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Microsoft (Nasdaq: MSFT) and Novell (Nasdaq: NOVL), participants in a recent historic Windows-Linux technology- and patent-sharing pact, are having some differences of opinion over the existence of Microsoft technology in the Linux operating system.
Microsoft CEO Steve Ballmer fired up Linux and open source supporters by claiming the deal with Novell reflects the inclusion of Microsoft intellectual property in Linux.
Novell CEO Ron Hovsepian, who argued the Windows interoperability work will benefit all Linux distributions, countered Ballmer's contention, claiming in an "Open Letter to the Community" that the Microsoft deal "is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property."
Meanwhile, open source legal eagles are making sure that such skirting of the GNU General Public License (GPL) will not be permitted in its next iteration, GPLv3, currently being drafted and expected for release next year.
While development of the next GPL -- the original and most popular open source license -- was previously bogged down by disagreement over its digital rights management (DRM) provisions, the Microsoft-Novell deal puts more focus on its patent provisions, which would not allow the patent promise unless it applied to all users of the software -- in this case, Linux.
Promises, Promises
The Microsoft-Novell technology deal, announced earlier this month, included a mutual promise not to sue each other's customers based on patent infringement. It came on the heels of Oracle's (Nasdaq: ORCL) pitch to support Red Hat (NYSE: RHT) Enterprise Linux (RHEL) at a lower price point than Red Hat.
Novell, which will receive almost US$350 million from Microsoft from their deal, was seeking only an interoperability and marketing 
arrangement for Windows and its own Suse Enterprise Linux, according to Hovsepian's letter, but Microsoft sought the patent portion of the agreement as well.
"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," Hovsepian said.
Agree to Disagree
Microsoft and Novell highlighted interoperability and a smooth coexistence of Windows and Suse Linux in corporate datacenters when the partnership was announced.
While most of the negative reaction to the deal came from free and open source software community members who remain ardent enemies of Microsoft, it was Novell this week that took exception to the software giant's claims that its IP is in Linux.
"We disagree with the recent statements made by Microsoft on the topic of Linux and patents," Hovespian's letter said. "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."
Clever Business Deal
Details of the Microsoft-Novell partnership trickled out slower than the actual news of the historic alliance. There was some question whether Novell could pass on the Microsoft patent coverage to only its customers without violating free distribution rights and requirements of the GPL.
However, because Microsoft's patent protection is granted directly to customers, the deal does manage to avoid GPL stipulations and is a "clever" way of attaching a per-copy restriction to Linux, Townsend and Townsend Partner Phil Albert told LinuxInsider.
Albert, whose firm focuses on software licensing and patents and advises open source projects and companies, doubted whether Microsoft planned to leverage any patents against non-Novell Linux users, indicating the software giant is likely more interested in preserving its per-copy business model.
No Infringement ID'd
Although the specter of IP from Microsoft or other sources has been held over Linux in the past, the community-built operating system actually emerged stronger and more acceptable in the enterprise following such claims from SCO Group, a Utah Unix vendor that has been unsuccessful in its courtroom bid to disrupt Linux.
It is unlikely Microsoft will lash out legally at Linux or other open source software users. If it did, there would first have to be specific patents and infringements identified, and such details have not yet emerged, Illuminata Senior Analyst Gordon Haff told LinuxInsider.
While patent-protection arrangements like the one between Microsoft and Novell are commonplace in hardware -- and increasingly in software -- the agreements do not mix with open source software, where the intellectual property and code is already open, he added.
"The issue with open source software is there is no good mechanism to do that common practice," Haff explained.
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