A company turns the Microsoft-Novell case into an open source business model

Everybody seems to agree that software patents are bad: because of patent trolls, because the patent system  is broken and overwhelmed or because they threaten FOSS. In short, people don’t want to pay for Linux.

Yet even pro-open-source companies are making this argument that they have to build a patent portfolio so that to be able to defend themselves, just in case. Hey, even open source communities have adopted this “I’m forced too” stance.

Therefore it was only a matter of time before an open source company decides patents could be used to solidify open source dual-licensing schemes. Imagine the deal between Microsoft and Novelldual-licensing erected into a widespread open source scheme. Scary.

Why would they do that? Well, during a recent Linux.com interview, International Characters (IC)  say they couldn't figure alone all the potential applications for their technology so they thought that the open source community could help not only in terms of code contribution but also in terms of finding new applications. Presumably, this would also lead  IC to file yet another bunch of  patents: there are so many ways to milk open source contributors.

Icing on the cake, IC's attorney Larry Rosen a former  general counsel of the Open Source Initiative (OSI), knows very well that carving up a new license that would encompass this patent trick would certainly prevent this license from getting the  OSI "open source license" imprimatur.

Therefore attorney Rosen and IC came up with an additional contract called Covenant  (not a copyright license) which is basically a promise not to sue you as long as you’re not making money with the code outside of their platform; in exchange of which you can freely use IC open source software.

IC is reserving  to itself the right to distribute the bundle software + hardware  since it seems they want to make money out of their platform, a specialized appliance. However,  if you're the end-user, you don't have to pay IC to bundle software and hardware: obviously you've got to be free to run the software somewhere, otherwise IC  would have difficulties maintaining an already stretched reference to open source.

Here comes another kicker:  IC lawyers’ understanding of technology seems pretty limited.

Apparently they forgot about technologies allowing to turn  generic or semi-specialized hardware into appliances with the push of a button. To name a few: software appliance (self-installing CD turning common hardware into a dedicated server), virtual images or re-programmable chips.  Any company can therefore distribute the software so that users  can turn it themselves into an appliance. Much ado about nothing.

Note that from a legal perspective this is also pretty silly. Instead of sticking to copyrights laws (dealt with at the federal level) companies adopting IC dual-licensing scheme would  have to deal not only with a much heavier  corpus of laws (contracts) but also with the diversity of local legislations.

Sleepy Cat / Berkeley DB made good money out of dual-licensing to appliance makers without all this silly legalese machinery.

I wonder who, from the law firm or the company, was using the other to get more public attention?

Quoted by:

• Roy Schestowitz on Boycott Novell
• Matt Asay on c|net
• Gary Spiegel (SUN/MySQL lawyer)