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Novell Speaks - Updated
Monday, November 20 2006 @ 08:34 PM EST

Novell has posted a letter to the community. Here's, to me, the heart of it:
Our interest in signing this agreement was to secure interoperability and joint sales agreements, but Microsoft asked that we cooperate on patents as well, and so a patent cooperation agreement was included as a part of the deal. In this agreement, Novell and Microsoft each promise not to sue the other's customers for patent infringement. The intended effect of this agreement was to give our joint customers peace of mind that they have the full support of the other company for their IT activities. Novell has a significant patent portfolio, and in reflection of this fact, the agreement we signed shows the overwhelming balance of payments being from Microsoft to Novell.

Since our announcement, some parties have spoken about this patent agreement in a damaging way, and with a perspective that we do not share. We strongly challenge those statements here.

We disagree with the recent statements made by Microsoft on the topic of Linux and patents. Importantly, our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property. When we entered the patent cooperation agreement with Microsoft, Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents.

Our stance on software patents is unchanged by the agreement with Microsoft....In closing, we wish to be extremely clear that Novell is committed to protecting, preserving and promoting freedom for free and open source software. We recognize that the community of open source developers is essential to all our activities in Linux, and we welcome dialog with the community as to how we can continue to work together toward these common goals.

Ron Hovsepian
Chief Executive Officer
Novell, Inc.

In that case, with all due respect, you should not have signed an agreement called a patent cooperation agreement that gives Microsoft the opportunity to say the things Mr. Ballmer has been saying. I believe that is obvious now. He didn't even wait until the ink was dry. And you should have considered the GPL, its importance to the community, and considered what paying royalties means in that context. And we hope you will fix this.

Update: Microsoft has now responded.

You can read it in full on David Berlind's blog. It's a very odd response:

Microsoft and Novell have agreed to disagree on whether certain open source offerings infringe Microsoft patents and whether certain Microsoft offerings infringe Novell patents....

We at Microsoft respect Novell's point of view on the patent issue, even while we respectfully take a different view. Novell is absolutely right in stating that it did not admit or acknowledge any patent problems as part of entering into the patent collaboration agreement. At Microsoft we undertook our own analysis of our patent portfolio and concluded that it was necessary and important to create a patent covenant for customers of these products. We are gratified that such a solution is now in place.

What in the world was this deal about then? It seems at this point that it was Microsoft angling for a FUD opportunity. In any case, the deal is falling apart, I'd say. Microsoft's statement alleges that they don't have to agree to go forward. But if the parties themselves don't know what they agreed to or what the words mean, how valid is the contract? A contract does require a meeting of the minds. Here's the Free Dictionary's legal definition of "meeting of the minds":

meeting of the minds n. when two parties to an agreement (contract) both have the same understanding of the terms of the agreement. Such mutual comprehension is essential to a valid contract. It is provable by the express provisions of a written contract, without reference to any statements or hidden thoughts outside the writing. There would not be a meeting of the minds if Bill Buyer said, "I'll buy all your stock," and he meant shares in a corporation, and Sam Seller said, "I'll sell all my stock to you," and meant his cattle.

There's your out, Novell. There obviously was no meeting of the minds. Without a meeting of the minds, there are no obligations. At least that's what they taught me in my class on contract law. Here's my suggestion in all seriousness: drop the patent cooperation agreement and all its peculiar addenda. Work on interoperability and marketing deals if you wish. Then the storm is over.

On a deeper level, I hope everyone will please think about what software patents are doing to the industry. Microsoft didn't have to deal with them when it was building its business, but now it has them in hand to try to bully Linux, the better mousetrap that endangers its monopoly, to death. Yes. To death. Think about whether that is the patent policy you really want, and if it isn't, you need to change it. Because the community will not let go of the GPL as its license of choice, and the GPL and software patents simply don't mix. So, if the world wants GNU/Linux to survive -- and the development model that made it happen, and by that I mean unpaid volunteers, because that is who wrote Linux -- it will have to make some changes to the US patent system, some fundamental changes, or all you'll have is things like Vista and Zune. Read their EULAs, then read the GPL, and then think it over (Vista's). What kind of world do you really want?

As the US patent system now operates, it's like the Mafia. Give me money for my patent or I'll break your kneecaps. And the threat works even if the patent is bogus. Someone really needs to clean house.

And those of you in Europe trying to decide what you want to do about software patents, is it not clear now from this incident what Microsoft intends to do if you empower them?


  


Novell Speaks - Updated | 650 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
They must think we are as daft as they are pretending to be.
Authored by: Anonymous on Monday, November 20 2006 @ 08:43 PM EST
Nobody in business could be as dumb as they would like us to believe they are.

[ Reply to This | # ]

OT Here
Authored by: SpaceLifeForm on Monday, November 20 2006 @ 08:46 PM EST
Please make any links clickable.


---

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

[ Reply to This | # ]

Oh Dear. The honeymoon is over already ( n/t)
Authored by: SirHumphrey on Monday, November 20 2006 @ 08:47 PM EST

[ Reply to This | # ]

Novell Speaks
Authored by: Anonymous on Monday, November 20 2006 @ 08:49 PM EST
it took them a week to come up with this? seems like the sort of thing they
could have said immediately without a second thought...

sum.zero

[ Reply to This | # ]

Novell Speaks
Authored by: Aim Here on Monday, November 20 2006 @ 08:50 PM EST
So if Novell doesn't believe that Microsoft owns anything in Linux, what is it
nominally paying Microsoft $200 Million FOR, exactly?

Okay, I suppose it's paying it to be able to get a $400 bribe from M$, but
doesn't it have to make some sort of coherent explanation to auditors or
accountants or the SEC or someone? (Though, I suppose shareholders won't look
too closely at where this free money is coming from...)

[ Reply to This | # ]

Corrections here, please
Authored by: ankylosaurus on Monday, November 20 2006 @ 08:53 PM EST
Thanks.

---
The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

Novell Speaks
Authored by: Anonymous on Monday, November 20 2006 @ 08:58 PM EST
Novell pays Microsoft a big pile of money for some unspecified patents

Microsoft pays Novell a big pile of money for some unpsecified patents


Of course, it would be legitimate (in business terms), if they really needed to
license each other's patents.

But on the other hand, if they didn't need to license each other's patents, and
the license was essentially paying ro nothing - then why wouldn't it look
suspiciously like round-tripping?????
http://en.wikipedia.org/wiki/Round-tripping



The only reason that I ask, is hasn't Novell, more or less indirectly, implied
that the patents are apparently worth nothing to Novell - because they deny they
needed to license the patents anyway, both in this statement, and in their FAQ
saying that they don't believe they infringe any Microsoft patents.


Quatermass
IANAL IMHO etc.

[ Reply to This | # ]

Arrogant
Authored by: Anonymous on Monday, November 20 2006 @ 09:03 PM EST
"Since our announcement, some parties have spoken about this patent
agreement in a damaging way,"

Maybe because, you know, it was damaging?

"Our stance on software patents is unchanged by the agreement with
Microsoft."

Except for that part you deleted from your website, right? Or wait, that part
you CHANGED. Let's see, how did it used to go? "Novell will use its
patent portfolio to protect open source products against potential third-party
patent challenges". And how does it read now? "Novell will use its
patent portfolio to protect itself against claims made against the Linux kernel
or open source programs included in Novell's offerings". So basically,
you've gone from protecting the community to protecting yourself, which is
pretty evident in this patent agreement with Microsoft.

"When we entered the patent cooperation agreement with Microsoft, Novell
did not agree or admit that Linux or any other Novell offering violates
Microsoft patents."

So then what were you paying for? Is paying for nothing good business? And why
aren't you aggressively refuting Microsoft's claims to the press Mono contains
Microsoft's IP?

"In closing, we wish to be extremely clear that Novell is committed to
protecting, preserving and promoting freedom for free and open source
software."

How can you possibly say that with a straight face when the FSF's lawyer is
indicating you've violated the license that provides that freedom? Or when the
developers of the software you ship are writing you open letters saying you've
violated those freedoms?

