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


Groklaw Gear

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

You won't find me on Facebook


Donate Paypal

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.

What's the Difference Between that 2004 Sun-MS Agreement and Novell's?
Friday, November 24 2006 @ 05:15 PM EST

I've seen a number of folks assert that what Novell has done in the patent peace agreement with Microsoft is no different than what Sun did in its agreement with Microsoft in 2004, so I thought it would be worthwhile to post the Sun agreement again, so you can see the difference. Or you can read it on the SEC's website, if you prefer. That is the link to the patent agreement. The technology agreement and the lay-down-the-EU-and-all-litigation-arms agreement can be found here.

As you will see, as unfortunate as the Sun deal was, it had limited effect on GNU/Linux developers or end users. The solution, should one need one, would be not to use or develop for, and there are many alternatives. It couldn't impact all GPL code, all of GNU/Linux, nor did it threaten the Open Source development method and it didn't involve royalties paid for Microsoft "IP" -- whatever that is -- supposedly or conceivably in "Linux". Neither Sun nor Microsoft made any statements implying or stating that Microsoft patents were in Linux and needed to be paid for, and Sun made no such payments.

End users are not the special target in the Sun patent deal, by which Sun and Microsoft promised not to sue *each other* or Sun's affiliates and OEMs or users, not each others' customers alone, except with respect to, which was given no protection. StarOffice was protected, which kind of put a bit of shade over, and the GPL wasn't implicated in any way. That last is the key to the difference in the reactions in the FOSS community. A few developers may not care much about the GPL, but most care very much. It's the overwhelming choice of license, so the Novell deal implicates their work. That is why they care, and that is the difference.

I'd also point out that the Sun agreement was signed by Mark Tolliver, who is no longer with Sun Microsystems. It was he, I've heard, who also arranged for the SCO license. He was also onstage as CEO for Palamida for the Novell-Microsoft announcement. Make of that what you will. But whatever you make of it, he isn't a Sun employee any longer. It is a new day at Sun.

What do I think Microsoft is doing with these deals? I suspect they are making deals with every entity that has patents, clearing the deck so it can attack Red Hat and the entire Open Source method of development. Whatever is left standing will be firmly inside Microsoft's embrace, and you know as well as I do what that historically means. In any case, here's the Sun-Microsoft patent agreement, so you can do your own comparison with what's been shown of the Novell-Microsoft one, and reach your own conclusions. Here's a transcript of the April 2, 2004 press conference announcing the Sun-Microsoft agreements.



[**] = information redacted pursuant to a confidential treatment request. Such omitted information has been filed separately with the Securities and Exchange Commission.


This Limited Patent Covenant and Stand-Still Agreement (the "Agreement") is entered into as of this 1st day of April, 2004 (the "Effective Date"), by and between Sun Microsystems, Inc., a corporation organized and existing under the laws of the State of Delaware ("Sun"), and Microsoft Corporation, a corporation organized and existing under the laws of the State of Washington ("Microsoft"). Each of Sun and Microsoft and their respective Affiliates (defined below) as of the Effective Date are referred to individually as a "Party", and collectively as the "Parties."

In consideration of the promises and mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Signatories (as defined below) hereto agree as follows:


Capitalized terms used in this Agreement and not defined in this Section I have the meanings ascribed to them elsewhere in this Agreement.

"Affiliates" means, with respect to each of Sun or Microsoft as applicable, persons or entities directly or indirectly (1) controlling Sun or Microsoft, (2) controlled by Sun or Microsoft, or (3) under common control with Sun or Microsoft, where control is defined as direct or indirect ownership of greater than fifty percent (50%) of equity or other voting interest therein.

"Authorized Licensees" means a third party (including without limitation an original equipment manufacturer (OEM), replicator, distributor, retailer or User) that is licensed by a Party to exercise any or all legal rights with respect to a product of such Party, including without limitation, copying, using, selling or otherwise distributing such product.

"Change of Control" of Sun or Microsoft means the acquisition directly or indirectly of more than forty percent (40%) of the total outstanding voting stock of such Party by any third party (whether in a single transaction or series of transactions).

"Clone Product" shall mean a product of one of the Parties that provides (a) all of the same or substantially all of the same user interface and user commands, or (b) all or substantially all of the application programming interfaces (APIs) of a previously commercialized product of the other Party.

"Foundry Product" shall mean a product which was designed, manufactured, reproduced, sold, leased, licensed or otherwise transferred through or by a Party for the primary purpose of attempting to make such product licensed or immune under the patent rights of the other Party to this Agreement.

"Past Damages" means (i) any and all damages (including damages for forgone profits) that have accrued on account of any and all patent infringement that has occurred before the Effective Date; and (ii) any and all damages (including damages for forgone profits) that accrue after the Effective Date on account of any and all patent infringement due solely to continued use by a User of each individual copy of such other Party’s products that had been distributed by such other Party and deployed by a User prior to the Effective Date.

"User" means any person, corporation or other entity that uses a product of a Party for its own internal use.


