Microsoft CEO Steve Ballmer was quoted last week as repeating the company's position that parts of the Linux operating system impinge on Microsoft's intellectual property, a claim the company promised not to pursue in the case among Novell and its customers.
That promise never extended to other Linux distributions, Microsoft representatives said, even as Ballmer and Novell executives ramped up their competitive rhetoric.
VARs and integrators said at the time of the agreement that they expected little benefit from the Microsoft/Novell deal, but there were few who worried at all about lawsuits from either company. Many in the open-source community were outraged, however.
Ballmer said the deal, which included payments by each company for the use of the other's intellectual property, was tantamount to an admission that Linux infringes on Microsoft's intellectual property and leaves users of non-SUSE Linux vulnerable to patent suits.
Novell denied this in an open letter it released last Monday, saying that such an admission was in no way part of the deal.
Either way, users and resellers of other distributions have nothing to fear, according to Red Hat, Inc.'s deputy general counsel Mark Webbink. He said that Microsoft is only likely to target the top-level creators of distributions, large companies like Red Hat with deep pockets. In effect Red Hat would be a lightning rod for any legal action.
"We have been positioning ourselves to be that from the standpoint that this noise has been going on in the marketplace for several years now," he said. "What we've consistently been telling our customers is that if someone has a beef with I.P. [intellectual property] ... they know where our phone number is."
Webbink said that this week Red Hat will add to its standard Open Source Assurance program an indemnification program that will cover all its customers in case of lawsuits.
In any case, users and channel companies don't seem worried.
"There's an industry term for this: FUD. Fear, Uncertainty and Doubt," said Maurice Hilarius, president of Hard Data Ltd., a systems integration company in Edmonton, Alberta. He said that neither he nor any of his customers who use Linux are afraid of legal action from Microsoft.
"People who would be concerned about that would never consider anything but Microsoft [products] in the first place," he said.
Justin Steinman, director of marketing for Linux and open platform solutions at Novell, said the agreement applies to everyone in the open source community regardless of "whether they use Novell or not." But a Microsoft spokesperson said the company has only pledged not to pursue "individual, non-commercial open source developers."
"While Novell now has a framework in place to respect Microsoft patent rights, Microsoft does not have such a framework in place today with other leading Linux providers," the spokesperson wrote.
Novell and Microsoft both emphasized the interoperability aspect of the agreement and the commitment to working together, which they said was the deal's main point.
Steinman said Microsoft asked for the patent agreement as part of the overall deal. He downplayed Ballmer's statements, saying that while Novell anticipated Microsoft might interpret the deal as it did, "we had asked Steve Ballmer to moderate his comments, and I think he got caught in the moment."
He said the letter was in response to outcry from developers in the open source community who felt that a deal with Microsoft was a "deal with the devil."
"We needed to share with them our logical and intellectual reasons for doing this deal," he said.
Microsoft declined to specify which elements components of Linux may infringe on its intellectual property. Even if it did bring forward accusations about the content of specific patents, it is uncertain whether they would be upheld, said Wendy Seltzer, a visiting assistant professor of law at Brooklyn Law School and fellow at the Berkman Center for Internet and Society at Harvard Law School.
"It has to be a valid patent, and just because it's an issued patent doesn't mean it's valid," she said. She echoed the sentiment that Microsoft's targets would be distributors and not individual users.
"I'm an end user with several Linux servers, and I'm not particularly frightened," she said.
She added that users and developers should not see the open-source model as one that is inherently vulnerable to the threat of lawsuits, even though Microsoft does seem to be targeting open-source projects with which it competes.
"Those who compete with open source will try to use this to further the claim that open source is dangerous. There's nothing specific to open source about a patent law suit," she said. "In many cases, they are invalid patents. This is part of the reason why software patents are such a nightmare: Often they're issued without a real understanding of whether there is novelty here and cover things that, instead of being novel, are core pieces of development."