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Novell to Defend Open Source Using Patents
Posted by
michael
on Tue Oct 12, 2004 01:43 PM
from the here-he-comes-to-save-the-day dept.
from the here-he-comes-to-save-the-day dept.
bbsguru writes "As another step in its transition to an Open Source developer, Novell has thrown the considerable weight of its patent portfolio in support of the movement. A letter from Novell North American President Ron Hovesepian to all of their channel partners today said, 'This initiative is aimed at any vendor that tries to mislead customers using intellectual property rights.'"
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seems like Novell has a threatening tone... (Score:5, Interesting)
Good, I like to hear that. It's nice having some of the "big dogs" on the side of Linux. But they seem to contradict themselves when they say:
As appropriate, Novell is prepared to use our patents, which are highly relevant in today's marketplace, to defend against those who might assert patents against open source products marketed, sold or supported by Novell.
Seems like a threat to anyone out there thinking about possible litigation to me. Now, I doubt that there is any serious issues w/the Linux kernel code when it comes to IP but what if someone did have a legitimate claim? Someone like Novell making open threats like this might have them think twice.
Just a thought.
Re:seems like Novell has a threatening tone... (Score:5, Insightful)
Parent
Re:seems like Novell has a threatening tone... (Score:5, Insightful)
Well, that's what I thought until I noticed a particular word (emphasis mine):
As appropriate, Novell is prepared to use our patents, which are highly relevant in today's marketplace, to defend against those who might assert patents against open source products marketed, sold or supported by Novell.
That doesn't seem like they are going to fight once litigation is started. That words leads me to believe that they would start litigation if anyone even brought up the idea that their IP was being used w/o permission in the kernel.
Parent
Re:seems like Novell has a threatening tone... (Score:5, Insightful)
I think that's aimed at anyone planning an SCO-style FUD campaign, where they weren't actually suing people (for the most part), just using the threat to scare them. Your company comes out making SCO-like claims about products from Novell, they'll club it into submission with a truckload of patents. Remember, as SCO demonstrated, it doesn't take an actual lawsuit to scare people away from a product or into paying "protection money" - the threat alone is often enough. Until you make the mistake they did and sue IBM - which is rather like challenging a statue to a staring contest: you'll die long before it blinks...
Parent
Re:seems like Novell has a threatening tone... (Score:5, Interesting)
Red Hat sought a clarification of SCOX's copyright as a pre-emptive measure against the good grounds they felt they have that SCOX was going to initiate a suit against them. This is the same thing, but Red Hat didn't act unilaterally, they thought there was a very good chance they would end up in court with SCOX based on McBride's palaver to the press.
Novell is merely recognizing that may be a necessary measure for them, as well. In fact, SCOX did sue them in anticipation of such a pre-emptive move by Novell in such a way they could still deny there was a controversy regarding copyright ownership of Unix SysV (which would, as has been shown at Groklaw [groklaw.net] erode their multiple cases against various Linux users, present their shareholders with evidence they didn't have sufficient control over the copyrights that were central to their fiscal plan and the justification for investment in SCOX's legal plans, and is the reason they sued for "Slander of Title" instead of something actually legally tractable.)
That's all that might implies.
Parent
Re:seems like Novell has a threatening tone... (Score:5, Insightful)
Parent
Re:seems like Novell has a threatening tone... (Score:3, Interesting)
so instead.... (Score:3, Interesting)
Sam
Re:seems like Novell has a threatening tone... (Score:5, Interesting)
On the other hand, suing (or warning of the intent to sue) to get rid of open source competition really only has the effect of having your patented whatever be removed from the code in question, which ultimately gives you less control over the problem application. You are better off leaving it in, and threatening deep pockets like IBM instead.
Parent
Re:seems like Novell has a threatening tone... (Score:5, Insightful)
I.E. Sun goes to IBM, they both agree to cross-license their patents. Now, Sun doesn't have to worry about being sued by IBM, IBM doesn't have to worry about being sued by Sun. They both are free to sue some third company that isn't part of the alliance.
