decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.

Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal

User Functions



Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

Red Hat's Mark Webbink Responds to Novell's Letter to the Community
Tuesday, November 21 2006 @ 06:14 PM EST

Red Hat Deputy General Counsel has now responded to Novell's letter to the community, and I'd say the man is from Missouri. He doesn't accept their list of excuses, and he says "the deal they entered can best be understood as appeasement."
Novell wants us to believe their position on open source and patents hasn't changed. I'm having a hard time buying that argument.

I'll publish the entire statement, so you can easily have access to it, because he responds to each point on Novell's list, and so you can compare it also to OIN's statement, as well as to Novell's letter.


Peace In Our Time

As a history buff, reading the Novell and Microsoft open letters this morning conjured up the image of British Prime Minister Neville Chamberlain standing in front of 10 Downing Street in 1938 and declaring: "My good friends this is the second time in our history that there has come back from Germany to Downing Street peace with honor. I believe it is peace in our time."

We all know how well that turned out.

Before someone suggests that I am comparing Microsoft or Novell to either of the parties to that 1938 agreement, that's not the point. The point is appeasement, specifically the Merriam-Webster definition of "appease": "to buy off (an aggressor) by concessions usually at the sacrifice of principles." One simply has to ask of Ron Hovsepian, Novell CEO, "Ron, what were you thinking?"

Microsoft's principle objective in this exercise was to get someone ostensibly from the free and open source software community to acknowledge the tacit validity of Microsoft's patent portfolio. And despite Hovsepian's protestations to the contrary, Microsoft has now obtained that in the form of Novell. But at what cost to Novell?

Hovsepian says the deal was all about interoperability and joint sales agreements. But interoperability is a two-way street, and interoperability in the arena of virtualization will only occur when Microsoft refrains from trying to contractually control the behavior and choice of their customers in Microsoft's Vista licensing agreements.

Hovsepian later appeals to the free and open source community to forgive this action based on all of the other actions Novell has taken in fighting software patents, but for the most part his itemized list just doesn't hold together.

Novell wants us to believe their position on open source and patents hasn't changed. I'm having a hard time buying that argument.

Mark Webbink


Red Hat's Mark Webbink Responds to Novell's Letter to the Community | 150 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: entre on Tuesday, November 21 2006 @ 06:43 PM EST
if any

[ Reply to This | # ]

OT Here, please
Authored by: overshoot on Tuesday, November 21 2006 @ 06:50 PM EST
And please preview.

[ Reply to This | # ]

Red Hat's Mark Webbink Responds to Novell's Letter to the Community
Authored by: Anonymous on Tuesday, November 21 2006 @ 06:56 PM EST
The only difficulty I have, is in quoting history and
British politicians one might easily say of Red Hat "well,
they would say that, wouldn't they?" a la, Mandy
Rice-Davies. I've heard a lot of people shout a lot of
stuff about all this. Never mind either Red Hat or Novell,
come on Microsoft, let's get the issue in the Courtroom -
sue somebody or shut up

[ Reply to This | # ]

Hardly an unbiased assessment
Authored by: Anonymous on Tuesday, November 21 2006 @ 07:01 PM EST
It would seem to me he's doing some FUD-slinging of his own. But, as one of
Novell's major competitors in the Linux space, who'd expect any less?

My curiosity is, how is the patent aspect different than indemnification? You
don't see Novell, Red Hat, or anyone else claiming to have that apply to
anything but what they distribute, and not to anyone else's customers, do you?
Why vilify Novell for trying to protect their customers in a more proactive way?
No other distribution is in a worse off position or more exposed than they were

Given, software patents are a blight on the software development space, but
they're a business reality for now, and Novell's done more than most
distributions to assert their protection in that space. Do you really think Red
Hat's comparative spitwad of an arsenal would be helpful? As so many have
pointed out, it's virtually impossible to write any nontrivial software without
unintentionally overlapping dozens if not hundreds of supposed patents. Talk
about stifled innovation. I do applaud Novell, Red Hat, and all the others that
can see that and are doing something to solve it.

Microsoft is clearly trying to spin for themselves, but it's very unlikely
they'd step in that minefield. It's clear that their software is at least as
likely, very likely more so due to its closed nature, of infringing countless
numbers of patents. Novell is not doing anything at the expense of anyone but
Microsoft, here, and is trying to rise the Linux tide for all ships. Indeed,
give Novell a break, and some credit for actually doing something to solve the
needs of their customers who want to run their business with a little less

[ Reply to This | # ]

Red Hat's Mark Webbink Responds to Novell's Letter to the Community
Authored by: kozmcrae on Tuesday, November 21 2006 @ 07:01 PM EST
Thanks Mark. The "Peace in our time" analogy is perfect. So if
Novell continues to follow history then Ron Hovsepian will soon get the boot and
a short, portly, whiskey-drinking cigar-smoking CEO will take his place and kick
Microsoft's butt. After some difficult times of course.


