Here, in its entirety, is a letter penned by Derek Keats, IT chief of the University of Western Cape. The letter is entitled "Update on letter to Novell re the patent covenant with Microsoft"

Last week I wrote a letter (viewable on my blog on the Chsimba Alpha code test site at http://5ive.uwc.ac.za/index.php?module=blog&action=randblog&userid=6648061010) to Stafford Masie of Novell South Africa, which I copied to a couple of mailing lists, and which in turn was picked up and published on a number of news sites. I would like to clarify my concerns, and report on the conversation that I have had with representatives of Novell.

In the letter I expressed dissatisfaction regarding Novell's covenant with Microsoft about software patents. I suggested that this covenant had created considerable discord within the free software community, and that this could constitute risk to the ability of Novell to deliver on our business requirements as a customer.

It is important to clarify that I have no objection in principle to the part of the agreement relating to interoperability between GNU/Linux and Windows. Indeed, I suspect that this will be benefit penetration of GNU/Linux into the enterprise.

The free and open source software ecosystem differs from proprietary software ecosystems in having a strong element of community, which is itself heterogeneous in nature. The success of free and open source software depends not only on the quality of the technology and the actions of companies, but also on the behaviour of this community.

Aside from respecting any applied software license conditions, any company wishing to create business based on free and open source software has a thin line to walk between responding to business opportunities and satisfying the requirements of its customers, and ensuring that it does not do things that damage this community. This requires not just a good legal team, but an understanding of the community and its sensitivities.

I am a contributing member of that community, an advocate and activist promoting free software and free content, a user of products and services derived from the community, the 'CIO' of an enterprise that implements free software widely in its operations. Furthermore, the University of the Western Cape has a long history of commitment to freedom, having played a major role in the struggle against Apartheid in South Africa. With this history, we are not afraid to stand up for freedom in the digital age, and to use such little influence as we may have to encourage any who cross the line described above to make amends and return to the right side of the line.

I believe that Novell did not consider sufficiently what the impact of their patent covenant with Microsoft would be on the community, of which they are a part. This is the case both with respect to the nature of the patent covenant and the manner in which the community were largely excluded from input. The Novell-Microsoft deal acts to protect Novell customers from the threat of Microsoft patents being used against them with respect to Suse the distributions of GNU/Linux, as well as the proprietary offerings of both companies. It does nothing to protect GNU/Linux more broadly or other free software from patent threats by Microsoft or companies with which Microsoft has significant share holding.

While I do not dispute that Novell gives much back to the free software and open source communities, the company gains much more than it gives back. So the perception that Novell is looking out for its own interests, not the interests of the broader community of which it is a part, is at the heart of the matter.

This perception has resulted in discord, and the potential for changes to licence provisions that might impact on us as a customer. More importantly, as a customer which stands for the importance of freedom, we have a moral responsibility to tell Novell that what they did was not acceptable to us, and that Novell needs to make amends with the community. At the time when I wrote the letter, I could think of no better way to make this point than to stop doing business with Novell. I did not imagine that the views of such a minor player within a such a small organisation as UWC would be listened to and taken seriously.

For me personally, and for the University of the Western Cape, this is not just a theoretical issue. Our Free Software Innovation Unit is very active in the production of free software, having developed a cutting edge application framework (Chisimba) for building web-based applications. Although we are also major users of free software, and have a policy that says that we must implement all new initiatives in our infrastructure with free software unless we can prove in writing that it is necessary to do otherwise, it is in the production space that we are most vulnerable to software patents. This is an example to show how the community continues to be vulnerable, and provides some insight into why the community feels frustrated by the patent cooperation agreement.

One of the products created with the Chisimaba is an e-learning platform (sometimes referred to as a learning management system), KEWL. We have been active in this space since 1995. But the American company, Blackboard, announced on July 26, 2006 that it has been granted a broad patent in the US covering 44 claims related to learning management systems. Blackboard merged with Canadian-based WebCT in late 2005, meaning that Blackboard and WebCT are protected from any claims involving these patents.

On the same day that it issued its press release about e-learning patents, Blackboard started a patent infringement suit in a Texas court against Desire2Learn, a competitor in the learning management systems market. Blackboard is demanding royalties from Desire2Learn. The result of this was as big an outcry in the free software and open source communities as well as in educational institutions. While officials from Blackboard have repeatedly denied any intention of pursuing patent litigation against the free and open source software community, they have also refused to put such claims into writing. Given that companies change hands regularly, and new management might just change its mind, these assurances are worth less than nothing.

