Microsoft/Novell Partnership

[Ian Petersen]

> > Well, I _think_ the main point was about patents.  I think Microsoft
> > is asserting that "Linux" (which probably means more than just the
> > kernel) contains code that infringes upon Microsoft's patents.  If
>
> Using the Linux word as you and he uses the word is actually frowned upon. It's
> supposed to be called GNU/Linux. So Linux is mostly the kernel, although the
> aggregate is called Linux by users.

I know, which is why I put "Linux" in quotes and followed it with the
parenthetical.  I haven't watched the press conference more than once,
so my memory of it is questionable, but, IIRC, Ballmer referred to
"Linux" and I assumed he was using it to mean "free software", "open
source software", "gratis software", or something other than just the
kernel.  He also referred to  intellectual property--another term that
RMS despises for its vagueness.  I don't think Ballmer's up on the
Free Software world's version of politically correct.  (Or he
willfully ignores it.)

> And the GPL which covers most of the
> aggregate does not permit 'limitations' of the kind Ballmer assumes.

I disagree, or, at least, I wouldn't bet on it.  The GPL says,
basically, "I have own the copyrights to this work.  If you abide by
this list of rules, you have otherwise unfettered permission to do
whatever you want with it."  My understand of US law (which is
hampered by me being neither American nor a lawyer) is that a person
who creates a work that infringes on another's patent without
permission does not have the authority to allow third parties to use
that work.  In fact, no one is even allowed to _create_ such a work,
never mind use it or redistribute it.  My understanding of the
Microsoft-Novell agreement is that Microsoft is giving permission to
Novell customers to use its patented "stuff" (alogrithms, whatever).
Once a Novell customer has the right to use Microsoft's patents, the
next part of the discussion is how, and, IMHO, _that_ is when the GPL
becomes relevant.

Of course, my education in law comes from TV and Slashdot, so who knows.

> It is extremely unlikely that any part of 'Linux' contains any Microsoft IP
> since it has BSD Unix and U.C.Berkeley etc ancestry. Also anything GPL embraced
> and extended and republished with another license is going to place the GNU
> legal wing into battle position.

I agree that it is very unlikely that Microsoft could claim any
copyrights on anything in the Linux kernel or much of anything that is
commonly bundled with it.  If anything the reverse is more likely.  I
also seriously doubt that Microsoft has any trademark claims on
anything if the Free Software world.  However, the third kind of
"Intellectual Property" might be a bit of a problm.  Given the nature
of the American patent system, I would not be at all surprised if
Microsoft could lay claim to any number of algorithms employed by some
of the code in Linux or the apps that run on top of it.  Not only
that, but if you assume, for the sake of argument, that software
patents ought to be granted, then the use of such patents in the Linux
kernel may not even be defensible.  Microsoft has certainly been
awarded patents during the time that people have been developing the
kernel.  It's quite likely that something Microsoft "owns" was
developed first at MS and implemented in the kernel later, so no one
could even cry "prior art".  The only other way to invalidate a patent
that I'm aware of is to claim obviousness, which doesn't seem to work
well in the US.

Ian

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