Peace in our time.
by the editorial team
by Mark Webbink
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 honor. I believe it is peace in our time.“
We all know how well that turned out.
Before someone suggests that I am comparing Microsoft or Novell to either of the parties to that 1938 agreement, that’s not the point. The point is appeasement, specifically the Merriam-Webster definition of “appease”: “to buy off (an aggressor) by concessions usually at the sacrifice of principles.” One simply has to ask of Ron Hovsepian, Novell CEO, “Ron, what were you thinking?”
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. But at what cost to Novell?
Hovsepian says the deal was all about interoperability and joint sales agreements. But interoperability is a two-way street, and interoperability in the arena of virtualization will only occur when Microsoft refrains from trying to contractually control the behavior and choice of their customers in Microsoft’s Vista licensing agreements.
Hovsepian later appeals to the free and open source community to forgive this action based on all of the other actions Novell has taken in fighting software patents, but for the most part his itemized list just doesn’t hold together.
- We have stated our commitment to use our own software patents to protect open source technologies. But what they have really said is: “Novell will use its patent portfolio to protect itself against claims made against the Linux kernel or open source programs included in Novell’s offerings, as dictated by the actions of others.“
- We have spoken out against EU legislation that would liberalize the standards for granting software patents. But read what they have really said: “Novell has sought to use and will continue to use patents as a legitimate means of protecting Novell’s software offerings. We believe that the current system in the European Union has served the industry, the individual Member States and Novell well, and generally promotes innovation and competition in the industry. And compare this passive statement to the actions taken by Sun Microsystems and Red Hat in actively working with the Foundation for a Free Information Infrastructure in fighting off the Computer Implemented Inventions directive.
- We offer indemnification to our Linux customers accused of intellectual property infringement. But read what they have really said: “Indemnification is offered for copyright infringement claims.” This statement doesn’t address any form of intellectual property other than copyright.
- We have teamed with the United States Patent and Trademark Office and other industry leaders to reduce the issuance of “bad patents” in the software area. But the lead sponsors for the peer review project underway between the USPTO and the New York Law School are IBM, Red Hat, GE, HP, and Microsoft. There is a significant difference between participation and commitment, just ask a pig about breakfast.
- In 2005, we co-founded Open Invention Network (”OIN”), “an intellectual property company that was formed to promote Linux by using patents to create a collaborative environment.” Novell’s substantial contributions to OIN were made to benefit not only ourselves, but also other Linux vendors, distributors and developers, and anyone else willing to commit not to assert their patents against Linux. Absolutely true. Novell was an active and dynamic participant in establishing OIN. And the fact that Novell has (or perhaps I should say had) such a strong patent portfolio and worked diligently to establish OIN only emphasizes my original point - the deal they entered can best be understood as appeasement.
Novell wants us to believe their position on open source and patents hasn’t changed. I’m having a hard time buying that argument.