Novell vows patent defense of open source

Joining a growing debate over the role of patents in open-source software, Novell on Tuesday said it will use its patent portfolio to defend its open-source line from legal attacks.

"Open source threatens entrenched interests, some of whom are fighting back with vague accusations of intellectual property risks in open-source technologies," Novell Chief Executive Jack Messman said in a statement. "Novell today is taking an active stand in defense of the software we offer--both proprietary and open source--by stating our willingness to use our own patent portfolio to help our customers."

One of the potential barriers to corporate adoption of open source is that the software, which can include contributions from several parties, may infringe on the intellectual property of others. Pointing to the absence of the legal protections that can accompany proprietary software and a study that found Linux could violate 283 patents, start-up Open Source Risk Management, offers a form of insurance against legal claims.

Although there are significant caveats to the company's policy, Novell essentially is trying to cause a potential accuser to think twice before suing over the use of open-source software. In the case of an infringement accusation against Novell or a Novell customer, the company will defend the software as it would in a case involving its proprietary products, Novell said.

But Novell stopped short of offering its defense for a patent attack against an open-source software user that's not a Novell customer--even though a finding of patent infringement could directly affect Novell and its customers. "We would consider it," Novell spokesman Bruce Lowry said of defending a third party.

Novell said it will use the existing defenses against patent infringement claims: asserting the patent is invalid because it's predated by "prior art" of the same invention; asserting the open-source software doesn't actually use the patent; writing replacement software that sidesteps the patent; or, most severe, counterattacking in instances in which the accuser infringes on Novell patents.

The company posted a patent policy on its Web site, intending to ease the concerns of businesses using open-source software. Novell already offers some legal indemnification against copyright infringement claims brought against Linux server software customers.

A balancing act
Patents for hardware and software have created a sometimes delicate balancing act among companies. Companies often sign cross-licensing deals permitting use of each others' patents, but sometimes hostilities break out.

"I think of it as the Cold War equivalent of nukes," said Marc Fleury, CEO of the JBoss open-source Java infrastructure software in an interview after Sun Microsystems settled a patent suit brought by Kodak. "As long as nobody triggers, that's good. As soon as somebody starts playing rogue, that's dangerous."

The added wrinkle with collaboratively open-source software is that companies might sell software developed by others. In Novell's case, the company pledged to get involved even when Novell didn't write the software in question.

The strategy expands Novell's previous policy. "We said we'd use patents to protect our technology. But if the open-source technology isn't our own technology, but part of something Novell offers, could we ultimately use our patents to defend it?" Lowry said. "The answer is yes."

Novell has patents in technology for operating systems, word processing software, directory software and other areas, Lowry said. "We certainly believe we have a patent portfolio that is very relevant to the current computing environment," he said.

Microsoft, a company whose proprietary products are directly threatened by Linux, OpenOffice.org and other open-source packages, believes open-source software needs to fit into the existing intellectual property legal framework. "It is important for everybody to respect and play by the same rules...We do hope that everyone will respect the intellectual property rights that others have," said Brad Smith, Microsoft's top lawyer, when asked earlier how Microsoft will deal with patents and open-source software.

Novell called on other software companies to use patents to defend open-source software. The company said it will use its existing patents should others claim Novell is violating their patents.

Novell's business is built around a hybrid of selling proprietary software and offering services around freely available open-source software. The company purchased SuSE Linux and open-source desktop software company Ximian last year to capitalize on the growing interest in open-source software.

Patent polarization
The issue of patents is divisive in the open-source community and the software industry in general.

Red Hat, in its patent policy, states that "software patents generally impede innovation in software development and that software patents are inconsistent with open-source/free software."

Some major patent holders have promised not to unleash their lawyers over open-source programs. IBM has said that it will not use its massive patent portfolio against the Linux operating system kernel.

But at the same time, IBM, as well as other open-source providers such as Sun and Hewlett-Packard, remains committed to boosting patent portfolios as a means of protecting intellectual property. And Red Hat, the top Linux seller, is building its own patent portfolio for defensive purposes.

In its statement on Tuesday, Novell's general counsel, Joseph LaSala, said the intellectual-property risk associated with open source is no different than that with proprietary software.

"With this policy, we're saying we'll use our patents to actively protect Novell's open-source technologies against any third party asserting its patents," Novell's Messman said.

It may not cover potentially infringing IP. However, look at it this way: If there is infringing code in the Linux kernel, who will the IP owners go after? Certainly not Linus--he couldn't have know, and he doesn't have the deep pockets to pay for their lawyers' fees, much less any punitive damages. End users? Don't make me laugh. IBM? Look at the SCO suit. They're not getting anywhere.

The simple fact is that OSS is pretty safe from patent suits because there is no one to sue. Proprietary software has much more to fear from patent wars than OSS does.