Darl, have you been lying to us? I'm a frayed knot.

[ Reply to This | # ]

Eben Moglen's Plan - OT but not quite
Authored by: PolR on Tuesday, November 21 2006 @ 07:03 PM EST
In a newspick we saw Eben Moglen's plan to handle Novell. Everyone should read it because if will prevent a few misguided comments. The important part is:

"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.

So no litigation is expected. Novell can withdraw of the deal honorably because Microsoft will have to take the initiative. All that will be left is for Novell to make amends and win back its reputation. If it works as planned this would be the best outcome I can imagine.

[ Reply to This | # ]

Red Hat's Mark Webbink Responds to Novell's Letter to the Community
Authored by: Anonymous on Tuesday, November 21 2006 @ 07:08 PM EST
You say "Microsoft's principle objective in this exercise..."

I think that is giving them too much credit. I think that Microsoft was totally


Or did you mean "principal"?

[ Reply to This | # ]

Does Microsoft have unclean hands?
Authored by: Anonymous on Tuesday, November 21 2006 @ 07:53 PM EST
Unclean hands is a doctrine which prevents plaintiffs from getting an equitable remedy if they have behaved in a certin way. In other words, Microsoft might be able to collect actual damages but not get an injuncton or punitive damages. (I suspect that the amount of the damages might not be very much.)

Here's a quote from a previous Groklaw article: "Further by their actions they are saying: 'We want people to pay. We don't want them to correct our error by telling what is the violated code so they can stop using it. We will not give them an opportunity to mitigate damages any sooner than necessary.' In the old terms of equity court, they do not have 'clean hands." A Criminal Lawyer's Take ...

Microsoft should have to put up or shut up.

[ Reply to This | # ]

Beware Novell's interoperability
Authored by: Anonymous on Tuesday, November 21 2006 @ 07:59 PM EST
Even if the deal is everything Novell says it is - it still sucks for their
customers. If I read it right, all it says is that Microsoft will delay suing
them for a few years while Novell gets to be anwhere from careless to malicious
about patent encumbering their Linux, Mono, and OpenOffice versions ---
afterwhich Microsoft can come after the almost certainly corrupted (since
otherwise they wouldn't have had to make such a deal at all) Linux Novell's

Did I read that right?

[ Reply to This | # ]

Red Hat's Mark Webbink Responds to Novell's Letter to the Community
Authored by: Anonymous on Tuesday, November 21 2006 @ 08:11 PM EST
One point that I have not seen raised. This appears to be
a patent swap, Microsoft won't sue (what everyone is
talking about) and Novell won't sue (what nobody seems to
want to talk about)

The money went from MSFT to NOVL. not the other way

Would this not imply that MSFT is possibly infringing on
NOVL patents?

If that is the case (seems somewhat plausible, as IIRC
NOVL has many software patents.) what could be the fall

[ Reply to This | # ]

Novell, if you're reading this and want my business
Authored by: Anonymous on Tuesday, November 21 2006 @ 08:22 PM EST
Novell, if you're reading this and want my business; you'd better start selling
a Debian or Red Hat based version of Linux that is explicitly *NOT* covered by
your Microsoft-IP-contamination-agreement.

I've liked doing business with you in the past - but the main reason any of our
customers want Linux is the freedom of the IP nightmares they get into with
proprietary code (BSA audits, etc). With your agreement with Microsoft to not
care for a few years about if your code is contaminated, after which it's open
season for Microsoft on your customers (which, really, is what it says) - is
worse than no agreement at all.

If you could sell me a different (and presumably safer from IP contamination
because their packagers will remain vigilant) Linux that SuSE I'd be happy to
work with you as I had in the past. If not, you're scarier than
SCO-Source-licensed Linux and I'll have to stay as far away as possible.

[ Reply to This | # ]

Could users sue?
Authored by: Anonymous on Tuesday, November 21 2006 @ 08:35 PM EST
Could users sue Microsoft for trying to scare them into switching off of
non-Novell Linux?

[ Reply to This | # ]

Red Hat's Mark Webbink Responds to Novell's Letter to the Community
Authored by: stomfi on Tuesday, November 21 2006 @ 08:53 PM EST
Linux is getting more publicity.

The flak between RedHat and Novell must be read while considering that they are
in competition for the same market.

Novell states quite clearly that the covenant wasn't about patents in SUSE, and
was about interoperability software.

IBM doesn't see patents as an issue, doesn't think there are any MS patents in
Linux, and welcomes any agreements on Linux/MS interoperability, as this would
make sales of their SUSE and RedHat Linux servers more attractive to customers.

