Glyn Moody has an interesting article explaining why software patents are like black holes. He discusses situations where a major patent holder goes bankrupt—or is about to—and everything gets consumed. His point is that even if a company otherwise goes out of business cleanly, patents often remain as a piece of “intellectual property” that can come back to haunt us like a zombie.
Matt Asay also recently shared his opinion on the matter:
As reported, over 20 organizations have applied to buy Novell, most (or all) private equity firms. While companies like Oracle or Cisco might acquire Novell to maintain its product portfolio, it’s unclear if private equity firms will have the same motivation. Investment firms focused solely on profit may sell Novell’s assets to the highest bidder, regardless of the consequences for Novell’s customers or the broader industry.
Personally, it seems that lawyers in our community who subscribed to a certain mindset, unlike hacker types like Stallman (FSF), Karsten Gerloff (FSFE), Alan Cox (Open Group Rights), took a different stance. They argued that MySQL should not have been allowed to be acquired by Oracle, its main competitor. (It’s worth noting that within the MySQL community—mostly former MySQL AB employees and external contributors—the opinions about patents were quite different and patents did not play a significant role in their views.)
For those closely involved, it was also interesting that two companies you might have expected to take a side—IBM and Red Hat—remained completely passive. I have no insider info on their decision, but I personally connect it to their legal IP strategies and concerns about Sun Unix patents. It wouldn’t surprise me if the idea to let Sun’s patents fall into Oracle’s hands came from their IP lawyers. At the same time, there may be other reasons—such as a “gentleman-like” attitude, since IBM also made an offer for Sun and didn’t want to interfere with Oracle’s acquisition.
For those not closely following, it’s important to understand that Oracle played its cards very well here. Regulators like the European Commission can only approve or deny a merger. Usually, if antitrust concerns arise (e.g., regarding MySQL), companies might offer to sell the contested asset to get approval. But Oracle was inflexible, insisting on unconditional clearance and threatening to walk away otherwise. This was their main leverage against all parties, not only patent concerned groups but also Sun customers worried about hardware or political actors worried about jobs.
(I don’t want to sound whiny—this is my understanding of events, and I don’t aim to paint Oracle as the villain. In fact, I somewhat admire how they played their cards, even if the outcome was undesirable to me.)
My personal reaction is that this is a sad state of affairs. Respected figures in the FOSS community have let the existence of software patents affect their judgment about what should happen with some open-source projects. These concerns often centered around Java and OpenOffice as well. Even when these weren’t directly involved in antitrust discussions, there was fear Oracle wouldn’t maintain these open projects, and that fear influenced decisions heavily.
I have always felt it wrong to treat MySQL as “collateral damage” because of Sun’s software patents. The GPL embodies a “Live Free or Die” spirit where we fight software patents; we shouldn’t start making concessions to them.
So as Novell and others face disputes, I hope this sheds light on what might be happening behind the scenes. Sharing experiences might even help next time.
That said, I hold no grudges against those who sided with Oracle. Software patents exist, and they can cause real problems for free software. I just find it sad it came to this. I’m not always a big compromiser, but I do know compromises are often good.
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