Embrace, Extend, Extinguish, Novell Style

A lot of people rag on Novell for apparently violating the open source/free software philosophy with their patent agreement with Microsoft. And they might be right. But not for the reasons most think. Before we pursue this line of thinking further, let's make two things clear. First, Novell was feared for their embrace, extend, and extinguish tactics long before anyone cared about Microsoft. Second, Novell's legal team is thorough, persistent, and downright scary. For evidence of the former, SCO is the 12th competitor Novell has killed through contracts. For evidence of the latter, SCO is the 12th competitor Novell has killed through contracts. And I'm not counting all the suppliers Novell's screwed over in the past. I don't think I need to say much more.

The thinking is that by signing a patent protection agreement, Novell is shutting out the rest of the open source community since the protection is only extended to Novell and its products. However, this is ignoring fact number two, Novell's legal team. They're not idiots and obviously were monitoring the entire GPL v3 drafting process. They were fully aware of what might make it in and they knew the FSF had an axe to grind with patents. They were also smart enough to frame the agreement so that it didn't violate the GPL v2. Novell actually offered Microsoft a clause that would have limited this agreement to the current license version, but Microsoft was afraid Novell might turn that clause against them in the future, so they declined it. One would assume Microsoft was also watching the GPL v3 drafting process and had a decent idea of what would go in. Novell's timing in this matter was dead on. With the release of GPL v3, with its patent clause, Microsoft suddenly found itself in a hard place thanks to another agreement. But the license only applies if Microsoft is a distributor of v3 licensed code. That's where the voucher agreement comes in.

The voucher agreement for SLES licenses can be considered a separate agreement and it basically said Microsoft would give out these coupons to companies that wanted to run Linux. Some people believe this makes Microsoft a Linux distributor, an argument Microsoft obviously disputes. But here's the thing. On the fine print on the coupons themselves, it says that whoever hands them out is a Linux distributor. Microsoft, by the terms of the contract, is the one supplying the coupons, and according to the fine print, is a "distributor" of the SLES operating system. Combine that with not limiting the agreement to v2 and the likely inclusion of v3 licensed code in future SLES releases, and Microsoft has just walked right into the spider's nest. What's even more pathetic is that Novell reserved the right to change what is on those coupons. But that's not even the end of it.

The last agreement involved sharing information between the two companies. But there's a clause. Specifically, section 10. Freedom to do Business. Read that clause very carefully. Novell has no limitations on how it can use the information Microsoft supplies in its usual business activities. That includes its open source activities. Now, can anyone here seriously think Microsoft has shafted Novell and the open source community?

But here's the thing. The objective of open source development is cooperation. What Novell basically did was backstab another company that they supposedly agreed to cooperate with. Yes, that company is Microsoft, but that raises the point of, if you resort to your enemy's underhanded tactics, are you any better? Can you really stand on the moral high ground? After all, free software proponents constantly use that as a way to promote their ideology. I personally believe that the ends do not justify the means. If you behave unethically, you better not be expecting a get out of jail free card. So, does Novell truly understand the open source philosophy?