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The difference is that cross-licensing and covenant agreements don't typically cover a defined set of patents. Instead, they offer vague descriptions of what kinds of patents are covered and which aren't. Furthermore, the Microsoft covenants attempt to extend liability for patent infringement in new and troubling ways.

Read the section on "Foundry Products" in the recent set of Microsoft patent agreements and tell me if you have any reasonable idea what that means, particularly in the context of typical open source development models. It's a fact pattern designed to allow Microsoft's lawyers to argue that any piece of software not developed in-house by the particular Linux vendor may not be covered under the agreement. It's a ploy to inject enough uncertainty so that litigation becomes too expensive.

The covenants are particularly nefarious because the parties are specifically playing on the fears of their customers as opposed to protecting themselves. No, they aren't licensing patents. They aren't even promising not to sue each other over a vague subset of patents as exercised in a vague subset of software. They're promising not to sue each other's customers over such matters. Big companies like Microsoft and Novell can afford to hash out their differences in court. But typical SMBs will do anything to reduce any perceived legal exposure, even if they have no idea what the protection specifically covers.

There's no legal precedent in the U.S. or elsewhere (no pun intended) for an end-user of a software product being held liable for patents infringed in said product. It's Microsoft and Novell that need to secure the right to distribute their software. They're the ones that are liable for any patents infringed. These agreements are akin to insurance policies that vaguely cover events that have never been known to happen in the given context. Like if I was offered a policy that pays off if certain kinds of terrorist groups attack my suburban townhome.

If we can be made to fear liability for patents infringed in the software we legitimately license from well-known commercial vendors, then terrorist insurance for homeowners is right around the corner. And glacier insurance. You can't be sure that it really isn't global cooling. That's what this is about. It isn't about patents, it's about insurance fraud. They're trying promote fear by offering insurance against inconceivable events.

There's no shortage of things to be afraid about in this world. So it's shocking when so much attention is paid to the most improbable of circumstances. We have a finely-honed and deftly-nurtured case of catastrophilia. You know what happens after end-users start buying patent insurance? Patent holders finally start suing end-users. The tragedy of the patent covenants isn't just that they promote uncertainty concerning Linux. They legitimize a new form of patent aggression against parties that have neither the legal resources nor the technical expertise to defend themselves.

I'll take responsibility for the code that I distribute. But I use hundreds of free software packages, and I don't think I should be expected to audit them for possible patent infringement. Even as a software developer, I don't necessarily have the expertise to make informed decisions about the intellectual property content of software packages, regardless of source code availability. I'm not about to hire a patent lawyer for consult whenever I plan on installing or updating software on my systems. But does that mean that I should be compelled to insure myself?

Software patents are a minefield as it is. We have to limit liability to distributors. I don't see how extending liability to end-users protects or encourages innovation in any way. Instead, it's likely to make us fear innovation.