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Details of the Novell-MS NotaDuck Pact - The SEC filing - Updated
Tuesday, November 07 2006 @ 07:43 PM EST

Here's the SEC filing, Novell's 8K. Note that the humorously titled Patent Cooperation Agreement has exceptions, but they are not listed or explained. Anyone able to make sense of this gobbledygook?
Under the Patent Cooperation Agreement, Microsoft commits to a covenant not to assert its patents against Novell's end-user customers for their use of Novell products and services for which Novell receives revenue directly or indirectly from such customers, with certain exceptions, while Novell commits to a covenant not to assert its patents against Microsoft's end-user customers for their use of Microsoft products and services for which Microsoft receives revenue directly or indirectly from such customers, with certain exceptions.

So let me get this straight: Novell promises not to sue Microsoft's customers for using Microsoft software. Microsoft promises not to sue Novell SUSE paid customers for using Novell SUSE. They each pay each other millions. But it's not a patent cross license. No sirree. Why that would violate the GPL, don't you know. In fact, it isn't a license at all, because that would violate the GPL too. And then Novell couldn't distribute all that GPL software it didn't write but wishes to control. It's just a friendly handshake, and what are specifics between friends who wish to step over and past the GPL?

But if there are "certain exceptions", I believe that implies somebody knows some specifics. One way or another, these beans will eventually get spilled.

Here's the Novell FAQ. See if you can match up the FAQ to the SEC filing:

Q1. How is this agreement compatible with Novell's obligations under Section 7 of the GPL?

Our agreement with Microsoft is focused on our customers, and does not include a patent license or covenant not to sue from Microsoft to Novell (or, for that matter, from Novell to Microsoft). Novell's customers receive a covenant not to sue directly from Microsoft. We have not agreed with Microsoft to any condition that would contradict the conditions of the GPL and we are in full compliance.

Novell's end user customers receive a covenant not to sue directly from Microsoft for their use of Novell products and services, but these activities are outside the scope of the GPL.

Get it? Novell doesn't get the promise from Microsoft. Its *end users* do. Ha ha, GPL. Except that the end users are also licensees, according to the GPL license. Licensees who are not allowed to redistribute, Novell and MS told us, without losing the patent promise, speaking of specifics, according to the deal made on their behalf -- without asking them to agree or not -- and on top of the GPL license they already got. Hmm. We'll see.

[ UPDATE: Oct. 8, 8:42 AM - I just realized the full significance. Novell here is stepping outside the line of fire and agreeing with Microsoft that *end users* are the ones that you must go after in any patent infringement dispute. Shades of SCOsource. Thanks for nothing, Novell. More questions: When were Novell SUSE customers asked if they wished Novell to negotiate a agreement with Microsoft on their behalf? When were Novell SUSE customers asked about the terms of said agreement? What consideration does Microsoft get from Novell's customers? Does negotiating this agreement on Novell's customers' behalf indicate that Novell assumed Power of Attorney for their customers in this matter? Did Novell truly represent the best interest of their customers using Power of Attorney? Can Novell legally assume Power of Attorney for their customers without a written grant? Do Novell customers have the ability to "opt-out" of this agreement? Is this agreement binding on customers?

[And deeper, if parties deliberately conspire to meet the letter of a license while violating its clear spirit and intent, will the courts uphold it? Note this interview with Microsoft's Bill Hilf:

Hilf: We started on the general framework for this three years ago. The deal with Novell started about six months ago. There was just a lot of work we needed to do to understand the GPL side of it and not violate the GPL. We don't actually license patents in this agreement. There is no patent cross-licensing. We are saying we are providing coverage for Novell's customers from a Microsoft intellectual property perspective. That allows us to work with the GPL because the GPL is very specific about licensing of patents. That took a while to get to that point from a legal framework....

I read that as saying that there's an intent to have their FOSS cake and eat it too, i.e., they tried to work *around* the GPL rather than just follow it. They know the GPL code can't be encumbered with patents, but they want to do it anyway. I read that as clear intent to sidestep the spirit of the GPL while embracing a perceived loophole in it, to profit from the GPL without adopting it. And by they, I mean Novell too. It agreed to this deal.]

Are they positive Novell's customers wish to enter an anticompetitive, antiLinux deal that benefits someone other than themselves and limits rights that they had before the agreement was entered into? If in fact the promise is worth millions, do the customers get the money? No? All those millions from Microsoft get paid to Novell? I thought this was a straight agreement between Microsoft and SUSE customers. How does Novell pocket the money? $108 million is what Microsoft says it will pay under the patent agreement. To Novell. Well, then, who is the agreement really between? And did you ever hear of "royalty payments" to be paid on a promise? But this is not a license, Your Honor. Nope. Not a bit.

And about those "certain exceptions" -- how will the paying SUSE customers know when they are at the brink of bumping into one of those? Surely if the agreement is directly between them and Microsoft, they have a right to specifics. No? Novell signed the deal for them, and Novell knows? That is enough? They are the proxy standing in for their customers? Then in what way is this a direct arrangement between Microsoft and the Novell customers?

And if it is true, as Novell asserts in the FAQ, that Mono doesn't infringe any patents, and there are no specific patents involved, and no threat of litigation was in the air, and their SUSE doesn't have any patent infringement issues with Microsoft, who needs a Patent Cooperation Agreement about absolutely no patents at all? Well, there aren't any patents except if you are not using SLED; then there are. And then the bogeyman will get you. And he throws chairs. And how come Microsoft has to pay so much more than Novell for the same promise? Riddle me that, Batman. And why did Ballmer offer to enter into the same agreement with Red Hat yesterday, when this agreement with Novell says Microsoft won't do the same deal with anyone else for three years? Deeper, if there is no patent infringement in SUSE to date, then why can't I just use OpenSUSE without fear? Didn't Novell just tell me it's clean as a whistle? And if OpenSUSE is clean, then so is Red Hat. There you go. I'll just use Red Hat without a fear in the world.

If Novell is representing its customers, it has in my view a duty to tell the customers the exact terms of the deal the customers are alleged to be directly entering into with Microsoft, including precisely what patents are covered, and if there aren't any, they should be allowed to say they are not interested in entering a direct agreement with Microsoft. Isn't it businessfolk who keep telling us they need clarity? Well, so do SUSE customers, especially if we're going to be entering into agreements directly with Microsoft.

Of course, it's obvious this is legal sophistry. They are saying to the world, even though it looks like a duck and sounds like a duck and acts like a duck, it's not a duck, because we are calling it NotaDuck and we've taken the long way around, skulking along the unpaved back roads and alleyways instead of taking the straight highway to get to the duck pond. Er. The NotaDuck pond, where notaducks don't swim and that's not quacking you are plainly hearing.

Forsooth, my lord, it smelleth like a duck to me.

Now do you get it, that "Tivoization" is a metaphor for creative ways to make the GPL toothless? It's a trend, not an isolated event. There's money to be made, and the GPL is getting in their corporate way. What they forget is that the code came with a price. The terms of the GPL are that price.

If you look for and maybe find a workaround so you don't have to pay the full price you agreed to, what does one call that? If the price for software you wished to build a business on was money, and you found a loophole way not to pay what you agreed to, would anyone wish to sell you any software from that day on, even if you got away with it?

We'd all know what to think of such conduct. Is it any different if the price of the GPL code is that you can't mix it with proprietary code or attach patents to it or take it closed? And if you find some devilish workaround so you don't actually pay that full price, what are you now? Would it be too strong to call it dishonest? I'll leave it to you to decide for yourselves.

************************************

Item 1.01 Entry into a Material Definitive Agreement.

On November 2, 2006, Novell, Inc. (“Novell”) and Microsoft Corporation (“Microsoft”) announced that they had entered into a Business Collaboration Agreement, a Technical Collaboration Agreement, and a Patent Cooperation Agreement. This set of broad business and technical collaboration agreements is designed to build, market and support a series of new solutions to make Novell and Microsoft products work better together for customers.

Under the Business Collaboration Agreement, which expires January 1, 2012, Novell and Microsoft will market a combined offering. The combined offering will consist of SUSE Linux Enterprise Server (“SLES”) and a subscription for SLES support along with Microsoft Windows Server, Microsoft Virtual Server and Microsoft Viridian that will be offered to customers desiring to deploy Linux and Windows in a virtualized setting. Microsoft will make an upfront payment to Novell of $240 million for SLES subscription “certificates,” which Microsoft may use, resell or otherwise distribute over the term of the agreement, allowing the certificate holder to redeem single or multi-year subscriptions for SLES support from Novell (entitling the certificate holder to upgrades, updates and technical support). Microsoft will spend $12 million annually for marketing Linux and Windows virtualization scenarios and will also spend $34 million over the term of the agreement for a Microsoft sales force devoted primarily to marketing the combined offering. Microsoft agreed that for three years it will not enter into an agreement with any other Linux distributor to encourage adoption of non-Novell Linux/Windows Server virtualization through a program substantially similar to the SLES subscription “certificate” distribution program.

The Technical Collaboration Agreement, which also runs until January 1, 2012, focuses on three areas:

* Novell and Microsoft will develop technologies to optimize SLES and Windows running as guests on each other's operating systems.

* Novell and Microsoft will work together and with independent software vendors to develop management tools for managing heterogeneous virtualization environments, which will enable each party's management tools to command, control and configure the other party's operating system in a virtual machine environment.

* Novell and Microsoft will work together on ways to make translators available to improve interoperability between Office Open XML and OpenOffice formats.

Under the Patent Cooperation Agreement, Microsoft commits to a covenant not to assert its patents against Novell's end-user customers for their use of Novell products and services for which Novell receives revenue directly or indirectly from such customers, with certain exceptions, while Novell commits to a covenant not to assert its patents against Microsoft's end-user customers for their use of Microsoft products and services for which Microsoft receives revenue directly or indirectly from such customers, with certain exceptions. Both Microsoft and Novell have payment obligations under the Patent Cooperation Agreement. Microsoft will make an up-front net payment to Novell of $108 million, and Novell will make ongoing payments of at least $40 million over five years to Microsoft based on percentages of Novell's Open Platform Solutions and Open Enterprise Server revenues.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Novell, Inc.
(Registrant)

Date: November 7, 2006

By /s/ Dana C. Russell
(Signature)
Vice President Finance, Chief Financial Officer
(Title)


  


Details of the Novell-MS NotaDuck Pact - The SEC filing - Updated | 616 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here, please
Authored by: Jude on Tuesday, November 07 2006 @ 07:53 PM EST
... so PJ can find them.

[ Reply to This | # ]

OT here, please
Authored by: Jude on Tuesday, November 07 2006 @ 07:54 PM EST
... and please make your links clickable.

[ Reply to This | # ]

Neato
Authored by: Matt C on Tuesday, November 07 2006 @ 08:02 PM EST
"its patents against Novell's end-user customers for their use of Novell
products and services for which Novell receives revenue directly or indirectly
from such customers, with certain exceptions"

See, you had us (MS) figured wrong the whole time. We don't care if it's *us
making money off of software sales, as long as *someone is. No more of this
sharing software with each other for free.

[ Reply to This | # ]

Call me stupid...
Authored by: Anonymous on Tuesday, November 07 2006 @ 08:02 PM EST
So Novell pays at least 40 million to Microsoft for Microsoft not to assert patents that according to Novell don't exist in the first place? But remember folks, it's not a license.

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: Jude on Tuesday, November 07 2006 @ 08:04 PM EST
How does Microsoft know who Novell's customers are, and if those customer are
running any other vendors' Linux products that might not be covered by the
covenant? Will Novell customers have to submit to BSA audits to see if they're
running non-Novell Linux that Microsoft could sue them for?

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: Nemesis on Tuesday, November 07 2006 @ 08:13 PM EST
Microsoft will make an upfront payment to Novell of $240 million for SLES subscription “certificates,” which Microsoft may use, resell or otherwise distribute over the term of the agreement, allowing the certificate holder to redeem single or multi-year subscriptions for SLES support from Novell (entitling the certificate holder to upgrades, updates and technical support).

To me this looks like Microsoft is distributing SuSE. If they are then by doing so they are bound by the GPL just like SCO is bound.