[ Reply to This | # ]

  • Arrogant - Authored by: Anonymous on Monday, November 20 2006 @ 09:16 PM EST
    • Arrogant - Authored by: Anonymous on Tuesday, November 21 2006 @ 01:20 PM EST
      • Unpaid?! Hardly - Authored by: Anonymous on Tuesday, November 21 2006 @ 03:23 PM EST
  • Arrogant - Authored by: Anonymous on Monday, November 20 2006 @ 09:20 PM EST
    • Tar Baby - Authored by: om1er on Monday, November 20 2006 @ 09:51 PM EST
      • Tar Baby - Authored by: Anonymous on Monday, November 20 2006 @ 10:07 PM EST
        • Tar Baby - Authored by: om1er on Monday, November 20 2006 @ 10:23 PM EST
          • Tar Baby - Authored by: Anonymous on Monday, November 20 2006 @ 10:43 PM EST
            • Tar Baby - Authored by: om1er on Monday, November 20 2006 @ 11:10 PM EST
              • Tar Baby - Authored by: Anonymous on Monday, November 20 2006 @ 11:45 PM EST
                • Ron Baby - Authored by: Anonymous on Tuesday, November 21 2006 @ 04:22 AM EST
                • Tar Baby - Authored by: om1er on Tuesday, November 21 2006 @ 07:15 AM EST
            • Tar Baby - Authored by: belad on Monday, November 20 2006 @ 11:22 PM EST
              • Tar Baby - Authored by: grokker59 on Monday, November 20 2006 @ 11:43 PM EST
              • Tar Baby - Authored by: PJ on Tuesday, November 21 2006 @ 12:27 AM EST
                • Tar Baby - Authored by: belad on Tuesday, November 21 2006 @ 10:05 AM EST
                  • Tar Baby - Authored by: Anonymous on Tuesday, November 21 2006 @ 11:23 AM EST
            • Tar Baby - Authored by: Rudisaurus on Tuesday, November 21 2006 @ 01:33 AM EST
            • Tar Baby - Authored by: Anonymous on Tuesday, November 21 2006 @ 01:16 PM EST
              • Tar Baby - Authored by: Anonymous on Tuesday, November 21 2006 @ 06:35 PM EST
  • Arrogant - Authored by: ine on Monday, November 20 2006 @ 10:17 PM EST
    • Arrogant - Authored by: Anonymous on Monday, November 20 2006 @ 10:27 PM EST
  • Arrogant - Authored by: Anonymous on Tuesday, November 21 2006 @ 10:38 AM EST
Novell Speaks and so do I
Authored by: arrg on Monday, November 20 2006 @ 09:04 PM EST
Sorry Novell, was trying to decide who to go with for my new mail server, you or
Red Hat. You did your deal so I went with Red Hat. As far as I'm concerned you
messed up. I was a big supporter of you guys but you've lost my trust. What else
can I say other than dump the deal, that is if you really want any customers...

---
Time is funny stuff, space has it's points too.... - Hap

[ Reply to This | # ]

This doesn't sound like the initial announcement Novell made about the deal
Authored by: kawabago on Monday, November 20 2006 @ 09:06 PM EST
I believe we are seeing Novell engage in 'spin' to try to blunt criticism, but
no change in direction.

[ Reply to This | # ]

Brilliant move on Microsofts part
Authored by: Anonymous on Monday, November 20 2006 @ 09:17 PM EST
Microsoft knows that the community HATES anyone who deals with Microsoft.
Novell was turning into or at least has .... had the potential to be the biggest
player in Linux. Not anymore. By appealing to the base motive of all
executives... money... they have effectively gutted support in the community for
Suse. It's a shame. The Novell exec.'s saw a big bundle of cash from MS and
thought there would be no consequence. The long and hard fought battle Novell
has made from being irrelevant to a player is for naught. MS is pleased. It is
not without any reason some people say MS is the devil.

[ Reply to This | # ]

A Better Title--Novell Opens Mouth, Changes Feet
Authored by: TheBlueSkyRanger on Monday, November 20 2006 @ 09:24 PM EST
Hey, everybody!

You know, Novell could save everyone a lot of trouble if they would just keep
quiet. Instead, they keep giving us more material to work with.

I love how they say they are hurt by all the criticism about what they did, they
felt they had the right, and everyone should leave them alone. That line of
logic doesn't work for the President. What makes them think it will work for
them?

Here's what happened: Novell got blindsided by M$. I don't mean the community
reaction. They got thumped when they tried to dump KDE from SuSE and they read
Groklaw. The odds that they didn't know this would happen: 2 to the power of
100,000 to 1 against and rising. But they figured enough businesses would jump
on the bandwagon, one they thought they were the only riders on, that it would
counter the slings and arrows of the community.

But what do you know. Either M$ never meant for the bandwagon to be exclusive
or they realize they underestimated the whole campaign to get companies to go
SuSE, and are inviting more on. Companies are calling bluffs, asking why they
should dump what they have and go SuSE. And don't forget, Vista and SuSE will
work well together. XP and (insert your professionally maintained distro of
choice here) already do. To claim these benefits, not only do companies have to
dump Red Hat or whatever and go SuSE, they also have to go to Vista. They went
Linux to save money, after all.

So now we have damage control. Strange how, when the deal was first announced,
Novell didn't feel a need to justify its behavior to the community, they said
their peace, maintained their innocence, and that was it. Now, they are
responding to Samba and everyone. And to my ear, they sound like the guy who
gets flattened by the crowd at the end of "Animal House"--"Remain
calm! Everything's under control! All is well!"

Novell is clearly desperate to get people in their corner. They've figured out
M$ hung them out to dry. Don't forget, the worse a politician is, the tighter
he wraps the flag around himself. The GPL is the flag, and Novell is fooling no
one.

Dobre utka,
The Blue Sky Ranger

"Of course I lied! What do you expect? I'm the devil!"
--The devil
"Pearls Before Swine"

[ Reply to This | # ]

Novell Speaks
Authored by: Anonymous on Monday, November 20 2006 @ 09:26 PM EST
My only comment is: Go visit distrowatch and see how fast SuSe is dropping down
their chart.

Bye-Bye Novell, it was nice knowing you.

[ Reply to This | # ]

  • Novell Speaks - Authored by: Anonymous on Monday, November 20 2006 @ 09:44 PM EST
  • Novell Speaks - Authored by: Anonymous on Monday, November 20 2006 @ 11:34 PM EST
    • Novell Speaks - Authored by: Anonymous on Tuesday, November 21 2006 @ 03:59 AM EST
Novell sqeaks
Authored by: Anonymous on Monday, November 20 2006 @ 09:39 PM EST
SCOX sued IBM. I started buying IBM
SCOX sued Chrysler. I bought a Chrysler (OK my wife did, I prefer Chevy)
SCOX sued Autozone. I changed my preferred parts store. (For my Chevy)
SCOX sued Novell. They had nothing I wanted. Novell bought Suse. I looked at
Suse. Was ready to buy a couple of copies for new servers.

<rant>
Novell gets in bed with MS. MS FUD starts to sound like SCOX. Thanks you
Novell.
I just ordered RHEL. So there.

I hope GPL 3 makes this impossible. I hope everyone adopts GPL 3, and Novell
gets sued for distributing GPL 3 software. Really. No kidding.
Novell's actions are NOTHING short of a stab in the back of ALL FOSS under any
license.
I hope Novell's sales tank.
Novell's actions may be as bad as what SCO has done.
</rant>



[ Reply to This | # ]

Desperate Novell Speaks
Authored by: The Mad Hatter r on Monday, November 20 2006 @ 10:00 PM EST


I think that they are starting to get the message. I don't think they understand
it yet, but they are starting to get it.


---
Wayne

http://urbanterrorist.blogspot.com/

[ Reply to This | # ]

Fraying at the edges
Authored by: Anonymous on Monday, November 20 2006 @ 10:04 PM EST
Well, it didn't take long for Novell's deal with the devil to start to unravel,
did it? I think Novell should be grateful that deal has come under such heavy
fire, so they can start to work on the consequences now, not later when it is
too late for them to do anything about it. I really hope they actually do
something about it too. They'll have to work a lot harder than they would have
had to if they hadn't been so stupid in the first place though.

[ Reply to This | # ]

Novell Speaks - Updated
Authored by: Anonymous on Monday, November 20 2006 @ 10:08 PM EST
You PPL are worried about nothing, Have you ever wondered how many patents/IPs
Microsoft is using in Windows? That fringes on
IBM,Oracle,Novel,Sun,Linux.....list goes on. Believe me Microsoft dont want to
start no patent/IPs war.

[ Reply to This | # ]

Novell , tSCOg - Managment MakesThe Same Mistakes ?
Authored by: arthurpaliden on Monday, November 20 2006 @ 10:21 PM EST
I get the feeling that upper management at Novell just realized that they do not
own the software that they have staked their business model on. Like tSCOg,
when Novell bought Suse they, upper management, probably believed that they got
the rights to the software included in the distribution. When in fact, all the
got were the rights to distribute other peoples software under the Suse name.

Or, maybe they did know this but did not realize that the open source community,
as a result of the tSCOg debacle, is now much better organized and truly
understands the power that they, as a community, are able to wield. Power which
is only reinforced by this latest fiasco.

---
Have you payed your legal tax today?

[ Reply to This | # ]

Novell Speaks - Updated
Authored by: Anonymous on Monday, November 20 2006 @ 10:24 PM EST
Novell should have known better. Every other FOSS business that has even a small
fraction of a clue will learn from this sorry mess. Meanwhile Novell keeps
digging deeper and deeper. Its kind of like watching a slow motion train wreck.
MS is smiling, one down and didn't have to do anything. This was too easy.

