Microsoft and Novell: Open to question

On one level, Microsoft's new warmth towards open source is to be wished devoutly. As the company itself says, its customers were telling it that the monster of Linux had turned out to be a very useful symbiote — and that if Microsoft was to insist that only one or the other could be supported, it was by no means certain that Windows would win. Areas such as virtualisation, directory integration and document interchange all need cross-industry agreement.

If the deal was to end there, then we could all carry on arguing whether Microsoft was really embracing open standards or seeking to poison them — business as usual, in other words, with open source ahead on points.

But it doesn't end there. Although the details are maddeningly absent, Microsoft has undertaken not to sue Novell's customers for patent violations — while Novell is paying a royalty to Microsoft. This is explicitly forbidden under the terms of the General Public License (GPL), which says: "We wish to avoid the danger that redistributors of a free program will individually obtain patent licences, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all."

Novell's business model depends on that licence: if it breaks it, it can no longer distribute its core operating system. When we asked the company whether the prima face violation was as it seemed, we were told that these were "very tricky legal issues". Indeed. That's why we asked.

A more substantial answer is promised. Meanwhile, it looks as if the deal Novell has done is not compatible with the GPL. If so, the consequences are severe: if Microsoft and Novell have no respect for intellectual property and the rights of its creators, they will continue with the deal until it is challenged in court — a challenge that will look like civil war among the open source community. There is no need to ask who would benefit from that.

Otherwise, Novell will have to stop distributing Suse, pull out of the deal, or get Microsoft to extend its patent promise to all of Linux. None of those seem likely.

Or it could all be needless panic — one born of long experience of Microsoft's behaviour towards its business partners and the greater community, to be sure, but needless nonetheless.

We need details. We need openness. We need a clear statement of Novell's understanding of its own legal position, and of how Microsoft intends to treat open source as a whole. Because open source is a whole. It is not divisible, not a family to be set against itself, nor is it available on special terms to one party at the expense of others.

It's all or nothing. Both Microsoft and Novell have a legal, practical and moral duty to let us know which it is to be.