1. Covenants Regarding Past Damages. Subject to the exception in Section IV, each Party hereby irrevocably and perpetually covenants to the other Party not to sue the other Party or its Authorized Licensees ("Covered Entities"), or otherwise seek recovery from such Covered Entities, for Past Damages with respect to the other Party’s products and technology. By way of limitation of the foregoing, if an individual copy of a Party’s product that is licensed for the purpose of replicating other copies of such Party’s product (a "Master Copy"), has been distributed prior to the Effective Date, only each additional authorized copy of such product that has been (a) made by a Party or its Authorized Licensees from such Master Copy prior to the Effective Date in accordance with prior practice and the normal course of business and (b) has been deployed by a User prior to the Effective Date, shall be deemed subject to this covenant. In no event shall this covenant apply to (a) any modifications of a product made by any Authorized Licensee; or (b) any additional copies of a product that are made or deployed by a User after the Effective Date.

2. New Affiliates. Any entity that becomes an Affiliate after the Effective Date also shall covenant not to sue or otherwise seek recovery from the other Party or its Authorized Licensees as set forth in the covenants in Sections II.1, and shall be bound by Sections II.3 and II.4, as applicable. The only Affiliates that shall receive the benefits of such covenants from the other Party are Affiliates which are Affiliates as of the Effective Date.

3. Scope. Each Party also hereby warrants, represents and agrees that the damages subject to the above covenant are not limited to those arising from facts, losses, claims or matters disclosed or known as of the Effective Date of this Agreement. Without limiting the generality of the foregoing, each Party expressly waives any and all defenses, rights and benefits that it might otherwise have in relation to this covenant under or by virtue of the provisions of Section 1542 of the Civil Code of the State of California or any other similar provision of the statutory or common law of any other state or of the United States. Section 1542 of the California Civil Code reads as follows:


4. Assignment of Patents/Change of Affiliate Status. If either Party assigns any patent that it owns or controls or any right to enforce such patent, the assigning Party shall require as a condition of any such assignment that the assignee covenant not to sue or otherwise seek recovery from (i) the other Party or its Authorized Licensees as set forth in Sections II.1 and (ii) the other Party as set forth in Sections II.2 with respect to such patent. If an Affiliate ceases to be an Affiliate after the Effective Date, (a) the covenant and other rights provided under this Section II to the other Party and its Authorized Licensees with respect to patents owned or controlled by such Affiliate at the time of the status change shall continue, and (b) if such Affiliate was an Affiliate on the Effective Date, it shall continue to receive the benefit of the foregoing covenant only to the same extent and with respect to its same products that it received prior to its status change.

Sun and Microsoft Confidential


1. Further Covenant. During the Stand-Still Period, each Party hereby covenants not to bring or prosecute any judicial, administrative or other proceedings of any kind against the other Party for or based on patent infringement on account of the making, use, sale, offer for sale, importation, export or other disposition or promotion of any of the other Party’s products. The foregoing covenant is personal to the Parties and does not apply to any third party, including any Authorized Licensee of either Party. The foregoing covenant shall not prevent either Party from engaging in discussions with any third party or the other Party regarding the licensing of its patents, or from enforcing its patents against any entity other than a Party. Further, nothing shall prevent the Parties from seeking damages after the Stand-Still Period terminates for patent infringement occurring during the Stand-Still Period and not subject to the covenants not to sue set forth in Section II of this Agreement. If either Party violates this covenant, the other Party shall be free to immediately end the Stand-Still Period. For purposes of this Agreement, "Stand-Still Period" means the period beginning on the Effective Date and ending on the date six (6) months after the Effective Date.

2. New Affiliates/Assignment of Patents/Change of Affiliate Status. Any entity that becomes an Affiliate after the Effective Date shall be deemed included in the term "Party", as applicable, for purposes of Section III and shall be subject to and receive the benefit of the covenant in Section III.1. If any proceeding has been commenced prior to the date such entity becomes an Affiliate, the affected Parties shall jointly apply to the applicable court or agency to stay such proceeding until the end of the Stand-Still Period. If either Party assigns any patent it owns or controls or any right to enforce such patent, the assigning Party shall require as a condition of any such assignment that the assignee covenant not to bring or prosecute any proceeding as set forth in Section III.1 with respect to such patent.

If an Affiliate ceases to be an Affiliate after the Effective Date, (i) the covenant and other rights provided under this Section III to the other Party with respect to patents owned or controlled by such Affiliate at the time of the status change shall continue until the end of the Stand-Still Period; and (ii) the Affiliate shall continue to receive the benefit of the foregoing covenant until the end of the Stand-Still Period, but only with respect to its products in existence as of the time of the status change.

3. Change of Control of Microsoft or Sun ("Signatories"). In the event of any Change of Control in a Signatory, this Section III shall immediately terminate in its entirety, effective as of a date sixty days after the Change of Control takes place, unless the Signatory that has not undergone a Change of Control delivers express written notice that it is not terminating this Section III to the other Signatory within such sixty (60) day period.


