Microsoft's Linux claims under attack

Microsoft's claims on the intellectual property of open source software are under attack as the open source world fights back at what it perceives as a Microsoft land grab. Microsoft itself is backing away from its previous claims.

Novell chief executive Ron Hovsepian has directly contradicted Microsoft chief executive Steve Ballmer over what a recent deal between the two firms means in an open letter to software developers.

Meanwhile, open source pioneers are framing a new version of a common open source licence which would seek to extend an indemnity offered by Microsoft to Novell users to users of all open source software.

"We disagree with the recent statements made by Microsoft on the topic of Linux and patents," said a highly unusual open letter from Hovsepian which responds to outrage among developers at the deal signed by the firm.

Novell and Microsoft agreed to co-operate on interoperability of their systems, but more controversially also agreed not to pursue each other's customers for patent infringement. Microsoft CEO Steve Ballmer then went on to claim that the deal recognised its rights in open source operating system Linux and that people who bought non-Novell versions of Linux were opening themselves up to patent infringement law suits.

"Importantly, our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property," wrote Hovsepian. "When we entered the patent cooperation agreement with Microsoft, Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents."

"Our interest in signing this agreement was to secure interoperability and joint sales agreements, but Microsoft asked that we cooperate on patents as well, and so a patent cooperation agreement was included as a part of the deal," wrote Hovsepian. "In this agreement, Novell and Microsoft each promise not to sue the other's customers for patent infringement. The intended effect of this agreement was to give our joint customers peace of mind that they have the full support of the other company for their IT activities. Novell has a significant patent portfolio, and in reflection of this fact, the agreement we signed shows the overwhelming balance of payments being from Microsoft to Novell."

Following the deal, Ballmer said that users of non-Novell Linux systems could owe it money for infringement. "Novell pays us some money for the right to tell customers that anybody who uses SUSE Linux is appropriately covered," he said recently, according to Computerworld. "This is important to us, because we believe every Linux customer basically has an undisclosed balance sheet liability."

Ballmer said in a question and answer session at a technology conference that Microsoft signed the deal because Linux "uses our intellectual property" and it wanted to "get the appropriate economic return for our shareholders from our innovation."

But Microsoft seems to be backing away from direct confrontation. It issued a statement saying that Novell was right to say that the agreement did not cover patents.

"We at Microsoft respect Novell's point of view on the patent issue, even while we respectfully take a different view," said the statement. "Novell is absolutely right in stating that it did not admit or acknowledge any patent problems as part of entering into the patent collaboration agreement. At Microsoft we undertook our own analysis of our patent portfolio and concluded that it was necessary and important to create a patent covenant for customers of these products. We are gratified that such a solution is now in place."

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