Well shareholders, when you hire a clueless MBA for president you get to write
off losses. Big losses. Talk about someone that doesn't understand anything
about running a FOSS company.

[ Reply to This | # ]

Question...
Authored by: Kanth on Monday, November 20 2006 @ 10:24 PM EST
Out of idle curiosity.

And I realize a bit of this is posted out of ignorance. I assure you its not to
be trolling at all.

Is there any way the FSF could make GPL3 incompatible with GPL2? I realize it
would probably be suicidal, and won't happen (probably) but is it possible that
the FSF could basically pull a nuclear option and state that GPL3 items are not
able to run on a GPL2 kernel?

I respect that Linus and his dev's can do whatever they want, including forking
every project to keep themselves running.. but it would become _very_ difficult
if they couldn't use current versions of the gcc complier, etc.

This is based on my own musing and Linus's comment in the past about something
that was unknown whether it would be valid running on a GPL2 kernel and his
comment of "it had better be."

It made me wonder if some kind of nuclear option was valid...

-Kanth

[ Reply to This | # ]

Novell Speaks - Updated
Authored by: capt.Hij on Monday, November 20 2006 @ 10:28 PM EST
In this agreement, Novell and Microsoft each promise not to sue the other's customers for patent infringement. The intended effect of this agreement was to give our joint customers peace of mind that they have the full support of the other company for their IT activities. Novell has a significant patent portfolio, ...

So now MS has Novell on record saying it won't litigate patents. If MS wants to go after gnu/linux then Novell and its patents are off the table. Divide and conquer.

If we take Balmer's words at face value then gnu/linux has Microsoft's precious ip in it. If I were a stockholder then I would not be happy. MS has admitted that its ip has been stolen and is doing nothing about it. This seems to be an admission that the company is not upholding its obligations to its stockholders. Either Balmer is failing his stockholders or he is dishing out FUD. Either way he is being irresponsible.

MS is a cash generating machine. Unfortunately, that seems to be enough for its stockholders to sit back and refuse to demand that the company do the right thing. MS stockholders need to stop thinking with their wallets and demand some modicum of ethics from the company.

[ Reply to This | # ]

Novell Speaks - Still unsatisfactory
Authored by: Hygrocybe on Monday, November 20 2006 @ 10:33 PM EST
I am sorry Novell and Mr Hovsepian, but your response document in no way eases
my concerns about your Microsoft agreements, especially after reading the
immediate response from Microsoft. These seem to indicate that each of you has
differing concepts about its content even if Microsoft states freely that you
did not admit any patent problems. The articles I am reading on the internet
indicate that Microsoft executives are already creating FUD based on precisely
that aspect.

As far as I am concerned, Microsoft remains the most solipsistic company on the
face of the earth. Anything it does is designed to benefit its existence,
neither its customers nor its partners are considered of any importance, only
Microsoft's wishes are to be considered.

Novell, you had everything: the backing of the community, the best Linux
distribution available (IMHO) and everything to look forward to under slow and
steady growth. You have, I believe tossed it all away and will be put in an
even bigger "devil of a situation" when GPLv3 arrives and essential
software such as Samba, Java and GNU moves across to version 3.

But then, dance with the devil by all means........however there is an enormous
price of involving loss of trust and backing that you are now paying. Your
programmers know this, your executive branch doesn't seem to want to
understand.......I am sorry, bitterly sorry.

---
Blackbutt, Australia

[ Reply to This | # ]

Novell Speaks - Updated
Authored by: tce on Monday, November 20 2006 @ 10:37 PM EST
mY 17yr old son laughed in all the right places when I read MSs calculated
reply...His comment:

Not re-dick-ulous...
Not re-dunk-ulous...
but re-dork-ulous. :-)

Drop the patent protection-money-deal, give back the cash.
Sue them whos name-need-not-be-spoken for defamation.
Ask IBM & SUN to do deals to help with data center customers.

Figure you're back on track in three years...vs DOA.

Ask your employees...in a truely private way...what they would do, what they
intend to do with their feet...and with outside help determine the risk that you
might not have staff or customers or suppliers in less then 12 months.

You have damanged your Brand.
That, really, is the only asset you have.

Without your good name you are just a bunch of parts no-longer in orbit around
what was a common mission.
You are just a staffing agency for all the other linux organizations and some
domain names no one wants.

Good luck.
Really, none of you "in charge" should get any sleep for the next six
days. If you have this fixed by Monday you have a chance. If not, well. snuff
said.

--tce


[ Reply to This | # ]

How Can You Sue An End User?
Authored by: Anonymous on Monday, November 20 2006 @ 10:44 PM EST
We've heard this for a while now, starting with SCO's claims, but is there any
justification, or even case history, for suing an end user for patent
infringment? It just doesn't make sense to me, since the end user is not the one
infringing.

Thanks,

Jeff

[ Reply to This | # ]

Novell Speaks - Updated
Authored by: PolR on Monday, November 20 2006 @ 10:45 PM EST
It is worthwhile to check the NewsPick on Eben Moglen's plan to kill the deal. The essential part:

"Suppose GPL3 says something like, 'if you distribute (or procure the distribution), of a program (or parts of a program) - and if you make patent promises partially to some subset of the distributees of the program - then under this license you have given the same promise or license at no cost in royalties or other obligations to all persons to whom the program is distributed'."

"If GPL 3 goes into effect with these terms in it, Novell will suddenly becomes a patent laundry; the minute Microsoft realizes the laundry is under construction it will withdraw."

But why use a contract upgrade rather than filing a lawsuit to scupper the deal, which might produce a clearer result in the long term? Moglen himself couldn't be drawn on specifics, but the view amongst free (rather than open) strategists suggests that elements of the deal make litigation undesirable - even if it is legally justified.

[ Reply to This | # ]

Novell Speaks - Updated
Authored by: Anonymous on Monday, November 20 2006 @ 10:54 PM EST
Serious question. Can someone start a class action lawsuit against Steve
Ballmer for saying what he said? I'm not sure what would allow a class action
lawsuit, but if what he is saying is untrue, then isn't he slandering linux?
IANAL.

[ Reply to This | # ]

On The Other Hand
Authored by: Anonymous on Monday, November 20 2006 @ 10:57 PM EST
<no Troll>

I've asked it before, and will ask it again: How much Linux is in Vista? How
much open source is in any M$?????

</no troll>

Maybe M$ is looking not to get sued? Novell may get deeper into the M$
involvement with SCO because of the licenses that were not paid for, per
contract. Wouldn't you want to hold the lawyers off if you could????

Just a thought

[ Reply to This | # ]

  • some BSD - Authored by: Anonymous on Tuesday, November 21 2006 @ 10:00 AM EST
A prelude to desperation
Authored by: Anonymous on Monday, November 20 2006 @ 11:00 PM EST
Here's a bit of speculation concerning the driving force behind Microsoft's
actions. To date, Microsoft has been a master at controlling the small desktop
computer market. Their MO has been (basically) to bully hardware companies into
supporting Microsoft exclusively while buying out, undercutting by price, or
outright killing software competitors through illegal means. It has been a long
number of years since Microsoft actually competed with anyone other than
themselves.

In the last two years or so a few new players have appeared that Microsoft has
to contend with, primarily Google and Linux. Google is business as usual
(embrace, extend with proprietary enhancements, extinguish). For example,
Microsoft is busy trying to tie internet services to the Windows OS, with some
success (mostly via .Net).

Linux, on the other hand, is a different beast altogether. Microsoft can’t buy
it and they can’t undercut the price. And there’s no one source company that
can be killed. So in the case of Linux, Microsoft is out of tricks. Except for
FUD. FUD has supported Microsoft well in the past. It used to be the mere
mention that Microsoft was thinking of getting into a particular software market
was enough to kill another company’s product. The SCO pseudo-copyright/trade
secret/contract/unconstitutional GPL/whatever-it-is-these-days lawsuit has all
but eliminated the usual FUD as an effective weapon against Linux. That one
sure backfired on Microsoft.

So pretty much the last attack Microsoft has left seems to be software patents.
The fear of lawsuits against end users over software patents probably seems like
it will help Microsoft stem the Linux tide, as least for a while. But, consider
the risk Microsoft is taking with this. As long as Linux is in demand, it’s use
should continue to grow, especially in small and medium businesses. But if it’s
use continues to grow, there will come a time when Microsoft will have to make
good it’s threat to sue (else it is an empty threat). So who to sue? Another
big company that would likely counter sue concerning patents Microsoft is
“borrowing”? Unlikely. The individual developer who wrote the original code?
No money in it and it would only serve to cause the offending “invention” to be
rewritten so as to not violate the patent. Would Microsoft sue a small or
medium business? They already have a public image of a bully, picking on one
(essentially) defenseless smaller company would not help, especially with
thousands of other small businesses (who happen to be using the same Linux
software) watching. Tough to market your product with a “buy our stuff or else”
slogan.