1. Notwithstanding the other provisions of this Agreement, with respect solely to the product developed by Sun and generally known as Open Office, the Covenants of Section II above and the Releases of Section III above shall apply fully to Sun but shall not apply to Authorized Licensees of Open Office or any other third party. Accordingly, Microsoft shall not be foreclosed by this Agreement from seeking damages from Authorized Licensees of Open Office for copies of Open Office made or acquired prior to the Effective Date of this Agreement. Nor shall Microsoft be foreclosed from seeking any damages from Sun, its Affiliates, Authorized Licensees or any third party for any copies of Open Office made or deployed by a User after the Effective Date.

2. In the event that Microsoft elects to sue or otherwise seek recovery from an Authorized Licensee of Open Office for copies thereof that were made and deployed by a User prior to the Effective Date of this Agreement ("Deployed Copies"), upon request, Microsoft agrees to promptly reimburse Sun for any

Reimbursable Damages. Sun shall promptly notify Microsoft of any Claim, shall provide Microsoft with the opportunity to take control over and responsibility for the defense and/or settlement of such Claim, and shall reasonably cooperate with Microsoft in litigating the defense of such Claim, including in all discovery and trial preparation efforts. Microsoft will not have any obligation to reimburse Reimbursable Damages unless Sun abides by the foregoing requirements. Microsoft shall also be relieved of its obligation to reimburse Reimbursable Damages if Sun breaches any warranty in Section VII.4. As a condition to accepting control and responsibility for such defense, Microsoft shall acknowledge in writing that such third party claim constitutes a "Claim" and, as such, would give rise to Reimbursable Damages if determined adversely. In the event that Microsoft accepts control and responsibility for such defense, Sun shall be entitled to participate in such defense at its own cost. "Claim" means any claim that Sun is liable to indemnify or otherwise reimburse any Authorized Licensee or third party for damages it has been ordered to pay by final judgment or settlement arising from a claim asserted by Microsoft against such Authorized Licensee or third party that any Deployed Copy of Open Office infringes any patent of Microsoft. "Reimbursable Damages" means the amount of any adverse final judgment awarded by a court of competent jurisdiction, or Microsoft approved settlement, against Sun that is based on the Claim.

3. The Parties acknowledge that the product currently marketed by Sun as Star Office shall not be affected by this Section IV.


Clone Products and Foundry Products shall be treated under this Agreement in the same manner as products until April 1, 2007, after which they shall be treated in the same manner as Open Office.


1. Extension Mechanism. Provided that Microsoft does not Break the Peace prior thereto, and provided that Microsoft gives Sun at least thirty days written notice, on [**] Microsoft may pay to Sun the annual extension fee for 2004 set forth in the Annual Extension Fee Schedule attached as Exhibit A (the "Annual Extension Fees"). On each subsequent anniversary thereof (each, an "Extension Date"), provided that (A) Microsoft does not Break the Peace prior thereto, (B) Microsoft gives Sun at least thirty days written notice, and (C) Microsoft paid the Annual Extension Fee on the previous Extension Date, Microsoft may pay to Sun the applicable Annual Extension Fee to extend the mutual Covenants set forth in Section II to apply to the just completed year. In such case, (i) the Effective Date referred to in Section II shall be deemed to be the applicable Extension Date, and (ii) the Affiliates of each Party shall include those entities that are Affiliates on the Extension Date. If Microsoft Breaks the Peace at any time, Sun shall be entitled to retain all Annual Extension Fees paid prior thereto. In addition, if Microsoft Breaks the Peace prior to April 1, 2011, Microsoft shall pay to Sun the additional amount of [**]. For purposes of this Section VI, Microsoft "Breaks the Peace" if it brings or prosecutes any judicial, administrative or other proceedings of any kind (i) against Sun or its Authorized Licensees for or based on patent infringement on account of the making, use, sale, offer for sale, importation, export or other disposition or promotion of any of Sun’s products other than Open Office, or (ii) against Sun for or based on patent infringement on account of the making, use, sale, offer for sale, importation, export or other disposition or promotion of any of Open Office.

2. Conversion of Covenants. On April 1, 2014 ("the License Date"), provided that Microsoft has not Broken the Peace prior to such date and Microsoft has paid all of the Annual Extension Fees, each Party and its Affiliates shall automatically (i) grant to the other Party and its Affiliates a worldwide, irrevocable, non-exclusive, perpetual, and non-transferable license to make, have made, use, lease, license (in the case of software), import, offer for sale, sell or otherwise transfer, and promote the commercialization of the other Party and its Affiliates then-shipping products of the applicable Party and

its Affiliates on the License Date and their successor products thereto, under any and all of the Party’s and its Affiliates’ Licensed Patents, and (ii) covenant for a period of ten years not to bring or prosecute any judicial, administrative or other proceeding of any kind against the other Party (but not against the other Party’s Authorized Licensees or other third parties) for or based on patent infringement on account of the making, use, sale, offer for sale, importation, export or other disposition or promotion of any of Open Office. "Licensed Patents" shall mean all utility patents, utility models and equivalent rights worldwide issued or issuing on patent applications entitled to an effective filing date prior to and including March 31, 2014, under which patents, patent applications, or inventions, either Sun or any of its present or future Affiliates now has, or hereafter obtains, the ability or right to license or grant freedom from suit.


