Open Source Weblog

“As a history buff, reading the Novell and Microsoft open letters this morning conjured up the image of British Prime Minister Neville Chamberlain standing in front of 10 Downing Street in 1938 and declaring: 'My good friends this is the second time in our history that there has come back from Germany to Downing Street peace with honour. I believe it is peace in our time**.' We all know how well that turned out,” he writes.

It should be noted that Webbink is not comparing any of the parties in the Microsoft/Novell deal to Hitler’s Germany, but highlighting the concept of appeasement, as defined as: “to buy off (an aggressor) by concessions usually at the sacrifice of principles”.

“Microsoft's principle objective in this exercise was to get someone ostensibly from the free and open source software community to acknowledge the tacit validity of Microsoft's patent portfolio. And despite Hovsepian's protestations to the contrary, Microsoft has now obtained that in the form of Novell,” he writes. One simply has to ask of Ron Hovsepian, Novell CEO, "Ron, what were you thinking?"

That question has been asked in many places over the past few days, and the more you look into the agreement, the more the question has to be asked. Surely Novell could have seen Ballmer’s comments coming.

How did it allow this to happen? Was it more interested in protecting itself and gaining market share than protecting FOSS as a whole as many have suggested? Or was it blindsided by Microsoft?

Under the terms of the patent covenant Novell will pay Microsoft at least $40m over five years - an undisclosed percentage of its revenue from open source products. If, as Microsoft claims, that is to pay for Microsoft’s intellectual property, what was $108m Microsoft has already paid Novell for?

It couldn’t be that Novell signed an NDA on that issue and then failed to get a reciprocal agreement from Microsoft, could it?

And why did Novell feel the need to enter into a patent agreement in the first place? “Through the accumulation of patents that may be used to shield the Linux environment, including users of Linux software, OIN has obviated the need for offers of protection from others,” states Jerry Rosenthal, chief executive officer of the Open Invention Network.

The OIN was set up in November 2005 by IBM, Red Hat, Sony, Philips and Novell to acquire patents and offer them royalty-free to Linux supporters.

It was seeded with an initial set of business-to-business ecommerce patents that Novell quietly acquired from the bankrupt Commerce One for $15.5 million in December 2004.

According to the OIN no only does its existence rule out the need for Novell’s deal with Microsoft, Microsoft’s claims of IP infringement in Linux are also without merit. “Those claims are baseless. In fact, there have been no patent suits against Linux. While patent disputes are not unheard of between and among software developers and distributors, they are almost always resolved between these commercial entities – not by dragging in end-user customers.”

Meanwhile Novell partner and shareholder IBM has also decreed the patent deal unnecessary. "We have never seen any need for patent protection for Linux, and we don't see any need for it now. If legal claims exist, they should be resolved between vendors and not involve end-user customers," Scott Handy, IBM's VP of worldwide Linux and open source told Linux-Watch.

With this kind of opposition to the deal building up in addition to this and this, one wonders how long Novell can continue to stand behind it.

* I'm sticking with the missile crisis comparison incidentally. In that context I'd say Microsoft patent deal with Novell is the equivalent of the Bay of Pigs invasion.

** He actually said “peace for our time” apparently.

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