It seems that being forced to fall back on the threat of a lawsuit over software
patents to slow or stop Linux is the first step of an act of desperation.
There’s no good that can really come of it, as far as I can see. At best,
Microsoft will intimidate a few good companies in the US. At worst, they will
alienate everyone whom they don’t sue in the US and elsewhere, including the
world’s largest emerging software market (Asia). It’s hardly likely to kill
Linux.

A better strategy would be to honestly and fairly compete with Linux by making
Windows a lot better. The question is, does Microsoft still know how to do
business like that? Or have they ever known?

[ Reply to This | # ]

Attempting To Think Clearly And Probably Failing....
Authored by: TheBlueSkyRanger on Monday, November 20 2006 @ 11:00 PM EST
Hey, everybody!

Uh...quick query just occured to me.

Novell is finished. Toast. A street pizza. A deal made to secure their
immediate financial situation destroys their future. With people abandoning
Novell for whatever reason (I mean besides the most recent one, seeing as how
SuSE hasn't saved their bacon), they are sure to go out of business.

Question: what happens to those patents?

Does whatever company buys them up (M$? IBM? Red Hat? Mark Shuttleworth?
Kevin Carmony?) get the patents, or do they go to the OIN? If Novell truly
86's, will whatever company buys them be beholden to the M$ covenant? Or will
Novell simply sell these patents to keep themselves afloat? And if so, does the
covenant with M$, say, give them right of first refusal?

Why do I get the feeling, as bad as things are now, they're about to get a whole
lot worse?

Dobre utka,
The Blue Sky Ranger

"Greetings, my friends. We are all interested in the future for that is
where you and I are going to spend the rest of our lives. And remember, my
friends, future events such as these will affect you in the future."
--Criswell
"Plan 9 From Outer Space"

[ Reply to This | # ]

Microsoft wins
Authored by: Anonymous on Tuesday, November 21 2006 @ 12:02 AM EST
Just look at how the FOSS community has reacted against Novell. M$ pays them a
few hundred million and *FOOF*; SuSE is now out of business. One less (and very
serious) threat to the M$ monopoly. Now M$ can concentrate all of their efforts
on other distributions. Novell got greedy and sold out, M$ recognized the
opportunity and jumped at it.

[ Reply to This | # ]

  • Microsoft wins - Authored by: Anonymous on Tuesday, November 21 2006 @ 10:25 AM EST
  • Microsoft wins - Authored by: Anonymous on Tuesday, November 21 2006 @ 12:43 PM EST
Novell Speaks - Updated
Authored by: Anonymous on Tuesday, November 21 2006 @ 12:05 AM EST
Isn't there something in the legend that a vampire can't cross a threshold
unless invited...

[ Reply to This | # ]

Do Not Think For An Instant
Authored by: Anonymous on Tuesday, November 21 2006 @ 12:10 AM EST
Do not think for an instant that this is any more than Microsoft laughing at
Novell issuing press releases to the Linux community while they issue press
releases that suit themselves.

[ Reply to This | # ]

Novell Speaks - Updated - gpl2.X
Authored by: Anonymous on Tuesday, November 21 2006 @ 12:52 AM EST
There has been much discussion about the GPL 3.x draft license being modified to preclude this behavior. On the other hand there are concerns from Linus and others on whether to use GPL3 for the kernel and other bits. Why not make a GPL 2.x that includes just the minor change required to prevent granting additional rights to just one class of users but not to all users who may encounter the software? At a minimum if Novell or Microsoft wanted to offer some additional rights just as I might get an offer of support from Red Hat if I have a support contract, is there a way to compel them to have to fork the code and begin maintaining their own version going forward? I'm sure Novell is financially able to be the version owner of 6,000 pieces of individual forked software.

[ Reply to This | # ]

Looks Like it Was Microsoft Who Was Scared.
Authored by: darkonc on Tuesday, November 21 2006 @ 12:54 AM EST
MS doesn't seem to have denied Novell's contention that they were the ones who asked for the patent agreement. It's also public knowledge that MS has paid Novell far more than Novell is looking to pay them....

About the only way that MS is going to make money on the deal is if Windows tanks and Novell gets a huge share of the market that MS looses.... in which case MS will still loose money, but they now have a short to cover the worst case.

What this does do is it gives MS some comfort that, if they go all-out on Linux, Novell's hands will be somewhat (although not entirely) tied in terms of joining the Linux community in the counter attack.
___

A short story;

Some time ago I was learning to play 'Diplomacy' with some friends (Diplomacy is kinda like 'Risk', except that negotiations and alliances are built into they game system). I remember making an agreement with one guy that was really specific... It was something like "I won't attack you in Turkey if you don't attack me in Bulgaria." We both knew that we were under pressure to attack each other elsewhere, but we didn't explicitly address that in the agreement.

When attack phase came, we happily attacked each other elswhere, and people were going "aren't you angry that he broke the alliance?". We both replied 'No. I was kinda expecting something like that, and we're both still happy.

What happened was that making the agreement allowed us to release armies to attack elswhere -- and we were most notably able to use them to attack the players who were trying to sew dissent between us.

I think that MS came out ahead in this deal, but for indirect reasons....

First of all it weakens Novell's ability to powerfully join a counter-attack if/when it comes to an open patent war.
Secondly: to the extent to which novell gains the freedom to use MS formats in their software, the OS community is going to be very wary of Novell's new code (we're already seeing that with their inclusion of Basic macros). This divides the OS community -- and any division in the OS community aids Microsoft and it's erstwhile allies.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Novell Speaks - Updated
Authored by: Anonymous on Tuesday, November 21 2006 @ 12:59 AM EST
Forwarded from the opensuse-announce list:

-------------------------cut here--------------------

Hi

as promised in the last IRC meeting we will have a
dedicated IRC meeting about the Novell/Microsoft deal. We
already had questions in the regular IRCmeeting last time,
but there might be some questions which are not answered
because of the short time we had, or new questions came
up ...

Nat Friedman, Holger Dyroff and AJ are happy to answer all
your questions in the chat this Thursday at 18:00 CET
(17:00 GMT).

Please check out the information we have so far, many
questions should be answered there:

http://www.novell.com/linux/microsoft/openletter.html
http://www.novell.com/linux/microsoft/faq.html
http://www.novell.com/linux/microsoft/faq_opensource.html
http://www.novell.com/news/press/item.jsp?id=1196

If you can't participate and have a question, please enter
it on the meeting page at:

http://en.opensuse.org/Meetings/Special_Meeting_2006-11-23

btw: we will have a regular meeting as usual on Wednesday,
announcement coming soon.
-- with kind regards, ---------------------------
Martin Lasarsch, Core Services SUSE LINUX GmbH,
Maxfeldstr. 5 90409 Nuremberg
martin.lasarsch@foo.delete.this.suse.de ----------

[ Reply to This | # ]

Deja Vue
Authored by: Night Flyer on Tuesday, November 21 2006 @ 01:19 AM EST
Steve Ballmer's comments, extracted and ordered for effect...
-------------------------
"In a sense you could say anybody who has got Linux in their data center
today sort of has an undisclosed balance sheet liability, because it's not just
Microsoft patents."...

"What we agreed, which is true, is we'll continue to try to grow Windows
share at the expense of Linux."

"...because only a customer who has Suse Linux actually has paid properly
for the use of intellectual property from Microsoft."
-----------------------
Deja Vue from early days of SCO FUD.

Does anyone have the feeling 'here we go again', only now Microsoft is more out
in the open. Also that its lawyers have been studying the IBM vs SCO case, and
they have been busy little bees applying for a barrage of patents to cloud the
water in its corporate favour.

Who in the Linux community (excluding IBM) has deep enough pockets to go
toe-to-toe with Microsoft and find prior art in Linux to show that a Microsoft
patent is invalid in whole or in part?

More significantly, how do you design/write software to get around a patent?
This part is a bit fuzzy in my mind. If methods and concepts can be patented (I
don't think they can - but MS's lawyers can bankrupt anyone who fights them on
this issue in court) now or in the future, I see some real issues for the future
of software development for everyone.

Lastly:
If software patent laws in Europe and the USA diverge, I can see a situation
where Linux may fork as well.

As an aside, how far has the Chinese version of Linux forked from the US
version? Does anyone know? I think this will be an issue.

I have the opinion that China will not tolerate the shinanigans and market
manipulation for profit that Microsoft has been doing throughout the rest of the
world. This means that China will probably adapt Linux or write its own OS for
its own use.

---
Veritas Vincit - Truth Conquers

[ Reply to This | # ]

  • Deja Vue - Authored by: Dark on Tuesday, November 21 2006 @ 06:28 AM EST
    • Deja Vue - Authored by: cybervegan on Tuesday, November 21 2006 @ 06:55 AM EST
      • Deja Vue - Authored by: Dark on Tuesday, November 21 2006 @ 01:26 PM EST
  • Deja Vue - Authored by: Anonymous on Tuesday, November 21 2006 @ 10:31 AM EST
Novell Speaks - Updated
Authored by: Rudisaurus on Tuesday, November 21 2006 @ 01:22 AM EST
We disagree with the recent statements made by Microsoft on the topic of Linux and patents. Importantly, our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property. When we entered the patent cooperation agreement with Microsoft, Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents.
This just begs the question: what on earth did Novell believe the optics were? Just how did they think their customer base -- and the community at large -- were going to take this?

