Legal Wrangling In The World of Linux

There's been a lot of legal saber rattling in and about the Linux world in recent weeks, including dire warnings from Microsoft's lawyers that open-source software violates patents held by the software giant and fears that the Free Software Foundation might punish Novell for its controversial patent deal with Microsoft. But so far the response from the solution provider community has been more of a collective shrug.

"I don't think it's terribly damaging to Linux," says Chris Maresca, a founding partner of the Olliance group, referring to Microsoft's rumblings. Palo Alto, Calif.-based Olliance provides open-source strategic consulting services to technology vendors and technology purchasers, and Maresca doesn't see any businesses shying away from Linux.

The dustup began last month when Microsoft general counsel Brad Smith and Horatio Gutierrez, the company's vice president of licensing and intellectual property, were quoted in Fortune magazine as saying they believe open-source products violate 235 Microsoft patents and that Linux itself violates 42 of them. While Microsoft has hinted before that it believes open-source products infringe on its patents, it was the first time executives at the Redmond, Wash., software giant had been so specific.

Some dismissed the news as efforts by Microsoft to sow fear, uncertainty and doubt (FUD) within the open-source software world.

"It's difficult to say whether Microsoft owns anything that's a real issue for Linux. If Microsoft were going to seriously go after Linux legally, they would have done so," says Gordon Haff, a principal IT adviser at research firm Illuminata. Until the latest salvo, in fact, Haff says Microsoft "seemed to have resigned itself to having Linux be part of the computing landscape."

Other industry observers note that taking the legal route wouldn't be good marketing given that Linux and other open-source software are deeply entrenched in the industry, including within solutions built by Microsoft's channel partners and within the corporate IT departments of its customers.

"I can't imagine Microsoft taking that tack," says Todd Swank, marketing vice president at Nor-Tech, a Burnsville, Minn.-based custom systems builder that sells a lot of Microsoft products and some Linux software. While Linux resellers and customers could get spooked if Microsoft actually begins filing lawsuits, Swank says, "I just don't see that happening at this point."

Indeed, Microsoft has said it's more interested in developing cross-licensing deals like the controversial agreement it signed with Novell last November. Earlier this month, Microsoft disclosed that it had inked a broad collaboration agreement with Linux software vendor Xandros that includes patent-covenant protection similar to the Novell pact. In a keynote speech at Microsoft's Tech-Ed conference in Orlando, Fla., earlier this month, Bob Muglia, senior vice president of Microsoft's server and tools business, said the deal illustrated how the company is willing to work with business partners to help customers use open-source products.

Microsoft has also signed patent-swap agreements with Fuji Xerox, LG Electronics and Samsung Electronics, which include Linux in their products. But Red Hat, the leading independent Linux vendor, has vowed not to strike a similar deal with Microsoft and in an online manifesto calls payments associated with the agreements "an innovation tax."

The open-source software community was outraged when Novell struck a deal with Microsoft, arguing that it implicitly validated Microsoft's patent claims and leaves other vendors and their customers vulnerable to lawsuits. Novell has maintained that none of its products violate Microsoft patents and the alliance was really about making its products compatible with Microsoft's.

Anger at Novell grew to the point that the Free Software Foundation, which oversees the General Public License governing open-software distribution, included language in a new draft of the license prohibiting the kind of patent covenant struck between Microsoft and Novell. In a May 25 filing with the Securities and Exchange Commission, Novell said such a prohibition could restrict its ability to include GPL code in its products or force Novell to "modify" its Microsoft relationship.

Now Novell appears to be off the hook. The final draft of GPLv3 says GPL distributors "who make discriminatory patent deals after March 28 may not convey software under GPLv3," according to a Free Software Foundation statement. The foundation also said that "Novell is not prohibited from distributing this software because the patent protection can be turned against Microsoft to the community's benefit."