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

A recent legal request divided free and open source advocates into opposing camps.
Posted February 26, 2009

Bruce Byfield

Bruce Byfield

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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.

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Tags: open source, Linux, Red Hat, FOSS, Novell

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