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The Novell-MS Deal: What Happens *After* the 5 Years?
Sunday, December 03 2006 @ 04:21 PM EST

A friend asked me a question yesterday that I couldn't answer, so I did some research to see if I could find one. The question was: In the Novell-Microsoft deal, what happens at the end of the 5-year term? If you as an individual programmer write code, contribute it, and it's covered by the patent agreement during the five years, what happens to it afterward? Is that contributed code still covered? Are you?

If you are a programmer, that is a question you'll want to ask your lawyer, but for the rest of us who may be just wondering, I thought I'd share with you what I've noticed. I have at least found the right places to look.

We already know that the agreement covering so-called "hobbyists" (an offensive and inaccurate term on its face in this context) is of no value to anyone living, because there are no programmers on Planet Earth that I know of who fit the description in that Microsoft's Patent Pledge for Non-Compensated Developers. The pledge only holds for you writing software and then using your own software all by your lonesome, not if you distribute or share it. It doesn't apply to others using your work.

Is there anyone who writes code only for himself who was in danger of being sued by Microsoft before, even if there were a lot of solitary uses for software code? Just forming the question makes me burst out laughing. Why, then, did Novell sign something so ridiculously silly? That promise seems worthless to me. And worse, it's demeaning. Don't get me started on the subject of conceptual malevolence. I think we can guess which company's lawyers wrote that piece of work.

But here, we'll be looking at the programmers who are contributing code to others, specifically to SUSE, both the paid products and the openSUSE project. We may still be able to find a few programmers left who are willing to consider doing that somewhere on the planet. We will start with the "Patent Cooperation Agreement - Microsoft & Novell Interoperability Collaboration", the Covenant with Customers (ha ha). I will mention in passing that the media is misinterpreting or at least overstating Richard Stallman's remarks about the agreement and GPLv2's section 7, in my opinion. There is no "blessing" of this agreement to date that I am aware of, and I think I'd be aware of it if it happened.

So, let's take a look at our question. For clarity, I've stripped out some of the verbiage and highlighted some of the important sections, but your lawyer will be looking at absolutely every word, naturally. But for the rest of us, let's notice the main thrust:

Covenant to Customers

Microsoft,... hereby covenants not to sue Novell’s Customers and Novell’s Subsidiaries’ Customers for infringement under Covered Patents of Microsoft on account of a such Customers’ use of specific copies of a Covered Product as distributed by Novell ... for which Novell has received Revenue ...and (ii) within the scope authorized by Novell...the “received Revenue” requirement above is deemed satisfied with respect to such Customer receiving from Novell a free update to a component of a specific copy of a Covered Product for which Novell has previously received Revenue, but is not satisfied with respect to such Customer receiving a free upgrade or a new version of such specific copy unless Novell has received Revenue for such upgrade or new version.

So I understand that to say that they cover products Novell got paid for and if there are components upgraded free, they are covered. However, if you get a free upgrade for the whole thing or a new version, it is not covered unless Novell gets paid again. Let's continue:

For specific copies of Covered Products distributed by Novel for Revenue before the end of the Term, the foregoing covenant shall apply as to all Covered Patents, including Captured Patents. For specific copies of Covered Products distributed by Novell for Revenue after the end of the Term, the foregoing covenant shall apply only as to Captured Patents.

This sounds rather confusing. The definitions matter. What, then, is a "Captured Patent"? We need to know, because it appears to be the only type that continues to be covered after the five years. Now, reading further, here's what a captured patent is:

“Captured Patents” means Covered Patents entitled, in whole or in part, to an effective filing date on or before January 1, 2001 (i) which a granting party ...during the Term owns or controls, or (ii) under which ... a granting party... during the Term has the ability or right to grant a covenant not to sue...

All right. But what then is a "Covered Patent"?

“Covered Patents” means Patents entitled, in whole or in part, to an effective filing date on or before January 1, 2012, (i) which a granting party ... during the Term owns or controls, or (ii) under which... a granting party... during the Term has the ability or right to grant a release, covenant not to sue or other freedom from suit. Covered Patents do not include Extendible Third Party Patents.