Listening to Balmer during the first day or two after the initial announcement, I was sickeningly reminded of Darl McBride's early emissions on the interests of SCO's customers -- how they were the ones who approached SCO, looking for indemnification against intellectual property violations. It was almost ... word-for-word, really ... say, you don't think Steve actually scripted that for Darl, do you?

[ Reply to This | # ]

Novell Speaks - Updated
Authored by: Anonymous on Tuesday, November 21 2006 @ 01:32 AM EST
Novell's rationale seems to be, "We know there is no Microsoft IP in Linux,
and so we are not afraid of being sued. But our customers don't know there is no
Microsoft IP in Linux, so they are afraid of being sued, and so we are
reassuring them by buying a guarantee from Microsoft that it won't sue
them."

The trouble with this is that purchasing the no-sue guarantee gives the public
the impression that Novell really is afraid there is Microsoft IP in Linux.
Otherwise it could just offer its own indemnity. And the other thing wrong is
that buying the no-sue guarantee helps Microsoft in its FUD campaign.

This makes me think the deal happened because Microsoft was very clever, and
Novell didn't really think things out. So Novell isn't a devil, but it is going
to suffer anyway because the OSS community is so upset with it for helping
Microsoft's FUD campaign.

And I hope someone -- Linux distributer or user -- will sue Microsoft and call
its bluff on the IP violation claims.

[ Reply to This | # ]

Novell Speaks - Updated
Authored by: Anonymous on Tuesday, November 21 2006 @ 01:33 AM EST
With this M$/Novell "deal," it seems to me that the free software
community needs Professor Moglen and Richard Stallman more than ever.

krp

[ Reply to This | # ]

Novell Speaks - Updated
Authored by: Anonymous on Tuesday, November 21 2006 @ 01:36 AM EST
Microsoft says it would like similar deals with other commercial distributers
like Red Hat. But what about non-comercial distributers such as Debian?

[ Reply to This | # ]

linux is not at risk of being killed off
Authored by: skip on Tuesday, November 21 2006 @ 02:04 AM EST
Personally I'd like to see microsoft go ahead and assert some of its patents, I
have a feeling that they would start an avalanche of invalidations. They
probably know this, which is why they are trying to get agreements on the pack
of other contracts.

If they were so confident they'd have asserted these patents a long time ago,
after all if you hold a valid infringed patent, you're within your rights to
seek recompense, are you not? (Ignoring for the moment the broken patent system
that awards patents based on unproven concepts designed solely to be used as
attack tools).

Microsofts patents are like the promise of gold thats always there provided you
never go and look for it.

[ Reply to This | # ]

I'm possibly misreading the metaphor here, but...
Authored by: MindShaper on Tuesday, November 21 2006 @ 02:19 AM EST
"Into a coma", yes, but I seriously doubt that MS wants to bully Linux
"to death". Yes, there are other OSs out there, but Linux is big
enough that MS can offer it up as legitimate competition to the regulators, and
thus avoid further anti-trust action. For MS, nullifying Linux would be a good
thing. Actually destroying it as a presentable artefact to regulators would not
be.
Of course, PJ may have meant that from the start.

---
There's a difference between being free and being unnoticed.

[ Reply to This | # ]

GPL3 is about to sink the entire FOSS ship
Authored by: RTH on Tuesday, November 21 2006 @ 03:25 AM EST
I think MS's cunning and duplicity, combined with RMS's ideological
blinkers, are coralling most of you into one big horrible mistake.
This article is written to that 'most of you'; apologies to other
readers for the negative tone.

Ms has made a huge strategic blunder in admitting the seriousness of
Linux, but that is about to be negated by the mistakes of the FOSS
community. Make no mistake about it, MS's plan to wreck Novell isn't
the end of it by a big margin. They want to wreck and divide the
entire open-source and free software communities, to make sure the
entire model ends up on the scrapheap alongside shareware and being
a commercial software company other than MS. And the supporters of
GPL3 are making all the right noises to give me a horrible feeeling
they will pull it off.

I see where PJ agrees with a poster speculating as to whether the
GPL3 could be made so incompatible with the GPL2 that GPL3 code
could not be run on a GPL2 kernel, and PJ agrees, it's possible. She
doesn't add (which I would have expected her to) that it would be a
suicidal mistake to do so. I see you turning on each other (stick it
to that Linus turncoat) at just the time you need to be as united
and as clear-headed as possible. And also, may I add, when *ALL* of
us need to be prepared to give up mistaken ideas.

Before continuing, I am going to give up my mistake here and now. I
don't believe that programmers have no right to receive payment for
their code (that is, I do believe in intellectual property). As a
consequence, I have long disagreed with the political/religious idea
behind the GPL2, that it is the mechanism for forcing programmers to
give up their intellectual property. But Linus has shown us that the
GPL2 need not come with RMS's ideological baggage, and it can be
used simply to get the code out there and visible where we can all
benefit and we can all enhance and develop it. I hadn't given Linus
that credit, and I admit my error. I think it's time the strident
ones here who have no good words for Linus should admit it too.
Pride at this point will lead to disaster.

Where is this leading? Simple: the GPL3 as it is currently being
constructed is not a further development of any simple
share-and-share-alike philosophy, it is becoming an extremist tool
that is intended to split, not merely commercial from
non-commercial, but the free and open-source communities from each
other. Terrible, terrible, fatal mistake.

Read the GPL2: whatever one might agree or disagree with, it is at
least a statement of a philosophy and an attempt to write an
agreement implementing it. Now read the GPL3: it looks to me like a
collection of specific clauses designed to ban all the specific
events that have happened that the FSF doesn't agree with. One of
the most precious things is the rule of law, and good laws are
written behind a veil of ignorance, without knowing who they will
specifically help or hinder. A good community licence is similar.
My prognosis for the GPL3 is that it will not last anywhere near as
long as GPL2. It will be found to have bugs and unforeseen
consequences, and it will diminish and curtail the free and
open-source software movements.

I see no appreciation of any need for compromise in anything the FSF
or its fans are doing. All I see is criticism of Linus for not
rolling over and playing dead. So I am going to tell you where Linus
is right and where you are wrong, and what *you* need to do if the
GPL3 is to play a positive role instead of being MS's secret time
bomb in your midst.

Before I get to my main point, let me first say that I have no
confidence in the competence of the drafting of GPL3. One simple
example: you can specify certain allowed extra freedoms, and certain
extra restrictions -- *both* of which may be removed by a subsequent
licensee! "I will let you have my code, provided you agree to do X"
"Well gee thanks, I'll agree to do X, now I'll release myself from
the requirement to do X". Don't you see it?? A licence that contains
that provision is either dishonest or incompetent on a gargantuan
scale. Before you all trust so much of your work to it, bear that in
mind.

So now to the key point. If anyone can explain this to me and show
me where I am again wrong, I will be very grateful, but I don't
think I am wrong, so let me put the point as forcefully as possible.
*The problem to be combated is software patents!* I haven't seen a
justified one yet. Programmers are all the time devising some clever
trick to get around some problem. It is what programming is, and the
same clever tricks keep on getting reinvented. If you let the first
person to come up with a clever trick get some monopoly on it (or
even worse, someone comes along late and notices a clever trick that
the inventor forgot to or didn't have the $20,000 to get patented)
then the software industry will be crippled, it's that simple. *No
one* *EVER* goes looking in the patent office's files for solutions
to programming problems! Every single usage of a software patent is
a reinvention, with one proviso: some mathematical algorithms
actually took research to develop (some compression algorithms, for
example). But even here, there is a real question that a prohibitive
patent is the right way to reward the inventor. Patents for
programming methods are always bogus. Always.

But the GPL3 doesn't focus on this real and serious problem. It
wastes time on a completely futile attempt to prevent tivoisation.
This is what Linus primarily disagrees with, as I understand it -
and guess what: He is absolutely correct.

If you don't agree, and if you think I am wrong, then I invite you
to explain why I am wrong, and to focus the discussion, I have some
questions for you.

Firstly, do you think that *all* attempts to ensure that devices can
only run approved programs are illegitimate? If so, then what if a
medical equipment maker put gpl'd software in a cancer radiation
treatment device? Should any doctor or therapist have the ability to
replace the software with that of their own design? As background,
note that it is incredibly hard to anticipate all the ways such
equipment can go wrong. Look up the THERAC-25 disaster for one
example. So, should anyone with such a device be able to replace the
code and use it on patients? Don't answer until you look up
THERAC-25.