What I read from Novell's statement is basicly:
"If you attempt to go after any open source product we support, we will pull out our huge portfolio of patents and bury you in litigation for each and every infringing use of our patents we can discover. Our patents are many and powerful, mess with us and you will die a horrible and slow death by lawyers. You won't even be able to afford your funeral. So back off the FOSS projects, unless you think you've got bigger guns."
Useful, as long as no one they've already cross-licensed with is involved.
Parent
Re:seems like Novell has a threatening tone... (Score:3, Informative)
That would require that software patents be legitimate. Further, as others have pointed out, this *is* a legitimate use of patents currently. Note that IBM is using patents exactly this way against SCO.
Re:seems like Novell has a threatening tone... (Score:3, Insightful)
Hmm... (Score:4, Interesting)
I wonder what would happen to the world if more Free Software projects started patenting *their* stuff. I figure if you patent your software, you should have to make it open source.
Just some thoughts.
Re:Hmm... (Score:4, Insightful)
In answer to your other question some folks do use patents and open source together. It isn't an ideal world and it cuts out anyone with under about 10 million US to play the game. In the Red Hat case we've published a patent promise which we hope would be a model for others to follow (or improve upon!)
IBM have also provided various patented technologies for free GPL use including key scaling technologies like RCU.
Parent
Re:Hmm... (Score:3, Interesting)
When a patent is applied for, all kinds of drawings and stuff like that are needed right? It would then make sense that any company patenting software should have to supply source code in support of their patent application making it available for all to see right?
I'm not a patent attorney or really, I'm not truly familiar enough with the patent process to have a valid opinion, but from the generalities that I understand about the patent process, you have to sho
Re:Hmm... (Score:4, Interesting)
This is why I can understand patenting real things, because if you've invented this awesome engine, all I'd need to do is reinvent it myself but find a way to make the same thing faster, smaller, and cheaper, and suddenly I control the market, not you.
Software though... the problem here is that in reality, there's infinite supply. In the supply and demand idea, what happens when you have infinite supply? Things get ugly and the whole system breaks down. That's why people want to try patenting software, to force an artificial supply limitation on something that has an unlimited supply naturally.
So while it'd be best to just eliminate software patents from the picture and let it work itself out naturally as it has for Red Hat, and is starting to for IBM and Novell, I doubt it's going to happen, at least not as long as bigger companies have more money to throw at keeping it law. What's the solution?
If you keep your software closed-source, you can't patent it, because you can't show how you did it. You're free to copyright it if you'd like, just no patenting. If you want to patent your software, you have to let *everyone* see how it works, without reverse-engineering.
Parent
Re:Hmm... (Score:3, Interesting)
Actually, what they said was that they would defend any FOSS they develop or distrubute to their customers or otherwise support.
Novell distrubutes and supports every FOSS app they deliver with SUSE. Sounds like their being pretty broad with their protective umbrella.
Quite interesting (Score:5, Interesting)
As with all purchasing considerations, customers should keep software patents in perspective. In reality, open source software poses no greater risk of patent infringement than does closed source software.
Well, that's a smart statement. Coming from a company like Novell, I'm sure that it would make other companies take notice.
Consistent with this belief, Novell will use its patent portfolio to protect itself against claims made against the Linux kernel or open source programs included in Novell's offerings, as dictated by the actions of others.
Hmm, whom could the others be?
As appropriate, Novell is prepared to use our patents, which are highly relevant in today's marketplace, to defend against those who might assert patents against open source products marketed, sold or supported by Novell.
Brilliant! Simply brilliant. We now have atleast two big players (other than RedHat) who are prepared to offer legal support to Opensource, which is a great thing indeed!
Novell has previously used its ownership of UNIX copyrights and patents to protect customers against similar threats to open source software made by others.
We are a corporation, and therefore cannot legally say FUCK YOU! to SCO. However, we'll put it in such sweet-coated words hoping that the idiots over at Utah get what we mean before we haul their asses to court.
Yay! for Opensource
Any vendor? (Score:4, Funny)
exactly what i would do (Score:5, Interesting)
the only thing novel has to worry about now is making sure this doesnt come back to haunt them... you can't play the devil's game without giving him his due at one point or anther, and patents are the devil.