[ Reply to This | # ]

From Novell's 8K.
Authored by: Anonymous on Tuesday, November 07 2006 @ 08:20 PM EST
"Novell and Microsoft will develop technologies to optimize SLES and
Windows running as guests on each other's operating systems."

I did not think that Novell had its own operating system.
I thought it was using GNU/Linux.

[ Reply to This | # ]

"Patent Cooperation Agreement"
Authored by: webster on Tuesday, November 07 2006 @ 08:21 PM EST
.

Let me get this straight:

If you use your code with our patents, and we use our code with your patents,
then we will not sue your customers for using our patents if you do not sue our
customers for using your patents.

But we are not saying that you can use our patents, and you are not saying that
we can use your patents. How our patents got into each others' software shall
remain confidential.

Nevertheless we will pay you $300 million, for allowing our customers to use our
software and not be sued for using your patents and you will pay us $40 million
for allowing your customers to use your software and not be sued for using our
patents.

We may threaten your customers and you may threaten ours. Together we can
threaten everyone.

So we don't give you permission to distribute your software with our patents,
but you can.

You don't give us permission to distribute our software with your patents, but
we can.

That complicated GPL is irrelevant.

Want to play doctor?



---
webster

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: Aim Here on Tuesday, November 07 2006 @ 08:21 PM EST
Hmm, even without the exceptions, from the information we have so far, it's not
clear to me that there is a GPL breach going on.

If Microsoft has just said 'We won't sue you if you won't sue us' without going
into details, then there is a chance that whatever patents we're talking about
don't necessarily relate to SuSE, or if they do, they don't relate to GPLed code
inside SuSE (maybe Microsoft only specifically identified patents relating to
Java or apache or somesuch). Without there being a specifically identified
patent or a lawsuit that could impose GPL-incompatible restrictions on GPLed
code in SuSE, then I don't think section 7 gets triggered, yet. From the public
details, there does seem to be plenty of wiggle-room where this deal could be
GPL-compatible. It looks to me like the public statements have been carefully
drafted so as not to trigger GPL section 7.

That's not to say that this deal isn't hugely troubling. In the event that
Microsoft actually does assert that GPLed code that is also in SuSE infringes on
their patents, then section 7 could well nuke SuSE (and any other Microsoft
partners) without any kind of antitrust issues, since it won't be Microsoft's
doing. It's an ugly Sword of Damocles type situation, which I'm sure suits Steve
Ballmer just fine...

[ Reply to This | # ]

Seems to me that Novell got this deal wrong.
Authored by: Anonymous on Tuesday, November 07 2006 @ 08:25 PM EST
Big Time.

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: k12linux on Tuesday, November 07 2006 @ 08:31 PM EST
You can get a copy of SuSE without paying for it. It's just pretty non-obvious
how you might go about doing that to virtually everyone. (Hint: Start at
opensuse.org)

---
- SCO is trying to save a sinking ship by drilling holes in it. -- k12linux

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: DoctorMO on Tuesday, November 07 2006 @ 08:32 PM EST
The first thing is that the cirtificates are not for GNU/Linux but for the
support there of allowing Microsoft to stay outside of any GPL fire.

The second point is that End Users of Novel of it's SLED are covered by the GPL
as well as other liciences there in. Because an End User can not express the
rights of the GPL'ed code distrobuted by Novell because of conflicts covered by
section 7, there by whom ever the user gives the software to he can not
ganrentee the same protections there in to anyone else since it's limited to
people who have paid the Novell Tax. This is in direct violation since the
patent protection covers code distrobution and not support distrobution.
dressing it up in fancy words won't make the violation go away.

And what will Novell do when GPLv3 gets rolled out onto GNU tools? fork the
whole lot? The following year may be what clinches the GPLv3 importance since it
makes it very clear this kind of this is not allowed.

Trying to assert that somehow a SLED customer is not reciving rights to
distrobute the GPL parts of SLED. They have tried to use artillary (trying to
shoot over the problem) and failing to realise that the clause covers the end
user just as much as it covers Novell.

Thus it may now be said that any company engaged with Novell (has paid software)
is not allowed to distrobute that GPL code covered by the patent agreement
because of clause 7. they have agreements which conflict the GPL. they can use
it but they can't give it to anyone else. :-/

[ Reply to This | # ]

Linux and Windows in a virtualized setting
Authored by: SpaceLifeForm on Tuesday, November 07 2006 @ 08:32 PM EST
I believe that is the key. It will only apply
if the end-users (customer) want to run Linux
on top of Windows (the reverse does not currently
exist as I understand it).

Recall how Microsoft was involved with Xen, and
then took their marbles home.

If you want your business to survive, letting
Microsoft control the hardware is a bad move.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

buddy buddy old pal
Authored by: Anonymous on Tuesday, November 07 2006 @ 08:39 PM EST

"...Novell products and services for which Novell receives revenue directly or indirectly..."

Hey, look. SCO gets an honorary mention here.

I guess the "...with certain exceptions."-part would then be to allow SCO's M$-sponsored litigation against Novell to drag go on...!?

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: Anonymous on Tuesday, November 07 2006 @ 08:52 PM EST
If I squint just right, I can almost see it...

Microsoft makes a promise not to sue Novell's customers. Never mind that Novell
paid for it, their customers get it. Novell wants to do this because it makes
them look better than the other Linux distros, and to push acceptance of Mono.
Fine.

Now, Novell's customers can't redistribute the promise along with the code, but
that's not a GPL issue, because they got the promise from Microsoft, not from
Novell, even though Novell paid for it. It's just that Novell's customers have
this extra thing that Microsoft gives them when they purchase SuSE, but it's not
part of the SuSE package, even though Novell pays for it.

Now, imagine that Microsoft sues RedHat for patent violations. If I understand
correctly (and IANAL), Novell can't distribute SuSE either, because of GPL
section 7.

So all Microsoft is really giving to Novell customers is, "When we file the
lawsuit to shut all of this down, you won't be the direct target. You'll just
be collateral damage."

MSS2

[ Reply to This | # ]

What is this all about?
Authored by: Anonymous on Tuesday, November 07 2006 @ 09:01 PM EST
Before we get to deep in to the concept that the
Microsoft / Novel deal is related to Linux lets remember
that Microsoft and Novel have had a combative relation that
started long before the existence of Linux starting back
when Novel was a 100 % Unix software development firm and
Microsoft had not created MS Windows. With that in mind
does any have any idea if this deal relates to Unix and
Unix development or not or does it relate to Linux or not?

[ Reply to This | # ]

by Werner
Authored by: Anonymous on Tuesday, November 07 2006 @ 09:02 PM EST
Now, we have to go around, and tell the people, that also
M$ approved and sell Linux via Novell/SuSE, however, that
its better to use any other distro than that, first
because others are gratis, and second because Novell/SuSE
Linux is not full under the GPL free license and includes
unclear rules with a big risk of to be sued. Also, we
have to doubt if Novell still is existing next year. :)

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: Anonymous on Tuesday, November 07 2006 @ 09:03 PM EST
"there are mountains and mountains of patents that we are not licencing
from each other for the millions of dollars we are paying each other. but these
do not violate the GPL and the millions of lines of code we are distributing
under it"


oh wait, that was someone else.


seriously, is there a betting pool going on yet that Novell will suddenly drop
it's case against SCO and buy it out or hire it's former ex's?


(posted by phrostie, i forgot my login :-( )

[ Reply to This | # ]

Is OpenSUSE a Novell product?
Authored by: stomfi on Tuesday, November 07 2006 @ 09:22 PM EST
If OpenSUSE is available for free download, including from mirrors, Novell won't
know who its customers of ths product are, so cannot in reality indemnify these
unknown persons from litigation by MS.
So maybe OpenSUSE has to out of the loop, and won't/can't contain any of the
technologies covered by this covenant. Maybe we will see what's not in the next
version, or if they include new license clauses in the install procedures,
contary to the GPL nature of most of the code.
It is obviously time for all OSS coders to use the GPL and for us the get behind
RedHat and Ubuntu et al, to help them get OSS drivers, SAMBA dance alikes, and
another OO.
Maybe we could lobby IBM to Open Source the Lotus Suite. I always found it's
database tool a lot easier to use than the MS one.

[ Reply to This | # ]

No patent protection for Linux users
Authored by: philc on Tuesday, November 07 2006 @ 09:30 PM EST
Read the words:

"its patents against Novell's end-user customers for their use of Novell
products and services for which Novell receives revenue directly or indirectly
from such customers, with certain exceptions"


Notice the "for which Novell receives revenue directly or indirectly from
such customers" part of the statement? How much revenue do they get for
selling GPL products? Price of the disk and handling is about it. Microsoft and
Novell can choose to just give the GPL parts away for free.


For this to offer protection, Novell must receive revenue for the product or
service. Microsoft has already played this dirty trick with (I think) Netscape
when the payment was tied to revenue and they just gave the browser away. No
revenue, no payment.

That means that anyone that uses openSUSE is not covered. No revenue, no
coverage.

That also means that if Novell gives away the GPL parts of their products and
just charges for the manuals and service, no patent protection. In this case if
you infringe one of Microsoft's support or documentation patents you are
protected. Such a deal.

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: Anonymous on Tuesday, November 07 2006 @ 09:30 PM EST
All of this is a problem only IF there are patents in GPLed code that are owned
by microsoft. Another possible scenario (although not very nice either) is that
there are no patents infringed in SUSE (or at least the GPLed code) but Novell
does have patents against microsoft. This deal gives Novell a truckload of
money - if I understand it correctly, and I'm not sure that I do, while giving
microsoft some face (the FUD thats generated against all but SUSE
distributions).
The only real way to prove that Novell is violating the GPL is if a) there are
microsoft patents in GPLed code and b) Novell was responsible for putting them
there.

[ Reply to This | # ]

Bill Gates' Super power
Authored by: pscottdv on Tuesday, November 07 2006 @ 09:42 PM EST
It has long seemed to me that Bill Gates has a superpower. His superpower is
the ability to get people to agree to things that are against their own self
interest.

Early on he got IBM to agree to allow him to distribute DOS to makers of IBM
clones which is what allowed him to take IBM's monopoly from them.

His EULAs become more slanted against the end user almost every day but everyone
just continues to click "I accept".

Now Microsoft has managed to get Novell to agree to this nonsense which will
likely prove to be one of the dumber things they have done (which, between you
and me, is saying something).

[ Reply to This | # ]

A patent question
Authored by: Anonymous on Tuesday, November 07 2006 @ 09:53 PM EST
Twenty years ago a patent was filed and two years later it was granted. Am I
right in thinking that a patent is in effect for twenty years after it was
filed?

I would like to build something and it would be much easier if I could ignore
the patent. I would like to publish the results so I can't rely on not being
noticed. What pitfalls lie in my path? In particular, is there some way the
patent holder can effectively extend the patent? (I seem to remember something
about filing revisions.)

I realize that Groklaw isn't here to give legal advice but I do want to know
more and I don't know where to look. Well, ok, I clicked on the
"Patents" link to the left but if I read all the stuff that's there
I'll be an old man with a grey beard before I find the answer. :-)

[ Reply to This | # ]

Class action suit
Authored by: Anonymous on Tuesday, November 07 2006 @ 09:53 PM EST
Class action law suit on behalf of the copyright holders of the GPL'd code in
question. I've learned from SCO that you can go hog wild in discovery and I'm
sure Microsoft and Novell must have had some interesting conversations.

Are there any good class action lawyers who could be contacted about this and
would someone of PJ's skill level be willing to clue them in?

[ Reply to This | # ]

A one cent cheque on behalf of all GPL users?
Authored by: thorpie on Tuesday, November 07 2006 @ 09:53 PM EST
Will a one cent cheque sent to Novell on the behalf of every Linux user, current
or future, allow them to use any and all M$ patents ad infinitum?
Just curious?