The same question goes for a car maker putting FOSS in a car's
braking or engine control assembly. How long do you think it would
be before engine explosions are happening all over the highways,
because someone has published some 'souped up' code that takes
engines outside their design parameters?

Ditto rocket engines, all other safety control code, etc. etc.

Eithe you do or you do not agree that the above are legitimate cases
for preventing the running of modified code.

Okay, so, if you think it is not okay to prevent modified code in
these cases, how do you think designers of these systems can
possibly make use of FOSS code? And if they don't use FOSS code,
what code, or more precisely, WHOSE code, will they use, and do you
now feel happier to be treated for cancer, or fly on a plane,
controlled by commercial closed sourse code? What use is FOSS if it
is not available for the most critical applications? Is it now just
a toy or only good for second-string applications?

Alternatively, if you think is is okay to prevent modified code in
these cases, please tell me how one words an anti-tivo clause such
that it allows the above but stops tivo? Seriously. I don't think
you can do it. Actually, I don't think you can design an effective
anti-tivo clause at all, but in one sense that is beside the point.
It does mean, though, that the only purpose anti-tivo serves is to
fud legitimate users of FOSS into going with closed code instead. I
don't think there are sound answers to these questions, but I am
prepared to be shown my error, if indeed there is one. In other
words, I think that the anti-tivo clause is ineffective and damaging
to the uptake of FOSS. It might be much more damaging than you
anticipate. That's the danger of designing rules with particular
cases in mind rather than general principles. This is why I said at
the start that RMS's ideological fixe is synergising with MS's
designs, in MS's favour. Linus has tried to explain that one to you,
but for whatever reason, no one seemed to get the point.

Although it is less serious, I think the clause about web code is
similarly ill-conceived. "Toughen up the licence!" Sure, but every
extra restriction is fewer adopters, fewer users, more unease in
commercial boardrooms, more power to the monopolist.

Now I am going to anticipate the response to this post, and I
apologise for putting words in people's mouths; I do so only in the
hope that you prove me wrong by giving me better answers than the
following. I think there will be no admission that anti-tivo is a
mistake; there will be lots of words that sound stirring, but avoid
answering the specific scenarios and questions I have posed here.
And definitely, I think the FSF will go right ahead with GPL3
without substantial change, except in regard to more specific
clauses to address the Novell fiasco. Boy would I like to be proved
wrong on that one, but I think RMS is about to pull defeat from the
jaws of victory and grant Billy boy another 20 years in control of
the industry.

[ Reply to This | # ]

So I was right.
Authored by: cybervegan on Tuesday, November 21 2006 @ 04:37 AM EST
They didn't buy what they thought they bought.

It's even more worrying that Novell got duped into the patent deal like this -
and more worrying still that they either didn't anticipate the way microsoft
would use it in the way they did, or knew and didn't care. I hope it's the
former, but that doesn't absolve them of responsibility.

It still stinks.

-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 | # ]

A serious question for Novell
Authored by: Anonymous on Tuesday, November 21 2006 @ 04:44 AM EST

Novell says it did not admit that any Microsoft patents or copyrights are infringed by Linux.

In that case, what is the justification for paying a per-copy fee to Microsoft for each copy of SuSE sold? What exactly is that per-copy fee for?

Novell seems to think we are all stupid.

Microsoft, of course, has brilliantly outmaneuvered Novell's management. It paid a tiny amount of money (from its perspective) and in return got justification for statements like Ballmer's "only a customer who has Suse Linux actually has paid properly for the use of intellectual property from Microsoft."

Ballmer can back that up. After all, every SuSE buyer will have paid a fee to Microsoft, collected by Novell and passed along to Microsoft. If that's not for "intellectual property from Microsoft", then what exactly is it for?

[ Reply to This | # ]

A little bit of sanity
Authored by: Anonymous on Tuesday, November 21 2006 @ 05:43 AM EST
can be found here

[ Reply to This | # ]

Novell Speaks - Updated
Authored by: Anonymous on Tuesday, November 21 2006 @ 07:12 AM EST
Isn't is just amazing what $50,000,000,000 can buy?
It's just another example of greedy US behaviour.

:)

[ Reply to This | # ]

WADR
Authored by: mmarprelate on Tuesday, November 21 2006 @ 07:23 AM EST
With All Due Respect, I still wonder if Microsoft isn't the sucker here. Novell
has staggered from one strategy to another over the past ten years, but OTOH it
has consistently been a very cagy legal operator. Sure, MS has $28B to toss
around, but you can only park so many lawyers in a court room. And some fairly
small outfits have beaten MS into settlements.

MS recognizes that a whole generation of techies have abandoned it and jumped
into Open Source. Their big corporate customers are demanding that they develop
some kind of interoperability with Linux. Their inept proxy, SCO, has
demonstrated the profound risks of using the court system in this war. If you
start suing users, any users, then your customers depart in droves. If you try
suing the major vendors, they mop the floor with you.

Certainly, MS went into this arrangement with Novell seeking advantage. And
they'll have a couple years more to spread FUD. But look at what else they have
done, they have legitimized a path (Linux, Mono, Samba) that drives right to the
heart of their business. The only question is whether Novell has the nerve and
the cleverness to take advantage of that. IBM certainly does. IBM has been
looking for this kind of an opening against MS since the OS/2 backstabbing.
(The elephant has a LONG corporate memory). Just suppose now, if IBM finally
did what many have expected them to do for the past ten years and bought
Novell.

Unquestionably there are some risks for Novell here. There always is in war.
But there is also a profound opportunity to sweep the board. I shouldn't worry
to much about the FOSS community. It has proven extremely capable of protecting
its interests. I suspect that the same model that has proven so successful in
software development would show the same kind of success in the legal realm.

This is a pragmatic view. I'm a pragmatic fellow. I've watched this industry
for thirty years and there is REALLY nothing new in the trends and the way we do
business.

Incidentally, an interesting article this morning with another contrarian view:

http://www.linux-watch.com/news/NS9955615279.html

Thanks to all.

MM

[ Reply to This | # ]

Novell Speaks - Updated
Authored by: Anonymous on Tuesday, November 21 2006 @ 07:59 AM EST

I think the really telling part is in M icrsoft's statement:

Microsoft and Novell have agreed to disagree on whether certain open source offerings infringe Microsoft patents and whether certain Microsoft offerings infringe Novell patents.

Is it possible that Novell had some patent dirt on Microsoft? Simon Phipps at Sun suggests as much:

The word on the street is that Novell had some deep patent dirt on Microsoft and went proudly to demand their bounty. Negotiations proceeded over several months, and the result [...] was [the] shindig in San Francisco.

Could Novell have just agreed to the small-ish payment so they could get the large payment from Microsoft? And at the same time made a few jittery pointy haired bosses get a warm fuzzy feeling by seeing a headline in the WSJ that Microsoft said they like Linux?

The SEC filings say Microsoft is paying Novell US$108M for the patent part of the agreement, as an upfront payment for the five years, while Novell is paying Microsoft US$40M over five years. If you assume a 5% interest rate, the Microsoft payments are worth about US$120M over five years. This is a 3 to 1 ratio. Something suggests that the US$40M might be the payment required to get the US$80M net.

[ Reply to This | # ]

CONSUMERS LAW in many countries -- by werner
Authored by: Anonymous on Tuesday, November 21 2006 @ 08:30 AM EST
Consummers Legislation -- The most european legislations,
and also these of other countries (such, like Brazil with
its law 8098), apply the modern theory of factual, total
and solidary(collective) responsibility in their
consumer legislation. Thats a kind of reducing
successively responsibilities to smaller groups which
are 'nearer' the fault. That increase a little the number
of sues (as the practics show, only insignificantely) but
is much more just than any other solution.

In frent of the customer, are responsible all 'producers'
collectively, for the pure fact (independently of their
fault) of any problem, inclusively for lack of
informations, wrong propaganda or whatever. Producer is
anybody whom participate anyhow on production, delivering,
propaganda, profits. Especially there are completely
irrelevant any excusions w.r.t. whom of the producers have
the fault for what; how is the responsibility among them -
such like, contracts among them - etc, as naturally the
customer dont know these relations only among them and
easily fakeable by the producers in any customer sue. And
this also excludes other abuses such as the accumulation
of the rights by one or some of the firmas (f.ex. receive
payments) but at the same time divide and scatter
infinitively their obligations (f.ex., in case of
reclamations by the customer). All ways to escape are
closed by general prohibitions to violate the spirit of
the law, but also (beside of these material laws) by
processual law that the consummers jurisdiction
can 'create law'/jurisprudence by the equality principle,
observing the social function of commerce.

The customer can take one, some, or all of them - as he
want - and sue them for the whole fullfilling of the
propaganda or contract, damage, etc. Afterwards, its a
problem among them to regress them against thatone who
is 'nearer' the fault; in this regression then them
are 'customers' relatively to the sued ones. In the
practics, this dont give endless processes, but in
opposite to what happens otherwise (i.e. that the
producers keep together, and the consummer seldom would
get his rights), already in the process by the
(end-)customer/consummer these produtors dont keep
together but are normally each against the other, exhibite
them contracts and responsibilities - normally in vain in
that first process as them responsibility is
objective/factual because of their mere participation
as 'producer' but the regression among them then goes
quickly.