They seem to expect that spin offs from the Novell deal would benefit Linux as a

MS as we know, uses any chance at FUD rather than product superiority as their
prime marketing tool against competitors, but what they have stated is that
Linux is now a force to be reckoned with, and that they expect interoperability
deals to help their own sales.

One must not forget that it was IBM's and DEC's failures to encompass
interoperability with UNIX that was a prime cause of their demise from the
position of market leadership.

Comparing OpenSUSE with Fedora in my refurbishing workshop, OpenSUSE is more
stable and runs more peripherals on more hardware, but Ubuntu is a better new
user desktop choice than either, on P4s and up, and Vector takes the crown on
P2s and 3s both mainly because of their easy package management and secondly,

Let Novell and RedHat share the large corporate US market with IBM, SUN, HP and
Microsoft, and the rest of us can proliferate all the other unfettered flavours
of Linux into Europe, Asia, South America, Africa, Oceanania and to small
business and the poor without any real fear, uncertaincy, and doubt about MS
software patents.

[ Reply to This | # ]

Novell is being disengenuous, at best
Authored by: archanoid on Tuesday, November 21 2006 @ 09:25 PM EST
According to an article I read about this:
"We disagree with the recent statements made by Microsoft on the topic of Linux and patents ... Our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property," Hovsepian said in the letter.
The simple fact is, actions speak louder than words and Hovsepian has to know this. Novell's actions quite clearly:
  1. enable the amping up of Microsoft's FUD campaign (as proven by Ballmer's statements so quickly after the ink was dry),
  2. split the Linux community into "safe" and "unsafe" camps (*ahem* divide and conquer, anyone?!),
  3. tacitly acknowledge the need for patent protection from Microsoft, and
  4. speak very plainly of their motives, words notwithstanding.

[ Reply to This | # ]

Red Hat's Mark Webbink Responds to Novell's Letter to the Community
Authored by: tredman on Tuesday, November 21 2006 @ 11:50 PM EST
I don't think it matters if Microsoft paid 400 million for a bucket of
lollypops. In marketing and public relations, perception is everything, and
while the non-public details may be innocuous and above board, Microsoft is
using this purely as a PR campaign to fight the rising popularity of Linux. As
much time as Microsoft spends in courtroom across the world, if they had
anything infringing to bring forward, they'd have brought it by now.

The very fact that Microsoft paid more this deal than Novell did tells me
everything. If Novell were really in this for the patent protection, that
number would have surely swayed in the other direction.

Microsoft has tried every play in their book against Linux. In then end, they
used the skills that brought them into dominance in the first place; not
technology or innovation, but salesmanship and coercion.

"I drank what?" - Socrates, 399 BCE

[ Reply to This | # ]

Red Hat's Mark Webbink Responds to Novell's Letter to the Community
Authored by: fredex on Tuesday, November 21 2006 @ 11:53 PM EST
Novell wants us to believe their position on open source and patents hasn't changed. I'm having a hard time buying that argument.

It is possible that in fact Novell's position HASN'T changed... What if they NEVER WERE in favor of what they SAID they were in favor of, but were just giving it lip-servce because it seemed beneficial to the business? In that case the statement quoted above could in fact be true, i.e., their position hasn't changed...

Now don't misunderstand me, I'm not saying I believe one way or the other, I'm just pointing out a logical possibility here.

[ Reply to This | # ]

Red Hat's Mark Webbink Responds to Novell's Letter to the Community
Authored by: thombone on Tuesday, November 21 2006 @ 11:58 PM EST
Frankly, this reads like someone didn't have anything to say, doesn't know what
he wanted to say, but tried to say it anyway.

I get a "what does this have to DO with anything?" feeling after
reading it.

[ Reply to This | # ]

Does this disable OIN patent replies to MS?
Authored by: kh on Wednesday, November 22 2006 @ 01:26 AM EST
If Microsoft attacks linux using patents and OIN replies with patents of it's
own will thie agreement with Novell mean that Novell patents or worse that OIN
can't use patents in reply?

[ Reply to This | # ]

Authored by: Anonymous on Wednesday, November 22 2006 @ 04:12 AM EST
Novell wants us to believe their position on open source and patents hasn't changed. I'm having a hard time buying that argument.

"And just how RedHat is different?" I want to ask.

One incident with CentOS which got public is telling. Another one with OLPC with Marvell (made public by DeRaadt) - is more than enough to finish the corporate image of RedHat Inc.

In the end, I personally feel SUSE did (and does) for community often more than RH. Code I can write by myself - but creating sustainable community something RH isn't capable of. In a way, RH looks already my M$: there are people out there who are obliged to use RHEL without any possibility of choice, ruining the top promise of FLOSS.