Re:exactly what i would do (Score:3, Interesting)
Without "the system" I fail to see how such rights could be guarante
Patents != copyright (Score:3, Informative)
The fact that they might both be referred to as "intellectual property" does not change the fact that they are two completely different ball games.
Mutually assured destruction. (Score:5, Interesting)
Double Standard (Score:3, Insightful)
Re:Double Standard (Score:3, Insightful)
Re:Double Standard (Score:5, Informative)
I understand what you mean and the unfortunate hypocrisy, but it did not sound like that - it sounded as though they were trying to protect themselves from sue-happy companies.
Consider this -
Consistent with this belief, Novell will use its patent portfolio to protect itself against claims made against the Linux kernel or open source programs included in Novell's offerings, as dictated by the actions of others.
That sounds more like, if you make claims that are offending our business, we would not take it lightly. It definitely does not sound like they would have a sue-first think-later kinda attitude.
As appropriate, Novell is prepared to use our patents, which are highly relevant in today's marketplace, to defend against those who might assert patents against open source products marketed, sold or supported by Novell.
If you sue us with your patents, we'll have to handle you accordingly.
Come on, that sounds quite benign. Looks to me like they're just trying to protect their interests.
Parent
Re:Double Standard (Score:3, Insightful)
Stance #1: It would be nice if there were no software patents.
Stance #2: Software patents DO exist, and it would be nice to use the system against those who would abuse the system, helping to prevent (or at least inhibit) the bad things that make us take Stance #1.
A double standard would only exist if Novell were to do what other patent holders are: target companies minding their own business, call them "infringers", and try to squeez
A step in the right direction (Score:5, Insightful)
Also, I should point out, so that people can understand how far the document goes, that Novell's threat is not useful against companies with which they have already executed a patent cross-license. These could include most of the large companies in the computer industry and might include Microsoft. And of course the document is not a promise to act against anyone. Novell still gets to decide who they sue.
Thanks
Bruce
Re:A step in the right direction (Score:3, Interesting)
You may freely use, modify, and derive from our patent, so long as all improvements on the patent you devise are under this license. If you release an improvement, that improvement is released under this license and you cannot restrict the further release of the improvement by the recipient. If you violate the terms of this license, it is revoked and you lose all rights to use, modify
Re:A step in the right direction (Score:4, Interesting)
Bruce
Parent
Brain hurts (Score:5, Funny)
source put hate patent law. I'm so confused.
How am I supposed to Karama Whore this one?
Oh well must try my best. I'll just say w00t and
hope it's enought to appease the moderation god's.
Strange but welcome allies (Score:5, Interesting)
There's a part that want to see Linux dominate the global market...and those simply happy and content to be using it. I'm torn between wanting its ultimate success and being wary of "selling out" to the corporate world.
I guess that's one of the things the GPL is great for -- it allows Linux to take any direction people want it to go and still be perfectly Free.
It almost feels like a socialist slogan -- what's best for all of us (Linux community) is in reality the best for you as well (IBM/Novell).
I for one welcome our new SUSE-maintaining overlords.
Defensive Patent Pools (Score:4, Interesting)
Novell's step is a different way of accomplishing this. Would be interesting if the open source movement itself started developing patents to play a role in patent pools.
Re:Defensive Patent Pools (Score:4, Insightful)
Did anyone notice that moments after the FAT patent was invalidated, we started to hear of a Microsoft-specific format for USB "disk" devices? I think they still would like to close out that path of interoperability for us.
Bruce
Parent
Good News, But.... (Score:5, Interesting)
But there is a but...
Seeing is believing here. On a patent attack Novell will be tempted to cross license the issue, but for Novell customers only, not for Open Source users and distributers in general. It would be nice to see a company like Novell champion the defense of Open Source, and if they do it would be beneficial to the world in general, but how far will they go in a direction that will help competitors like RedHat as well as themselves?
Maybe RedHat and Novell will team up against attacks (RedHat already has a fund to protect Open Source over fraudulent copyright claims). That would really be beneficial, not least to RedHat and Novell!
Re:Good News, But.... (Score:3, Informative)
Seeing is believing here. On a patent attack Novell will be tempted to cross license the issue, but for Novell customers only, not for Open Source users and distributers in general.