Under these legislations, the M$ / Novell deal (trying to
create, imply, or 'protect'/'indemnize' the end-users by
mutual patent violations or whatever damages between
producers/profiters) is illegal ad initium - it's even an
absurdity. But independently, even if happening, any
consumer or user of Linux win immediately the process,
reducing the responsibility to the producers among them.

This is the natural and correct treatment of such
absurdities. And the occurence of this M$/Novell deal -
inclusive what will violate other state's public and
souvereignity services and rights (development and use of
a free, independent, transparent OP sistem and progs)
should bring governments of other countries to adopt these
principles also.

[ Reply to This | # ]

    The context everyone is forgetting
    Authored by: lm on Tuesday, November 21 2006 @ 08:34 AM EST
    Sun Microsystems did exactly the same thing in 2004, except it took a lawsuit to get the settlement out of Microsoft.
    Under the 10-year pact with Microsoft, the software company will pay Sun $700 million to resolve antitrust issues and $900 million to resolve patent issues, the companies said. The companies will pay royalties to use each other's technology; Microsoft is paying $350 million now, with Sun to make payments when it incorporates technology later. [Sun settles with Microsoft, announces layoffs]
    Note especially this bit: The goal of the technical collaboration between Sun and Microsoft is to improve interoperability between the companies' respective products, according to Sun.

    I think it is tremendously inconsistent to be pounding Novell for this agreement and not pound Sun or any of the other many companies that have do-not-sue covenenants over patents. The only difference as far as I can tell between this most recent deal between Novell and Microsoft is the extension to end users.

    The most likely scenario is that Novell is sitting on software patents (my guess is that it has something to do with Active Directory) and floated a feeler into Microsoft that they were considering a lawsuit. In return, I'm guessing that Microsoft offered to settle right up front rather than go through yet another lawsuit. On the agreement itself, there is probably a meeting of the minds. The only disagreement comes from the spin. Microsoft likes to construct deals so that they can put a their own unique spin. Like when they settled with Apple quite some time ago, instead of a simple cash payment, Microsoft bought 150M of non-voting Apple stock. On its balance sheet, Microsoft lost no money on this settlement so that they could spin to investors that they lost nothing. They're doing the same thing here by requiring that Novell return the licensing deal.

    All the people out there taking a hard line against Novell ought to be taking the same hard line against Sun, IBM and Apple (just to name a few of the companies that have similar deals with Microsoft).

    [ Reply to This | # ]

    Novell misunderstood
    Authored by: Anonymous on Tuesday, November 21 2006 @ 08:41 AM EST

    From Novells's open letter we learn that

    Customers told us that they wanted Linux and Windows to work together in their data centers...
    I'm sure your customers would have chosen Windows in the first place if they meant for you to go about it the way you did!

    ...so we agreed to develop new technologies and and standards in server management, virtualization and document file format compatibility
    Pray explain how signing the covenant with Microsoft constitutes "developing new technologies and standards"???

    The interoperability you claim your customers want is achieved by working with and adhering to open and established standards. How signing on with Microsoft is going to achieve that, given that that particular company is not exactly known for their ability to tolerate anybody else in their marketspace and uses only half-open standards to maintain their king-of-the-hill position, is beyond me.

    [ Reply to This | # ]

    Solipsistic
    Authored by: Anonymous on Tuesday, November 21 2006 @ 08:45 AM EST
    I knew "solipsism", which is a philosophy that the self and God are
    the only two things that exist. Everything else which one seems to see,
    including other people, is an mechanistic illusion created by God from behind
    the scenes; hence "solipsist". It is a plausible philosophy,
    impossible to disprove.

    I have never before heard "solipsistic" (it's not in the Concise
    Oxford I have to hand) which the poster here has used to mean
    "selfish". Solipism is a philosophy most likely to be held
    instinctively and unconciously by people of introspective nature. In fact such
    people are not particularly likely to be selfish, even if they are not likely to
    be charity fund-raisers either. I think the "selfish" meaning is
    stretching things too far from the original metaphysical context.

    [ Reply to This | # ]

    • Not so much selfish - Authored by: Anonymous on Tuesday, November 21 2006 @ 09:15 AM EST
    • Solipsistic - Authored by: Anonymous on Tuesday, November 21 2006 @ 03:38 PM EST
    vaccination?
    Authored by: webster on Tuesday, November 21 2006 @ 09:27 AM EST
    .
    Anyone sued by M$ for a patent can buy a copy of SuSe and let the court sort it
    out. They have the covenent for the patent and the GPL for the copying to
    themselves. Maybe corporations should buy one copy now and immunize themselves.
    Should M$/Novell roll with a tarbaby wearing a GPL logo on its diaper?

    ---
    webster

    [ Reply to This | # ]

    Vista - vote with your wallet
    Authored by: Anonymous on Tuesday, November 21 2006 @ 09:28 AM EST
    It seems to me, that the only effective thing the majority of us can do, is to
    strike where it hurts our favorite 2x convicted monopolist the most: in their
    bank account.

    A lot of us who use or support Linux in some amount, are very technical-minded.
    Other, not-so-technical people, rely on us for IT buying advice, and/or as their
    personal technical support.

    Do not advise Vista. Tell them Windows XP is "good enough" aside from
    being much cheaper, both licence- and hardwarewise. If they really want to
    'upgrade', advise them to try Apple, or Linux if you want, just make sure not to
    push them.

    Do not speak of Vista. Every mention of Vista, positive or negative, serves to
    increase perception of it. We do not want to increase the perception of it. As
    far as you are concerned, Vista does not even exist. If you have to mention
    Vista, mention Apple and/or Linux in the same breath.

    Do not support Vista. For people telling you they want to get Vista, advise them
    against it. Do not support them. Microsoft has made it abundantly clear that
    they *just* will not play nice so we should not compromise. Supporting those
    people, innocent as it may be, indirectly supports the predator MS wants to be.

    Do not buy Vista. Try Linux, get a Mac if you want. Everything is better than
    implicitly agreeing to MS's bullying tactics by supporting them financially.

    Do not buy MS Office. Instead install OpenOffice. When people tell you they want
    MS Office instead, the price difference should make for a convincing argument.

    Do not buy/use/recommend Windows-based hosting. Use Linux servers and hosting
    plans wherever, whenever you practically can.

    Yes, these are harsh words. But this is war and not one we started. We must
    fight with the weapons we have, being money and influence, and target the
    weakest point in the dinosaur's skin: their profit margins.

    [ Reply to This | # ]

    Why did they do it? And an open comment to ALL Novell stockholders
    Authored by: rc on Tuesday, November 21 2006 @ 09:39 AM EST
    PJ said:
    What in the world was this deal about then?

    I respond:

    Well, to me its obvious - M$ knows that Novell could CREAM them with their patents, and now they just TOOK OUT one of the biggest things standing in the way of their being able to go after people with their bad patents, knowing that they have made it impossible for Novell to 'defend open source' with their patent portfolio.

    I have the following statement for all holders of Novell stock:

    Either you stockholders need to get Novell management to cancel the patent agreement part of the M$ 'agreement', OR you need new top-level management at Novell. Otherwise Novell is toast, and you will lose all your value.

    Can you say fiscal irresponsibility? I thought you could.

    RC, of GrokLaw

    Just IMHO, of course, but I'm 99% certain that I'm right, and if I'm wrong Novell STILL won't make much, if anything, monetary out of this stupid agreement.

    ---
    rc

    [ Reply to This | # ]

    The whole shebang or my perspective.
    Authored by: bsaxberg on Tuesday, November 21 2006 @ 09:40 AM EST
    It has been a while since I have last posted, but I felt inclined.

    I'm not sure where all of this is going, I almost feel I must wear a tin foil
    hat just to write this.

    Was this deal consummated by M$ for the shear fact that their SCOG proxy is
    going to the cleaners? I call them a proxy as they have clearly defined the
    Open source method and free software as the enemy. Linux in particular clearly
    in their cross-hairs. They can not fathom a world where they are not number 1
    and controlling all the money. I almost think about running a BSD flavor as I
    assume even M$ isn't dumb enough to challenge that license. I see the world
    moving to Web 2.0 (software as services). The servers will run Linux and it
    won't matter what OS you run as all your applications will just be in a web
    browser. That to me makes M$ pretty damned expendable, IMHO. The troubling
    thing I see from where I sit (Only IT person in a manufacturing company). ALL
    of our tools are written for windows, it seems none of our vendors even want to
    think about Web based stuff or for something that runs on Linux. As business
    and markets adjust to new technology, those that have to cut costs and
    streamline will either make M$ come back to earth or they will adapt. I am
    already in the process of re-writing some of my applications using Open Source
    and the web. Why shouldn't I? If it works just as good or better and the fact
    that most of my stuff is at no cost also, my boss more than likes it. I expand
    the efficiently and spread of information at a no hard cash cost to the company.
    That doesn't mean I wouldn't spend money. M$ can't hold a candle to that. I
    won't be buying any new desktops anytime soon. I will come to a hard decision
    of what to do with Vista if and when I must use it.