1. Copies from Master Copies. Each Party represents and warrants that it has authorized its Affiliates and Authorized Licensees, as applicable, to make copies of products and Open Office, as applicable, from a Master Copy distributed prior to the Effective Date only in accordance with the normal course of business and in accordance with past practice.

2. Affiliates Bound. Each of Sun and Microsoft agrees to cause each of its Affiliates to be bound by the terms of this Agreement.

3. No Third Party Enforcement. If, prior to the Effective Date, a Party has granted a third party the right to enforce any patent it owns or controls, such Party agrees to cause such third party to also abide by the terms and conditions of this Agreement with respect to any such patent.

4. No Warranties or Indemnities for Open Office. Sun represents and warrants that neither it nor its Affiliates has provided or will provide to any third party, or is or will be under any legal obligation under any applicable law to provide, (i) any warranty or representation of non-infringement with respect to Open Office; and (ii) any indemnity related to any damages or causes of action based on allegations of infringement by Open Office.

5. Sun may, for tax reporting purposes, treat that portion of each Annual Extension Fee corresponding to Microsoft’s ratio of foreign subsidiary revenue to worldwide revenue for the prior fiscal period as income from sources outside the United States, and neither Party shall take any position inconsistent therewith.


Not later than the five business day following the Effective Date, Microsoft will pay to Sun the amount of nine hundred million US Dollars ($900,000,000.) by wire transfer pursuant to instructions to be provided by Sun.


Except with respect to Section VI.2, nothing in this Agreement grants any express or implied license under any intellectual property right to either Party, its Authorized Licensees, or to any third party. Except as set forth in Section III, nothing in this Agreement is intended to inhibit or prevent a Party from bringing an action for injunctive or other equitable relief against the other Party or Affiliates or Authorized Licensees of the other Party with respect to products distributed or deployed by a User after the Effective Date of this Agreement.


1. This Agreement can be executed in counterparts that, taken together, will be effective as if they were a single document.

2. This Agreement is governed by the law of the State of New York, excluding choice of law principles.

3. Any dispute, disagreement or claim arising out of or relating in any way to this Agreement or the Parties’ obligations under this Agreement shall be resolved exclusively by binding confidential arbitration conducted in New York City in accordance with the CPR Rules for Non-Administered Arbitration in effect on the date of this Agreement, as well as the Federal Rules of Civil Procedure and Evidence, before a retired Federal judge agreed upon by the parties and if no agreement can be reached then as designated by the Chief Judge of the United States District Court for the Southern District of New York from among no more than two candidates proposed by each party. The parties shall keep confidential to the extent permitted by law the arbitration and its outcome.

4. Each Signatory warrants and represents that the individual signing this Agreement has the full authority and is duly authorized and empowered to execute this Agreement on behalf of the Signatory for which he signs.

5. The Parties agree to keep the terms and provisions of this Agreement confidential. Nothing in this provision, however, shall prohibit disclosure of this Agreement to the Parties’ attorneys or accountants or prohibit such disclosure as may be required by law or by regulatory inquiry, judicial process or order.

6. The section headings used in this Agreement are intended for reference purposes only and shall not affect the interpretation of this Agreement. Nothing in this Agreement shall be deemed to amend, supplement or otherwise modify the Settlement Agreement being executed by the Signatories concurrently with this Agreement ("Settlement Agreement"). The Settlement Agreement will remain in effect independently from and solely in accordance with its terms notwithstanding any modification, extension or termination of this Agreement.

7. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable (other than any provision in Section II or Section VI, Section VII.2, VII.3 or VII.4), this Agreement will be enforced to the maximum extent possible to reflect the intent of the Parties. If any material provision of Section II or Section VI, or if Section VII.2, VII.3 or VII.4 is held by a court to be illegal, invalid or unenforceable, this Agreement will be amended by mutual agreement of the Parties to render it valid and enforceable. This Agreement has been negotiated by the Parties and their respective counsel and shall be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party.

8. The Parties agree that this Agreement constitutes the sole agreement between the Parties with respect to the subject matter hereof and merges all prior and contemporaneous communications as to such subject matter. This Agreement will not be modified except by a written agreement dated subsequent hereto signed on behalf of the Signatories by their duly authorized representatives. Except in connection with a Change of Control, neither Party may assign or transfer this Agreement in whole or in part. Neither this Agreement nor any written or oral statements related hereto constitute an offer by either Party, and this Agreement is not legally binding until executed by both Signatories hereto.

IN WITNESS WHEREOF, the Signatories have executed this Agreement as of the Effective Date.

Print Steven A. Ballmer
Title Chief Executive Officer
Date April 1, 2004

Print Mark E. Tolliver
Title Executive Vice President
Date April 1, 2004

Annual Extension Fee Schedule


[**] information redacted pursuant to a confidential treatment request. Such omitted information has been filed separately with the Securities and Exchange Commission.