IANAL, but I don't think they would do this.
Why? Section 7 of the GPL states:
Makes Business Sense (Score:5, Insightful)
Of course, none of this is helping to make the Netware client less of a beast on Windows.
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Rate free iPod offers: RateTheOffers.com [ratetheoffers.com]
(Flat screens and Desktop PCs too)
Novell SuSE Linux (Score:5, Informative)
Novell's running a class act here and they deserve our support so if you're in a position to select a distro for your company, take another look at Novell's offerings. If you download an Enterprise eval version 9 [novell.com], you get 30 days free installation support for it. You can't beat that.
Not as good as it seems (Score:5, Interesting)
Among other things, Novell would seek to address the claim by identifying prior art that could invalidate the patent; demonstrating that the product does not infringe the patent; redesigning the product to avoid infringement; or pursuing a license with the patent owner.
This paragraph came from the Novell statement about how they would deal with a patent infringement claim. The last bit "pursuing a licence with the patent holder" might not get you what you want. Imagine if your OSS program ends up being only usable by users of SuSE/Novell Linux, because they bought an exclusive license for the patent...
David
Resume of the Novell letter (Score:3, Funny)
* We believe that customers want and need freedom of choice in making decisions about technology solutions. Those considering Novell offerings, whether proprietary or open source, should be able to make their purchasing decisions based on technical merits, security, quality of service and value, not the threat of litigation. Novell intends to continue to compete based on such criteria.
We don't make Netware or NDS products anymore, we don't have the money. So now we jump on the Linux bandwagon and make Linux-based products, and you better believe it's just as good as our old shit. But...
* As with all purchasing considerations, customers should keep software patents in perspective. In reality, open source software poses no greater risk of patent infringement than does closed source software.
* Consistent with this belief, Novell will use its patent portfolio to protect itself against claims made against the Linux kernel or open source programs included in Novell's offerings, as dictated by the actions of others.
* In the event of a patent claim against a Novell open source product, Novell would respond using the same measures generally used to defend proprietary software products accused of patent infringement. Among other things, Novell would seek to address the claim by identifying prior art that could invalidate the patent; demonstrating that the product does not infringe the patent; redesigning the product to avoid infringement; or pursuing a license with the patent owner.
* As appropriate, Novell is prepared to use our patents, which are highly relevant in today's marketplace, to defend against those who might assert patents against open source products marketed, sold or supported by Novell. Some software vendors will attempt to counter the competitive threat of Linux by making arguments about the risk of violating patents. Vendors that assert patents against customers and competitors such as Novell do so at their own peril and with the certainty of provoking a response. We urge customers to remind vendors that all are best served by using innovation and competition to drive purchasing decisions, rather than the threat of litigation.
* Novell has previously used its ownership of UNIX copyrights and patents to protect customers against similar threats to open source software made by others.
Missing something? (Score:3, Interesting)
Cast protection from evil before summoning demons (Score:3, Insightful)
Fabulous position (Score:4, Interesting)
Some of my peers express hesitation on these moves where I assert "What is Novell but a set of services? They needn't be tied to any particular OS so why not a particularly useful, flexible and free one?" Hell, for that matter, Microsoft could easily do the same thing -- hosting their services on a Linux or BSD host server system to create an ultra-stable server system that can do one hell of a lot more than it does now. (Then they really WOULD have Windows Services for Unix!)
I think this statement goes a long way to ease any potential fears of Novell customers who are moving to their Linux-based products and I think that is their primary target. It's not enough for them to say "if you get sued, we'll pick up the bill." They have to take up a pro-active stance against anyone who would think about making such a move... and so that's clearly what they are doing.
Now I don't read this as them defending the whole of the OSS community, but it's still a rather large umbrella of protection they are suggesting here... potentially larger than they might at first realize? It boggles the mind to think about it, but it's a very reassuring move on Novell's part.
If this stuff keeps up, people will scoff at Microsoft for running a "proprietary operating system" when all others are running something that is more open, trusted and established.
Pay close attention. (Score:3, Interesting)
Alas, it's pure marketing nonsense; FUD as bad as any that MS has ever been accused of putting out.