The latest development in this area is that the Software Freedom Law Center is seeking a re-examination by the US Patent and Trademark Office. The center believes that it has provided sufficient prior art to invalidate the patent, but Blackboard say the re-examination will rather prove its claims.

This is but one example of how the community is potentially vulnerable to patents. The patent issue is not just about the GNU/Linux operating system or the Suse variant of it. It is about the whole community of free and open source software. Novell could do more to protect that whole ecosystem, while still providing assurances to its customers that they are protected from threats from the Microsoft patent portfolio. Currently, the patent systems that impact many of us are anything but sane.

One way to rebuild these bridges with the free and open source software community is to take a stronger stance on patents, to support the community in expressing that stance widely and publicly, and to use its position to engage with legislators to discourage any legislation that permits software patents (and encourage the repealing of existing legislation) especially in South Africa, and for the interim contributing more patents to the OIN.

I believe that this is important because:

• software patents represent a hazard to all software development, and a significant barrier to innovation;
• software patents represent a particular impediment to the development of SMME-based software industries based on free and open source software, especially in the developing world;
• software patents do not provide any legitimate business benefit, and in fact create many risks especially for smaller companies who have not created a defensive patent portfolio in the way that Novell has done.

The sooner the system of software patents is overturned and eliminated, the better for everyone, excepts perhaps certain unscrupulous patent holders who are exploiting the system without adding any value to it.

So, I am wondering what Novel's[sic] stance would be on the more than 100 Microsoft software patents registered already in the South African patent office. Microsoft has been lobbying for legalising of software patents in South Africa.

Novell has been at the forefront of offering patent indemnity to GNU/Linux customers (for example, the SITA tender). This indemnity can now be more offered more effectively because of the patent covenant with Microsoft. The choice for Novell is stark - either Novell continues raising the specter of patent infringement in South Africa, or Novell joins the voices calling for lowering the litigious temperature and supporting the movement to strengthen the enforcement of the existing exclusions, ultimately eliminating software patents altogether.

With the patent covenant with Microsoft, Novell created the appearance that the company is pursuing the first strategy, thus angering the community, myself included. Will Novell align itself, in South Africa at least, with the second option? Is there something that Novell can do locally to help eliminate the patent menace and thus to help create a better climate for sustainable and relatively risk-free South African innovation?

One thing that Novell can do is to engage with FTISA (Freedom to Innovate South Africa) and assist with ongoing initiatives to help eliminate the patent menace locally. It is important that Novell continues to interact with the South African FOSS community to ensure that our SMME sector is not at risk from the badly broken patent system in SA and elsewhere.

Having discussed my concerns with Chris Papayianni, Djamel Souici and Stafford Masie of Novell, and participated in the CITI Foss Forum with Stafford this morning, I believe that continued interaction with Novell to encourage the company to rebuild bridges with the community is both desirable and feasible. So, for the immediate future, I will not be carrying through with the threat of eliminating Novell products from the University. Instead, we will continue dialogue with Novell, and we will be watching to see how Novell does indeed rebuild the damaged bridges.

The great thing about Free Software is that the total cost of exit is low enough that we can revisit this decision at any time.

I look forward to working with Novell both through UWC and through FTISA to ensure that this situation is turned into a win-win-win for Novell, UWC and the Free Software community.

Since I know this question will be asked, as to whether I have softened my stance with respect to UWC. The answer is "yes" with respect to the action to be taken, but no with respect to whether Novell crossed the line. But this is a qualified "yes", for the time being, but I will not hesitate to take similar action with any company whose products we use and who acts in any way that undermines the free software community. Companies must know that UWC is serious when it comes to its stance on freedom in the digital age, and that I am personally committed to doing what we can.

Like Novell, we live in a complex world, and no doubt, like Novell, we will make mistakes. When we do, we hope the community will also apply pressure on us to come back across whatever line we have crossed. Freedom is at the heart of it all, and must be protected.

Sincerely,
Prof Derek Keats
Executive Director, Information and Communication Services
The University of the Western Cape
Cape Town, South Africa