What's the Difference Between that 2004 Sun-MS Agreement and Novell's? | 284 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT Here
Authored by: PolR on Friday, November 24 2006 @ 06:15 PM EST
One link to click them all
in the realm of Groklaw to bring them all

[ Reply to This | # ]

Corrections here please
Authored by: Erwan on Friday, November 24 2006 @ 06:16 PM EST
If any


[ Reply to This | # ]

What is MS up to?
Authored by: kawabago on Friday, November 24 2006 @ 06:41 PM EST
If pj is correct with her suspicions that Microsoft is clearing the deck in
preparation for a patent war, the long term result of that will not be good for
the US. If that happened, open source would leave the US and grow in the EU and
developing world. That would leave US businesses at a competitive disadvantage
with the rest of the world. Microsoft can't kill open source, only the
businesses using it in the US. If Microsoft declares war on american business
for patent infringement, it would inevitably lead to legislation ending software
and business method patents. Or the economy will begin to shrink and that would
not be good for anyone.

[ Reply to This | # ]

The 2004 Sun-MS Agreement and the new Molotov-Ribbentrop Pact
Authored by: dyfet on Friday, November 24 2006 @ 06:55 PM EST
At the time I had a different impression of the Sun-Microsoft deal (and some of the Apple-Microsoft deals), which was that it complimented which could have been a SCO-Microsoft strategy to try and hurd both customers and developers into "safe harbors" of "controlled" competitors (like Apple and Sun). That is to say, SCO was intended to be a kind of stick, as limp as it proved it was, and Sun the carrot. This was simply my impression at that very moment in time. However, as noted by PJ, even Sun did not then sell out it's own customers or the GPL as well the way Novell has.

The Novell-Microsoft "non-aggression pact" has a much stronger impression of this, the idea of attempting to hurd through intimidation customers and developers into the safety of a compromised and controlled competitor, this time Novell, with Microsoft acting directly rather than thru a proxy. If this was indeed the goal, the first effort failed miserably, and the second seems to have as well.

[ Reply to This | # ]

2005: Java creator questions Sun/Microsoft pact
Authored by: NZheretic on Friday, November 24 2006 @ 07:03 PM EST
Febuary 2005 Java creator questions Sun/Microsoft pact
"Our agreement with them is becoming less and less relevant because of a lot of the fallout of some of the antitrust action in Europe. Europe have been forcing Microsoft to open up those interfaces to everyone anyway. So the agreement we have with them looks a lot like the ones that the EU are getting them to do," Gosling said.

From myself ten months before April 2004 Did Sun Have to to Choose "Between Shame and War"?

And in November : The conflict between MCPP and Open Source.

Protest the Microsoft-Novell Patent Agreement

[ Reply to This | # ]

What's the Difference Between that 2004 Sun-MS Agreement and Novell's?
Authored by: Anonymous on Friday, November 24 2006 @ 07:33 PM EST
MS is undermining the EC decision, Novell has now confirmed that the MS communication protocols are original and MS terms for licensing are reasonable and non-discriminatory. MS doesn't want to give out the information for free, Novell is helping them.

[ Reply to This | # ]

What is Microsoft up to ?
Authored by: Dave Lynch on Friday, November 24 2006 @ 07:52 PM EST
Microsoft is spreading FUD. It is their normal MO. It is what they are good at.
I think it would be wonderful if they actually filed a lawsuit that alleged an
intellectual property claim against an Open Source project. I can not think of a
more self-destructive act on their part. Getting SCO to front for them was not
testing the waters, it was the understanding that attacking OpenSource directly
is a self destructive act.
We have all seen the results of SCO vs. IBM - and their are actually elements
of that that have little directly to do with Open Source or Linux.
Look at the bad press the entertainment industry has gotten from their end
user law suits.
Look at the resources that have been marshalled to debunk any actual SCO
claim should they ever actually make one.
Microsoft forcing a legal challenge to Open Source software on the basis of
Software Patents would likely permanently end the efforts to bring them to the
EU. And it would force a serious public debate on the issue in the US.
There are Open Source advocates just begging for SCO to make a clear
assertion of exactly what code in Linux infringes on their copyrights - ignoring
the issues of exactly what copyrights they might hold. One reason we have not
seen much supporting their claim is because within hours of making a specific
claim the exact provenance of the alleged infringing code and all permutations
will be uncovered - well beyond SCO's own resources to ascertain.
Any effort by Microsoft to assert a specific patent against an Open Source
software project would:
Result in Microsoft being piloried as the villian.
Cost them the patent - the search for prior art would be fast furious deep
and extensive. Outside the ability of any corporation or government.
Set efforts back to achieve software patenting in countries that do not
already have it.
Risk losing it in countries that do.
Alienate their own staff.
Microsoft is no longer viewed as "the cutting edge of software".
They have had increasing difficulty attracting the very best and very brightest
people that are critical to their very survival.
Risk driving all Open Source hosting outside the US, and creating an even
bigger disjunction between US and non-US countries, as well as poision non-US
markets for Microsoft.

I can't think of a possible positive outcome for Microsoft.

Microsoft has been known to do some very stupid things, but mostly they are
not this stupid.

I expect them to ink as many deals like the Novel deal as they can - though
why Novel thought is was attractive or that they had the authority to act on
behalf of all the actual owners of all the GPL'd code they distribute is beyond
I expect Balmer to spread more FUD as long as he beleives that it might be
But I would be completely shocked to see Microsoft actually act.

