Peter G (sinetimore) wrote,
Peter G

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Sometimes, You Gotta Play For A Tie

You may remember my recent post where I flipped my shit about Novell dividing itself up and selling to Attachemate and that group of "patent investors" headed by M$.  Attachemate is already trying to make overtures to us FOSS supporters, speeding up updates and trying to be our pals.  Nice olive branch, but I'm waiting until I see what they do with SuSE (and the special version of that Novell ginned up) before I really say how swell they are.

Meanwhile, people like me have been sweating the 882 software patents that will soon belong to a M$-controlled group.  M$ has tried repeatedly to threaten Linux with patents.  For all my bitching about Novell, Novell did pledge their patents to the Open Invention Network.

Okay, just to make sure everyone is following this, what exactly is the Open Invention Network?  It's the open source community version of NATO.  Companies basically grant OIN signatories the right to use their software patents (not copyrights, patents) without fear of being sued as long as 1) it is used for free, open source software and 2) you don't sue other members of the OIN.  This is another similarity to NATO -- an attack on one member is viewed as an attack on ALL members and the entire patent portfolio becomes a weapon.  Their most recent success was when M$ tried to sue TomTom, the GPS maker.  TomTom almost immediately joined OIN and not only sued M$ for patent infringement, but the OIN filed their own, and M$ caved.

Now, Novell was part of OIN, allowing those 882 patents to be used not only for free software, but also for patent defense.  But, once the rights go to this other company, this company isn't part of OIN.  All companies have the right to leave OIN or remove patents at their whim.  So what happens now?

Turns out nothing.

It took some deep diving, but an interesting clause was found in the agreement to become a signatory of the OIN.  It extends the rights in perpetuity to members who were there at the time the pledge was made.

So what does this mean?  This means that any company that was part of OIN before the new company takes ownership of Novell's patents is still covered by the agreement and can use those 882 patents as part of the OIN portfolio.  The license cannot be changed.  Like the mighty GPL, it covers in perpetuity.

But wait, there's more!  Novell still holds the Unix copyrights.  No one can sue Linux as copyright infringement.

But wait, there's more!  Novell and SuSE still hold the software patents directly pertaining to their work.  So (presumably) WordPerfect patents would go to the consortium, but anything developed by Novell for Netware and Unix or SuSE for Linux and FOSS in general stays with them.  So the consortium isn't getting 882 patents after all, although which ones they get is still unknown at this point.

Now, there is one problem, and it's that, any company that joins OIN after the deal is finalized in January won't get those protections from the Novell patents, right?  Well, yes.  There are different ways around it, such as creating a shelf corporation and joining with that, then incorporating it into your company, or just buying a company already in the OIN.  But it's true, startups after the deal will not get that.  Or established companies.

You hear that, Dell and HP?  You won't get a royalty-free agreement from the consortium, so you better move quick.  How about Google?  For all their support of Linux and open source, they have NOT issued a position on software patents yet.  With M$ using their lapdogs in the FTC to stifle Google, Google would be a formidable ally for the OIN and have access to more protection.  They won't even be giving up their patents, just letting others who won't profit from their use have free access to them, they can still, say, charge the license fee for Android and that.

So, we FOSSers are still preparing for the worst.  It's just that the worst got a little bit better.
Tags: computers, digital rights, foss, just desserts, linux, lord hear our prayer, open source, patent law, technology is a beautiful thing
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