It is about dividing the Free from the Open
By EdisonRex
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Eben Moglen, the legal genius behind the Gnu Public License, is no fool. When crafting the GPL, Moglen was especially careful to protect GPL licensors against “ land grabs", the scenario where unscrupulous carpetbaggers appropriate GPL-protected software, call it their own, and then sue the original developers for infringement. Because the GPL is all about copyright (make no mistake about the “copyleft" ideals; the main protection afforded to rights holders is indeed the copy rights), there have been, all in all, few credible challenges to the GPL based on copyright. The concept of software patents has changed the nature of the game, however, and the apparent willingness of the US Patent Office to grant software patents with apparent disregard for prior art, or even any merit whatsoever, has brought more challenges to what should be a vibrant, diverse ecosystem.
Microsoft has never been interested in allowing true competition. In its history, it has always looked after itself, and has innovated not in software quality, but in stacking the odds in its own favor. When it has been unable to technologically stay on top, it has acquired technology, usually via a “partnership" which has invariably turned out worse for the partner. The technology world is littered with companies who thought that they could do business with Microsoft and have found out what a Microsoft partnership is worth. Microsoft is indeed the black widow of technology partners. Even rarer than a survivor of a Microsoft partnership is a company willing to try again.
This makes the Novell deal with Microsoft all the more puzzling. Novell, not even having emerged from the SCO/IBM/Unix/Linux fiasco, armed with a formidable patent arsenal, and controlling the second largest enterprise Linux distribution, suddenly partners with Microsoft. And even more puzzling, it doesn't look like Novell has the right to do what it is doing. Redmond, for its part, is talking up the indemnification card, which is the same trick SCO played by proxy, and has all but lost, back in 2003.
When Microsoft speaks of “Windows" as an operating system, it is about the entire collection of programs, utilities and tools which Microsoft has bundled in. Internet Explorer, for instance, is so deeply layered into Windows that Microsoft complained to the US Department of Justice that it could not possibly unbundle it. This, of course, reduces the choice an end user has to use any other browser, as no other browser, it appears to be their thinking, has the ability to make use of their proprietary, undocumented calls to the operating system. This same thinking is what causes Microsoft to bundle Windows Media Player into Windows 2003 Server, as if a server operating system needs either an internet browser or a media player (or a graphical user interface, for that matter). For Microsoft, the game is all or nothing, and it has always been an all or nothing game. Long ago, Microsoft had enough money to crush most other competitors, by one method or another, and we can reliably assume that there really is nothing further that the DoJ intends to do about this monopoly.
GNU/Linux, on the other hand, is not a “collection" of tools and utilities. It is a kernel, nothing more. Every tool, utility, application, graphical user interface, and layered product in a Linux distribution is authored separately from the others. The kernel can run without a graphical user interface, it can be configured into a thinner, less featured environment, it can be augmented, and other components, including proprietary components, can be added. There are literally thousands of individual projects which make up a Linux distribution, and it would be very unusual to configure a Linux distribution with all of the choices available. Because the source code to the operating system is open, all of the system services are documented. Any project that needs to leave its own space has calls to other application spaces documented. A distributor can aggregate the collection of utilities, applications, kernel, tools, drivers, and augment it themselves, and even sell their effort subject to the terms of the GNU Public License. When Novell bought SuSE, it bought a company which was making a good reputation as a solid, easily configured distribution.
This difference in models has been very difficult for Microsoft to compete with using Microsoft's usual rules of engagement. The GPL is incompatible with Microsoft's proprietary model, for starters. There is no single distributor with rights to the entire collection, which could then be bought out and buried. There is no single owner to the kernel, either. Linus Torvalds may hold influence over his creation, but he does not own it singly. Microsoft has been figuratively fighting a swarm of bees, and the bees are making a lot of honey. Since 2003, when SCO started their remarkably ill-defined lawsuits against “Linux", suing IBM, Red Hat, Novell, Daimler-Chrysler, and Autozone, numerous assertions by SCO for infringement against “Unix" ran into the same problem – namely, the kernel and the applications are not one entity. Even if SCO actually owned what it said it did, it would take a giant leap of logic to allow that SCO would have rights over, say, IBM's own code donated to the Linux kernel. It would even be more silly for SCO to have any rights over, say, the BSD network stack, which isn't part of SCO's pretend intellectual property rights, unless they were pretending to own the entire world's software sources. In any case, Microsoft found early on that attempting to compete with Linux was a new challenge, and none of the usual techniques worked.
Attempting to rig the game by claiming that Windows was cheaper to own than Linux has been an uphill battle. It becomes very difficult to follow the logic that “software that costs more than the hardware you are buying is less expensive than software that costs nothing" because you'd have to spend more to support the software that costs less (follow that?). More and more, enterprises are finding that, actually, Linux is much cheaper, more stable, more efficient, and does not obsolesce as quickly. When you are not in the business of making ever more money to appease shareholders, your code tends to be more maintainable and stable over time. Add in the small problem of Vista's tardiness, and even worse, the tangible resistance of most enterprises to even consider moving to Vista in the near term, and the competition for dominance of the monopoly doesn't look so dominant anymore. In real terms, “competition is alive and well in the software world" if you are willing to ignore the elephant in the living room.
