The End of the Penguin is Not Nigh

The sale of IP from Novell to Microsoft-led CPTN has gotten many worried.

First off, don't panic.

We don't know for absolute sure that somewhere in the $2.2 billion acquisition of Novell by Attachmate and the “concurrent sale of certain intellectual property assets to CPTN Holdings LLC, a consortium of technology companies organized by Microsoft Corporation, for $450 million in cash” that those unidentified IP holding were, in fact, Novell's ownership of UNIX.

[ Also on ITworld: Novell is dead and Microsoft has eaten its heart | Microsoft purchasing 882 Novell patents | Microsoft's hand in Novell deal bodes ill for Linux ]

True, a sale of UNIX to Microsoft is the sort of thing that conjures up the unlikeliest of outcomes--the kind of headlines that only too recently were atop April Fools' Day stories.

And yes, it is troublesome that Microsoft, which leads the CPTN investment group, has so far declined to specify just what IP was part of the $450 million side deal. But not too troublesome--after all, that kind of uncertainty only works in Microsoft's favor for now.

That fact is, that while many in the Linux community are wondering if UNIX is now owned by Microsoft, we don't know if that's what has happened, and even if it was, it doesn't necessarily mean The End of All Things Penguin.

I have two points, somewhat unrelated, as to why I am not highly concerned yet. First, it's not evident to me that Attachmate/Novell would sell off UNIX IP rights for $450 million to anyone. I would think that UNIX would be worth a lot more, particularly with Oracle's investment in Solaris, and HP in HP-UX, IBM in AIX, and so on...

With no offense meant for the SUSE or NetWare sides of the business, but I think it's a reasonable assertion that UNIX is long-term the most valuable piece of Novell's property. That Attachmate would up and sell it first chance they get seems rather short-sighted. It's possible Attachmate needed the sale to raise the extra cash to complete the acquistion of Novell, but without UNIX, they are left with yet-another-Linux company that has yet to go successfully head-to-head with its closest rival, Red Hat.

So while I don't know what IP got sold to CPTN, I am a little skeptical it was the UNIX IP.

If I'm wrong, and it was indeed the UNIX IP that was sold, then all sorts of scary outcomes can be imagined.

The nightmare scenario is that CPTN (with Microsoft at the helm) starts trying to shut down all of the commercial Linux distributors based on some "infringed" patents or copyright. They would leave Novell alone, of course, because a special licensing agreement would have been part of the $450 million deal announced today. Red Hat, Canonical, and all the other commercial vendors would be forced to pay licensing fees which would ultimately slash their already thin revenues, unless they passed that cost to the users--thus negating the big price advantage Linux has over Microsoft products.

CPTN will even be able to knock on Oracle, IBM, and HP's collective door and start asking for licensing fees for their UNIX flavors.

That is very scary stuff, and it would be something to worry about, except for one teeny, tiny thing. A little detail that all the doomsayers seem to have forgotten.

What's the key fact people seem to be forgetting?

It's this: to date, no one has proved Linux infringes on UNIX IP.

That's right. No matter how hard people have tried, no legal action has ever said that Linux had legitimate infringement issues with UNIX.

And oh, how they've tried. You might remember a little company called The SCO Group? They tried to make that assertion, only to find out that whoops, they didn't actually own UNIX rights to begin with.

For this nightmare scenario to come true, CPTN would have to get all of these other companies to go along with the unproved idea that there is indeed some legal hold UNIX IP has over Linux. Thus far, only one Linux company has rolled over on that idea, which was--surprise, surprise--Novell when they signed up for Microsoft's patent pledge a few years ago.

If CPTN has UNIX--and that's a big if--they would be nuts not to think there wouldn't be massive legal resistance to any sort of licensing controls placed on Linux. This would be for all the marbles, too, so you can bet every Linux (and UNIX) vendor with a commercial interest in this software would fight such claims in a legal battle that would make the SCO Group vs. everybody cases look like preschool playground shoving matches.

This is why, for now, we need to wait and see what's what with the Novell acquistion. I, for one, am more worried about the staff and community members I know there and what their futures will be moving forward. openSUSE and SUSE Linux are strong distros that bring a lot to the community, so here's hoping they emerge from all of this unscathed and untainted.

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