Novell-Red Hat Conundrum: What's a FOSS Supporter to Do?

Thursday Feb 26th 2009 by Bruce Byfield
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A recent legal request divided free and open source advocates into opposing camps.

When you are a free and open source software (FOSS) supporter, life often seems black and white. You are for user freedom and shared source code, and against proprietary software and companies -- especially Microsoft. Depending on your position (more toward open source or toward free software) you might have a few doubts, as well, about your allies, considering free software advocates to be fanatic idealists or open source developers as sellouts to corporate interests. But nothing too serious.

Occasionally, though, more complex ethical questions arise. For instance, what if you were asked to help in a patent case, but by doing so you would help a defender you despised? Would you invoke the greater good, or keep your ethical purity and refuse to aid such a defender? What you decided would say a great deal about your reasons for supporting FOSS.

A real life scenario

This is not a random example. It could have occurred last week, except that those involved chose to avoid presenting the community with such a dilemma.

I am referring to the request for community help in the IP Innovation LLC et al vs. Red Hat Inc. et al suit. This patent case concerns three patents on multiple workspaces (AKA virtual desktops) -- a common feature of GNOME, KDE, and other GNU/Linux desktops. The defendants are looking for prior art -- that is, evidence that the multiple workspaces existed before the patents were filed. Such evidence could make the patent invalid and therefore stop the case.

The idea that software patents are dubious and stifle innovation is widely accepted in the FOSS community. The Free Software Foundation's End Software Patents campaign, for example, enjoys almost uncritical support in the community. For this reason, it is unsurprising that the request was widely publicized, and met with dozens of intelligent responses. Typical coverage was found on Slashdot, which used the headline, "Red Hat Enlists Community Help To Fight Patent Trolls."

Since Red Hat had made the official request for help, the headline was understandable. However, what nobody noticed was that Red Hat was not the only defendant in the case. The other defendant in the case was Novell -- a company that many in the community see as a traitor to FOSS, or worse.

"This whole thing is done with Novell's agreement," Rob Tiller, vice president and assistant general counsel, IP, for Red Hat told me. His statement is confirmed by Jim Lundberg, VP Legal at Novell, who says, "Essentially, [the request] is a joint effort by Novell and Red Hat. Both Red Hat and Novell are working closely together in defending against the patent litigation that was filed." And, in fact, both Red Hat and Novell are represented in the case by the same law firm, Gibson, Dunn, and Crutcher.

Whether Novell's name was deliberately omitted from the public request is uncertain. Possibly, the request was a task that simply fell to Red Hat in the joint defense. However, if the omission was deliberate, you can see why. Mentioning Novell could easily have distracted from the request, with diatribes about Novell distracting from the discussion about possible prior art.

Still, if Novell had been mentioned, the reactions would have been revealing. Would some community members have withheld help? Or would people put aside internal differences because suggesting prior art would help the community in general? What train of logic would have prevailed: the anti-Novell, or the anti-patent?

The anti-Novell argument

If I can channel the anti-Novell lobby for a minute, the first train of logic goes something like this: Novell is a company whose devotion to FOSS is questionable, to say the least. Three years ago, it made a agreement with Microsoft, the arch-enemy of FOSS. This agreement abandoned the community to give protection against possible patent infringements only to Novell customers, and was an evasion of the terms of the GNU General Public License (GPL) so infamous that the third version of the GPL included a provision to block any such future deals. Yet despite widespread censure, two years later, Novell extended its cooperation with Microsoft.

In addition, Novell employees have repeatedly championed Microsoft technologies, praising the OOXML standard for office applications and developing and promoting Mono, a FOSS version of the C# programming language, and Moonlight, a FOSS version of Silverlight -- despite the fact that these technologies might become the future subject of patent infringement claims. Moreover, in supporting Go-OOO, an independent development group for OpenOffice.org, Novell has helped to undermine one of the major projects required to promote the FOSS desktop.

After such treatment of the community, Novell should not expect any help. If anything, the fact that Novell, which tried to evade any patent infringement claims from Microsoft, should now be facing another patent infringement claim seems poetic justice.

Under these circumstances, the community should not contribute to Novell's defense. Red Hat's involvement is unfortunate, but not aiding Novell and keeping true to your beliefs is a higher priority than helping with the patent case.

The anti-patent argument

If I channel the anti-patent lobby, the argument seems equally compelling. For years now, the FOSS community has been concerned that patents would be used against it. Nor is this concern an empty fear. In the SCO cases that have been chronicled in such detail by the Groklaw site (cases in which, interestingly enough, Novell appears as a defender of the community), in the Trend Micro case against Barracuda Networks, and now the case brought by IP Innovation, proprietary software interests and patent trolls have shown themselves more than willing to use patents to undermine free software.

Moreover, such uses of patents are an abuse of the system. While American patent law was originally designed to encourage innovation by rewarding innovation, these days it is being used to discourage innovation and to establish a monopoly.

Not only that, but patents are a particularly poor idea in software. The idea of patenting programming code is only slightly less ridiculous than patenting numbers. And, practically speaking, considering the interoperability of so much software these days, software patents could prevent anyone from writing new code that did not infringe on some patent.

Under these circumstances, what Novell has or has not done is irrelevant. What's important is to protect the community, and to resist the use of patents to create monopolies and intimidate possible competitors or to give patent trolls a source of income. If helping the defenders in this case also helps Novell, that is a relatively unimportant side effect.

Making a choice

By chance or design, Red Hat and Novell made their request in the way that would most likely give useful results. Neither can be faulted for looking after its own best interests; that is, after all, that’s what companies do, especially publicly traded ones.

All the same, a part of me wishes that the request had been made in both companies' names, so that we could see how the community would react. It is hard to see any middle ground between the two lines of reasoning that I've outlined, and which line people chose might indicate their motivations for supporting FOSS.

I suggest that those who decided to follow the anti-Novell lobby would be idealists, for whom remaining true to their beliefs is more important than the real world consequences of such action. Perhaps, too, they would be too focused on their opposition to Novell and Microsoft to put aside their dislike for any other cause.

By contrast, the anti-patent supporters might have proven be equally idealistic, but more accustomed to the give and take of human interaction. While they might have reservations, they might still be willing to ally themselves with Novell because fighting patents is more important than consistency in their beliefs.

We can never be sure, of course, because the community never had the chance to choose (I admit I delayed this story until after the request for prior art received responses, which tells you which camp I fall into).

Still, dilemmas can be revealing, simply because they are so uncomfortably complicated. Even though this dilemma never happened, you might ask yourself: what logic would have convinced you in the situation, and what does your answer say about why and how you support FOSS?

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