---
The memories of a man in his old age are the deeds of a man in his prime -
Floyd, Pink

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: Anonymous on Tuesday, November 07 2006 @ 10:30 PM EST
yes, i think that's the issue here, without novel admitting to a specific patent

that is violated, any contributor that issues a cease and desist distribution
letters would have to admit that they themselves have violated a patent. of
course, once someone actually gets successfully sued by Microsoft, section 7
activates and novel can no longer distribute. (on another issue, does section
7 require the licenser to enforce it before the company has to cease
distribution? - that is, could developers leave everybody but novel with the
right to continue distribution until they themselves are sued?)

this covenant not to sue is wigging me out. ms is is promising, within the
bounds of a secret agreement with novel that no one has seen, to no sue
their customers, but not licensing the technology to them. i see several
issues with that. one, if something is prohibited in an agreement, you can't
then go and do something that has the exact same effect as what is
prohibited but refuse to use the correct name. second, there are provisions
on this secret agreement that effects this promise to the customers, secret
ones that may leave them open to litigation. third, can a one sided 'covenant'

be enforced in a court of law? can a case be thrown out on the basis that ms
promised they wouldn't sue you for what they maintain is your continuing
infringement? this is a little FUDy. but this agreement is just plain strange,

and sometimes you've gotta fight fire with fire.

these are the two things i think we need aver pro FOSS pundit shouting from
the rooftop: that novel cant escape section 7 if ms sues anyone, and that this
ambiguous and strange promise not to sue isn't worth the paper it's written
on. also i think we need to get a large number of developers to pledge that
they will send cease and desists to novel if there ever is found to be patent
infringement in their work.

[ Reply to This | # ]

wota nota!!
Authored by: grouch on Tuesday, November 07 2006 @ 10:44 PM EST

Of course, it's obvious this is legal sophistry. They are saying to the world, even though it looks like a duck and sounds like a duck and acts like a duck, it's not a duck, because we are calling it NotaDuck and we've taken the long way around, skulking along the unpaved back roads and alleyways instead of taking the straight highway to get to the duck pond. Er. The NotaDuck pond, where notaducks don't swim and that's not quacking you are plainly hearing.

Forsooth, my lord, it smelleth like a duck to me.

-- PJ

That is absolutely pricelss! I sure needed the comic relief, but I'm glad I wasn't sipping coffee.

My over 2 dozen miniature ducks and half a dozen full-size ones will need to be outfitted with Zorro style masks and trained to produce Notaquacks as well as being trained to take different Notapaths on their morning stampede to the Notapond to get their Notacorn.

What a notadeal!

---
-- grouch

http://edge-op.org/links1.html

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BSD code?
Authored by: Anonymous on Tuesday, November 07 2006 @ 10:47 PM EST
What if MS sues someone for some BSD-licensed code? Or one of the other
non-GPL'ed apps that SUSE and RedHat, etc distribute?

[ Reply to This | # ]

  • BSD code? - Authored by: raya on Wednesday, November 08 2006 @ 06:45 AM EST
Case of non enforcement?
Authored by: Anonymous on Tuesday, November 07 2006 @ 10:48 PM EST
If Microsoft is agreeing to a covenant not to sue without actually licencing any
patents, can this be construed as a failure to enforce the patent and thus
prevent them from suing anyone else on the same patent. I can understand that a
licencing deal is considered enforcement of a patent, but how can that be the
case when no patents are licenced.

[ Reply to This | # ]

We need a copyright holder to file suit.
Authored by: AJWM on Tuesday, November 07 2006 @ 10:50 PM EST
That's all it takes. One of the thousands of copyright holders in GPL'd code in
the Suse Linux distros first sends a C&D letter because "on information
and belief", Novell is violating Sec 7 of the GPL, then when Novell ignores
it (as they will), files suit for copyright infringement.

At that point Novell has to drag out the exact text of the agreement (or the
plaintiff gets it in discovery) in an attempt to show why it isn't a patent
license or other agreement that violates Sec 7, and we get to hear its thinking
with specificity.

Then we either find out the real issues, or we find that the Emperor is wearing
no clothes, and all the FUD disappears.

(Why do I get this strange feeling of deja vu?)

[ Reply to This | # ]

Can you say "B-O-O-O-O-O-GUS!!!"
Authored by: sk43 on Tuesday, November 07 2006 @ 10:50 PM EST
Q1. How is this agreement compatible with Novell's obligations under Section 7
of the GPL?

"Novell's end user customers receive a covenant not to sue directly from
Microsoft for their use of Novell products and services, but these activities
are outside the scope of the GPL."

Don't know why, but somehow this FAQ answer strikes me "with the force of a
five-week-old, unrefrigerated dead fish."

[ Reply to This | # ]

What happened to the Samba collaboration ?
Authored by: grokker59 on Tuesday, November 07 2006 @ 11:03 PM EST
I distinctly recall that earlier comments on this agreement mentioned 4 areas of
work, the fourth being better integration between Samba and AD to allow better
management between SUSE and Windows.

I'm curious why the SEC does not need to know this information and why it made
most news stories, Groklaw comments, etc, yet failed to be reported to the SEC.

I suppose it's possible that my memory is failing me, but somehow I don't think
so on this occasion....

Did Samba somehow reject the opportunity to 'better' it's MS interoperability by
using MS IP ?

[ Reply to This | # ]

What will the share holders think?
Authored by: Anonymous on Tuesday, November 07 2006 @ 11:24 PM EST

So if I understand correctly. Microsoft is admitting that their software violates some of Novell's patents.

However, instead of protecting themselves and their customers by doing a cross licensing deal with Novell Microsoft is keeping themselves and their customers at risk by entering into a non binding revocable 'covenant ' instead.

I wonder how well this will sit the Microsoft's shareholders, not to mention current and future customers, knowing that this risk exists and is not being addressed permanently when such an option exists.

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Linus' Response?
Authored by: Anonymous on Tuesday, November 07 2006 @ 11:38 PM EST
I'd be really, really interested to know what Linus' response to this is.

Basically, the effect of these reciprocal covenants, if Novell and M$ are
correct will be that Novell will be free to contribute code into Linux that may
be patent encumbered, and M$ will be free to sue anyone it likes that isn't
covered by M$' patent covenant.

Would Linus be so blase about 'tivoisation' then?

[ Reply to This | # ]

Belt and Suspenders.
Authored by: Anonymous on Wednesday, November 08 2006 @ 12:03 AM EST
It is not clear to me that the agreement would violate the
GPL even if it were a patent License. If Novell's lawyers
had half a brain, they would not admit that MS had any
valid patent claims against Novell products in the
agreement. The SEC filing does not refer to any such
admissions. Assuming that Novell has not made such
admissions, then Novell could rely on the claim that MS
patents are invalid to say that Novell has not violated
the GPL by making the agreement.

Novell can claim that because if MS has no valid patent
claims, the agreement imposes no conditions on Novell that
contradict the GPL. In order to argue that Novell had
violated the GPL, you would first have to argue that MS
had valid patent claims! The typical FS/OSS advocate would
be unwilling to do that!

The "for example" statement from section 7 of the GPL may
be a stumbling block to such an argument:

"7. If, as a consequence of a court judgment or allegation
of patent infringement or for any other reason (not
limited to patent issues), conditions are imposed on you
(whether by court order, agreement or otherwise) that
contradict the conditions of this License, they do not
excuse you from the conditions of this License. If you
cannot distribute so as to satisfy simultaneously your
obligations under this License and any other pertinent
obligations, then as a consequence you may not distribute
the Program at all. For example, if a patent license would
not permit royalty-free redistribution of the Program by
all those who receive copies directly or indirectly
through you, then the only way you could satisfy both it
and this License would be to refrain entirely from
distribution of the Program."

In the "for example" statement "would not permit" has to
be read as "prohibits". Otherwise, the "for example"
statement says more than the statements it is trying to
explain. It is perfectly possible to accept a patent
license without having a condition imposed on you or
accepting any obligations, especially if the patents are
invalid.

Novell's position could be a "belt and suspenders"
position. Novell could claim that MS's patents are
invalid, therefore everything Novell does in distributing
FSOSS software is OK with the GPL. The agreement with MS
does not impose any conditions on Novell inconsistent with
the GPL. Therefore section 7 is not a problem.

It does not get any better with draft GPL V3! See
<a
href="http://gplv3.fsf.org/wiki/index.php/Belt_and_suspenders">Belt

and Suspenders</a>

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: marbux on Wednesday, November 08 2006 @ 12:04 AM EST
Microsoft agreed that for three years it will not enter into an agreement with any other Linux distributor to encourage adoption of non-Novell Linux/Windows Server virtualization through a program substantially similar to the SLES subscription “certificate” distribution program.
Gee, I thought Microsoft said they're open to talking to anyone about a similar deal? See e.g., this interview with Microsoft Bill Hilf:

IDGNS: Is Microsoft going to approach other open-source vendors?

Hilf: Our door is open to anyone to do a similar deal.

Right, three years from now.

---
Retired lawyer

[ Reply to This | # ]

Microsoft agreed not to sign a similar agreement with any other Linux distributor for three year
Authored by: Anonymous on Wednesday, November 08 2006 @ 12:04 AM EST
Microsoft agreed not to sign a similar agreement with any other Linux distributor for three years. Clicky Here

[ Reply to This | # ]

Pay for protection?
Authored by: Anonymous on Wednesday, November 08 2006 @ 12:05 AM EST
Am I wrong to thinnk that if you pay Novell for support you get protection from
Microsoft, and if you do not pay for support you are left unprotected from
Micrsoft, even if you are using the same version of SUSE. It's the support that
is the key difference between the sue-able and the protected.

Well the protection racket has been around for a while just think insurance or
indemnification, or less polite (if you could get less polite).

If this is the key difference then it does sound like an element of the
"protection" you buy and not a license. But is it a license wrapped in
"protection" or "support" clothing, and does that matter.
Section 7 does not limit itself to patents or licenses.

Any lawyers? Case law?

[ Reply to This | # ]

two Novell products
Authored by: Anonymous on Wednesday, November 08 2006 @ 12:20 AM EST
The information I'm seeing on the web (primarily an Associated Press article)
says that Novell will pay Microsoft at least $40 million dollars over 5 years,
based on a percentage of sales of TWO Novell products. I'm pretty sure they're
refering to SLED and SLES. That means that OpenSuSE is not involved with the
patent agreement at all. So you can probably stop speculating.

I understand that this is a blog, and that this is not supposed to be both sides
of the story, just realize that there ARE two sides to the story, and what you
find here only represents one side of the story. That's fine, there's nothing
wrong with that at all - it's just that there ARE two sides to the story.

I'm not worried AT ALL. And I know quite a bit, and I'm pretty smart. So please
inform yourself before you get angry with the world. It's not good for your
health. But by all means, you're certainly entitled to your opinion.

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: Anonymous on Wednesday, November 08 2006 @ 12:53 AM EST
“If Novell is representing its customers, it has in my view a duty to tell the customers the exact terms of the deal the customers are alleged to be directly entering into with Microsoft, including precisely what patents are covered, and if there aren't any, they should be allowed to say they are not interested in entering a direct agreement with Microsoft. Isn't it businessfolk who keep telling us they need clarity? Well, so do SUSE customers, especially if we're going to be entering into agreements directly with Microsoft.”

This really sounds good! It really makes my heart beat faster! Except that the FSF has been boasting for years that the GPL is not a contract! They have been saying that the GPL is a unilateral grant of rights!

From GPL:

"5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it."

Novell's customers are not a party to the agreement between Novel and MS. They are recipients of a unilateral grant of rights from MS. Just like the users of GPLed software. What is good for the goose is good for the gander!

“Of course, it's obvious this is legal sophistry.”

It is only obvious to you, because you want it to be so. Stop emoting and start thinking! Look at the documents! How could they be interpreted in ways you don't want them to? Start analyzing!

We can get plenty of cries of outrage and panic on slashdot and linux.com. From Groklaw we expect reasoned analysis!

[ Reply to This | # ]

Today's Dilbert strip is coincidently relevent
Authored by: Anonymous on Wednesday, November 08 2006 @ 01:08 AM EST
Today 's Dilbert strip

Upon reading it, my first thought was, "when this is all over, the dead guy will be Novell."

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: Anonymous on Wednesday, November 08 2006 @ 01:10 AM EST
After years of bickering with a company over some part of the market, eventually
Microsoft caves, injects a bunch of cash into its enemy, finds ways to interopt
with it, and finds ways to deploy software onto that platform. It's like, if you
can't beat them, then join them. Microsoft is finally trying to save face with
the Linux crowd by this investment. Perhaps we might even see them develop an MS
Office or SQL Server for Linux. Take for instance the shot in the arm to Apple.

