What Microsoft + Novell Means Going Forward

The chief concern in the open source community today appears to be the possibility that Microsoft is working to make Linux less desirable to customers - in effect, by planting a sort of poison pill, perhaps on the part of its own participation.

BetaNews showed the published portions of the Microsoft / Novell agreement to Pamela Jones, the editor of Groklaw and one of the most knowledgeable and legally minded Linux proponents on the Web today. There's too little of the agreement published today, she told us, to conclude whether Novell has violated the terms of the GPL at this point.

But Jones believes Microsoft achieved two aims yesterday: first, to get paid for commercial distributions of Linux - something the SCO Group tried to achieve by suing IBM, and has largely failed to accomplish. Secondly, she said, "It's about making Linux less desirable in the marketplace, in my view, by making it more expensive and by creating the illusion that it somehow violates somebody's IP something somewhere. I see no difference."

Microsoft CEO Steve Ballmer did make it clear yesterday that customers who choose a brand of enterprise Linux other than Novell, may be susceptible to the types of individual lawsuits from Microsoft that SUSE Linux customers will now be protected against. But Jones goes on to state that Microsoft's protection guarantees are suspect, based on their clever wording.

"As for the promise not to sue individual developers, I consider it a sham," Jones remarked. "It's personal to the developer, not to use of his work by others or distribution even by him or her. If it ends up in a paid distro, Microsoft can still sue over the code." She cited this sentence from the patent covenant: "This pledge is personal to You and does not apply to the use of Your Original Work by others or to the distribution of Your Original Work by You or others."

"Could there be a more empty promise in a FOSS context?" Jones asked.

NPD's Chris Swenson disagrees. "At the end of the day, [this agreement] allows customers to run virtualized Windows on Linux, or run virtualized Linux on Windows," he told us. "Yes, these guys are going to have a lab, they're going to work together on compatibility, but the whole issue of the GPL to me is such a minor part of the announcement. These companies are going to work together to make sure their products interoperate. I don't think they're doing it to circumvent the open source movement."

Info-Tech's Carmi Levy, meanwhile, sees the agreement as the beginning of a complete redefinition of Linux, and perhaps also of Windows, as we have come to know them.

"This will be a significant turning point in the evolution of Linux as a truly enterprise-ready solution," he said. "Either the entire community will need to address indemnification under the GPL, or individual vendors of each distribution will need to take it on themselves. Either way, developers not covered by patent covenants and other forms of intellectual property protections will ultimately migrate toward environments that provide such protections, and distributions that fail to get under the protective umbrella will slowly die."

Pamela Jones would agree insofar as the agreement creates a new and undeniably influential element designed to persuade enterprise customers to pursue a specific route. "What is clear is that the patent pledge is only for paid Novell customers," she said. "And only if they pay for upgrades or a new version is the upgrade or new version covered. It's tied to payment. And it purports to cover 'use' of code while in development, whereas use is something the GPL specifically does not limit."

"My understanding of that is that Microsoft wishes to be paid for all paid-for Linux and all related services, including indemnification," Jones continued. "That is what SCO wanted too, to be able to tax Linux - and likely for the same reason, so it would be easier to compete with a more expensive competitor. SCO failed, so here comes Microsoft, with the same offer: We won't sue you if you pay to use Linux commercially. I really see no difference from SCO's offer, except Microsoft has the antitrust factor to consider, hanging over it. But what Novell has done is make that threat smaller for Microsoft."

Suppose Novell truly did violate the terms of the GPL, into which it entered when it began distributing SUSE Linux. Is there anybody who would be willing to take on the job of challenging Novell -- and probably also Microsoft -- in court?

"The truth of the matter is, there's a wide gulf between legal ideal and economic reality," answered Carmi Levy. "The economic reality of the GPL is that there is no one entity that is able to fund and take on a legal challenge of this type. In fact, the GPL specifically, and Linux in general, have needed an advocate in the enterprise space for a very long time. In fact, in this deal, they might very well have it. The legal ideal is, sure, this might run smack into where the GPL wanted to go, and this might violate some of the basic tenets of the GPL, but the truth of the matter is, if the GPL had stayed as it was, Linux would've forever languished on the fringes of the enterprise data center. Now it actually has a chance to solidify its position right in the center of the data center."

In other words, like it or not, Novell may not only have become the "proxy" for its customers, as Steve Ballmer described it, but also its de facto champion.

Next: Sharing the spoils with Microsoft