    Ok, enough ranting. My point being that the battle is just beginning. With how
    business and industry are shaping up M$ won't disappear for a long time, but
    neither will Open Source Software. I trust OSS much more than closed.

    Brian

    [ Reply to This | # ]

    Red Herring, Strawmen, and fake grass oh my.
    Authored by: Rascalson on Tuesday, November 21 2006 @ 10:23 AM EST
    The levels in here of the three things in my subject line are unbelievable.

    [ Reply to This | # ]

    Moglen misquoted by Reuters
    Authored by: nb on Tuesday, November 21 2006 @ 10:45 AM EST
    Reuters quotes Moglen with a statement which makes him sound as if he were brainlessly spouting Microsoft's FUD: "Either customers desert Red Hat to go to Novell, to get safety, or Red Hat will be forced into a similar deal with Microsoft," which I'm sure is far from what Moglen would actually intend to communicate.

    Of course, since this is Reuters, this misquotation is all over the world's media now.

    Is there anything one can do against this kind of misquotation?

    [ Reply to This | # ]

    MIcrosoft Speaks - Updated
    Authored by: rsteinmetz70112 on Tuesday, November 21 2006 @ 10:53 AM EST
    I wonder if Red Hat is considering a suit against Microsoft for damaging their
    business?

    As a Monopoly, Microsoft must be careful about what it says and since they have
    now said, more than once, that they think Linux infringes on their patents, the
    only way I can see to clear it up would be for someone to force them to put up
    or shut up.

    I don't think Microsoft will sue anyone, they will simply allow their claims to
    hang there without support.

    ---
    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 | # ]

    The place to post questions and meeting time has changed.
    Authored by: Anonymous on Tuesday, November 21 2006 @ 11:42 AM EST
    The meeting place and place to post questions to Novell has changed.

    [ Reply to This | # ]

    Novell Speaks - Updated
    Authored by: Anonymous on Tuesday, November 21 2006 @ 12:18 PM EST
    If Microsoft promises not to sue Novell's customers, can't Novell simply state
    that they consider all users and contributers of software covered under the GNU
    General Public License (all versions), the GNU Lesser General Public License
    (all versions), and etc, to be their customers?

    [ Reply to This | # ]

    Happy Thanksgiving and God Bless you PJ for all your hard work (n/t)
    Authored by: Anonymous on Tuesday, November 21 2006 @ 12:44 PM EST

    [ Reply to This | # ]

    Novell Speaks - Updated
    Authored by: Anonymous on Tuesday, November 21 2006 @ 12:54 PM EST
    So can anyone tell me how this is any different than SCO?

    Excluding the obvious - that Microsoft has much deeper pockets to fund
    litigation, this seems fundamentally no different.

    [ Reply to This | # ]

    Speculative Fantasy
    Authored by: Anonymous on Tuesday, November 21 2006 @ 01:43 PM EST
    OK, this is probably silly but .......

    Vista has been 5 or 6 years in the making. It began with big promises of a new
    file system and other major changes. After all this time and work, it comes
    down to a new, resource intensive, user interface, some bug fixes and some new
    security features. According to most reports the latter are likely to irritate
    both partners and customers. If I remember correctly, they all but admitted
    that the new FS was not possible and would rather be part of the next release of
    SQL Server. So after all this time, money and hype it still falls far short of
    promises going back more than 10 years, and short of the current Mac OS.

    All of this failure falls squarely at the feet of the chief software architect
    who for years has used Windows as the chief marketing tool to incorporate other
    businesses into the MS Empire. But the inevitable consequence is that Windows
    has become so convoluted, so hopelessly spahgetti like, so difficult to modify
    that it may be nearly dead.

    Could MS be aiming to try to rewrite this again or could they possibly choke
    back their arrogance, greed and contempt for the rest of us and instead create a
    MS Windows desktop for Linux? With Mono they have a start on the development
    environment. With a desktop, they could still control what works and doesn't
    with their version of desktop Linux.

    While the former chief software architect may not be all that great at software
    architecture he is undisputably the master of what MS calls
    "strategizing". They rarely do anything for just one reason. On the
    other hand, I've been called paranoid before.

    rhf

    [ Reply to This | # ]

    A real counterpoint by a truly pro-linux journalist
    Authored by: Anonymous on Tuesday, November 21 2006 @ 01:46 PM EST

    Here's an article from someone with a true-blue pro-FOSS/Linux background

    Basically, he's saying the same thing that many here have said, only to be called 'trolls'.
    Linux-Watch: Novell and the Brave New Open Source World

    Maybe there should be some *real* digging for the truth here for a change.

    [ Reply to This | # ]

    I'd respect Ron Hovsepian if he were honest
    Authored by: Anonymous on Tuesday, November 21 2006 @ 01:56 PM EST
    It's pretty obvious what happened - Microsoft offered a quarter to a half a
    billion dollars; and Novell has a new CEO who thought that would look pretty on
    the next investor con-call.

    If Hovsepian said

    - "In one contract I closed more Linux revenue at a higher profit margin
    than we make in most of a year; so it was a good business decision" or

    - "Oracle's too strong on the lobbying side in the federal government
    business for us to compete with; so we needed someone like Microsoft to partner
    with there" or

    - "Yes, there is Microsoft IP there - here are the patent numbers so you
    can see that we really are protecting you"

    I would have believed him.

    But with this statement he pretty much exposes himself as both not understanding
    the licensing/legal issues around the products he sells as well as the needs of
    his customers.

    Could they have picked a worse CEO?

    [ Reply to This | # ]

    What kind of "IP bridge?"
    Authored by: jmhill on Tuesday, November 21 2006 @ 02:00 PM EST
    Just read the bit where Ballmer describes an "IP bridge" between M$OFT
    and Novell and then Ballmer's comment about Novell customers being paid up for
    using M$OFT IP hit me.

    I'd like to know if anyone is planning on being on the receiving end for M$OFT
    IP. The idea that M$OFT writes code for Novell to provide
    "compatibility" seems fishy to me, but some business folk might see
    the presence of M$OFT IP as providing a competitive advantage.

    I'd say however that M$OFT IP is viral and causes a serious competitive
    weakness.

    [ Reply to This | # ]

    Distros
    Authored by: bradley13 on Tuesday, November 21 2006 @ 02:17 PM EST
    An interesting thread - and why not on Groklaw?

    Everyone seems happy with Ubuntu/Kubuntu. But it really does depend on your
    hardware - for me, it hangs during install, bye bye, nothing to be done. That
    turned me off, and I haven't yet tried it on a different machine - still using
    SuSE 9.2 for the moment.

    I am very happy with SuSE 9.2, including multilingual support. But I only use
    European languages, and can't say how it does with Japanese. And, yes, YaST is
    not quite what it ought to be - install a few packages manually, and it yacks
    forever about missing dependencies and wanting to downgrade the packages you
    installed...

    [ Reply to This | # ]

    Why Mono is important
    Authored by: Michelle Readman on Tuesday, November 21 2006 @ 02:24 PM EST
    Singularity - a .net operating system (basically)

    I've seen some people posting that MS want to use mono to help them break into linux, and others talking about mono helping to get MS more .net coders.

    Take a look at vista, and you'll see that to access (through their published APIs, at least) the best of the new visual features, you'll need to use .net.

    Somehow I doubt that singularity is intended to just be an academic's toy. They will be looking for some return, and the design of it deals with some of the issues that people present at the moment about MS's products.

    Microsoft's been in business since 1975. Odds are, they're playing the long term game here.

    [ Reply to This | # ]

    • try debugging - Authored by: Anonymous on Tuesday, November 21 2006 @ 02:32 PM EST
    Novell Speaks - Updated
    Authored by: Anonymous on Wednesday, November 22 2006 @ 04:09 PM EST
    I'll bet its about Mono.

    [ Reply to This | # ]

    Orwellian Newspeak
    Authored by: PJ on Thursday, November 23 2006 @ 07:46 PM EST
    You need to read our comments policy. In fact,
    could all you new astroturfers please read Groklaw's
    comments policy? Thanks. It's wasting both of
    our time, because when you violate it, your
    work gets deleted, and I have to waste time doing
    it.

    [ Reply to This | # ]

    Novell cancels Hula, (Exchange replacement)
    Authored by: Anonymous on Tuesday, November 28 2006 @ 06:57 PM EST
    Isn't it interesting how things turn out:

    http://forge.novell.com/pipermail/hula-general/2006-November/002084.html

    [ Reply to This | # ]

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