An Open Leter to Novell CEO Hovserpian from Bruce Perens (you can also add your comments there)
"To Mr. Hovsepian,
The Open Source community would find little to criticize in your agreement with Microsoft, had it remained a strictly financial and technical agreement. As the agreement stands today, it betrays the authors of the software you re-market and their users worldwide for Novell's sole commercial benefit.
The covenant of the GPL is that in the face of a software patent aggressor we must all hang together, lest we each hang separately. Novell accepted that covenant when you chose to include the Linux kernel, the GNU C library, and hundreds of additional works created at no charge to Novell by individuals in the Free Software community and licensed under the GPL.
It is abundantly clear that Novell and Microsoft took the time to engineer a circuitous legal path of issuing covenants to each other's customers, rather than licenses to each other, in order to circumvent Novell's earlier agreement with the community of GPL software developers.
In your defense, you offer that Novell has not acknowledged that Linux infringes upon Microsoft's patents. Let's be truthful about software patents: there can be no non-trivial computer program, either proprietary or Free, that does not use methods that are claimed in software patents currently in force and unlicensed for use in that program. There are simply enough patents, on enough fundamental principles, to make this so. If all software patents were enforced fully, the software industry would grind to a halt.
Of course software patents are less than fully enforced, and what we have is a sort of shake-down racket in which tremendous attorney fees and damages are routinely extorted. Open Source communities and medium-sized enterprises can be legally prevented from participating in the industry simply because they can not afford the price of justice, between three and five Million dollars to defend a case.
Several years ago, attorney Daniel Ravicher, now of the Software Freedom Law Center, reported finding 283 patents with claims that could read on the Linux kernel. That kernel represents only a few percent of the overall collection of software in Novell/SuSE Linux. It is likely that there are many thousands of unlitigated potential infringements within the entire Novell system. Only a minority of those patents are owned by Microsoft, your recent agreement does nothing to defend you from the others. Most troubling are the patents owned by "patent trolls", companies that produce no products other than patents and thus can not be deterred by patent counter-threats from organizations like OIN. Microsoft has invested in at least one explicit "troll" company, which can use its patents offensively as a proxy of Microsoft without exposing Microsoft to counter-suits, anti-trust issues, or Microsoft's agreement with Novell.
In the face of this threat, not only to Free Software but to the small and medium-sized proprietary software companies that make up 80% of the software economy worldwide, Novell chose to act selfishly and take the money. One-third Billion dollars is a strong inducement.
Your open letter to the community mis-represents Novell's software patenting policy. At a Brussels meeting that I attended including EU Member-of-Parliament Arlene McCarthy, Novell's stance was that the company was for enforcible software patenting in the EU but against the particular bill being considered at that time. This stance does not consider that increased enforcement of software patents remains a potential complete show-stopper for Free Software, from Novell or anyone else. You, Mr. Hovsepian, reiterated Novell's support for strong software patent protection on a panel that I chaired at the AlwaysOn conference this summer.
The text of your agreement with Microsoft has not been released, and perhaps not all of it is even on paper. But we know that Microsoft has bought your cooperation. No doubt we will now see Novell at Microsoft's side in political venues, representing *Linux*, asking legislators for stronger software patent protection that has the potential to harm or even end Open Source. This is unacceptable. If Novell is to benefit from the Free Software community, Novell should be working to make it safe for everyone to write and use software.
There are serious questions regarding how Novell intends to go on with its business. Developers are jumping ship. The very software that you sell is owned by parties who are now hostile to your company. The C library, essential to run every program on your system, is the property of the Free Software Foundation, which will surely relicense that library to LGPL 3. The leading developer of that library is a Red Hat employee. It's already been announced that GPL and LGPL 3 will contain terms that make it untenable to use while your patent agreement with Microsoft stands.
The Samba software and hundreds of other programs will probably go a similar path. The Novell-Microsoft agreement has even had the power to make the Linux kernel developers and the large companies that support them take a fresh look at GPL 3. In the face of these changes, Novell will probably be stuck with old versions of the software, under old licenses, with Novell sustaining the entire cost and burden of maintaining that software. Novell will have to maintain its customers on old versions while the community takes GPL 3 versions of the same software into the future.
In short, now that Novell has chosen not to hang together with the Free Software community, we've chosen not to do so with you.
There is really only one path out of this corner for Novell. Go on with your technical collaboration, and keep the money. But Novell must now direct Microsoft to refrain from granting covenants to Novell's users unless they will apply to everyone equally. Hang together with the Free Software community by changing your software patent stance from one of monopoly rights for Novell to one of support for legislation that will make it safe for all of us to create, distribute, and use software."
* Bruce Perens, *creator of *Electric Fence* and *Busybox*, two programs that are important to Novell Linux and are covered by the GPL.
http://techp.org/petition/show/1
Regards Praveen