[ Reply to This | # ]

Not the full story yet
Authored by: raya on Friday, November 24 2006 @ 07:57 PM EST
I don't think this is all of the deal, because the cash involved and the
royalties don't tie up with statements about the deal as a whole.

See <a
">here</a> from the horses mouth.

This is the $900M agreement - out of about $2Bn total. Royalties agreements
were "in addition" to the $900M according to the PR:

"In addition, Sun and Microsoft have agreed to pay royalties for use of
each other's technology."

I don't see how you can get clearer than that.

We don't know precisely which MS technology the royalties are for, or where Sun
uses / used it, or if it affects anything under GPL or not.

Also, unless US corporate law is substantially different to UK, I don't
understand the bit about Mark Tolliver leaving. How can his leaving affect the
agreement - surely either he was an authorized signatory or he wasn't. If he
was, then he bound the company, and the company is still bound, if he wasn't,
then it never was.

[ Reply to This | # ]

Microsoft contributions to GPL software
Authored by: leopardi on Friday, November 24 2006 @ 08:25 PM EST

Microsoft employees have submitted patches to GCC. I suppose that these patches are licensed via GPLv2. At the same time, these patches most likely are the "intellectual property" of Microsoft, since they probably come under a Microsoft copyright. This depends on details of the employment contracts of the Microsoft employees, but it is quite common for copyright in works to be turned over to the employer.

For Microsoft to then require that individual contributors to "ensure that as a result of Your contribution,, and all further recipients of Your Original Work, do not receive any licenses, covenants or any other rights under any Microsoft intellectual property" looks to me like Microsoft is placing openSUSE contributors in an impossible position with respect to the GPL.

Can anyone else now see why the Novell-Microsoft deal is incompatible with GPLv2?

[ Reply to This | # ]

Microsoft's plan for Novell.
Authored by: Anonymous on Friday, November 24 2006 @ 08:27 PM EST
It just struck me exactly what Microsoft's plan in doing the deal with Novell
is. Microsoft has no intention of doing similar cross licensing deals with the
rest of the Linux vendors - indeed the fact that Microsoft didn't make much of
an effort to try to sell such a deal to others is evident from the fact that
they didn't try to soft sell the deal like Novell did, but immediately began
threats and intimidation intended to drive a wedge between Novell and the rest
of the Linux community including the developers producing the code. This was
clearly intended to isolate Novell from the rest of the Linux community and
bring Novell's destiny under the control of Microsoft. Microsoft doesn't want
Novell to prosper as Novell believes either.

No, what Microsoft has got Novell to do is to put in all the work necessary to
create a proprietary Microsoft Linux with all sorts of patented bits
contributed by Microsoft (GPL2 code made proprietary by way of patents and
DRM/DCMA). When Novell has done it's work, Microsoft will steal SuSE Linux off
Novell and Novell will go bust (remember the patent and copyright cross
licensing). Microsoft doesn't need to cross license Novell's megre patent
portfolio unless it intends to pretty well steal Novell Linux as a whole. Note
also how keen Microsoft is all of a sudden about running Linux virtual machines
on Windows, and how they will risk further anti-trust action by putting into the
Vista EULA, blatently anti-competitive conditions excluding other operating
systems from running Vista, while pushing for Vista to run other operating
systems. Microsoft has realised that Linux is going to be next dominant OS, and
they want to own it. Microsoft bought PCDOS from Seattle computers for $60,000,
got paid a lot of money by peddling it to IBM, and IBM made it dominant, sold it
as MSDOS on the back of the PC clone market. Microsoft "stole" OS2
code from IBM who paid Microsoft to develop it tweaked things to make it
incompatible with OS2 and sold it as Windows 95/NT. Microsoft licensed the
Mosaic browser (Internet Explorer) code from Spyglass on the basis of a
percentage of Microsoft's revenue from the code, and then promptly distributed
Internet Explorer free in order to put Netscape out of business - which meant
Spyglass didn't get paid for their code. In fact Microsoft has made it's money
by stealing other peoples code and running a protection racket to prevent others
from competing. It is in fact not very good at writing it's own code. It is
therefore perfectly in character that Microsoft should covet Linux and want to
steal and own it now, especially when Windows Vista/Longhorn is looking more and
more like a flop that will require Linux to run on top of it to do anything
useful, and Windows XP to run on top of it to do anything useful on the
desktop. Microsoft's Windows server OSes for Itanium and Alpha failed miserably
despite Linux's success on both platforms, and Vista/ Longhorn is going to do
the same without Linux virtual machines running on Vista.