And that's why I'm using Debian ;-)

[ Reply to This | # ]

What Novell forgot to remember...
Authored by: Anonymous on Wednesday, November 22 2006 @ 06:42 AM EST

The thing Novell seems to have gotten wrong is that they started thinking like Microsoft: The only measure for value is money.

[ Reply to This | # ]

Lets send a clear message to Microsoft
Authored by: Anonymous on Wednesday, November 22 2006 @ 06:59 AM EST
To let them know that we, The Community of Free Users and Developers, Contributors and Advocates of Free (as in freedom)/Open Source Software stand united in front of their threats and extorsionating practices.

We won´t take your offensive insinuations of vage "intellectual property" (this is meaningless anyway, please specify: copyright, patents or trademark infringements?) infringement by our free and open systems.

Stop FUDDING around, stop menacing and confusing your customers (did you know, some users of M$ products ALSO use Linux and not exactly your "officiall endorsed" flavor?) and other computer users around the world. This is only going to work for the worse of your business in the medium/long term. / 9

[ Reply to This | # ]

Can any lawyers out there answer these questions?
Authored by: Anonymous on Wednesday, November 22 2006 @ 10:03 AM EST
1) Let us assume I am a programmer, and I believe the secret part of the
Microsoft/Novell agreement - the bit covering the patent agreement may violate
my rights due to the fact that a monopolist is putting unfair and
anti-competitive terms into contracts with potential employers regarding
employers in the industry may employ me to work on open source projects and how
and how much I can be paid for my work. Alternatively assume I am a software
developer, and I believe a monopolist has incorporated secret terms into OEM
agreements that prevent or discourage them selling my product, or secret terms
in advertising rebates given to resellers of Windows products, that prevent or
discourage them from advertising my product or drivers for my product.

How do I go about finding out if there is a secret agreement that works against
me, and what terms of the secret agreement covered by a NDA are, so I can seek

2) Is there a way a potentially injured party or a member of the public who is a
customer can force a monopolist to disclose secret (and possibly illegal) terms
and conditons in contracts with others that may work against the injured party?

It seems to me that the NDAs that Microsoft uses to hide anti-competitive
conditions in contracts are what allows it to inflict injury on it's victims
unabated and denys victims justice. The way in which Microsoft won and keeps
it's monopoly was to write discriminatory terms into secret OEM licenses to
exclude it's competitors products from the market. This is something that
neither the DOJ or the EU seems to be tackling.

[ Reply to This | # ]

Peace in Our Time - We know how that turned out...
Authored by: Anonymous on Wednesday, November 22 2006 @ 01:23 PM EST
Wasn't how that turned out that the British had just enough time to develop the
aircraft and radar technology that enabled them not to lose the Battle of
Britain? And thus eventually the result was that fascism was defeated? So,
taking the long view, it diodn't turn out that badly did it?

[ Reply to This | # ]

Red Hat's Mark Webbink Responds to Novell's Letter to the Community
Authored by: Anonymous on Wednesday, November 22 2006 @ 04:50 PM EST
It seems to me that this is just the RedHat CEO trying to spin things to reflect
poorly on his competitor, in this case Novell. Novell is spinning the agreement
their way, and MS is spinning the agreement their way. Right now there is alot
of talk.

However, there is some real action. Novell gets a hundred million or two,
depending on what happens down the line. Novell needs money, and it doesn't
seem like they gave up that much (i.e. the right to sue MS customers which they
probably wouldn't do either, and lack of support from parts of the open source

I think this is just Red Hat trying to exacerbate the second part of that, the
community support. The Novell and Oracle deals have reflected negatively on
RedHat, and this seems to be a way for him to rally his troops.

[ Reply to This | # ]

History, Linux and OS/2
Authored by: chdub on Thursday, November 23 2006 @ 07:35 PM EST
Slightly off topic but since "history" came up... When I googled reaction to the Novell/MS agt I followed the links from Novell's prblogs to IDC's "independent" evaluation of of the Novell/Microsoft agt (pdf). The IDC assessment mentions that the companies are supposed to establish a "joint virtualization research lab" where they will "architect and test" solutions that include SUSE Linux and Windows working together. That arrangement rang a bell: IBM worked with MS a number of years ago on an OS project named OS/2. There were suggestions that OS/2 withered because MS killed it with its special brand of kindness. Maybe - aside from all the FUD - MS thinks they can do the same with Linux? Whatever MS thinks (who can really know), Novell might want to think about IBM's experience "collaborating" with MS on OS projects before sinking any substantial sums in the above mentioned lab. Sorry for any redundancy if anyone else has brought this up.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )