Novell, Microsoft, & Patents - Jonathan Pryor's web log

« Sarah Pictures | Main | openSUSE 10.2 Complaints »

Novell, Microsoft, & Patents

The news is out: hell has frozen over. Novell and Microsoft have announced a "patent cooperation agreement," whereby Microsoft won't sue Novell customers for patent infringement and Novell won't sue Microsoft customers for patent infringement.

I first heard about this on mono-list, and immediately replied with the obvious (to me) response.

Note: I am not a lawyer [0], so consequently everything I say is bunk, but I have been paying some attention to various lawsuits over the years.

That out of the way, take a step back and ignore Microsoft and Novell for the moment. Assume that you're a patent holder, and you decide that your patent has been infringed. Who do you sue? There are three possible defendants:

1. Sue the developer. (Example: Stac Electronics vs. Microsoft.)
2. Sue the distributor. This is frequently identical to (1) as the developer is the distributor, but the rise of Free and Open Source software introduces this distinction.
3. Sue the customer of (1) and/or (2). The example I remembered hearing several years ago was Timeline vs. Microsoft [1].

The summary is this: software patents are evil, allowing virtually anyone to sue virtually everyone else. There are no assurances of safety anywhere. Software from large companies (Internet Explorer) can be sued as easily as software from a no-name company or the open-source community (see Eolas vs. Microsoft).

With that background out of the way, what does this Microsoft/Novell deal mean? It means exactly what they say: Novell won't sue Microsoft customers, and Microsoft won't sue Novell customers. Anyone else can still sue Microsoft, Novell, and their customers, so Novell and Microsoft customers really aren't any safer than they were before. Novell customers are a little safer -- the monster in the closet of a Microsoft lawsuit is no longer an issue -- but no one is completely safe. It just provides peace of mind, but it isn't -- and cannot -- be a complete "solution" to the threat of patent lawsuits. (The only real solution is the complete abolition of all software patents, which is highly unlikely.)

What does this mean for hobbyists who contribute to Mono, Samba, Wine, Linux, and other projects (like me)? It means I'm protected as part of this agreement, as my code is distributed as part of openSUSE. This also means that anyone other than Microsoft can sue me if I happen to violate a patent.

What about hobbyists whose code isn't part of openSUSE? Nothing has changed -- they're as subject to a lawsuit as they were a week ago.

What about other companies such as Red Hat? Nothing has changed for them, either. Red Hat is still safe, as it is a member of the Open Invention Network, which was created to deal with the potential for patent lawsuits from any party. OIN is a more complete solution for most parties involved than the Microsoft and Novell agreement, as it involves more parties.

The problem with OIN is that it only covers the members of OIN. Red Hat is protected, but any distributors of Red Hat code are not (such as CentOS), and neither are the customers of Red Hat (unless the customer has a patent protection contract with their supplier). Consequently, OIN serves to protect the original developers (1), but not any "downstream" distributors (2) or their customers (3).

But what about the GPL, section 7? Doesn't the Microsoft/Novell agreement violate it?

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

The simple solution is that this doesn't apply, as this agreement doesn't touch this clause at all. It's not a consequence of a court judgment, there is no allegation of patent infringement, and I haven't heard of any conditions that Microsoft requires Novell to follow in order for the code to be freely distributed. The Microsoft/Novell agreement primarily covers their customers, not their code, so there isn't a problem.

Notes:
[0] But I did stay at a Holiday Inn last night!
[1] Computerworld Article.

blog comments powered by Disqus