So what is Microsoft's big plan? Well, Novell is just preparing the way for
Microsoft's stealing of Linux. First of all they will promote running of Novell
SuSE Linux on Vista/Longhorn. Novell will do all the hard work but not reap any
of the profits. When Novell Linux is properly integrated into Vista as a virtual
machine, Microsoft will do an Oracle and will sell their own version of Linux,
only it will use patents and DRM to make it proprietary, and it will kick Novell
off Vista. Microsoft knows how to use it's control of Windows to kick competing
Windows application vendors off Windows - it has done it countless times and is
a past master at it. Linux running on Vista/Longhorn will be like Internet
Explorer (only without Microsoft having to pay for it's development) - it will
be bundled free into Vista - the Microsoft tax royalty will be charged on the
Vista OS that you will need to run Linux "legally" as Ballmer keeps
saying. Novell won't be able to sell Novell Linux because Microsoft will bundle
it into Vista, and protocol and file format incompatibilities will block it from
being used separately. Microsoft will prevent or limit Linux from being used
outside Vista by using patents and by using DRM encryption keys to prevent code
from running, and using DMCA laws to prevent users running GPL2 code without the
keys, and those to whom code is redistributed from altering it to work without
the keys.
Will Microsoft succeed in repeating what it has done in the past? Concerted
action needs to be taken now to prevent Microsoft's plan. First GPL2 needs to be
changed to prevent patents and DRM/encrypted keys being used by Microsoft to
implement their plan. This could involve licensing Linux under GPL3 or another
modified version of GPL2, but GPL2 must be strengthened. Second the Vista EULA
conditions that others cannot run Vista as a virtual machine must be referred to
the anti-trust authorities. Third DRM should be required to be unbundled from
Vista, so that Vista can be used without Microsoft monopoly control of
applications running under it, to allow other vendor's DRM to be used/inserted
including Dom 0 hypervisors ( including Linux host OS) running under Vista as a
guest OS to provide DRM/security for Vista. Fourth efforts to lobby against
software patents and DRM/DMCA (at least those involving software) must be

[ Reply to This | # ]

I get it.
Authored by: Anonymous on Saturday, November 25 2006 @ 12:41 AM EST
Microsoft is making these agreements so thet can remove companies from the list
of Linux defenders when they start their SCO styled law suits.

Seems to make some degree of sense.

[ Reply to This | # ]

  • I get it. - Authored by: contrarian on Saturday, November 25 2006 @ 03:33 AM EST
    • I get it. - Authored by: gbl on Saturday, November 25 2006 @ 02:47 PM EST
Missing the obvious
Authored by: Anonymous on Saturday, November 25 2006 @ 02:54 AM EST
Why is M$ courting Novell? It's not all about SUSE Linux or any grandiose
'interoperability' vision. There's anoter sinister factor people seem to have

When SCO implodes, Novell will be the holder of All Things Unix, or at least
Novell will be the most likely to re-inherit whatever few rights SCO held. This
will be in partial remuneration for the lost millions due Novell which SCO
squandered. This will be Real Soon Now.

Without SCO in the picture, and Novell holding all the Unix licence cards, they
become much more valuable to M$. This is not only from just an IP grab
perspective, but from that of having indirect control over others using Unix
under previous licenses.

M$ is fattening Novell for the kill, and no doubt they'll primed to eat the
carcass. If they can obtain all Novell holds, they'll have that much more IP
*and* licensing ammunition to take Linux down, or at least to make life
miserable for FOSS developers.

[ Reply to This | # ]

Get over it.
Authored by: Anonymous on Saturday, November 25 2006 @ 04:07 AM EST
IBM thinks the Novell-MS agreement is good for Linux

Personally, I think that anyone who thinks MS would ever attack Linux on the basis of patents doesn't have a clue. MS got into the patent game because it saw what IBM was doing. IBM has been in the patent game far longer and the last time I checked had more patents then Microsoft. What do you want to bet that Windows violates at least a few of them? I'd put money on IBM using them, if it hasn't already, to defend Linux.

[ Reply to This | # ]

How old are software patents?
Authored by: IMANAL on Saturday, November 25 2006 @ 04:16 AM EST
How old are software patents and were they introduced

IM Absolutely Not A Lawyer

[ Reply to This | # ]

A search for relevance going on ?
Authored by: Anonymous on Saturday, November 25 2006 @ 06:35 AM EST
I think ... amd my field is 'engineering', not 'law' or 'human nature' ... that there is a huge search for relevance going on at Microsoft.

We are pretty much at the end of the 'general-purpose personal computer' era; it is going away, in part becuase everyone who wants one has one, and in part becuase commercial considerations and public Internet are fracturing the market in such a way that you need a number of specialised appliances instead.

Microsoft sell mostly on the back of people buying new Personal Computers; that's when Windows licences and Word licences are boughy by people who are going to use Windows and Word. So if the market for new Personal Computers collapses, so does Microsoft's 'legacy' revenue. If you see that happening then you will need to enter new businesses to replace the old onws.

An example of something that does not work well any more is using a PC to play DVDs. To distribute a DVD player (even a software one) requires a licence ultimately from Hollywood; you have to sign to say that the player cannot copy DVDs, and cannot fast-forward past the 'trailers' and other commercial front matter. That is more practical to accomplish on an appliance; think 'DVD Walkman' or 'XBox'

Another breakage is the 'Great Firewall of Canada'. Internet is supposed to work according to the IRTF RFC's ... a set of technical standards enabling interoperability. But now you are starting to get committees of people disabling or altering access to various web sites for various other-than-technical reasons. The consequence of this will be that some applications which should work according to the ir enginering design, actually cannot be got to work.

