[Novalug] Novell's FAQ to the Open Source Community

[Chris Metzler]

Whoops, accidentally sent this to Greg directly by mistake.  Here's one
for the list.  Sorry Greg.



Yes, the Linux community has asserted many, many times that they believe
the kernel, and other code essential to the platform, is not guilty of
patent infringement.  And Novell repeats this in the FAQ to which you
provided a link.  I doubt it's fair to make a statement that "the Linux
community as a whole" believes there are no patent issues, since that's
a heck of a lot of people about whom to be making a hard-and-fast
declaration; but it's definitely the community position that there
aren't patent issues.  However:

1.  Numerous recent patent infringement cases have shown that confidence
of that sort is misplaced a very large fraction of the time; it is
extremely difficult to predict what courts will do in patent cases.

2.  Many of the principals making such assertions (that Linux is
unencumbered by patent issues) have also publicly stated that they
make a concerted effort *not* to be aware of specific possible patent
infringements, since the U.S. legal system punishes those aware of
infringement more severely than those who are not.  Linus, for
instance, has made this statement numerous times; SCO even tried to
use it against him in the court of public opinion.  In fact, this
is one of the reasons why statements from the community to the effect
that we believe there are no patent issues are in fact *necessary*,
regardless of whether they're actually true.

3.  If Microsoft were to pursue patent litigation against Linux
companies, organizations, or customers, they now can claim the Novell
agreement as a sort of precedent.  Yes, I'm aware that the agreement
does not indemnify Novell proper; however, the fact that it protects
their customers is a strong argument in court that Novell was
concerned there could be an issue.

4.  If we are ever in a situation where, to kill Linux, all Microsoft
has to do is to kill Novell, we're in big trouble.  Unfortunately,
these events make that situation more likely to occur, since now
customers of everyone from Red Hat to Canonical have to be concerned
about getting out of Microsoft's sights.  As do those companies.
MS is explicitly stating that they consider bringing software patent
litigation against Linux users a possibility -- unless they're
customers of Novell.  We now have a split community:  one which has
Microsoft's approval and is not under threat of litigation, and one
which is.  I don't know how that *can't* have a bad effect on the
community as a whole.

Microsoft failed, through its agreement to backstop Baystar's financing
of SCO's litigation against IBM, to have a significant detrimental
impact on Linux adoption and use.  This is their next trick.

Off to work,

-c

-- 
Chris Metzler			cmetzler at speakeasy.snip-me.net
		(remove "snip-me." to email)

"As a child I understood how to give; I have forgotten this grace since I
have become civilized." - Chief Luther Standing Bear
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