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Don Rosenberg responds to readers

In this column, Don Rosenberg responds to reader comments about his previous piece "Opinion: Microsoft, Sun, Oracle can't sidestep Linux, open source movement."

This is for the many people who wrote in about my piece on Microsoft/Novell.

Check out Don Rosenberg's column:
Opinion: Microsoft, Sun, Oracle can't sidestep Linux, open source movement

Thank you for the many comments-they are a great example of how open source works: with many eyes finding the bugs.

I'm afraid I wrote the piece in a hurry, and glossed over a long and complicated legal case: SCO's suit against IBM. Yes, it was a copyright suit, but I slid over into patents because I was discussing the current dispensation of Microsoft for Novell. Microsoft says it is granting patent immunity to Novell regarding SUSE Linux.

I slided a good deal in trying to give a general explanation of how Linux deals with these questions. But the line that really caused the flurry of (justifiably) upset letters was a line I never wrote regarding SCO: "Developers responded to charges of patent infringement by dropping the offending code in Linux."

My original line was a general statement about how open source deals with charges of infringing code: "The Linux reaction to charges of patent infringement is to drop the offending code, or to bring in a stake-holder to bring a counter-action" (I wanted to hurry on to the role of IBM as a patent Gibraltar for Linux). Somehow, the line was changed in transmission, making it sound as if Linux had to change kernel code in order to satisfy SCO.

The facts are clear, I was trying to avoid getting into the complicated history of the SCO case. My reference to IBM was not so much that IBM brings suits against those who threaten Linux, as that its storehouse of patents offer, should IBM choose, a counterweight to an infringement suit against Linux. The IBM Public License (later the CPL) makes it clear that those who bring infringement suits against software under that license lose their own licensee privileges.

I would take the time to make this clearer, but what I want to do here is to acknowledge my mishandling of references to the SCO case in the original piece, not explain them in detail, just as I was trying to make reference to the SCO case in the original piece, not explain it. But I do think that if Microsoft were to claim patent infringement against Linux, IBM, whose business depends so heavily on Linux these days, would certainly respond from their patent arsenal.

My purpose in writing the piece was to discuss the market strategy and implications of the Microsoft/Novell arrangement, not to go into licensing in detail (I have written a fair amount on that elsewhere, such as long review of Larry Rosen's open source licensing book, besides a couple of chapters in my own book on open source and business written in published in 2000).

I am impressed that readers not only know so much about the legal issues involved, but that they took the time to write about it, and one supplied references not only to the SCO case, but to the background of the Microsoft/Novell arrangement. They are so interesting that I have to pass them along to you:

Some readers wrote that they believe that the Microsoft/Novell arrangement is a set-back for Linux and a victory for Microsoft. I think it is just one of a number of maneuvers as Microsoft tests how far it must go in accommodating and containing ("embrace and extend") the new world of open source. They have tried opening their code (in their own way) and now they are supporting a distro (in their own way). Linux doing fine, but I think Novell may be in trouble. From the early days of Red Hat, Bob Young always knew his opponent was not other distros, but Microsoft; Novell's position makes me think of Vichy France.

One reader questioned whether there were "patents in the GPL software." There probably are, but provision 7 in the GNU GPL says that if you include patents in your contribution, it is understood that everybody is able to freely use them. This is a license by implication, but not very clear (partly because some of the patent ideas are in the preamble, and not in the terms). The FSF itself holds no patents, of course, but there is no reason that patents cannot be part of software licensed under the GPL.

The patent part of the Novell/Microsoft arrangement is just woofing. It is the ostensible but non-existent advantage to the partners of the arrangement. The terms are so vague because if they were specific they would reveal a.) there is no specific patent being infringed or licensed b.) any patent that Microsoft licenses into GPL'd code may be freely used by any user of that code (again, the GPL is a little vague). The terms are not even an armed truce, but a protection racket: Germany will not invade Vichy France and Vichy France will not attack Germany nor Occupied France.

The material points to Ballmer's inviting the other Linux distributors to make their patent peace with him. "Nice dry cleanin' shop ya got here, buddy. Shame if the clothes on them racks wuz to get all slashed and acid-burned, ya know. Yer customers wud hate it." I can't wait for Ballmer to take his pitch to IBM.

Once again: SCO sued IBM over copyrighted material in Linux, the community demonstrated the claims to be groundless, and SCO has not prevailed. And thank you for your corrections.

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