They also want to stick it to RedHat, which they see as a threat in the server
room market.

They probably also know that by Microsoft investing in Novell in this deal, it
kind of taints Novell Suse. Many Linux advocates may say 'yuk' and want none of
that, switching to Debian or RH instead. I know I would. Besides, Ubuntu and
Debian are making some fantastic strides these days.

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: Anonymous on Wednesday, November 08 2006 @ 01:29 AM EST
Neglecting all the comments about the GPL there is one unescapable fact here.
Microsoft is paying Novell 6 times what Novell is paying Microsoft. From a
purely financial look it's clear the Novell had some serious dirt on MicroSoft
and was going to sue them again over the patents, (and possible the illegal Unix
agreement with SCO).

I've also been tossing around the idea that Novell is going to create a
proprietery closed source application to cover the missing portion of .NET and
help create a full Vista Compatible SAMBA extension for which Novell wouldn't
need to worry about being sued over the patent (and there isn't a reason that
Novell couldn't create this extension in such a manner that it's a
BSD/MIT/Mozilla license instead of GPL). This helps Novell have something no
other vendor has, and helps Microsoft cover their butt in Europe.

I'm still up in the air about how I feel about the deal. But based on the
financial details and the amount of money going to Novell it's clear this deal
was to save microsoft from a lawsuit MS was confident they would lose for more
money and help settle this European issue that's going to kill them if they
don't open up thier specs. (I truelly believe MS has NO IDEA how to document
their specifications so that competitors can use it, and that's one thing Novell
is apparently helping them do)

[ Reply to This | # ]

Despicable. Or brilliant.
Authored by: Anonymous on Wednesday, November 08 2006 @ 01:35 AM EST

Novell seems to believe the only way SUSE can compete with the other Linux distros is to cast a shadow of fear, uncertainty and doubt on all other Linux distros. Novell does not mind hurting the entire Linux community, if it diverts some business their way.

However, the threat is empty. There is no way Microsoft will ever sue an individual Linux user or developer or a nonprofit organization. Even against another corporation the accusation "You did not do your Linux service contract thorough Novell who pays us, so you need to pay us" is suicidal, for a convicted monopolist.

Do you really believe Microsoft has any hope ever to win such a case? If the software itself is objectionable, MS should tell the developers and take it up with the commercial distributors, not end-users. Otherwise, MS would be free to sue the innocent customers, instead of stores that sell perfectly legitimate-looking but pirated copies of Windows. No, I do not believe even Microsoft would get away with that.

In any case Microsoft would have to point exactly what the problematic code is, and Linux would be non-infringing soon after again. Overall, the lawsuit would be a model example of why software patents should be banned: a big monopolist trying to stifle competition and innovation.

Microsoft is fighting hard and dirty, but what Novell has done is despicable. Unless, of course, this is all just a part of a plan to destroy software patents and Microsoft monopoly status, where the short-term damage to Linux is simply a necessary sacrifice.

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Details of Novell-MS Pact - The SEC filing
Authored by: alan.hughes on Wednesday, November 08 2006 @ 01:40 AM EST
There is a very interesting article on the MS-Novel deal on Linux Today which discusses who is likely to be the winners and losers. It concludes that the only long-term winner is likely to be Linux - both MS and Novell will regret the deal (each in their own way).

I must say that as a long-time SUSE user, I am currently having to decide whether or not to jump to another distro. the combination of the 10.1 foul-up and now this is making me seriously doubt Novell's capabilities. The next month will be SUSE's make-or-break for me.

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: Pogue Mahone on Wednesday, November 08 2006 @ 02:17 AM EST
I can't help noticing that the patent covenant won't affect Novell's ability to distribute GPL software. If Microsoft sued a smaller distro over patented software in a GPL program and won, all distributors would be prohibited by the GPL from distributing the program (until the patent issues got fixed). That includes Novell, "covenant" with MS or not. They'd be in violation of copyright, plain and simple.

Furthermore, the covenant might prevent them from joining the defence of the smaller distro.

I can't help feeling Novell have shot themselves in the foot with this agreement. I hope the MS money makes up for that.

---
--
I'm not afraid of receiving e-mail from strangers - see my bio. for addresses. I *especially* like encrypted and signed messages :-)

[ Reply to This | # ]

This is not looking good for Mono
Authored by: Anonymous on Wednesday, November 08 2006 @ 02:35 AM EST
People were already nervous about Mono possibly having Microsoft "IP" in it. The suspicion will be that this agreement in large part covered Mono. This will only increase those fears. People are actively avoiding Mono because of this and the Mono developers seem to spend as much time trying to allay those fears as they do promoting the supposed merits of Mono.

Novel has sunk a lot of time and money into Mono, but they are too small to make it a success on their own. They need wider acceptance in the community for Mono to be a commercial success. A Mono that only exists on Suse will not be able to sustain enough developer interest to be viable. The uncertainty that this agreement between Novel and Microsoft generates may be the final nail in Mono's coffin. I can't see the other distros agreeing to making anything important dependent upon Mono with this cloud hanging over it.

Coincidentally, Sun is making noises about opening up Java. If they really do open it up to an acceptable degree, they have an opportunity to solidify Java's position in the FOSS community. If this happens, the company that benefits the most from this agreement could be Sun (although IBM and Red Hat are also important Java backers).

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: GrueMaster on Wednesday, November 08 2006 @ 02:55 AM EST
Ok, I'll play devils advocate on this for a second.

Suppose this only covers Novell software that is distributed with their SLES
& SLED distros, but ISN'T gpl'd. There are programs that Novell has on the
distribution that aren't part of the GPL Linux world, like Groupwise and
eDirectory.

Both are included with SLES and SLED 10, both are available to run on other
Linux distributions, but both are proprietary licensed.

Ok, taking the horns off, I would like to add that I think this is a deplorable
marketing scheme to kill other Linux distributions. But as long as Novell comes
out ahead monetarily, whether M$ keeps to the agreement or not, at least it
takes something away from M$. The enemy of my enemy is my friend?


---
You've entered a dark place. You are likely to be eaten by a Grue!

[ Reply to This | # ]

What do people actually pay Novell for?
Authored by: Anonymous on Wednesday, November 08 2006 @ 02:55 AM EST
After reading the following,

"Under the Patent Cooperation Agreement, Microsoft commits to a covenant
not to assert its patents against Novell's end-user customers for their use of
Novell products and services for which Novell receives revenue directly or
indirectly from such customers, with certain exceptions, while Novell commits to
a covenant not to assert its patents against Microsoft's end-user customers for
their use of Microsoft products and services for which Microsoft receives
revenue directly or indirectly from such customers, with certain
exceptions."

I wondered what exactly Novell's customers pay Novell for. I thought selling
the "code" in itself was forbidden by the GPL. I thought it meant you
could only request money for distribution..... This means that "products
and services for which Novell receives revenue directly or indirectly from such
customers" is a red herring. It doesn't include the code. It maybe
includes the manuals or the telephone support. Well golly, I'm happy that Suse
customers won't be sued by M$ for reading the manual or phoning support.

Now that must be a real relief.

[ Reply to This | # ]

FWIW, My take on all of this...
Authored by: larsmjoh on Wednesday, November 08 2006 @ 03:09 AM EST
All right, here's what I think:

The fact that Novell is still distributing means either of two things:
1. Whatever rights Novel customers are receiving from MS _via_ Novel (i don't
buy any of that end user, MS directly mumbo jumbo) are infinitely
transferable/assignable to all downstream receivers of (derriviative) works.
2. Novel distributed code does not infringe any valid/enforcable MS patents and
no licence/rights are really needed.

I believe #2, because MS is coughing up more cash to Novel than vice versa. MS
needs Novel not to sue over Windows, rather than the other way around (most
likely, Windows infringes some old Unix or NetWare patent) and Novel desperately
needs the money. The part about MS not suing over Linux is just smoke and
mirrors (which is why it doesn't make sense), bringing focus away from Windows
users' possible liability, giving this story a
positive-for-MS-negative-for-Linux spin rather than being plainly negative for
MS, if they said "Windows infringes X of Novel's patents, but for $Y they
have promised not to sue you or us".

In other words: FUD, except the FUD should really be blowing the other way...

But that's just me, and IANAL

---
Lars

"Do not try to think outside of the box. That's impossible.
Instead, realise the truth. There is no box."

[ Reply to This | # ]

Not a Duck
Authored by: luvr on Wednesday, November 08 2006 @ 03:17 AM EST
it's not a duck

Careful, here! You're getting dangerously close to infringing the isNot patent. I'm pretty sure that Microsoft would immediately sue you if you worded this as:

isNot(aDuck)

(unless you're a SUSE Linux user, of course... ;-)

[ Reply to This | # ]

  • What isNot patent? - Authored by: Anonymous on Wednesday, November 08 2006 @ 02:15 PM EST
Using SuSE to develop
Authored by: Anonymous on Wednesday, November 08 2006 @ 03:21 AM EST
Does this mean that when I buy a SuSE-package from Novell
and I want to use this copy to develop GPL'ed software
that I'm than violating the GPL(of my newly developed
software), because of this license/agreement I than have
with Microsoft???


Greetz Dominique

[ Reply to This | # ]

MS has moved too early - should have waited till SCO collapsed
Authored by: old joe on Wednesday, November 08 2006 @ 03:35 AM EST
FUD is about perception, not realities.

When IBM wins a slew of judgements against SCO this will cancel out this item.
Many PHBs will in fact confuddle the two and think that the patents threats have
been answered.

(PHBs who are not confuddled already know the difference between FUD and facts.
This agreement is not aimed at them)

Just my £0.02

[ Reply to This | # ]

Catch 22
Authored by: kinrite on Wednesday, November 08 2006 @ 04:04 AM EST
Either Suse Linux does not infringe any patents. In which case you do not need
the covenant with MS.
Or, Suse Linux does infringe patents. In which case Novell (or anybody else)
should not distribute it.

Which is it Novell?

---
"Truth is like energy...it can not be created, nor destroyed"

[ Reply to This | # ]

Something worries me about the SEC statement ...
Authored by: alan.hughes on Wednesday, November 08 2006 @ 04:08 AM EST
Something about the agreement looks a bit suspicious to me, although maybe I'm just think too much like a legal eagle (PJ's fault I think). The SEC failing includes the statement:

... not to assert its patents against Novell's end-user customers for their use of Novell products and services for which Novell receives revenue directly or indirectly ...

So what happens to the many happy campers are using OpenSUSE downloaded from an FTP server? Novell certainly do not get any direct revenue from them, and its hard to see how they can derive any form of indirect revenue as well. Is Novell thinking about insisting that everyone must by a license for OpenSUSE, or are they being left high-and-dry as sacrificial victims to Microsoft's legal eagles? Or even both; a high profile trial or two to "encourage" people to adopt Novell's new license policy!

[ Reply to This | # ]

Post questions to Novell
Authored by: Anonymous on Wednesday, November 08 2006 @ 05:12 AM EST
(hope I did this right...apologies in advance if I did it wrong)

Noticed they had this link on their "Novell Answers Questions from the Community" page...

Have a question you want to ask? Click here to send it to Novell."

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: oneandoneis2 on Wednesday, November 08 2006 @ 05:13 AM EST

That old User Friendly gag about abbreviating "Novell Suse" to "No-Sue" seems ever more appropriate, doesn't it? :o)

[ Reply to This | # ]

PJ, you're killing me...
Authored by: Anonymous on Wednesday, November 08 2006 @ 05:18 AM EST

NotaDucks is going to be remembered by me for years to come, bringing a large
smile to my face every single time, I'm sure.

You've got such a way with words...

Keep it up!

[ Reply to This | # ]

Mixed source
Authored by: Anonymous on Wednesday, November 08 2006 @ 05:22 AM EST
The multiple use of that term in the Novell/MS agreement striked me.
Then I recently reread the GL article about Ron Hovsepian arriving at the helm.
At that point, they were already using that very same term. Was it being used
before ? I do not recall seeing this before, but that could be just that it went
under the radar. If not, could it mean that the whole scam (using "mixed
source" code, GPL + closed and/or
maybe-patented-kinda-open-but-effectively-tivoized-code ) didn't start 6 months
ago as said, but before ?
Or am I just being too paranoid ?

