[Ossf] <新聞分析> Is your software free, open or litigated? [Fwd: Interesting analysis: MS-Novell]

Tue Nov 7 23:18:38 CST 2006

關於最近微軟與 Novell 合作案，有篇分析文章寫的不錯，請參考。

自強

Original URL: 
http://www.theregister.co.uk/2006/11/06/microsoft_novell_analysis/

Is your software free, open or litigated?
By Andrew Orlowski (andrew.orlowski at theregister.co.uk)

Published Monday 6th November 2006 20:22 GMT

Analysis By agreeing to license Microsoft's intellectual property, SuSE 
distributor Novell has created a potentially fatal division in what's 
called F/OSS, the Free/Open Source Software movement. What has Novell 
done, and why is it so potentially damaging?

Free Software advocates have always insisted that "free" and "open" were 
two movements loosely aligned, and that the Johnny Come Lately "open 
source" term was just a media-friendly marketing moniker. The "open 
source" lobby replied with some annoyance that this was an unimportant 
semantic issue.

Now, however, that distinction is painfully apparent, and Microsoft is 
exploiting it to the full.

Important parts of Linux are based on free software, including the 
kernel and the tool chain. Free software adheres to four simple 
principles: the freedom to run the software as you wish; to study and 
change the software as you wish; to redistribute copies as you wish; and 
to redistribute modified copies as you wish. These are enshrined in the 
GPL, but one section in particular, Section 7, is designed to protect 
software developers who want to uphold these principles. It's designed 
to prevent the distribution of patent encumbered code.

By contrast, this isn't something that all "open source" advocates have 
felt worth is going to the stake for. Open source is a superior 
development methodology, and to assure its success one may need to deal 
with the devil. Just as some open source companies have felt comfortable 
linking to, and distributing closed source code, other have been able to 
license patent-encumbered code without the qualms of free software 
developers. It's simply a question of expediency.

It was always naive to think that Microsoft wouldn't recognize the 
difference in the two approaches, and even more naive to think that it 
wouldn't exploit the difference. Now it has.

In 2003 Microsoft hired IBM attorney Marshall Phelps 
(http://www.theregister.co.uk/2003/12/08/microsoft_aiming_ibmscale_patent_program/) 
to build up Redmond's patent portfolio. Phelps had overseen the growth 
of IBM's IP licensing operation from nothing into a multi-billion dollar 
business.

"You don't just get patents for the sake of getting patents," Phelps 
said a month before taking the job. F/OSS advocates duly took note - and 
began to perform a sweeping review of potentially infringing code in the 
Linux kernel.

Under the Microsoft-Novell deal, Novell agrees to recognize Microsoft's 
intellectual property claims. Novell in returns receives a "Covenant Not 
To Sue".

This is something that Free Software developers have been fastidiously 
careful not to do - and this insistence formed the basis of the FSF's 
successful arguments in the European Courts. Free software supporters 
argued that the techniques were prior art - (the patent is invalid) - or 
reverse engineered without reference to the original (the patent doesn't 
apply). Microsoft had argued that F/OSS developers could, and should, 
license its MCPP protocols. GNU supporters argued that they couldn't. 
Novell has succeeded in driving a wedge in the movement where previous 
attempts have failed.

Redmond can now return the the European Commission and point out that 
Linux can co-exist with Microsoft IP quite happily - it's only those 
cranks and communists who disagree. And even more importantly, Microsoft 
can argue that a major Linux company has implicitly recognized its IP 
claims.

Microsoft wanted this agreement so badly it's agreed to pay an 
unspecified sum to Novell for the Covenant. This might strike you as odd 
- and you'd be right. Companies that license intellectual property do so 
in the expectation that they receive a royalty, rather than dish one 
out. But the downstream benefits to Redmond are enormous. Novell has 
handed it a priceless legal filip, and as it begins to collect royalties 
from other businesses that use Linux, it'll doubtless see it as a 
worthwhile down payment.

There's much debate today on whether Microsoft violates Section 7. 
Novell, who may well have been poorly briefed by insisting they entered 
into a "Covenant" rather than a patent licensing arrangement, clearly 
disagree.

Today Novell boasts the following quote from Steve Ballmer to underline 
the deal: "They said it couldn't be done."

Done deal? The Microsoft Novell partnership needs to clear the GPL

It's something we didn't think would have been possible, either. Or at 
least not without the decision by the massed ranks of the attorneys 
responsible for keeping vigilance over free and open source software to 
detach their brains for a week. (Perhaps they were otherwise occupied - 
in Sadville 
(http://www.theregister.co.uk/2006/10/27/silver_surfing_in_sadville/).

It's put pay to the view that Microsoft's patent threat would remain a 
phoney war, with IBM's potential threat of massive retaliation helping 
keep an uneasy peace. But IBM has been nowhere to be found. And the 
FSF's General Counsel Eben Moglen hasn't helped the cause by permitting 
this thought bubble to escape, and be recorded by a VNU reporter:

"Maybe it will turn out that [Novell and Microsoft] have cleared the 
barrier by a millimetre," mused Eben.

Oh, dear.

The patent wars have begun.

-- 
TzuChiang Liou, Project Manager
OSSF Supports Software Freedom  http://www.openfoundry.org
Institute of Information Science, Academia Sinica, Taiwan
E-mail: tcliou at iis.sinica.edu.tw
MSN: tcliou at msn.com
GTalk: tcliou at gmail.com
TEL:+886-2-2788-3799 ext.1404
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