How things are shaping up with the Novell/Microsoft deal
If you are part of the Linux/Novell community last week you would have no doubt heard of the Microsoft - Novell agreement. When it was first announced it looked materially very boring on the surface comprising of a couple of virtualisation developments and a promise by the two companies to work on OfficeXML and directory system interoperability. All this is fairly trivial but what made the deal controversial was the promise from Microsoft not to sue Novell customers for using Linux.
The two 'problem' technologies that fall under this legal cloud is Mono, an implementation of Microsoft's .Net runtime for Linux and Samba, a SMB compatible client/server capable of mimicking the network functionality within Microsoft products. Whether or not there is any real legal grounds for patent infringement is a matter for debate. Neither break copyright laws and the extent of patent infringement by either project has never been described by any party. Nonetheless Microsoft has successfully created and maintained a cloud of uncertainty over these products, a feat helped in no small part by their support of the long running SCO vs IBM/Novell lawsuit (which boils down to the copyright status of some Linux code).
This agreement between Microsoft and Novell whilst not affirming any patent infringement claims does imply there are legitimate grounds. Both parties benefit from the Fear Uncertainty and Doubt (FUD) created from this agreement. Microsoft clouds the Linux legal waters forcing CEO's and CIO's to hesistate on purchases whilst Novell benefits financially and increases Linux sales thanks to the official support of Microsoft and their ability to preach that they are legally the safest Linux option. Unfortunately with a scenario like this there are always losers, the biggest in this case being Red Hat which was already staggering after Oracle's Unbreakable Linux moves a week earlier. There is also a question mark hanging over how this will effect the Linux community as a whole. The issue of patents is very significant yet up until this agreement the community, along with companies like IBM, Sun and Novell, have been able to present a united front against Microsoft threats.
Just to add fuel to the fire is the effect of the agreement on the GPL and Novell's ongoing ability to distribute GPL licensed software (e.g. Linux) as pointed out by Eben Moglen. Section 7 of the GPL states that GPL software cannot be sold for patent royalties. Up until this point Novell has always 'sold' Linux support and kept the software 'free', but the agreement with Microsoft implies that some of this revenue is actually being paid to Microsoft as royalties. This would violate the terms of the GPL and stop Novell from redistributing Linux (now effectively their primary operating system).
Yesterday Novell cleared this matter up through a series of public statements. In essence the media releases established that individual Novell customers were in fact creating a separate agreement with Microsoft when purchasing Novell Linux support and that Novell had nothing whatsoever to do with this covenant except they 'assisted' their customers by paying Microsoft on their behalf. Groklaw soon pointed out there are some considerable legal issues surrounding the move that may still invalidate the terms of the GPL. Although still not legally validated this is an interesting move by Novell/Microsoft as it sidesteps section 7 of the GPL, effectively allowing royalty payments for GPL software. No doubt the Free Software Foundation (FSF) will take a very close look at this agreement and there will be a strong desire among many in the Free and Open Source Software (FOSS) community to have it struck down in court.
If the terms of distribution are proven to violate the GPL then Novell will face some significant problems. They will not be able to redistribute Linux or taut their legal superiority over other distributions. In fact in such as scenario they would loose most of the reputation they have in the industry, forcing into question their very existence. If proven to be violating the GPL Novell will have no choice but to either withdraw from the Microsoft agreement (at a cost of millions) or devise a means of making money from Linux in a way that does not entail actually distributing it.
Distributing just the closed source binaries (the secret sauce) that differentiate Suse Linux Enterprise and Open Enterprise Server from the community driven OpenSUSE distribution maybe an alternative. In my opinion this would not be a bad option, the value in Novell's products have for a long time existed in the tiers above the operating system, for example eDirectory, Groupwise, the Novell Client, Zenworks and Identity Services. By forcing the company to focus on easy distribution of these valuable services across a range of distributions it would actually open up new markets and business opportunities which their current, self-contained Enterprise distributions are not allowing.
No matter what happens I am sure the next few months will be very interesting, not just for Novell but for the entire Linux and FOSS community in general....