Enterprise Linux Log

Jun 4 2007   10:42AM GMT

2007: Year of the Linux ‘patent covenant?’


MORE UPDATES (o6/07/07): ComputerWorld is reporting this morning that LG has also jumped on board with Microsoft for a patent protection deal. That makes five such deals in recent memory.


Microsoft Corp. on Wednesday announced a cross-licensing deal with Korean consumer electronics maker LG Electronics Inc. It is the fifth such deal in recent months that involves Redmond’s controversial granting of Linux patent ‘protection’ — in this case, to LG-made cell phones and other devices.

Microsoft will pay LG an undisclosed amount of money for patents related to operating systems and computer systems, it said in a press release, while LG will make ongoing payments to Microsoft “for the value of Microsoft patents as they relate to Linux-based embedded devices that LGE produces.”

If this keeps up, my blog headline for this post takes on an eerily prophetic quality. But on a more serious note, many people assumed Xandros entered into an agreement like this on Monday because “they needed to money.” Is it as easy to argue that LG “needs the money” too?

Software patentsBut anyway, back to the original post…

Attorney Jeff Seul and I got a lot of flak for a recent interview on the GPLv3, mostly because his comments weren’t exactly what free software advocates wanted to hear about the latest iteration of the most popular open source license out there. That’s completely fair, and to be expected when something as significant as the GPL gets a makeover, no?

In the name of decency and professional journalism I won’t reprint any of the hate mail I received for our interview on the GPL here (GPLv3 draft gets thumbs down from patent attorney), but suffice to say we were both accused of being on the Redmond, Wash. payroll. It’s a line you get used to hearing if you cover the Linux vs. Microsoft world in any great detail. The beat is enjoyable but requires thick skin.

That was April. Now — if you’ll grant me a quick aside — people say being crazy means you do the same thing over and over again and expect a different result. What I did next fits the bill. Nearly a month after the interview, against all sense of reason, I interviewed another IP attorney, John Rabena, who is an intellectual property attorney based in the Washington, D.C., offices of Sughrue Mion.

Luckily for me, things “went differently,” and I cannot officially consider myself throwing-chairs-Steve-Ballmer crazy. Not just yet anyway.

That’s because the interview was not so much about the GPL’s looming changes as it was about the true intentions behind Microsoft’s saber rattling regarding the 235 alleged patent infringements in Linux and/or open source software. I say and/or, of course, because the folks in Redmond made no mention of what, exactly, was being infringed upon. All we got from Gates and Company was an accusation of wrongdoing without any proof. It was par for the course given similar Microsoft allegation in the past, but that, according to Rabena, was precisely the point.

In our interview, Microsoft’s anti-Linux patent claims: Arm-twisting for Novell-like deals, Rabena addressed in one fell swoop many of the concerns raised by the 235 alleged wrongdoings:

“The fact that they did not name specific patents does not have any real significance yet, so I would expect this could be Microsoft looking for a broad agreement across the industry. If that agreement does not come, then I would expect them to start getting more specific about the patents in question.”

Lo and behold, Rabena’s premonition played out today, as Microsoft and Xandros issued a joint press release detailing a collaboration agreement that mimics the one penned by Novell in November.

My first thoughts immediately drifted back to my discussion with Seul. We went over the now infamous section 11 of the GPLv3 draft, which allows the Novell-MS patent agreement via a grandfather clause, but bans any such future agreements from taking place. What the heck happened, I thought, that allows Xandros to enter an almost identical agreement to the one MS made with Novell? Was the mother of all legal battles imminent? Seems I wasn’t alone in my dark, cynical thoughts, as Matthew Aslett over at the Open Source Weblog used that very same thought in a post on Microsoft and the GPL from June 1.

Next, my inquisitorial nature led me to believe that the spigot was open even more, and that other companies, like Novell and Xandros before them, would start falling in line with Microsoft. Xandros is a young company, and by no means a deal breaker for anyone in this space, but that doesn’t reduce the significance of the announcement. Regardless of what free software advocates say about MS’s shady intentions, there are now two Linux companies out there that have subscribed to its view of interoperability.

We don’t really cater to lawyers much here at SearchEnterpriseLinux.com. As much as we speak with them about IP and patents, we really try to craft the interviews to cover issues that affect the IT manager, not other attorneys. In that vein, I want to know what a piling on of companies signing on with MS would mean to the everyday IT guy. Would it affect your business plan? Your outlook on Linux and open source apps in the data center? What does this news mean to you? If this starts happening more often, does the landscape change? Does it really matter at all?

Open Source Weblog’s Aslett:

No word on any IP protection going the other way, incidentally. In the meantime, as previously noted, it appears that given the terms of the last call draft of the GPLv3, Xandros has signed itself out of GPLv3 code.

I also wrote that any deal with Xandros would negate my suggestion that Microsoft could be poised to mount a legal challenge to the FSF.

I’ve had second thoughts on that. This could be the deal that it uses to prove that the FSF is blocking its attempts to “build bridges”. We’ll see.

It’s still early, I know. And it’s a bit early to be striking “It’s the year of … ” posts or articles. However, I’d like to get a jump on this topic and get a feel for what IT managers are saying.

UPDATE 06/05/07: Steven Walli makes a good point on his blog:

Xandros is looking for love (possibly in all the wrong places). A quick tour of DistroWatch for the comparative view for Xandros over the past 12, 6, 3, and one month periods shows it falling from 25th to 28th to 31st to 40th respectively. Ubuntu sat in first until the past month when it dropped to second in interest behind PCLinuxOS. The harsh part of the story is that regardless of which period you view, there are a lot of well know, well packaged systems ahead of Xandros including Ubuntu, OpenSuSE, Fedora, Debian, Gentoo, and Mandriva and that’s just staying in the top dozen. Even FreeBSD consistently ranks above Xandros on distrowatch.

UPDATE (06/07/07):
Now that the LG news has hit the fan, I’m revisited this post with the fresh information. Is this year really going to be all about Linux and patents? When my editors and I begin to craft the inevitable “Year of…” articles in December, will this be the issue that dominates our discussions? I hope not (too dry, you see), but with yet another company coming on board with MS on this issue, that outcome is now more likely today than it was yesterday.

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