[ Reply to This | # ]

Anti-Competitive Lock-in
Authored by: Anonymous on Wednesday, November 08 2006 @ 05:28 AM EST
Re: "Microsoft commits to a covenant not to assert its patents against Novell's end-user customers for their use of Novell products and services for which Novell receives revenue directly or indirectly from such customers"

So if you stop being a Novell customer for any reason, then Novell isn't getting revenue from you and Microsoft can sue you. And vice-versa if you stop buying Microsoft stuff.

I predict another antitrust lawsuit - giafly (IANAL).

[ Reply to This | # ]

A change in tactics
Authored by: cybervegan on Wednesday, November 08 2006 @ 05:29 AM EST
Looks to me like Novell is finished whichever way this pans out.

I have several uncomfortable feelings about this deal (notwithstanding the
issues about the GPL being hog-tied by it). Firstly, it could be an attempt by
MS to bad-mouth Linux (and SUSE in particular) by saying in a few years
"we've had no demand, we're dropping the project". Secondly, it could
be about trying to ensure that if users are running Linux, at least they might
be able to get them to run Windows too - ok, that's a "no brainer".
The third option I can think of is probably what bothers me most - that they may
think that if they back the underdog, and it's successful, they may gain control
of a considerable proportion of the Linux market, admittedly by proxy, and then
perhaps buy them out. Ta Dah! Microsoft SUSE Linux.

The patent issue could just be a red herring, to throw the geeks of the scent,
or may play a more subtle role in the game - like just in case option 3 comes to
fruition, they can make sure that the then dominant, SUSE Linux, is the only
distribution that is "protected" from it's patent suits. There are of
course many other possibilities.

I think this is the point that MS demonstrates that it has finally realised it
can't beat Free Software using the tactics it has so far, and that they have now
worked out an entirely new strategy. I suspect that this may also have to do
with the drafting of the GPL3 - they might be trying to head it off somehow
(don't ask me how, just a gut feeling).

Like a tigress with new cubs, they've only been playing so far, because they
didn't quite have a real incentive to really fight. Now their babies have
arrived - the Vista litter - and are nearly ready to leave the den, they feel
very protective and will be evermore agressive. I think things are just about to
turn really nasty.

I just *know* there's more to this than even Novell knows about. They didn't buy
what they thought they bought.

-cybervegan

---
Software source code is a bit like underwear - you only want to show it off in
public if it's clean and tidy. Refusal could be due to embarrassment or shame...

[ Reply to This | # ]

SEC should investigate Novell-MS pact!
Authored by: Anonymous on Wednesday, November 08 2006 @ 05:59 AM EST
The SEC should investigate the Novell-MS agreements. For example, Novell has
failed to mention several massive Risks in recent SEC filings. The agreements
will almost certainly lead to the destruction of Novell's entire Linux business
and, quite possibly, to the destruction or bankruptcy of Novell.

Let me explain:

1. The agreements violate the GPL, on which most of Novell's Linux-related
business is based, according to at least the following reasons and arguments:

a. The Novell-MS agreements include (de facto and de jure) a "covenant not
to sue" and therefore, calling it more plainly, a license.

b. With this license, Novell imposes additional license conditions on the GPL
software, at least through contracts with its customers. This is a clear
violation of the GPL. (Section 6: "You may not impose any further
restrictions on the recipients' exercise of the rights granted herein.")

c. The GPL clearly forbids a patent-related deal as was made in the agreements.
Read section 7 and the patent-related paragraph in the preamble of the GPL.
That's a further violation of the GPL.

d. The agreement only protects "end-user customers". No such thing as
an "end-user" exists for Linux, because anyone is usually allowed to
distribute the software further. The agreement means that a Novell
"end-user customer" is unable to provide the protection to others when
he distributes the software further. So he is unable to grant to others all the
rights which he himself received. Another violation of the GPL. (The preamble
clearly states: "For example, if you distribute copies of such a program,
whether gratis or for a fee, you must give the recipients all the rights that
you have.") End-user customers aren't able to fulfill their obligations.
Novell is thereby itself breaking the GPL and telling others to break it too.

e. Eben Moglen clearly stated that the agreements violate the GPL. He is the
drafter of the GPL, no less, so his opinion is important. Novell has been aware
of his statements, but has failed to disclose his concerns in SEC filings,
especially the 8K. And Bruce Perens made similar statements (of which Novell has
been aware) and certainly is someone who shouldn't be ignored... So Novell knew
that at least several "important" people most strongly disagree with
their interpretation of the GPL and with the pact.

f. Novell violates the GPL and therefore loses all right to distribute or modify
the software. Novell's Linux business is gone.

2. The Novell-MS pact looks like an extortion scheme or protection racket. It
basically says: "Buy products from us, not from our competitors, or we'll
sue you out of existence!" Most companies will have to cave in to such a
threat because they can't spend several years and millions of dollars in
litigation. Microsoft and Novell are too dominant and seem to abuse their
dominant position for such threats. The scheme is substantially similar to the
SCOsource license. The only difference is the topic: patents resp. copyrights.
Extortion schemes are clearly illegal? Novell is gambling its reputation and its
entire business.

3. The pact is further a violation of antitrust law. Microsoft is a convicted
monopolist which is known to try to extend its existing monopoly into other
markets by pretty much any means, e.g. by this pact with Novell. Novell
therefore is conspiring with a monopolist in order to make the monopoly position
stronger and to profit from it. That's certainly illegal?

4. Novell must be aware that most of its customers will be disgusted by its
activities and will choose different distributions in the (rather near) future.
For example, Novell is legitimizing Microsoft's claims that Linux actually
violates some patents, doesn't disclose _which_ patents are allegedly at issue
and thereby helps spreading FUD. This means that the "community"
around Novell SuSE Linux will materially shrink or completely vanish. As a
result, commercial customers will lose interest too. Another reason why Novell's
Linux business will vanish, another undisclosed Risk.

5. Novell tried (and still tries) to hide the big legal issues which are caused
by the pact and to make it all seem valid and harmless in public statements.
This is probably some kind of deception on the investing public and therefore
some kind of shareholder fraud?

6. Novell's 8K SEC filing is at odds with other public statements, as PJ points
out in the article. Therefore, Novell presumably tries to mislead or deceive the
SEC or the investing public and to circumvent the governmental control which is
exerted by the SEC.

7. Novell will likely be sued by Linux copyright holders (esp. companies) for
violating their copyrights and the GPL. Novell will have to pay them lots of
money, at the very least. Another undisclosed Risk.

8. The Novell-MS pact is probably related to the SCO litigation, at least from
Microsoft's standpoint. The pact therefore seems to be intended as an
interference with court proceedings or a plain obstruction of justice. Probably
illegal? Let's see how fast Novell drops out of the SCO lawsuit as an
"inofficial" result of the pact.

9. Microsoft is probably barred from actively asserting any patents against
anyone, simply due to antitrust law. If it ever uses patents actively to harm
its main competition (Linux), it would get in trouble. Therefore, Novell has
paid millions of dollars for absolutely nothing. Lack of due diligence. Waste of
assets.

10. The agreements seem to imply two admissions (otherwise the pact wouldn't
make sense for Novell and Microsoft):

a. Novell admits that it has violated Microsoft's patents and thereby accuses
itself of actionable wrongdoing. Such wrongdoing is certainly a Risk, e.g.
because (i) it might involve third parties to which Novell is still liable; and
(ii) the current pact might not yet have covered all of Microsoft's
claims/demands, and Novell might still have to pay several further hundred
million dollars to Microsoft.

b. Microsoft admits that it has violated Novell's patents. This implies that
Novell has failed to cash in (including interest for several years) for this
abuse of its Intellectual Property(tm) earlier and has thereby willfully,
materially harmed the company in the past. Shareholder lawsuit, anyone?


Someone more knowledgable please fill in the blanks (if any:-) and send a formal
SEC complaint. I'm not familiar with this, so I could only provide the
argumentation. You may use this comment text as you like, I'm putting it into
the Public Domain.

Disclaimer: IANAL, obviously. Please correct any mistakes I made. I'll happily
stand corrected.

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: Anonymous on Wednesday, November 08 2006 @ 06:10 AM EST
I'm not commenting on whether their arguments are valid or not, but there are some some answers to some of the questions posed:

- "how come Microsoft has to pay so much more than Novell for the same promise? Riddle me that, Batman."

The original press release states: "a net balancing payment from Microsoft to Novell reflecting the larger applicable volume of Microsoft’s product shipments". Microsoft has more products being used by customers, therefore it pays more.

- "And why did Ballmer offer to enter into the same agreement with Red Hat yesterday, when this agreement with Novell says Microsoft won't do the same deal with anyone else for three years?"

The three year clause only relates to "an agreement with any other Linux distributor to encourage adoption of non-Novell Linux/Windows server virtualization" and does not preclude a similar patent "covenant"

[ Reply to This | # ]

I think there are more rational explanations...
Authored by: Anonymous on Wednesday, November 08 2006 @ 06:15 AM EST

It's clear (for the sums of money transfered) that the party that wanted a covenant was Microsoft - essentially paying Novell so that Novell could not sue its end users directly.

Note that the wording we've seen still doesn't prevent Novell from going after Microsoft - just not Microsoft's end users.

Of course, a unidirectional covenant (with Microsoft paying Novell, and a covenant where only Novell promised not to sue Microsoft users) would have been a public relations nightmare for Microsoft, so it was spun into something symmetrical when negotiations went along.

Novell probably didn't object, because it does offer Novell customers a promise Microsoft won't bug them, even though it doesn't guarantee Microsoft can't attack the underlying GPL-licensed code (and so, ultimately, prevent Novell from distributing whatever would (hypothetically speaking) get attacked successfully).

So Novell do get something out of the deal's new symmetry, piece of mind that once they've distributed something to a paying customer, Microsoft will allow that user to continue using whatever the customer was shipped.

I assume that the $40M to make the deal "symmetrical", though, was funded by asking $40M more on the other side of the table.

What Novell didn't realise is that this turned the deal into a PR nightmare for them, though, given different sensibilities in the respective end user communities (I doubt that any Windows user will lose even a second of sleep because of the implication that his Windows copy may have violated Novell's patents, and may be in violating of patents owned by other companies).

But I'd be cautious to avoid venting theories of sinister conspiracies cooked up by Novell - after all, that's only playing into Microsoft's PR hand.

[ Reply to This | # ]

Details of Novell-MS Pact - Still a Novell party
Authored by: Anonymous on Wednesday, November 08 2006 @ 06:54 AM EST
If I receive an "agreement", even if directly from Microsoft, as part of the consequence of my purchasing SLES from Novell, then Novell is still an agent party, and cannot wipe it hands as a party any consequences or restrictions which flow from it. Only if one can go to Microsoft directly and seperately after receiving their product to pick up one of their slave collars can one say Novell is not a party performing an act of distribution that does not have other things piggybacking on top of it. As such, if the agreement conflicts with the GPL, so does Novell. Since Novell, and not the customer, is paid for this agreement, this represents contractual proof on the part of Novell.

[ Reply to This | # ]

The part that *floors* me...
Authored by: the_flatlander on Wednesday, November 08 2006 @ 07:24 AM EST
The part of all this that just *floors* me is the SCO-esque-ness of it. These
folks seem to suffer from Caldera's strange interpretation of contracts such
that Novell and Microsoft seem to think, or want me to think, that their
contract obligates me, or somehow alters, for the worse, my legal standing with
regard to patents that one or the other of them may hold.

IANAL, but I am pretty sure about this notion... two people cannot sign a
contract to obligate some third party to anything; I mean, they *can* but it is
irrelevant.

The Flatlander

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: phantomjinx on Wednesday, November 08 2006 @ 07:35 AM EST
Having read this comment on /. I find myself seriously considering this as a
possibility:

"Remember when Microsoft gave Apple $3XXM, and the Mac Vs. Windows lawsuits
were settled? Chances are that Microsoft is now doing the same with Novell, and
Novell still owns some patents for Unix that it did not sell to SCO, and Novell
was a major player in the IBM vs. SCO lawsuit. Microsoft is just trying to CYA
itself, because obviously Vista infringes on some Unix/Linux patents. This is
just a way of Microsoft saying to Novell, we'll give you some money to save your
company, like we did to Apple, if you promise not to sue us.

