think that." To which, of course, Microsoft publicly humiliated them and said, "oh, yes, that’s really what you were saying." It’s kind of funny. They couldn’t even wait until the press conference was over to start threatening users with a Linux system.

There is more interesting and detailed stuff covered in the full article, which I recomend, but this is a long entry already, so I quit here.