Open Source Blog

“An innovation tax is unthinkable. Free and open source software provide the necessary environment for true innovation. Innovation without fear or threat. Activities that isolate communities or limit upstream adoption will inevitably stifle innovation,” responds Red Hat.

It certainly has reason to be negative, given the impact that it is already feeling from the Oracle announcement, but its suggestion that Microsoft’s patent promise hides a threat is potentially valid.

“Novell is actually just a proxy for its customers, and it's only for its customers. This does not apply to any forms of Linux other than Novell's SUSE Linux. And if people want to have patent peace and interoperability, they'll look at Novell's SUSE Linux. If they make other choices, they have all of the compliance and intellectual property issues that are associated with that,” commented Steve Ballmer.

So use Novell and Microsoft won’t sue you for patent infringement. That’s good news for Novell’s customers, certainly, but not so much for the industry at large.

But what about the patent protection for Linux developers? Again that sounds like a good deal until you read the small print. “[We] promise that we won't assert our patents against individual, non-commercial, open source developers,” commented Microsoft’s general counsel Brad Smith.

“Who are these? These are individuals who are creating code, contributing code, they're not being paid for that code, they're often working in the evenings or at home. They're not creating it as part of their job, but they're acting in an individual non-commercial way. The promise doesn't run to anybody who employs them, because after all, they're not acting in the course of their employment.”

So as long as you’re an unemployed Linux developer – or work for Novell – you’re okay. Otherwise, it’s open season – and that includes any of the Linux developers at Red Hat, IBM, HP, Oracle, and even Linus Torvalds. Unless, of course, they all turn their attention to Microsoft’s approved Linux distribution.

“The second thing we did in this area was add a promise that goes to developers, even developers who are getting paid to create code to OpenSUSE.org, code that Novell then takes and incorporates into its distribution, and that is then covered under the patent cooperation agreement between us,” added Smith.

Something about this doesn’t sound right, and according to Eben Moglen, Free Software Foundation general counsel, that’s because it falls foul of the GPL. “"If you make an agreement which requires you to pay a royalty to anybody for the right to distribute GPL software, you may not distribute it under the GPL,” he said.

There are no doubt many good things that could come out of the Novell/Microsoft agreement – not least increased interoperability between Linux and Windows and the technical cooperation agreement.

There might even be a boost for Novell from Microsoft recommending SUSE Linux Enterprise for customers who want Linux solutions and distributing coupons for SUSE Linux Enterprise Server maintenance and support, but you can guess how seriously Microsoft willing be taking that.

“I'll say it now, you've got a new application that you want to instance, I'm going to tell you the right answer is Windows, Windows, Windows,” said Ballmer, totally understandably.

Meanwhile, Novell gets an upfront royalty payment and Microsoft “a percentage of revenue on open source software shipped under the agreement” until 2012.

An “intellectual property bridge” or an “innovation tax”? It looks like it’s time to choose sides.

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