Software patents, the ability to grant exclusive rights to a particular method or process as it can be expressed in software, was identified, and pursued with great zeal, by Microsoft over the past 10 years. Indeed, one of Microsoft's more illustrious shareholders left the company to become a partner in a software patent brokering firm. By taking out patents on critical processes, for instance, a method of file access, commonly used by all, tollgates are set up on the standards highway. The largest players each have thousands of these patents, and hold them as a defensive weapon against each other. Microsoft, for example, would not be likely to sue Sun Microsystems, or IBM, or Apple for patent infringement, lest it find itself counter-sued for some alleged infringement on its own part. In this way, a software detente between the largest software companies has existed for some time. Whilst the Free and Open Source Software movement was a collection of small players, with little market share, it was barely worth the time for someone like Microsoft to threaten any of the small projects with a patent lawsuit, not least because it might not have a patent, but there are so many choices in the FOSS world, killing one bee will not prevent the stings of others. And there are collections of software patents owned and held to defend the FOSS world too.
However, as more and more money, and market share, goes to Linux distributors, large enough targets are established for Microsoft to begin to take aim at, and maybe at the same time scare the small customer into staying enslaved in their ever-tightening license regime. By inventing a problem, and by making it look like making the wrong choice can expose your business to lawsuits, Microsoft hopes to stave off the bleeding of market share, at least until it can actually neutralize the threat of Linux. To this end, Microsoft has obviously done its homework to analyze its enemy, and is clearly seeking to separate what they think of as the “Free" from the “Open" parts of “Free and Open Source Software". It would be unwise to ever underestimate Microsoft's legal and marketing machine. If there is one thing Microsoft innovates very well, it is legal gambits.
In this way, Novell, having a successful distribution in the market, and working on a fairly extensive set of applications designed to increase interoperability with Microsoft's technologies, runs the real risk of running into a patent problem with Microsoft. Novell turns out to be working on augmentations to the Mono project. Mono is an open-source version of Microsoft's highly proprietary .NET architecture. Unlike the Samba project, which has always been able to at least point at CIFS and SMB as industry standards, before Microsoft “embraced and extended" them, the .NET architecture is entirely Microsoft's. Indeed, there are many who can't imagine why anyone would want to inter-operate with it. That said, there is one area where patent friction might very well be likely to happen. Novell still owns Evolution too, and that product has long licensed specific technology in order to use the same closed protocol that Microsoft Exchange Server requires its native Outlook mail application to use. The fight over the Open Document Format, and Microsoft's bitter fight to subdue it in favor of their closed, proprietary and unsatisfactorily documented “OpenXML" format is another area that further patent wars are likely to be fought when ODF needs to inter-operate with OpenXML. Even the latest VBA support in OpenOffice Calc could attract a patent fight. True proprietary players do not wish for open standards to exist, unless they can monetize that standard. Free (as in freedom) and Open (as in not proprietary) standards are anathema to companies like Microsoft, as they allow choice for users, and Microsoft, as it seems to be, is not interested in allowing choice.
It appears that Microsoft is driving its first thrust at separating the “Free" (as in not paid for) and “Open" (as in not monetized) parts. This, presumably, separates the “hobbyists" (the guys working for free, and the folks getting free stuff for home use) from the paid (Novell's, IBM's, Sun's) programmers, and the paying customers (the small and medium size enterprises that are seeing benefit from using Linux). By cutting off the air supply under threat of litigation, Microsoft can hope to slow further adoption of Linux where it matters to them. Since Microsoft cannot yet consider that a home user should be capable of using Linux, it is assured that new home computer buyers will continue to be locked into Vista as they were for XP, 2000, Me, and 98 before that. It doesn't need to threaten the home/hobbyist user, yet. Where the revenue stream is, however, Microsoft will spread the doubt that there is a possibility of lawsuit. “Don't end up like Autozone", they intimate, caught in a multi year lawsuit because of alleged infringement. Patent lawsuits are expensive, and most companies will settle rather than fight. They can mop up the hobbyists later, like the RIAA is doing against consumers, after they have established their precedents.
The Free Software Foundation is likely to further rewrite the GPL in order to neutralize this threat in the short term, certainly within the next few months. The damage to the community is already evident, and Microsoft hopes to drive wedges into as many places as it can to split the community. Smaller swarms are easier to defeat. What is clearly evident is that Microsoft is now giving the threat of Linux their full attention and there is no doubt that they consider it an all or nothing game. The new year promises to be as eventful as past years, especially with regard to Vista's adoption rate and Linux's continued march into the corporate data center. One thing is for sure; the story is still developing.
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