Another thing going on is that Intel are coming up with 80-processor chips; others care coming up with 512-processor chips; and the software engineers only know how to put 'exploit about 4 processors' into the hands of the consuming public. Technology is way ahead of our ability to do anything useful with it.

ACM Queue reckons that the complexity introduced is bringing in defects faster than our ability to correct them; and remember, you cannot correct any defect in that DVD playing software, you have to wait for the vendor to do so. ACM Queue reckon this too will drive 'appliance-isation'

So if the Personal Computer business dies, then Microsoft are left in the position of monopoly typewriter ribbon salesman when the typewriter business dies; not enviable.

[ Reply to This | # ]

Future Direction of Laws
Authored by: Anonymous on Saturday, November 25 2006 @ 02:57 PM EST
Reading this brought about a train of thought along these

So MS wants to suppress the use of Linux. They make
agreements and FUD that creates an environment where Linux
is now only staggering along.

People and corporations feeling ripped off, continue to
use Linux in a now illegal way.

Per my understanding laws are made up from the census of
what it's people think should be. It's supposed to reflect
the peoples general level of values.

Also, implementing laws that nobody can enforce are
counter productive, and has in the past even caused

Looking at the DMCA we see that it is slowly loosing sting
as more and more judges rule against its abusive use, and
the incompetence of the RIAA and company.

Likewise I'd expect that in the end MS would so thoroughly
have lost any credibility with average Joe, who now more
than ever is using Linux, and laws would be changed
so that once again Linux comes up on top.

Looking on these from a purely legal point of view, is
certainly interesting.

Of course, in reality, I don't expect either FUD nor
agreements are going to stop any forward momentum of
Linux. Linux is an integral part of so many
parts of the world that even the worst claims can only
cause a surface ripple. And as truth is revealed MS and
co. will only have created enough rope to hang themselves.


[ Reply to This | # ]

Who cares, really
Authored by: bsstmiller on Saturday, November 25 2006 @ 09:25 PM EST
I don't understand what all the hubbub is about. Large companies do cross
license agreements all the time. This is just another one. Linux isn't going
any place. MS can attack Linux just like SCO did and they will lose too.
Novell has been great for a lot of technologies. About the only one that I have
seen them screw up was Word Perfect and Word Perfect did most of that to itself
before Novell bought them for Groupwise. The Unix industry turned their nose up
at Novell when it bought Unix even thou they did more technically for Unix on
x86 platform in 2 years then had been done in the last 10. Here they went out a
bought the XML patents and donated them to the community. Novell proves over
and over again they are a friend. The Suse releases consistently work better
for me then other distros. They have spent a lot of money on Xen and Mono, two
technologies I am keenly interested in. Most of the FUD being spread isn't by
MS, it is by Linux extremist. MS must be sitting back and laughing how the
community is dividing itself over nothing. MS tried to play up the patent
agreement and Novell shot it down the MS FUD immediately. Now we (Linux
loyalist) are answering MS's prayers by infighting. IBM, the #1 commercial
company supporting Linux, thinks it is great. Whether the Linux community likes
it or not, Linux has grown up and is now sitting at the adult's table. You can
complain about the new rules or learn to live with them. I will learn to live
with them and embrace them. Long live Linux, Novell, Red Hat and all the
companies supporting the Open Source way.

[ Reply to This | # ]

I'm curious...
Authored by: Anonymous on Sunday, November 26 2006 @ 01:58 AM EST
You say that the Sun/MS deal doesn't implicate GPL in any way. I can't find any
language in the Sun/MS deal that even *mentions* the GPL. Has anyone seen
language in the Novell/MS deal that references the GPL?

Am I correct in interpreting this agreement to mean that Microsoft has agreed
not to sue Sun or it's customers over the technology in Java? If so, does the
fact that Java is now going to be GPL mean that Sun is distributing Java in
violation of section 7?

[ Reply to This | # ]

Now the screws turn...
Authored by: dht on Tuesday, November 28 2006 @ 05:44 PM EST

Well, it looks like MS has started to turn the screws on Novell, or this is part of the secret/unknown terms of the MS-Novell deal.

Novell has dropped participation in the GPL Hula project. One of the stated goals of Hula was to be a functional Exchange replacement.

Actions speak louder than words.


[ Reply to This | # ]

some clarifying points by Nat Friedmann in IRC session
Authored by: cflange on Wednesday, November 29 2006 @ 11:35 AM EST
I think Nat Friedmann clarified some of the points of concern to me in this IRC chat from last Monday, reproduced here by LWN:
LWN: Novell's IRC session on the Microsoft deal

I liked especially when he said that this deal does not create any legal precedent and basically is a promise by MS to not start (in our view obviously frivolous) lawsuits against Novell customers. He makes a parallel to indemnification, in which other Linux companies take the risk of handling such a frivolous suit from their customers onto themselves. He also stresses that the much broader commitment not to sue individual developers was not broad enough and that they are negotiating with MS to extend it to all FOSS developers. These two points basically redeemed Novell in my view.

Who is General Failure, and why is he reading my disk?

[ 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 )