They're going to go after whoever distributes Linux (RedHat, SuSE/Novell, etc) and whoever contributed the code. RedHat and others have been getting a free ride up until now. Once they have to start shelling out money to lawyers to pay off plaintiffs, the equation is going to change sharply. RedHat may not be able to afford to accept code without some kind of certification process that it's free of IP entanglements; and, even then, that's no guarantee that RedHat, Novell et al won't get sued and have their asses handed to them in court. Ignorance isn't a defense.

That doesn;t change the fact that linux is a kernel and X11 is a gui that happens to run on linux.

Irrelevant. People don't install kernels. They install an entire operating system which consists of many components. Whoever distributes that aggregate operating system would be subjected to a lawsuit if offending IP is found.

Linus would not be directly affected if offending code were to be found in X. He would only be affected if conflicting code w're to be found in the Linux kernel. Don't believe me, just go look at the AT&T suit that was filed against BSD in the 90's.

I could care less about Linus Torvalds. I'm talking about (a) the folks who add offending IP, and (b) the folks who sell/distribute any given Linux distro that contains the offending IP. Offenders aren't capable of indemnifying Novell, Red Hat, etc -- and Red Hat, Novell, IBM, etc ain't gonna indemnify end users. Why do you suppose IBM doesn't offer its own Linux distribution? Obvious: Their lawyers have told them that it simply isn't worth the legal risk. Let the rubes out there incur the risk.

Irrelevant. People don't install kernels. They install an entire operating system which consists of many components. Whoever distributes that aggregate operating system would be subjected to a lawsuit if offending IP is found.

Look at what you just said. That makes no since man. The kernel is the entire O.S. Everything else is a tool that helps make th O.S. more useable.

Look I happen to be a BSD advocate. I run OpenBSD, I make embedded devices using the OpenBSD kernel. Specifically embedded firewalls. My install base is a total of 12mb. A two mb kernel and 10 mb of tools which allow me to interact with that kernel.

If offending code is found those the ones that are liable are the people who commit changes to the kernel. That's why there's a thing called the gpl. Redhat or Suse or any distro not develop their own linux kernel. The is one kernel for all of linux. The linux kernel. Developed by Linus Torvalds. It is his intellectual property and the intellectual property of those that hav contributed to it, not the intellectual property of redhat or suse or mandrake or whatever linux distro you'd like to claim. You don't have to believe me, just call redhat up in rtp and ask em. They'll tell you.

That's just the way it is. SCO doesn't have a case they never have. Bell Labs tried to de very same thing to BSD 10 years ago. They failed, because there is no offending code. It is the same supposed code the SCO group is trying to sue linux over. Linus took it from the 4.2 BSD tree.

You don't have to believe me. Use CVS check the code out and have a look for yourself.

IBM hasn't released their own linux distro because it's not profitable for them to do so. You don't profit from selling linux, you can't. The GPL prevents it. Not to mention IBM pushes AIX their own commercial UNIX distribution. Redhat and others that are charging for linux charge for their independent contributions which allow for ease of use. They also charge for support. It's their business model they're public so you can go look that up to if you don't believe me.

Look at what you just said. That makes no since man. The kernel is the entire O.S. Everything else is a tool that helps make th O.S. more useable.

I'll try to remember that the next time you guys bash "Windows" because of a flaw in IE or IIS or Outlook Express...

If offending code is found those the ones that are liable are the people who commit changes to the kernel.

Wrong. Anybody that's involved in accepting or distributing changes to the kernel is potentially a target of a lawsuit over offending IP. If you think otherwise, you're living in fantasyland.

That's why there's a thing called the gpl.

The GPL governs copyright of the software. It isn't a magic shield against litigation. Redhat or Suse or any distro not develop their own linux kernel. The is one kernel for all of linux. The linux kernel. Developed by Linus Torvalds. It is his intellectual property and the intellectual property of those that hav contributed to it, not the intellectual property of redhat or suse or mandrake or whatever linux distro you'd like to claim.

That's irrelevant. When Red Hat, Suse, and others distribute the kernel, they have to take responsibility if that kernel (or any other components) contain offending IP. They can't reap benefits from the code without also assuming the risks. That's just the way it is.

You don't have to believe me, just call redhat up in rtp and ask em. They'll tell you.

RedHat's opinion is of little relevance when somebody else sues them for distribution of offending IP.

IBM hasn't released their own linux distro because it's not profitable for them to do so. You don't profit from selling linux, you can't. The GPL prevents it.

Um, excuse me: Is Red Hat making money from distributing Linux? Uh, yeah. They are. So you're barking up the wrong tree.

Not to mention IBM pushes AIX their own commercial UNIX distribution. Redhat and others that are charging for linux charge for their independent contributions which allow for ease of use. They also charge for support. It's their business model they're public so you can go look that up to if you don't believe me.

IBM is shrewd. They don't have to assume any risks for Linux. They let Red Hat and others do the heavy lifting for them. I'm surprised that you guys can't see that.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.