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The Claiming Of The Open Source Operating System

Novell and Microsoft "agree to disagree" over intellectual property in Linux.

A Linux defender armed with a portfolio of patents has thrust itself into the increasingly acrimonious debate over whether the open source operating system incorporates any of Microsoft’s intellectual property--and whether Microsoft might do something about it.

The Open Invention Network, backed by Red Hat, Novell, IBM, and other vendors, holds 100 patents "that may be used to shield the Linux environment," CEO Jerry Rosenthal said in a statement. "We stand ready to leverage our IP portfolio to maintain the open patent environment." Microsoft’s claims against Linux, Rosenthal said, "are baseless. In fact, there have been no patent suits against Linux."

Friends like these: Hovsepian and Ballmer in better days

Friends like these: Hovsepian and Ballmer in better days

Photo by George Nikitin
The dispute goes back to Microsoft’s announcement on Nov. 2 of a patent-sharing deal with Novell, a deal that protects customers of Novell’s Suse Linux from any future Microsoft claims to Linux’s underlying intellectual property. Customers of Red Hat Linux have no such assurances from Microsoft, as Red Hat rebuffed Microsoft’s patent-sharing overtures. At a meeting of the Professional Association for SQL Server in Seattle, Microsoft CEO Steve Ballmer commented that "only a customer who has Suse Linux actually has paid properly for the use of intellectual property from Microsoft."

Last week, Novell CEO Ron Hovsepian disassociated his company from such talk. "We disagree. ... Our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property," he wrote in an open letter to the Linux community. Microsoft followed up with its own statement: "Microsoft and Novell have agreed to disagree on whether certain open source offerings infringe Microsoft patents and whether certain Microsoft offerings infringe Novell patents."

Meantime, work is under way at the Free Software Foundation to modify the forthcoming version of the General Public License so that patent protections extended to one set of GPL holders would be extended to all holders. Under such a change, the Microsoft-Novell agreement would afford protection to users of Red Hat and other Linux distributions. Eben Moglen, the foundation’s general counsel, told Reuters: "A clause like that would not be difficult to get community agreement on these days."

Red Hat and Novell gave the Open Invention Network funds when it was founded last year to buy at auctions and on the open market patents that might be used to counterbalance any infringement claims against Linux. IBM, which has the largest patent portfolio of any tech company, also is an investor, as are NEC, Philips, and Sony.

Microsoft hasn’t specified what intellectual property it’s referring to. There are so many pieces of open source code in a Linux distribution that Microsoft may not be taking aim at the operating system.

One piece of software that lets Windows and Linux servers work together is open source Samba, which translates Linux files into a form recognized by Windows. The Samba team proved sensitive to Microsoft’s saber rattling and in a statement asked Novell to reconsider its agreement with the company. By doing a patent deal with Microsoft, Novell was breaking ranks with the free software community, which supplies it with Linux code and other pieces of its Suse distribution, they said. "Novell should know that they have no right to make self-serving deals on behalf of others which run contrary to the goals and ideals of the Free Software community," the group’s statement said.

Jeremy Allison, one of Samba’s original developers and a team leader, says the stand was endorsed "unanimously" by Samba’s 28 core developers. But he declined to comment further. Allison is an employee of Novell, which pays him to work full time on Samba.

It’s not clear what Microsoft’s next move might be. What’s clear is that, even this close to the rollout of Windows Vista, Linux is still very much on Microsoft’s mind.

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