[sf-lug] Windows and Linux OS to work together

Rick Moen rick at linuxmafia.com
Mon Nov 6 15:39:48 PST 2006

Quoting Catherine Jones (cathjone at eskimo.com):

> Thanks, Rick, for the pointer to groklaw.net for information on the 
> Microsoft-Novell pact.
> Reading through Friday's discussion there
> http://www.groklaw.net/article.php?story=20061103073628401
> brought up a lot of questions for me about both Linux community 
> strategy and individual FOSS developer choices (libraries, patents, 
> licensing agreements, et cetera). 

A really good analysis piece about the Novell / Microsoft announcement
-- a refreshing change from all the recent, dopey "Windows and Linux
OS to work together" articles in the mainstream IT press:
Author Andrew Orlowski (fair disclosure: acquaintance of mine) has Clue.

I object to his taxonomy:  Major portions of those whose call themselves
"open source" people, including yrs. truly, have always been intensely
concerned with software freedom, and I deny indignantly Orlowski's
suggestion that _we_ were not serious in that, or serious in our
assertion that "open source" and "free software"[0] are two different
marketing programs that map to the same territory of code and licensing.  
At the same time, he is certainly correct that parties concerned only
with business expedience have also flocked to the "open source" banner.

Orlowski correctly cites in his second sub-header (right below the
slightly boozy Fleet Street bluster that is the traditional opening
salvo of most _Register_ pieces) the salient fact that started _greatly_ 
alarming many of us a few years ago:  Microsoft's change of tactics in
2003 from pure FUD tactics to from-scratch construction of a software
patent warchest.  (I've been talking and warning about this exact gambit
for years.)

And Orlowski paints a bullseye on the important area in which Novell has
just sold all of us out -- presumably driven in part by their
acquisition of Ximian, the idiots who decided to spend several valuable
years building Mono as a dot-Net imitation in carefree ignornance of
probable patent claims.

> How do we best defend open-source software against anti-competitive 
> misuse of patents?

Open Source Patent Law 101 is now in session.

There are three tactical ways to deal with software patents, one
preventative measure, and two strategic ones:

Preventative:  Try skirt clear of patent emcumbrances[1] in the first
place, when designing codebases and writing code.  This would mean, for
example, deciding several years ago that Manuel de Icaza and the Ximian
/ GNOME people were reckless idiots, steer clear of anything built on
the Mono runtime engine, and approach other things they created with

Tactical#1:  Challenge patent claims as they're asserted, and seek to 
have the patents invalidated on grounds of prior art or other defects. 
This is expensive (requires court action), but has the advantages of
very strongly discouraging opponents' deployment of the patent weapon
against open source developers (as their losing each case also means
losing the deployed patents completely).

Tactical#2:  Mutually assured patent destruction.  The more valuable
Linux becomes to large companies, the more incentive they have to defend
it by deploying their own patent weapons in counterclaims.  The 500
pound canary in software patents is IBM, which has moved very strongly
into Linux for some years.

Tactical#3:  As previously-obscure patent encumbrances ("submerged
patents") become known and are determined to be a problem for Linux, 
rewrite code to use non-patented techniques instead of patented ones.
This is a big nuisance and takes time and effort, but is a time-honoured
way to deal with the problem.

Strategic#1:  Reform the patent laws.

Strategic#2:  Adopt licensing that includes patent-defence provisions,
as does the current draft of GPLv3.

[0] I personally decline to use the ungainly and un-marketable neologism
"FOSS" (or, worse, "FLOSS").

[1] By which I mean patent encumbrances that mandate royalty payments or
other excessive limitations.  Not all patents are deal-breakers, e.g., 
Adobe's patents covering the PDF format, which are licensed royalty-free
and thus are not an impediment to open source / free software

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