I wonder if there will be a SuSE version of MS-Office, like the OSX version of
MS-Office created out of the Microsoft-Apple deal?"

Is it possible this is the case and the rest is just FUD to camourflage whats
really going on?

phantomjinx

(Also abbreviated to pj but there is of course only one true PJ)

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: Anonymous on Wednesday, November 08 2006 @ 08:00 AM EST
Linux isn't the target here, Oracle is. (1) Oracle sets up a support service for
RedHat customers. (2) RedHat's shares take a dive. (3) Oracle buys out Redhat to
give themselves an OS.
This is just castling on uSoft's part.

[ Reply to This | # ]

Customers should know the details
Authored by: Hop on Wednesday, November 08 2006 @ 08:03 AM EST
If I were a SUSE customer of Novell's, I believe that I would ask what sort of
arrangement Novell had made with Microsoft for my benefit and on my behalf.
After all, the agreement is between the customer and Microsoft. Don't the
customers need to know?

[ Reply to This | # ]

*No* version of the GPL...
Authored by: N. on Wednesday, November 08 2006 @ 08:09 AM EST
...would give any protection from the situation where company A tells company B
"You infringe our software patents in the GPL'd software you distribute:
licence[1] or litigate".

Not GPL2. Not GPL3.

Those people thinking thinking GPL3 can be tweaked to "fix" this are
misleading themselves. If company A doesn't distribute the relevant GPL
software, then it can do as it pleases no matter what the GPL says.

In the above situation, currently, company B is in a no-win situation. The
solution isn't to tweak the GPL3 - in that situation, company B has to either
stop doing business or challenge every single patent involved. What could Novell
have done to get out of that mess besides go through the whole litigation
process which is based on broken laws?

The solution is to scrap software patents.

Everyone's too fixated on weapons that they've lost sight of what the terrain
looks like.

[1] Or covenant, or whatever we decide to call the scheme.


---
N.
(Now almost completely Windows-free)

[ Reply to This | # ]

I think the longer game may be...
Authored by: Anonymous on Wednesday, November 08 2006 @ 08:10 AM EST
...to try and get the GPL declared invalid, unconstitutional, a threat to
humanity <insert favourite diatribe here>. (ie the old SCO tactic) If the
marriage with Novell (and the hence GPL) proves to be too problematic for M$.
There's nothing to stop them going to their favourite congress crittur, judge or
whatever and stating that they've tried to work within the GPL, they really have
but as you can see we just can't make it work for us and our partners. Please
make it illegal.

On another thought. The logical outcome of all this software patent nonsense
will be the ringfencing of vast tracts of creative outflow by the corporate
interest and allow those that contribute little to this creative effort (apart
from thinking up schemes to steal it from others who have a more altruistic and
perhaps academic attitude) to perform a "claim jump" or "land
grab" or however you want to describe it on a person's ability to perform
creative thought. With this in mind, does this not start to become a human
rights issue?


CPW

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing
Authored by: Anonymous on Wednesday, November 08 2006 @ 08:17 AM EST
IF this isn't a patent deal, then Novell didn't admit there was an IP problem
with Linux and in the end Microsoft and Novell are only making a deal with each
other.

That's what they're saying, right?

So, if in the future MS wants to pull this card out in a patent trial with
someone else to say Novell admits there in an IP problem and they signed a
covenant not to sue because of it, MS will shoot themselves in the foot and
prove Novell violated the GPL.

So here's hoping to MS and Novell's explaination neutralizing any affectiveness
this FUD might have had in the future.

[ Reply to This | # ]

Look PJ, it's really quite simple..... As I've said before...
Authored by: Anonymous on Wednesday, November 08 2006 @ 08:30 AM EST
People who come to sue people, may not want other people to see them sueing
people and people who don’t want to be seen sueing other people, don’t want to
sue people who aren’t supposed to be sued, seeing that the people who are sueing
people who want to sue people without being sued, and people who ought not to be
sued by people, don’t want to be seen not sueing people who don’t want them to
be sued by the people whom they are not here to sue.

And if people who weren’t there to see other people sueing people were to in
fact sue these other people, then the people who had come to sue people but
didn’t want to be sued by people who weren’t there to be seen sueing people,
could in fact sue the people whom they weren’t there to sue.

You see.

Absolutely clear as crystal :)

[ Reply to This | # ]

"Forsooth, my lord, it smelleth like a duck to me."
Authored by: DMF on Wednesday, November 08 2006 @ 08:34 AM EST
One of the great lines in blogging history.


<roflmao>

[ Reply to This | # ]

Who wins?
Authored by: Anonymous on Wednesday, November 08 2006 @ 08:48 AM EST
Let me see if I got this right, Microsoft can't sue Novell customers, and
Novell can't sue Microsoft customers. Microsoft pays Novell a lot more money
than Novell pays Microsoft.
The maybe not so obvious question is what is Microsoft distributing that they
don't want Novell sueing their customers for???

[ Reply to This | # ]

  • Who wins? - Authored by: PJ on Wednesday, November 08 2006 @ 09:15 AM EST
  • Who wins? - Authored by: Anonymous on Wednesday, November 08 2006 @ 03:05 PM EST
Another thought
Authored by: Anonymous on Wednesday, November 08 2006 @ 08:58 AM EST
Microsoft purchased a SCO Source license. SCO loses the Novell case and is
found to have no control over the UNIX patents/copyrights. Where does Microsoft
go to get the same type of license, not officially of course?
Novell is found to not have transfered the patents/copyrights to SCO by virtue
of this agreement.

[ Reply to This | # ]

GPL3 - now I get it - thank you Microsoft
Authored by: Anonymous on Wednesday, November 08 2006 @ 09:05 AM EST
I just want to say thank you to Richard Stallman for having the foresight to see
the danger represented by software patents. And thank you to Microsoft for the
clarity you have brought to the discussion on the GPL. Your timing could not
have been better.

[ Reply to This | # ]

diff License Covenant
Authored by: glimes on Wednesday, November 08 2006 @ 10:24 AM EST
I just had a brainstorm, on the critical difference
between this covenant, and a license that would allow
us to use their patents (if any).

When the covenant terminates, they can immediately turn
around and sue us for actions taken during the time when
the covenant was active. See, it's not giving us permission,
it just says they won't sue, and when that promise not to
sue goes away ... boom.

In other words, not only do Microsoft and Novell agree that
the right parties to sue over patent violations in software
are the users (not the authors or the distributors), but
the "safety" from this "agreement" is temporary at best.

And I still don't see how customers can be liable for patent
violations that vendors (or their suppliers) put in their
software -- based on which, I *do*not*care* what patents
either party claims are being violated. Not My Problem.



---
Greg "Still programming in Fortran" Limes

[ Reply to This | # ]

IBM's role - this could get interesting
Authored by: Anonymous on Wednesday, November 08 2006 @ 11:01 AM EST
IBM gave Novell $50 million once it's deal to purchase SUSE was finalized.

I'd bet money that there is something in the agreement related to that $50
million that gives IBM a big "equalizer" in this non-license license
between Novell and MSFT.

Things between IBM and MSFT could get very *interesting* come next year.

[ Reply to This | # ]

It's a trap!
Authored by: Anonymous on Wednesday, November 08 2006 @ 11:07 AM EST
Novell hired a litigator. Novell then signed a deal with Microsoft. Microsoft
immediately starts a FUD campaign. I can only see this ending with litigation.

[ Reply to This | # ]

"directly or indirectly"
Authored by: rsteinmetz70112 on Wednesday, November 08 2006 @ 11:22 AM EST
In reading this article about the agreement again the phrase "directly or
indirectly" was included in the way Novell's customers were described.

I wonder if an end around of Microsoft might include Red Hat or others paying
Novell for support of something in their distribution, like say netware, making
all commercial end users "indirect" customers. Such agreements might
be recriprocal, with no money actually changing hands

Perhaps two can play the game.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

What if ...
Authored by: jsoulejr on Wednesday, November 08 2006 @ 11:39 AM EST
Novell is the litigation machine SCOG dreamed of
becoming? How many 1/2 billion dollar settlements have
they had with M$? How many more are they looking at in
the future? Somehow this looks suspiciously like a
payoff to keep M$ customers safe.

It's been commented that Netware customers are getting
rare.

Did I warn everyone to put on their tin foil caps?

[ Reply to This | # ]

But the flipside is also true...
Authored by: Anonymous on Wednesday, November 08 2006 @ 11:40 AM EST
Microsoft is threatened by Novells patents, and the potential threats against
their user-base by Novell for infringements of those patents. This agreement
benefits Windows users from legal issues resulting from Microsofts infringement
of Novell's patent portfolio.

Why not just kill software patents? The only use they seem to have is not to
innovate, but keep others from suing you for their patents. Mutally Assured
Litigation.

[ Reply to This | # ]

Dear anonymous - "What color is the sky"
Authored by: webster on Wednesday, November 08 2006 @ 11:43 AM EST
.
Your post was offensive for a number of reasons. Not at all because you
disagree.

Calling someone crazy is tha same as accusing them of leaving reality.

Calling people stupid is offensive. Even if it's true.

Accusing people of taking or smoking drugs is offensive.

You statements on the code and GPL are otherwise worthwhile So shape up and
re-post!

---
webster

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing - Updated
Authored by: Anonymous on Wednesday, November 08 2006 @ 11:47 AM EST
Since Novell's FAQ says the covenant is between Microsoft and Novell's customers
directly, I've sent them an e-mail asking for the full text of the covenant.
I'll post their reply (if any).

[ Reply to This | # ]

Details of Novell-MS Pact - A Twisted View
Authored by: BassSinger on Wednesday, November 08 2006 @ 12:00 PM EST
Now, let us remember all of the past dealings in which MS paid out money for
violating someone else's rights/copyrights/patents/etc. In almost every case
there was some sort of gag order worked into the deal, and some strange
"announcement" of the settlement.

Is it that far fetched, then, to imagine that this announcement was part of M$'s
requirements for doing the deal with Novell? That M$ infringes on Novell's
patents and not vice versa? I suspect that these are much more likely than that
Novell is changing its spots now and becoming a M$ crony.

All that being said, and having been loyal user of SuSE since 6.something, I
ordered a set of Ubuntu CDs yesterday.

---
In A Chord,

Tom

Proud Member of the Kitsap Chordsmen
Registered Linux User # 154358

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing - Updated
Authored by: Arthur Frayn on Wednesday, November 08 2006 @ 12:01 PM EST
At the risk of being a troll, I feel I have to point out historical similarities
that just won't go away. This is a "Mutual Non-aggression Pact."
Remember how those turn out.

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing - Updated
Authored by: hbo on Wednesday, November 08 2006 @ 12:08 PM EST
As masterful an analysis as you have ever offered, PJ.

Businesses do indeed abhor uncertainty. It seems to me that there are
substantial questions about this arrangement, enough to cast doubt on its
viability. The other shoe would have to drop, however, with someone being
willing and able to challenge this Faustian bargain in court. Neither Novell nor
Microsoft are pushover legal targets.


---
"Even if you are on the right track, you'll get run over if you just sit there"
- Will Rogers

[ Reply to This | # ]

Update 2: Novell-MS Waive All Patent Claims against GPL Code!
Authored by: webster on Wednesday, November 08 2006 @ 12:14 PM EST
.
Waiver for One is Waver for All!

Novell and M$ understand the GPL perfectly. It is the only license that allows
them to use and distribute Linux and other such licensed open source code. They
know they can't change that license.

Understanding the freedoms of the GPL, particularly the distribution and
redistribution provisions, they know they can't change anyone else's GPL any
more than they can change the GPL applicable to their code. They reaffirm this
with each distribution.

By waiving patent claims to SuSe, they waive it for all GPL code due to its
rules of distributability. They made this agreement despite realizing it
contradicts the letter and spirit of the GPL. The GPL waives their patent
claims no matter what this other agreement says.

Since the GPL antedates their agreement, and they had knowledge thereof, they
will have to stick with the GPL
if there are any conflicts. They should stick with their own proprietary code.

Because of the GPL you can't waive for one distributor or one distributor's
customers. Waiver for one is waiver for all. They knew this.


