Microsoft/Novell Partnership

[Evan Leibovitch]

John Macdonald wrote:
> There is copyright, that is the right of the author of a work
> to control (within certain limits) whether and how copies of
> the work are made.  That's what you're referring to when you
> talk about the Unix ancestry.  SCO is valiantly proving that
> Linux is not open to attack using copyright.
>   
That may be more due to SCO's incompetence than anything else. We may
never know if indeed Linux, in some corner of its code, contains bits
that were "more than inspired" by Unix. All we know is that SCO is
incapable of proving that, and that they chose as their target a company
that employs more lawyers than SCO has staff.

> There is trademark, which gives the some control over how a company's identity can be used.  (It's more complicated than that but trademark is not really involved in the Novell-MS agreement.)  Linspire has proven that Linux companies *are* subject to being attcked with trademark - but the fact that they just changed their name from Lindows and didn't get much additional penalty shows that the attack is not especially worrisome.
>   
Even so, Lindows' capitulation was more a matter of expediency than
illegality. The term "Windows" could be easily be proven to be generic
enough (and used in other products such as the X Window System) that
Lindows would have probably prevailed had they stuck it out. But MS was
prepared to engage in an expensive, multi-country legal battle and it
was easier to retreat than fight.

It's interesting to note that trademarks have been of relatively little
concern in the community. The trademarking of "Linux" was done as a
defensive act (see http://www.linuxjournal.com/article/2559), and few
open source projects have bothered with the effort. An attempt by OSI to
trademark "open source" was (thankfully) rejected -- it's unclear
whether that was due to a technicality or because the term was not able
to be trademarked. Only OSI knows and they're not telling.

> Finally, there is patent, which gives the owner control over an idea;
To be more accurate, you can't patent the idea, only its application in
a real-world scenario. Abstract ideas themselves are not patentable, and
IIRC only the US allows patenting of mathematical forumlae.

> even if others have the same idea but are unable (or can't afford the court costs) to prove that it was a well-known or obvious idea before the patent was applied for.
The biggest impediment to justice is the injunction, the fact that the
patent holder can go to court and legally prevent their target from
selling the (allegedly infringing) products or services until the issue
is resolved.

> There is certainly reason to expect that Linux is susceptible to attack through patents; just how badly is still open to question but if Microsoft has a patent on some especially critical concept, it could be crippling for Linux.
Since we're talking about the difference between trademark, copyright
and patents, it should be noted that there is no international
synchronization of patents as exists with copyrights. Something that is
patented in the US may not even be patentable in Canada or the EU, and
pure software patents fall into this category. You could have a
worst-case scenario in which certain parts of FOSS are illegal to use in
the US but absolutely unencumbered outside. That sucks for Red Hat and
Novell, but offers a great opportunity to others such as Ubuntu, Red
Flag and Xandros (which is headquartered in the US, but produced in
Canada and mainly sold to Europe).

> Offhand, I'm hoping that Eben Moglen's statement that Novell might have put themselves into a position in which they cannot legally distribute GPL-software that is covered by the patents they have attained rights too, since they are unable to pass on the right to use the patents to the extent required 
Moglen's commentary is irrelevant. It is Microsoft, a third party not
bound by the GPL, which is offering the indemnification -- not Novell,
the distributor of the code in question. IIRC Novell has not IMO aquired
enforcement rights themselves; it is only if/when _Novell_ threatens to
sue patent infringers -- which would never happen -- that Moglen's
assertions would have any value.

Evan Leibovitch
co-inventor, U.S. Patent *5,579,117

*
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