Microsoft's Linux indemnification trap

The partnership between Microsoft and Novell has raised as many questions as it has provided answers. That's a shame, because some of those questions should have been put to rest long ago.

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The proposed technical collaboration between the two companies is laudable. Under the new agreement, Microsoft and Novell will work together to improve interoperability between Microsoft software and its open source and standards-based counterparts, including Linux, virtualization technologies, Novell eDirectory, and the OpenDocument Format. If it bears fruit, this partnership could be a boon to heterogeneous IT environments. Still, given the combined development resources available to the companies, these are modest goals at best.

This deal is really about indemnification. Microsoft promises not to assert intellectual property infringement claims against those open source developers and customers who play by its own, arbitrary set of rules. Among those rules: Customers must get their Linux from Microsoft's new partner, Novell.

Seemingly in response to this partnership, leading Linux vendor Red Hat introduced an indemnification provision into its own Open Source Assurance Program. In so doing, it fell into the same trap as Novell.

Prior to these announcements, worries about indemnification had faded from many IT managers' minds. The saga of the SCO Group's intellectual property lawsuits against Linux vendors and customers is drawing to a close. With each new motion filed by IBM or Novell, a judgment in SCO's favor seems less likely. And yet, all of a sudden, the indemnification issue has come roaring back into the headlines.

Evidence linking SCO to Microsoft is slim but compelling. It now seems likely that the software giant is at least partially responsible for funding SCO's legal blitzkrieg. That Microsoft benefited from the uncertainty and doubt that SCO's lawsuits created around Linux is unquestionable. It now seems clear that this latest partnership with Novell is designed to serve a similar aim.

By offering indemnification, Microsoft is reasserting its claim that prominent open source software projects contain code that infringes on Microsoft's intellectual property. Furthermore, by promising not to sue certain Linux customers, Microsoft is implying that it reserves the right to sue the others. The suggestion is that, as did SCO before it, Microsoft plans to create a legal boondoggle for those Linux customers who fall outside the walled garden it has created with Novell.

But how serious is the threat really? That Microsoft should seek to undermine open source projects is nothing new. For example, Microsoft's history with the Samba Project, which produces software that allows Linux and Unix systems to join Windows networks, is long and contentious. If Microsoft believes it could crush Samba tomorrow, then it must believe it could have crushed Samba yesterday -- and yet it hasn't.

Nor should it come as a surprise that Microsoft promises not to sue independent, noncommercial software developers. One of the great saving graces of Samba and similar projects is that software patents, which are commonplace in the United States, are so far not recognized in some other jurisdictions, including the European Union. So long as this remains the case, a policy of aggressive patent litigation against independent American software developers would only serve to drive software innovation out of the United States, an outcome not even Microsoft would find desirable.

Even less likely is the prospect that Microsoft would try to litigate against major customers who use open source software. At the press conference announcing the pact with Novell, Microsoft's Steve Ballmer admitted that it would be foolish for Microsoft to expect its customers to dismantle their heterogeneous networks and standardize on Windows across the board. To expect them to standardize on a single flavor of Linux is hardly more realistic.

The mere suggestion of legal trouble is enough to cast the shadow of doubt over many IT managers' Linux plans. Nonetheless, the only sensible strategy is to resist succumbing to that doubt. While it's unfortunate that major Linux vendors have played along with Microsoft's negative messaging, the Novell partnership is evidence that Microsoft's customers have delivered a message, too: Linux and open source are here to stay, and interoperability is the future. Confronted with those realities, even Microsoft must play along.