---
webster

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing - Updated
Authored by: Anonymous on Wednesday, November 08 2006 @ 12:21 PM EST
From the press release:
As a result, Microsoft will officially recommend SUSE Linux Enterprise for customers who want Windows-Linux solutions. Additionally, Microsoft will distribute coupons for SUSE Linux Enterprise Server maintenance and support, so that customers can benefit from the use of an interoperable version of Linux..
So MS will not bundle SUSE and Vista. But MS will tell it's customers:
'We have agreed interoperability. Novell will be proud to answer all your questions. Here is a coupon'.
Making Novell looking foolish when they can't handle all the customer inquiries. (How many coupons can 340M$ buy?)

If Novell will be able to stem the 'call-tide' and turn it into earnings, MS will resort to the OS2 scam.
"Vista is an industrial grade product with full Linux interoperability .. You better buy Vista":
as Novell is establishing clear leadership Novell will be looking foolish if "it" does not work. "It's clearly their fault - and we said: Buy Vista."

The two companies will create a joint research facility at which Microsoft and Novell technical experts will architect and test new software solutions... Who will code?? With this wording project Monterey comes to mind...

Virtualization .... most compelling virtualization offering ...
They say offering - not software.

Web Services .... make it easier for customers..
How easy?? Why not making Directories an open standard?

Document Format Compatibility .. improve interoperability between Open XML and OpenDocument ...
No need for MS to make it freely interchangeable.

It is the Vista marketing machine. Bill in EU, SU. Novel .... more to come.

[ Reply to This | # ]

Novell should beware
Authored by: rsmith on Wednesday, November 08 2006 @ 12:24 PM EST
The history of IT business is littered with the mortal remains of former
Microsoft "partners".

Embrace, extend, extinguish. Enough said.

---
Intellectual Property is an oxymoron.

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing - Updated
Authored by: Anonymous on Wednesday, November 08 2006 @ 01:12 PM EST
first sco and now this

is there something in the water supply in mormon country.

too bad suse was a first class distro - now it is on the same ethical level as
microsoft.

that speaks volumes

[ Reply to This | # ]

Quacking you are hearing or NotAQuacking you are not hearing?
Authored by: Anonymous on Wednesday, November 08 2006 @ 01:26 PM EST
... or NotAQuacking you _are_ hearing? Or should it be NadaDuck (en Español).
Whole lot o' Nota's going on here...

[ Reply to This | # ]

To quote Rene Magritte:
Authored by: Anonymous on Wednesday, November 08 2006 @ 01:54 PM EST
"This is not a license."

Now we just need an artist who creates the painting for that sentence.

To keep the quote slightly closer to the original, and related to SCO:
"This is not a PIPE deal."

[ Reply to This | # ]

You tell me what to ask
Authored by: Anonymous on Wednesday, November 08 2006 @ 02:12 PM EST
My company spends a great deal with Novell - for Netware, Linux and Groupwise.

PJ, How about writing a piece with a list of questions that people like me can
ask our account reps about this deal?

[ Reply to This | # ]

Some tenative conclusions
Authored by: Anonymous on Wednesday, November 08 2006 @ 02:56 PM EST
I think Novell actually started this. They went to Microsoft and said,
"Hey, you've got a pretty big patent liability here. And you know that we
can and will take you to court." And Microsoft realized that Novell had a
case, and knew from experience that Novell wasn't afraid of going to court
against Microsoft. So they decided to deal.

But Novell was vulnerable too, and Microsoft pointed it out to them. Maybe the
issue was Mono, maybe it was SLED and SLES. At any rate, Microsoft played the
"we'll do it to you, too" card.

So they did a mutual deal, with more money coming from Microsoft because
Microsoft's infraction was bigger (higher volume, if nothing else). But they
had to try to find a way to dance around the GPL, or Novell couldn't do it.

And they each got to throw a little FUD: Microsoft that Linux had patent
issues, Novell that other distros were asking for patent trouble.

That's what it looks like to me right now, anyway. Ask me later and you may get
a completely different answer...

MSS2

[ Reply to This | # ]

Novell contributions to Open Source
Authored by: Anonymous on Wednesday, November 08 2006 @ 02:57 PM EST
I don't think that this agreement says anything about the status of Microsoft
patents in Novell contributions to Open Source. Novell is a large contributor
of Open Source code. What is the status of Microsoft patents in code
contributed by Novell to Open Source? Does Novell code contributed to Open
Source projects release all Open Source users from legal liability for
infringing Microsoft patents? Or does Novell code contributed to Open Source
projects open up a legal minefield?

------------------
Steve Stites

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing - Updated
Authored by: Anonymous on Wednesday, November 08 2006 @ 02:58 PM EST
Oh my, watching you lot whinge and whine reminds me why one never trusts a lawyer to negotiate a deal, and why one never lets a salesman write a contract.

Novell's "crown jewels" are their patents on Netware, Directory, Word Processing etc. They've got lots of them.

They went to MS, and said "golly gosh, you want to release Vista ... hmmm .. got a spanner for you, have a look at these fine patents of ours" and probably pulled something out that looked a lot like Active Directory etc etc.

MS ask what Novell want, and Novell let it be known that they'd like 300 million, and a promise for all and in return they promise Microsoft they won't interfere with Vista shipping.

Microsoft say "oh, ok" and ask for some small change (40 million) so that it's a "win win" deal, and so they can both hold their heads up.

Microsoft promises not to sue Novells users, but more importantly Novell promises not to sue Microsofts users. Everyone is happy.

All the business people do what they do best, and put a positive spin on it, as cooperation and as "protection" for linux, when in fact this deal is all about PROTECTION for Microsoft from the Novell patent boogieman which was going to rape Microsoft's new baby Vista and delay it's coming out party.

Watch the webcast ... Balmer is trying to put a happy face on it.

JE_H.

[ Reply to This | # ]

I Believe this is what MS is trying to do.
Authored by: Anonymous on Wednesday, November 08 2006 @ 03:10 PM EST
I couldnt for the life of me figure out what this was all about. Then it dawned
on me what MS is trying todo.

imagine:
-a binary blob into the linux kernel that does Active Directory/File sharing
better than Samba (MS knows how that stuff really works and I am sure have it
patented.)

-a couple of binary executables linked against Suse Enterprise that work as a
apache module and will emulate some .NET services.

-a binary module into abiword/ooffice that knows how to "correctly"
render/save MS office vista .doc files.

Each of these programs are perfectly fine to be licensed however they like ie:
NonGPL. and restricted to only be valid on Suse Ent.

You see it dont you?

Microsoft was tired of people migrating away from winxp/2k /etc and onto linux.
Now the migration onto linux is *even* easier now that MS provides some core
utils/services..... for a price of course.

This is part of the plan to get you to pay redmond no matter which way your IT
dept decides to go.

clever really.

--jboss

<yeahimnotloggediniforget>

[ Reply to This | # ]

draft GPL v3 is vulnerable to this kind of deal!
Authored by: Anonymous on Wednesday, November 08 2006 @ 03:50 PM EST
Everyone is seems to be assuming that draft GPL V3 is not vulnerable to deals of this type. As this test case shows, it is actually more vulnerable! This is because of the following change:

In GPL V2 we have:

For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

The corresponding section from GPL V3 reads:

For example, if you accept a patent license that prohibits royalty-free conveying by those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from conveying the Program.

Note how “would not permit” has been changed to “prohibits”. What the authors of GPL V3 do not seem to realize is, that a patent License does not have to prohibit anything! All “prohibiting” is done by the U.S. code. A patent license can grant some rights while failing to grant other rights. This is not “prohibiting”.

The ironic thing is the GPL works the same way. The FSF has been boasting for years that the GPL is not a contract. It grants some rights and fails to grant other rights. This is explicit in the GPL:

5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

You see! The GPL does not prohibit anything! All prohibiting is done by title 17 of the US code. There is no reason that a patent license could not do the same thing with Title 35 of the US code!

The change from “would not permit” to “prohibit” does make sense. If “would not permit” is read as “fails to explicitly allow” then the “for example” statement is not an example! Let us look at the “for example” statement in context:

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

What if you accept an agreement, which is a patent license, that does not impose any conditions or obligations on you that are inconsistent with GPL? This could happen, for example, if all the patents mentioned were invalid! Or it could happen if you were the recipient a patent license that was a unilateral grant of rights and you never agreed to anything. (Like the GPL). If “would not permit” is read as “fails to explicitly allow” then the “for example” statement could apply even though the two sentences above it fail to apply. In short you could have an “example” that is not an example of anything!

That is why I believe that “would not permit” should be read as “prohibit” in GPL version 2, in any case!

[ Reply to This | # ]

Details of Santa inc.-Scrooge Enterprises Pact - The SEC filing - Updated
Authored by: mikeprotts on Wednesday, November 08 2006 @ 04:03 PM EST
Santa Inc. and Scrooge Enterprises have today announced a patent pact to ensure
Scrooge Enterprises receive their due compensation relating to their patent
stockpile (relating to transporting large men through magic chimneys), and to
ensure that Santa is not sued for infringment.

In future all letters to Santa will be processed by Scrooge Enterprises and the
accompanying fee of $13.13 will be used to build up Ebeneezers retirement fund.
Any letters without suitable payment will be passed to the legal department for
immediate court action (Children under 3 will have their parents incarcerated on
their behalf).

All toys delivered using technology that may or may not incorporate Scrooge
Enterprises technology will have to be paid for on delivery, with a small
(1000%) handling fee for Santa Inc.

Both Santa Inc. and Scrooge Enterprises anticipate significant revenue
opportunities by directly tapping into the 'pocket money' market, which has
traditionally only paid for toys, but stolen the services that are used to
provide them, and getting some money for the use of imagination is our right.

This may contain forward looking statements designed to mislead even the most
experienced investor.

The statement from an anonymous elf relating to Santa building a new HQ on a
small tropical island is totally false.

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing - Updated
Authored by: ash4stuff on Wednesday, November 08 2006 @ 04:12 PM EST
At least I hope this serves as a wake up call for kernel developers and FSF
that, on one hand, the GPL2 might have worked until now, but may not in the
future, and on the other hand, maybe the GPL3 needs a little more tweaking. I
see no difference between the GPL2 and GPL3 that could avoid this, if there is a
way. there are always loopholes. is this one "close-able"?

btw, the spell checker in FF2 really rocks :)

ashley

[ Reply to This | # ]

Ducking and quacking
Authored by: Anonymous on Wednesday, November 08 2006 @ 04:14 PM EST
A patent lawyer once told me that a patent license *is* a convenant not to
assert. How then could both MS and Novell lawyers believe that avoiding the L
word would keep them out of trouble?

[ Reply to This | # ]

One postive side-effect of this ....
Authored by: Anonymous on Wednesday, November 08 2006 @ 04:41 PM EST

I do not know if Microsoft as realized this yet, but I believe that they have just undermined the entire "GPL is Viral" argument in a VERY public manner.

Remember - the rights described and tranferred by the GPL are granted by the original copyright owner, and describe what a licensee can do with that code. The original owner is not a licensee, so that person/entity can choose to release the same code under a totally different license, even one that involves Microsoft and specifies real money being transferred.

To do it correctly, Novell must be extremely careful not to use any code that it does not own (or cannot get legitimate non-GPL access to). This is certainly possible. Novell also has to be careful about accidentally incorporating Microsoft code into their GPL product.

The down-side is that it will make detection of GPL non-compliance difficult, as code in whatever software Microsoft ends up offering may be line-for-line identical to code also released under the GPL.

Still, that leads back to my original point. Since line-for-line identical code can exist in for-profit and GPL software then here is solid proof that the "GPL is Viral" analogy is bogus. To pull if off, the people who want to use GPL code in a proprietary software package need only locate the actual copyright owner(s) and acquire a different license from the software from the owner(s), and they can legally use code that is line-for-line identical to GPL code.

Almost everyone wins or breaks even. The original copyright owner can choose to refuse or to share in the profit from his/her/its hard work. The original GPL code is still out in the wild, so those of us who use it under the GPL still have access to it. The proprietary vendor gets the code that they want to use.

