Counsel Predicts Red Hat to be Last Linux Vendor Standing

A TechTarget interview with Red Hat general counsel Mark Webbink, published late last week, remains the talk of the Web on Monday. In it, in response to the alliance forged by Linux competitor Novell with enterprise competitor Microsoft, Webbink made the almost un-lawyerlike prediction that, now that Novell has taken what he characterized as a divergent path, "there won't be any other Linux players" by the end of next year.

Webbink punctuated this prediction with the phrase, "We will have succeeded once again."

The company's public stand on the issue of the Novell/Microsoft alliance is somewhat more open and embracing, listing the major players in the open standards community, and reaffirming their mutual commitment to open collaboration without all the open warfare that comes from intellectual property debates.

But the alliance has evidently had some impact on Red Hat, at least insofar as its public message is concerned: It now refers to its Promise on Software Patents as a "covenant" between the company and its customer, borrowing a phrase from Microsoft, and states it is now adding indemnification against lawsuits as a new portion of its Open Assurance Program.

Webbink went on to suggest that his competitors' deal amounts mainly to a juggling of compensations back and forth, dressed up with a bit of technology creation deals for effect. He referenced past collaboration deals between Microsoft and Sun Microsystems as an indication of Microsoft's willingness to truly collaborate with a company whose technology it would actually wish would go away.

Over the weekend, the host of the LQ Radio podcast, which concentrates on Linux issues, posted this comment to his blog regarding the Red Hat counsel's comments: "Stating they will be the 'only' Linux player is odd on multiple levels. First, they have always claimed that not being the only vendor was one of the big advantages for Linux. Second, in what world will every other Linux player disappear in the next 365 days? I'm not sure where [Webbink] was going with this one, but this is the kind of hubris that gets companies in trouble."

One of the moderators of the Zgeek.com forum cautions Red Hat that it could be over-dramatizing the issue, claiming Microsoft isn't exactly the omnipotent bully it's often made out to be: "Anyone who actually thinks Microsoft would attempt to smash Linux by using its patent portfolio is an idiot. As soon as they tried that, pro-Linux companies such as Google and IBM would use their massive patent portfolios in a counter-suit which would destroy Microsoft."

Last July, Webbink's position on software patent reform and the validity of patents for software, was called into question by an anti-patent activist group in Germany. One of its leaders posted some e-mails from a year earlier, indicating that EU legislators had been lobbied by several corporate counsel, including Red Hat's Webbink as well as counsel from IBM, Sun, and Google, advocating against rejection of all software patents on their face.

The alleged lobbying reportedly took place on the very same day that a Red Hat position paper on software patents, co-authored by Webbink, was released. In that statement is the following phrase: "There is not a single independent, empirical study that has found a correlation between software patents and innovation. Nor has a single major software company in the world gotten to its present market position because of software patents."

Red Hat's position paper on software patents, while advocating a software patent-free society, defends the company's stance in having built up a significant patent portfolio of its own, for defensive purposes.

"We are forced to live in the world as it is, and that world currently permits software patents," reads the company's policy statement. "A relatively small number of very large companies have amassed large numbers of software patents. We believe such massive software patent portfolios are ripe for misuse because of the questionable nature of many software patents generally and because of the high cost of patent litigation.

"One defense against such misuse is to develop a corresponding portfolio of software patents for defensive purposes," the statement continues. "Many software companies, both open source and proprietary, pursue this strategy. In the interests of our company and in an attempt to protect and promote the open source community, Red Hat has elected to adopt this same stance."

Arguably, an absence of software patentability throughout Europe could leave companies vulnerable to legal exploits in countries where such patents remain guaranteed, such as the US. This could explain what appear, from e-mails, to have been Webbink's efforts in 2005 in support of at least a fundamental software patent system in Europe.

Still, Red Hat's stance creates a clear division between the ideal world and the real world, and centers its virtual headquarters solidly within the latter realm. Thus, it might be inaccurate to assume that Webbink's comments to TechTarget last week cannot be construed as a threat, without a real-world legal arsenal behind it.