Digital Copyright Canada

While some people are looking at the deal between Novell and Microsoft as possibly being positive for Linux and Free/Libre and Open Source Software (FLOSS), I see this as a very strategic move by Microsoft to use Novell as a seemingly willing pawn in their game to try to snuff out their greatest competitive threat. Their major competative threat isn't any company or group of companies, but an alternative method of production, distribution and funding of software that includes participants from all sectors of the economy.

There are many ways to look at FLOSS. From the definition, being Free Software means that you can "run, copy, distribute, study, change and improve the software" without any additional permission or payment. From an economic point of view, new business models are made possible by taking software development costs and making them one-time fixed costs, allowing the marginal costs to license the software to always be zero. Support contracts may be per-desktop or any other model that this service company may choose, but the marginal cost to license the software is always zero.

There have always been two threats to FLOSS: laws which legally protect techniques which disallow interoperability or the ability of owners of computers to make their own software choices, and laws which would impose a marginal cost on software. While I have most often focused on the former, this issue falls into the latter category.

Software Patents treat software as if it were tangible like hardware. While there are many practical and moral reasons why software patents should not exist at all, one of the problems is that they are incompatible with FLOSS. Software Patents allow the patent holder to require permission and/or payment in order to execute the patented method, regardless of who authored the software implimenting the method, while FLOSS is only FLOSS if you are able to do above listed activities without additional permission or payment.

The only thing a FLOSS developer can do with a patent is try to render it harmless by adding a Royalty Free (RF) license to it such that it won't be exerted against users of FLOSS software.

Of all the FLOSS software vendors, I believe the company that best understands the underlying business model is RedHat. On the footer of the pages at RedHat.com is their Statement of Position and Our Promise on Software Patents. It states that RedHat believes "software patents generally impede innovation in software development and that software patents are inconsistent with open source/free software", going on to document their ongoing opposition to software patents in policy discussions. They then document how they are building a software patent portfolio in order to use them defensively. Unlike when other companies claim they are only going to use patents defensively, RedHat's strong opposition to software patents and their promise to not sue the FLOSS community for infringing these patents shows that they mean it. RedHat also offers indemnification, stepping in on behalf of its customers in lawsuits relating to the use of its software.

Novell has a Patent Policy which does not include any statement against the legalization of software patents, and only indicates that they would behave in the same way as any other proprietary software company would when it comes to patents.

The joint letter from Novell and Microsoft is correct in that it is a new era for how Microsoft will be "coming to terms with Linux". Microsoft has found what might be the most strategic technique to snuff this competition out, by effectively turning all existing FLOSS software into patent encumbered non-FLOSS software. Most of the letter has some tie to software patents, not including the specific mentions of software patents.

Patents have always only been applied to the commercial use of the patent. I know of no time that any person tinkering or "hacking" privately has ever been successfully sued, and some patent acts make this explicit by carving out acts done privately or on a non-commercial scale or for a non-commercial purpose. This means that the announcement that Microsoft would not sue these private uses has no value as Microsoft could never sue these people.

This is then coupled with the fact that the vast majority of FLOSS development comes from a wide variety of commercial developers, including everyone from sole-proprietorship businesses like my own to the teams of people at RedHat or IBM. The legend of the philanthropic hacker hero writing code without any commercial gain is a great story to tell, but doesn't reflect the reality of the large commercial marketplace that is built on top of the FLOSS concept.

What this new partnership give us is a "Linux" vendor who is publicly stating that Microsoft holds undisclosed patents over the software they are distributing, and they are suggesting that a valid way to deal with this threat is to get a license from (pay protection money to) Microsoft. Microsoft can now (and has already) state that anyone using this software from any other source is infringing their "intellectual property" : in other words, if you run any FLOSS that didn't come from Novell, and you didn't get that additional "permission and payment" that Novell has received from Microsoft, then you are a "pirate".

The average person isn't going to ask about the legitimacy of the alleged yet undisclosed software patents. They aren't going to research and find out that it is estimated that between 60% and 95% of software patents granted by the United States Patent and Trademark Office are unlikely to withstand court scrutiny (IE: they are poor quality patents that should never have been granted). They are just going to point to Novell and say that if their lawyers believe theaw patents exist and are of good quality, that this must be true and and that it "wrong" (if you believe software patent infringement is wrong) and legally dangerous to use FLOSS from any vendor that isn't getting that additional permission and/or payment.

I personally like to compare FLOSS to the environment. Far too many companies are willing to pollute the environment, not realizing that the economy is dependant on the environment (and not the other way around). Microsoft and Novell have now teamed up to massively pollute the FLOSS environment, with the possibility that if successful they could kill the ecosystem entirely, while at the same time sending our press releases claiming to be Green. While this will work out fine for Microsoft who has always wanted to shut down this ecosystem, it shows a lack of major understanding on the part of Novell to have embraced the very change that could bring about their own demise.

What can we do to fight this?

I suspect there is no value in trying to educate Novell about the harm their actions will cause. This issue will likely cause far more harm to the FLOSS marketplace than the baseless SCO case. SCO had nothing to back up their legal threats (They still have not shown any infringing code after being in the courts for many years), while the massive harm of software patents has been legalized in many countries (including Canada).

We need to come together as a community to fight software patents. When I say "we" I primarily mean private citizens, but this will obviously include companies like RedHat who are on the correct side of the patent debate. We should demand of any software vendor we consider purchasing from that they make a public statement and a promise like RedHat has, and avoid financially supporting companies that have not.

We need to create, build, or otherwise join groups in each country to fight software patents. In Europe the Foundation for a Free Information Infrastructure has been very active against software patents, coordinating many groups across Europe.

In Canada I believe the best option is for people to join and help build CLUE: Canada's Association for Open Source. This organization has its roots as a Canada-wide umbrella for Linux Users Groups (LUGs), but starting at the beginning of 2006 expanded beyond just Linux Users to seeking to work on behalf of all Canadian supporters of Free/Libre and Open Source Software. Protecting the fundamentals of FLOSS, including opposing software patents, is obviously part of the mandate.

Canadians should also write their member of federal parliament. The Canadian Intellectual Property Office (CIPO) has unilaterally expanded patent policy to include software patents. Software patents have never been debated in Canadian parliament, and it is possible we can find parliamentarians with the required economic background to overturn the bad policy changes made by CIPO.

Contact me as the policy coordinator for CLUE if you need any help.