Consider:
As with all purchasing considerations, customers should keep software patents in perspective. In reality, open source software poses no greater risk of patent infringement than does closed source software.
Now this is a pretty bold assertion. But they seem to back it up..
Consistent with this belief, Novell will use its patent portfolio to protect itself against claims made against the Linux kernel or open source programs included in Novell's offerings, as dictated by the actions of others.
Right? Right? Well, no. not really.
The patent issue in OSS is "third party infringement" that works as such:
- Company P has a patent on X.
- OSS Developer A unknowingly uses X in his OSS product L.
- Company BigCo uses L. P notices that BigCo uses L and claims that because the source for L is "open", that BigCo has a legal duty to check to see that no patents are violated. P sues BigCo.
Contrast this to the case where product L$ is not OSS and so BigCo feels secure that even if there is some infringement, it could not have reasonably known about it (so P sues A$)The Novell claim does nothing about this third party problem except in the perverse and unlikely situation where invention P just happens to be actually based on some of Novell's prior art in the first place (and probably a few common variants of that, too). Great.. nice to see that Novell would fight for this, I guess. But that hardly seems worthwhile making an announcement over.
So how is this FUD? (or rather some weird inverse of FUD, where you're falsely trying to instill certainty and comfort). Plainly, because Novell has done nothing to address the fundamental problem of OSS and Patents but has claimed nevertheless that patents are not an issue.
N.B. In the final analysis, they might not be an issue. But do you want to be the first BigCo that gets sued by some P? I think it's reasonable for BigCos to sit out and wait until some other BigCo pays the legal bills to get that question solved..
Re:Pay close attention. (Score:4, Insightful)
Hmm.. seems like a concrete example of what Terry Pratchett calls 'anti-crime' like: breaking-and-decorating.
Parent
They Still Own UNIX Patents and probably more (Score:3, Informative)
Another thing to remember is that Novell was the big deal in networking and networked apps back in the late 80's-early 90's, so they probably hold a lot of IP from their old netware days.
Patent Cold War (Score:3, Insightful)
While it's a sad statement, it's probably good to have at this point. Without it, it's only a matter of time before MS or someone else tries to litigate RedHat or similar to fiscal obilivion.
I'd prefer the market weren't in this situation, mind you (And Novell probably does too), but all things considered, it's probably a good thing to have.
Now, let's just hope Novell stays relatively beneficent.
~D
Good thing, but rather sad it's needed (Score:3, Interesting)
So if Novell is positioning their patents to defend open source, it's morally the same as if open source just went nuclear. Or more accurately, made a defense pact with a nuclear power - open source can help Novell compete, and Novell can protect open source. Indeed, in IBM's countersuit to SCO they drew their patent sword, IIRC. Granted SCO attacked IBM specifically, but if IBM decides to say "be nice to the open source community or we might decide to check you out for patent violations" that would go a long way toward keeping things quite. Open source would be given, in effect, honary membership in the patent superpower standoff. People who might consider trying to use patents to crush open source *cough*Microsoft*cough* might be forced to think twice. Legal costs for any fight of this type are really quite scary, to say nothing of the time lost. Considering how fast the software business moves, it wouldn't be surprising to me if most lawsuits are technologically irrelevant by the time they get finished.
This is a solution I hadn't considered to the patent problem, and one I'm not wild about because a) the fundamental problem doesn't get fixed and b) it depends on the good will of companies. By the same token, however, of those companies ARE making $$ from open source it is most definitely in their self interest to keep the vultures off the open source community as a whole, and I suppose in today's society there really isn't much we can count on except self interest.
What if MS buys Novell? (Score:3, Insightful)
Patents are Open Source (Score:3, Insightful)
Open Source is exactly the way that software would be protected, consistent with the original sound principles of patents. In the online market, temporary artifical government-created monopolies on inventions aren't the key to protecting investments in inventions; upgrades, service and community support are the key. Open Source is IP protection in the service of art and science, as specified in the Constitution, rather than the corporate welfare the PTO has become, a pernicious hybrid of corporate socialism and monopoly that is choking innovation to feed a few aging inventors.