Novell would use patents in open source fight

There was another Novell press release last week, besides the one about Open Enterprise Server, and - to me - it was even stranger. It was headlined "Novell Supports Innovation, Competition in Open Source with Patent Policy."

Now most open source advocates are dead set against patents for software. They don't necessarily disagree with copyrights for code, but patents are usually right out with that crowd.

Open source spokesperson Bruce Perens has said, "Software patents could be fatal for open source software in the U.S. and Europe. Since we do not collect royalties from the distribution of our own software, we have no funds to pay royalties to patent holders."

So why would the open source movement welcome any patent holder claiming to be "committed to the protection of intellectual property in the emerging 'mixed source' environment, where proprietary and open source solutions co-exist," as Joseph LaSala, general counsel of Novell, was quoted as saying.

That's very reminiscent of what SCO CEO Darl McBride (certainly no friend of the open source movement) told the Etre conference in Cannes, France last week: "Protect your intellectual property now or risk having your business sacked by open source-touting bandits."

Upon further review, though, Novell's press release (which came the day after McBride's remarks) was neither in response to Darl Vader nor in support of his position. Instead, what Novell was trying to do was to reassure its customers that there was nothing to fear (in the way of infringement lawsuits) from using the company's software, whether it was proprietary (like NetWare, GroupWise or ZENworks) or "open" (such as SuSE, Evolution and Red Carpet). They just picked an odd way to say and were the victim of unfortunate - and unforeseeable - timing.

It's also a way of propping up Novell's pledge to indemnify its customers (those using SuSE Open Enterprise products) against charges of infringing copyrights - such as those claimed by SCO. When that plan was announced last January, SCO retaliated by suing Novell for "slander of title" (i.e., Novell was interfering with SCO's right to sue people running Linux). That suit is still in a Utah court, but so far Novell is winning most of the skirmishes. Its major defense is that Novell, not SCO, owns the copyrights to Unix.

So Novell is fighting SCO's claim of copyright with its own copyright claim and now promises to use its patent portfolio to fend off other patent claims on open source. While copyright and patent are now the open source movement's weapons of choice, chalk this one up as fighting fire with fire.