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IP attorney: Microsoft-Novell partnership creates internal competition for open source

The Novell-Microsoft partnership might mean the Linux and open source community will start to see something it has rarely had to deal with in the past: internal competition.

Bruce Sunstein, an intellectual property lawyer and head of the Boston-based firm Bromberg & Sunstein LLP, noticed the IBM undertones to last week's bombshell collaboration announcement between Microsoft and Novell almost immediately. Sunstein said that in this partnership Microsoft resembles IBM from five years ago in that it has recognized Linux is a legitimate means to an end when it comes to driving the company into new areas of business.

For more on the Microsoft-Novell partnership:
Opinion: Don't panic over the Novell-Microsoft deal

Red Hat: We will be here in one year, Novell will not

Opinion: Microsoft, Sun, Oracle can't sidestep Linux, open source movement

While much is yet to be uncovered in this once unholy alliance between Microsoft and Linux, Sunstein does his part in this exclusive interview with to go over what is known about the influence of the GPLv3 draft and how a Microsoft-allied Novell SUSE Linux helps and hinders the open source movement. Is a little internal competition amongst the open source community is a good thing for everyone? Why might this partnership result in General Public License (GPL) violations?

Bruce Sunstein: I think, to some degree, this idea of co-existing is in the eyes of the beholder. For example, in regards to applications, Microsoft is not going to be distributing Linux. That is already pretty clever. What they are, in effect, distributing are coupons. Coupons do not a distribution make. A user is not getting stuff from Microsoft. Microsoft is not in that business.

What does this agreement do to Novell?

Sunstein: You have to ask: Is Microsoft going to be distributing Novell or aren't they? Maybe they are, but, in any event, if Microsoft does end up doing that, it may be possible to avoid some of these GPL-related problems from the Novell end as well. We should not let the question of execution obscure this landmark arrangement. For the first time -- and frankly there will be people in the Linux world who will be upset by this, oddly enough -- we have a standing arrangement that is recognized between two important factions in their respective areas. Microsoft is huge and Novell is certainly not insignificant. This would have been a stupid move a decade ago on Microsoft's part because they would have been busy further developing their market.

Make no mistake, Microsoft is not doing this because it's 'good,' but because it is good business. It's the same way IBM embraced Linux more than five years ago. The fact is, IBM sells a lot of hardware and now they are able to sell hardware in a market they did not have before. For Linux, overall, this is a celebration of having come of age. Linux is now in its adulthood.

If the open source community outside of Novell SUSE Linux happens to step on any Microsoft patents, then there are certainly some concerns.

What happens when GPLv3 becomes a reality? Eben Moglen and others have said that several parts of the Microsoft-Novell agreement as it exists today would be in violation of that update.

Sunstein: GPLv3 isn't adopted yet, but you have to ask, regardless, who wins in the end? Seems to me it would be the users. It is the community that will ultimately determine what goes into the license. It also seems to me there may have to be some bending from the open source community.

Everybody's hands may get a little dirty from this partnership, but those dirty hands get the [Linux] engine running better. Compromise will increase the reach of the software. Honestly, who is going to be upset if Linux ends up becoming a platform that can run some proprietary applications better and has them also talk to non-proprietary applications as well? Oddly enough, this could be a win-win situation, if we can extend this way of thinking to computing, generally.

So what's the realistic outlook for Linux, in light of some of the negativity surrounding the Microsoft-Novell in the OSS community?

Sunstein: When Microsoft defended itself against charges in the U.S. for being a monopoly, it was identifying competitors and mentioned Apple and Linux. No one was sure at the time if Linux was really much of anything -- it was just a way for Microsoft to say there were other OSes out there for customers to choose.

Five to 10 years ago, mentioning Linux sounded silly, but it's not so silly anymore. When you mention Apache, that's what people use when they do Web servers. SAP runs on Linux today, and that's equally amazing. SAP is not for free by any stretch of the imagination, but there they are running on the Linux platform. Microsoft saw that and said, 'We need to do this too.'

Will there be GPLv3 changes now that this announcement has taken place?

Sunstein: In the end, the user running [Linux or Windows] will have to say. Even though GPLv3 governs all sorts of things, it may not govern as much in the future. Novell will use the GPLv3 if its software doesn't violate its conditions, but, then again, maybe it won't. If things work in GPLv2, then maybe that's enough.

Are you saying Microsoft has made a pledge not to go after Novell customers for patent infringement because Novell is basically paying for that protection via royalties?

Sunstein: Potentially that's what this partnership means -- that there is a limited class of customers that Microsoft is protecting under this agreement. A huge chunk of developers are still covered under Novell's customer base, but there could be developers and users out there that are vulnerable.

If I were with Red Hat, would I have a similar deal in my future?

Sunstein: I'm not sure if we will see deals that work in the same way. We might see more cooperation. Novell, in particular, was a candidate because it has a fair amount of proprietary software to begin with. Microsoft of ten years ago did not know how to do something like this. Maybe it took Bill Gates to let go of the helm for this independent kind of thing to happen, but, regardless, this is only the beginning. If it is not a new age of peaceful coexistence, it is at least an age of respecting open source on Microsoft's part.

It's still very early, but what should IT managers be knowledgeable about in regards to this partnership?

Sunstein: I think users will want to go with platforms and environments that have a reasonable history. Usually if a distro has been too much of a trailblazer, then they're spending most of their time blazing and not walking. As a user, sticking with the well-known distros and commercial application companies means you are pretty well protected. Pick flavors likely to survive, even if they do not have all features you would want.

What do you think will happen? What are your thoughts on the Microsoft-Novell deal? Email us and let us know!

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