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IP Assets

Of course, the key question is what those “certain intellectual property assets” refer to in the present sale, and whether they include key UNIX patents and copyrights. Back in May 2007 I wrote about precisely this issue (unfortunately the online version is now mangled and lacks most of the article including the quoted section below):

If Novell crashes, then its assets would be up for grabs, and among those assets there is that little matter of the UNIX patents and copyrights it claims to own. Now, who could possibly be interested in acquiring some old patents and copyrights that just happen to underpin the entire GNU / Linux operating system – and that has enough spare cash to out-bid anyone on the planet? You don't need three guesses for that one.

If Novell crashes and burns, it is entirely possible that patents and copyrights that are being used to defend free software would fall into the hands of a company that has already made plenty of noise about using patents to attack it.

Interestingly, Novell has rushed to calm our fears:

Novell will continue to own Novell’s UNIX copyrights following completion of the merger as a subsidiary of Attachmate.

But there are still a number of major problems with this.

First, there is nothing to stop Attachmate – or any subsequent owner that later buys Novell from it – deciding that litigation would be a nice way to squeeze money out of companies. Attachmate is run by an “investment group”, so I doubt whether they'd have any qualms about doing this if they thought there would be a net gain from the process. It's true that SCO, the last company to try this, has been mauled in the courts, and no infringing Linux code has ever been found. But it is also important to note that despite that fact, SCO, is *still* fighting on.

One of the big problems is that winning such battles is as much about (financial) might as right. Because SCO took on IBM, its strategy didn't work out too well, but it's not hard to see a stronger aggressor being more successful against smaller companies with more limited resources, or companies that use GNU / Linux only incidentally, for example in embedded software. There are now many of these, and as similar attacks on Android have shown, those that use GNU / Linux in this way have no appetite for defending it, because it's a means to an end for them – it's simpler just to pay up and move on. But the knock-on effect of buckling in this way is to increase the pressure on other companies to do the same.

That was the biggest problem with Novell's 2006 deal with Microsoft: it lent credence to the idea that GNU / Linux might, in some unspecified way, infringe on Microsoft's patents. One of the frustrating things about it was that Microsoft did not have to prove this: the existence of the deal was enough to suggest it. I've certainly had Novell cited to me as “proof” that there are hidden patent problems with GNU / Linux, as well as an example of how free software can / should compromise on these matters.

As a result, ever since signing that deal with Microsoft, Novell has been a disaster waiting to happen: a company adrift, with important historical assets, and no real friend of open source. Maybe that disaster is now unfurling, depending on what exactly the Microsoft-led consortium has acquired, and what it intends to do with it. After all, Novell may have confirmed that it retains ownership of the Unix copyrights, but it has said nothing about any relevant patents in this area – and they are far more dangerous than copyright, because they are far broader and far less predictable in their effects.

There is an important lesson here for the future, I think. All those open source companies that hold software patents for what they insist are purely “defensive” purposes need to plan against the day when they are acquired by an outfit at best indifferent, and maybe even hostile to free software. They need to ensure that those same “defensive” patents cannot be turned against the community they profess to support. Some way of defusing them – perhaps by automatically granting a free, general licence in the event of a takeover – needs to be devised and implemented by key open source supporters like Red Hat.

The other lesson to be drawn from the Novell announcement and its implications is an old one: that the greatest threat to free software comes from intellectual monopolies like patents, which stand in fundamental opposition to its underlying idea of sharing. Winning major software players around to the view that radical reform is needed in this area should be an urgent priority – now, more than ever.

Follow me @glynmoody on Twitter or identi.ca. For other feature articles by Glyn Moody, please see the archive.

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