The downside is that the developer in the middle has to be a lot more careful once they are exposed to propritary code - but the developer has to actively agree to walk into that situation before it can happen.

[ Reply to This | # ]

  • How SCO-ish - Authored by: Anonymous on Wednesday, November 08 2006 @ 05:11 PM EST
    • Not entirely ... - Authored by: Anonymous on Thursday, November 09 2006 @ 12:05 PM EST
You've all missed it!
Authored by: Anonymous on Wednesday, November 08 2006 @ 04:43 PM EST
Microsoft have got 700,000 SUSE subscriptions to give away, and i'd lay odds
that the only use for these are in virtualised environments (why else would MS
want to give these away?). So, besides the clever FUD bits today, Microsoft have
got the rights to p*ss in the soup as Xen comes on board for most other Linux
distributions.
<p>
As for Novell, they've guaranteed that none of their resellers will manage to
make any money selling into a virtualised environment - which is one of the big
future and already aggressively growing trends. Thanks Novell!

[ Reply to This | # ]

Oblig Python, Monty reference
Authored by: mrcreosote on Wednesday, November 08 2006 @ 04:47 PM EST
Seems like Microsoft have finally hit upon 'the other, other plan' wrt to Linux.

---
----------
mrcreosote

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing - Updated
Authored by: Anonymous on Wednesday, November 08 2006 @ 05:11 PM EST
Why does everyone think this is about GPL code? Novell has a lot of closed
source code that it wants to sell with it's Linux distro. It seems pretty
obvious (except to everyone here) that Novell made the deal to cover that stuff.
Being able to say to companies that Suse is covered is just a marketing bonus.

[ Reply to This | # ]

Lets pay Novell
Authored by: Anonymous on Wednesday, November 08 2006 @ 06:07 PM EST
Can we become Novell customers by paying them 1 cent? The covenant says we are
"protected" if we are direct or indirect paying customers ... that
would be sweet revenge

[ Reply to This | # ]

Stop the bickering
Authored by: Anonymous on Wednesday, November 08 2006 @ 06:19 PM EST
you know, all the bickering over this makes me realize that any distribution of
linux is never going to be more than it is today.

Linux is never going to be knight in shining armour that will kill the MS evil
dragon.

Yes, you can use this as a desktop replacement (if you are really
anti-microsoft), but you will never get any major companies to start supporting
it. It (linux)0 probably works really well in a business environment where you
only need a few apps (open office, email, web). Since I need more than that,
I'll never know. It will never be a replacement for windows. You will never
see a major commercial company re-writing their software to run under linux
(ie.. quicken for example) open sourcing it- and still be able to make a profit
(oops that word profit just doesn't work with open source/gpl) I personally
think all the bickering you all are doing now about this reinforces this fact.

To hear some of this in the discussions, I gather the only way you all will be
happy is if commercial software just ceased to exist, and everything was
magically "open source"/GPL'd. No patents, no copyrights, no EULA's,
no IP. The more you hammer this drum, the worse it sounds.
The last few days the attitude on this site has gotten just downright extreme
(from a visitors standpoint)

If I was a company/person thinking - hey i've heard a little bit about linux,
i'd like to see what thats about...and somehow ended up here... I'd be running
away from it as far and as fast as I could by some of the discussions going on
here since this agreement was announced.

Companies make agreements like this all the time.. Why do you think you can open
someone's file format in a competitors product? You think they just "gave
that away"?
The only reason this is getting the attention it's getting is because it's
Microsoft + Linux

I'm really glad I'm not a programmer today. There is just no way I could make a
living and meet your expectations as well.

PS. - I run SUSE along with my copy of windows.... quite happy with that
...thank you very much and it is going to stay. you know what if that means
someone in redmond washington gets a paycheck this week, and can feed their
family............... so be it.

[ Reply to This | # ]

Some thoughts on this issue
Authored by: dmarker on Wednesday, November 08 2006 @ 06:20 PM EST

I am thinking that Microsoft have a big issue they are trying to solve. That
is, they along with many, know that virtualization is well underway in most
large shared & corporate data centers. Even the company I work for has
adopted VMware to virtualize their Intel boxes and are phasing out HP Unix boxes
in favour of pSeries (was RS6000) and AIX with its VIO and virtual servers.

Windows runs well on a Linux based virtual server (what underpins VMware).

But Microsoft want to sell Windows as a viable virtualization platform. They
purchased Connecticx to get hold of VirtualPC technology. As a sidenote, you
can download Microsofts rebadged (& essentially frozen) Microsoft Virtual
PC software for free (it is a slightly modified version of the last Windows
based Connectix VPC from 2003 IIRC ver 5.2).

The deal with Novell gives Microsoft the right to distribute their own MS
Virtual Server software (undoubtably with great fanfare) in Vista &
Longhorn, with a SUSE distro thrown in to show how wonderfully well their
Virtual Server runs all flavours of OS and to claw back some control of Windows
environments in the virtualization space.

**********************

On another note, people here where I work, who I circulated the press releases
to, have mostly misunderstood the release & are assuming Microsoft is now
accepting cooperation with Linux & ready to do their own distro.

D S Marker

[ Reply to This | # ]

$350 up front - *Follow the Money*
Authored by: SilverWave on Wednesday, November 08 2006 @ 07:48 PM EST
*Follow the Money*
Authored by: SilverWave on Wednesday, November 08 2006 @ 07:46 PM EST
SomeOne#1 is sure paying a lot to give SomeOneElse's customers the right to use
SomeOne#1's Patents and not get sued.
I'm confused... is that not the wrong way around?

---
GPLv3: Eben Moglen explalined this well the new DRM clause just says that you
can't use technology to add restrictions that the licence doesn't allow.
coriorda

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing - Updated
Authored by: Anonymous on Wednesday, November 08 2006 @ 08:40 PM EST
Yeah, but. . .

Wasn't Novell preparing to launch a major anti-competitive practices suit
against Novell?

I think that might be part of the reason M$ agreed to this whole deal.

[ Reply to This | # ]

What's behind all these ...
Authored by: Anonymous on Wednesday, November 08 2006 @ 10:35 PM EST
I think that Novell just hit something pretty bad for M$ with all this
"discovery" with SCO. Maybe they can't use it in court ... but what
if the court is the media. So they go in a kind of exortion to M$ aksing for
this and that + money. M$ prefers to pay than the bad publicity.
Now comes the part on how to cover this thing up... a "deal", with
words like not to sue, support, licences, etc... sort of buzz words, so everyone
eats that.

hence the money that moves from M$ to Novell...


ikp

[ Reply to This | # ]

Microsoft will suck Novell dry
Authored by: Anonymous on Wednesday, November 08 2006 @ 11:44 PM EST
After their "partnership cooperation," Microsoft will distribute for
no charge a Linux distro that integrates excellently with Vista, Novell
software, and Linux (the special sw integration can be isolated to proprietary
apps). They will begin by targetting Novell customers and provide a Lite version
for all Windows users (antitrust violations). Naturally, Novell will get Vista
integration help from Microsoft which will become next to useless as Vista
evolves and because Microsoft kept some important secrets.

Thanks Novell for getting Microsoft up and running while giving companies like
Red Hat a serious obstacle. You can be sure I will not provide a cent of
financing for this operation.

[ Reply to This | # ]

Pam Jones still doesn't get it
Authored by: Anonymous on Thursday, November 09 2006 @ 12:00 AM EST
I don't think this is an appropriate agreement for Pam to be commenting on. Her
area of expertise is the SCO litigation. There are hundreds of millions of end
users who would benefit if all those thousands of Windows-only applications
could somehow be run natively on a version of Linux - better apps, on a better
OS. This agreement doesn't get the two sides together to that degree, but at
some point there has to be some reasonable starting point for how to run all
those apps on a better OS. Pam doesn't like anything associated with Microsoft,
but the vast majority of the world is stuck with MS due to all the apps that
won't run on Linux.

Stick to what you know Pam - you say it yourself all the time - you are a
paralegal. You are not going to be the arbiter of all future software
interoperability, like it or not.

[ Reply to This | # ]

News picks
Authored by: Anonymous on Thursday, November 09 2006 @ 06:38 AM EST
Wow! I have a Novell email address, so now everything I say will make it
official?
I don't know what your agenda against Novell is really about PJ but wouldn't it
have been better if you did some research with regards to my email at
openSUSE.org, instead of trying to make it "news" in the news picks
section? Should I always have to state that what I write in an email is my
personal opinion?

[ Reply to This | # ]

Concerns in Hell. Satan: Sell Your Soul To Me, Not Microsoft
Authored by: Anonymous on Thursday, November 09 2006 @ 07:06 AM EST
from the where-do-you-want-to-go-today? dept.

HADES -- Faced with growing competition from Microsoft in the lucrative
soul-buying market, the Prince of Darkness today unveiled a new advertising
campaign hoping to lure in more customers and turn the tables on Bill Gates.

"The Novell-Microsoft deal was the final straw," Satan said during a
press conference at his underground lair. "Novell should have sold their
souls to me, not Microsoft. I can offer much greater rewards than some
phony-baloney we-promise-not-to-sue covenant. Just look at The SCO Group: they
sold their souls to Microsoft and what do they have to show for it now?"

The last few years have been very tough for Satan. "When I look at all of
the suckers that have partnered with Microsoft, only to be stabbed in the back
repeatedly, I can only shrug my horns," he lamented. "Those should be
*my* customers! Between Microsoft and the Republican Party, the competition is
eating me alive!"

During the last three quarters, earnings for Hades have plummeted 45%, causing
one stock analyst to downgrade Hades (ticker symbol: HELL) from "Strong
Buy" to "Exorcise From Your Portfolio Immediately." The added
competition from Microsoft and others has caused the futures market for souls to
skyrocket, cutting profit margins severely for Hades.

"Fire and brimstone ain't cheap," Satan growled. "I need cheap
souls to perform the grunt work that keeps this place going."

Nevertheless, the Prince of Darkness hopes that the situation will improve
thanks to an advertising blitz highlighting the advantages of selling out.

"Need cash now?" asks one TV commercial. "Don't mess with
high-interest loans... we've got the solution to your money problems right here.
In just fifteen minutes and with your signature in blood, you can have all of
the money you need!"

Another spot proclaims, "You only have one soul -- sell it wisely. There's
a reason The Devil has been the market leader for the last two millennia. We
offer much better rewards than the competition. Don't delay, call Hades today!
Minions are standing by."

Industry observers expressed mixed reactions at the news. "I'm glad that
we're seeing such viable competition," said an analyst for the Blartner
Group. "For centuries, mortals have faced the unpleasant challenge of
trying to sell their souls in a buyer's market. All of that has changed now that
Satan no longer has a stranglehold."

However, a rival pundit said, "This is terrible. It's bad enough that Satan
represents pure evil, but now we have a corporation that is even worse! When
will the insanity end?"

A slave... er, spokesperson for Microsoft was unavailable for comment at press
time.

Source:
http://humorix.org/articles/2006/11/hades/

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing - Updated
Authored by: Anonymous on Thursday, November 09 2006 @ 08:21 AM EST
I find it interesting that they promise not to sue each other's customers, but I
don't see that they promise not to sue each other directly. Probably in the fine
print.

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing - Updated
Authored by: Anonymous on Monday, November 13 2006 @ 12:33 PM EST
Classic Sun Tzu:

"This does not mean that the enemy is to be allowed to escape. The object
is to make him believe that there is a road to safety, and thus prevent his
fighting with the courage of despair. After that, you may crush him."


Sun Tzu

[ Reply to This | # ]

Details of Novell-MS Pact - The SEC filing - Updated
Authored by: Anonymous on Tuesday, November 14 2006 @ 08:15 AM EST
Please read the FAQ and SEC filing withut letting your emotions blind you to what it is actually saying:

PJ asks:

And why did Ballmer offer to enter into the same agreement with Red Hat yesterday, when this agreement with Novell says Microsoft won't do the same deal with anyone else for three years? Ballmer's offer was for the patent covenants. Novell's 3 year exclusive part of the deal is only in the marketing of the virtualization technology. Microsoft is not allowed to co-market Windows/Linux virtualization with any other Linux Distribution companies for 3 years, that is the extent of the 3 year exclusivity, it had nothing to do with the patent covenants.

[ Reply to This | # ]

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