Now, I'm not a lawyer, but I notice that they keep saying "during the Term" and that makes my ears perk up. If I cared deeply, I would have my lawyer ask about that. But what we can get from this is that the only difference I see between the two definitions is that a captured patent doesn't include the wording: "grant a release ...or other freedom from suit" whereas a covered patent could be covered by any of the three. A captured patent, as I read it, then, is only granted a covenant not to sue.

Why does that matter to me? Because we started with a distinction being made, namely that after the term, meaning the five years, only captured patents are covered. I can't tell you why that language is like that, or what it means, because I haven't seen the actual agreement, but it's clear that there are several ways patents at least can be covered. Some of the ways only last for the term, but I gather the promise not to sue continues for the captured patents. How does that play out? More, this time regarding developers:

Also, the foregoing covenant will apply to customers' and developers' use of copies of Covered Products distributed by Novell that are in development (including, without limitation, work in process; trial, alpha, beta and release candidate versions; and other versions of products intended for but not yet generally released for Revenue on a commercial basis), even if Novell does not receive Revenue in connection therewith, provided that such copies are solely provided for development, testing or evaluation purposes and any support thereof, if any, continues for no longer than one-hundred eighty (180) days from distribution. In any case, the covenant granted pursuant to this paragraph shall expire as to such customers and developers One-Hundred Eighty (180) days from distribution to such covered customers and developers.

So I think that is saying that developers are covered while they work on code that isn't released yet, but once it is released by Novell, they'd have to buy it by 180 days if they wanted coverage, because it stops being covered then. If I were a developer, I'd want to ask my lawyer about that, because it sounds to this nonlawyer like the poor doob could write code for Novell and not be able to even safely use it after 180 days, let alone distribute it to others. Clearly this is not a normal GPL atmosphere.

There's another gotcha, from all I can understand of the wording:

Microsoft reserves the right to update (including discontinue) the foregoing covenant pursuant to the terms of the Patent Cooperation Agreement between Novell and Microsoft that was publicly announced on November 2, 2006; however, the covenant will continue as to specific copies of Covered Products distributed by Microsoft for Revenue before the end of the Term.

So, Microsoft can get out of this deal according to the terms of the deal that we are not allowed to see. But if they do change their corporate mind and cancel the promise not to sue, if your product was covered when you bought it, it stays covered if you bought it during the 5 years.

What about the code? Note that what is covered isn't code; it's purchased products. I personally would be very nervous about the code.

The openSUSE.org developers have to look to their agreement:

Microsoft hereby covenants not to assert Microsoft Patents against each Individual Contributor ... for Your distribution of Your personally authored original work ... directly to openSUSE.org, but only if, and to the extent, (i) Your Original Work becomes part of SUSE Linux, SUSE Linux Enterprise Desktop or SUSE Linux Enterprise Server, and (ii) You ensure that as a result of Your contribution, openSUSE.org, and all further recipients of Your Original Work, do not receive any licenses, covenants or any other rights under any Microsoft intellectual property. This pledge is personal to You and does not apply to any use or distribution of Your Original Work by others.

Again, as you can see, it's the product that is covered. You won't get sued, I gather, if your stuff ends up in the paid products listed, but it's not covered anywhere else and neither are you. And then, I think we find our answer:

Microsoft further reserves the right to terminate this pledge and revoke this pledge to You upon the expiration or termination of that certain patent agreement entered into by and between Microsoft and Novell Inc., dated as of November 2, 2006.

Could that be clearer, openSUSE developers? My conclusion is that the only safe assumption is that Microsoft retains an absolute right to terminate and revoke without any contractual restraint. In other words, one must assume that the covenant not to sue is actually a covenant not to sue unless Microsoft wants to sue. It's up to you whether you find such language reassuring. Why, one might ask, would such revocation language be necessary? And if you are a business, are you really any safer using Novell's SUSE than any other Linux distro, with that clause in the agreement, subject to terms that you don't even know?

Naturally, one would be prudent to also consider the source of the promise.


  


The Novell-MS Deal: What Happens *After* the 5 Years? | 333 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: MathFox on Sunday, December 03 2006 @ 04:37 PM EST
If there are any mistakes in the story.

---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.

[ Reply to This | # ]

Off Topic Thread
Authored by: MathFox on Sunday, December 03 2006 @ 04:40 PM EST
Other Open Source and Legal issues.
Respect the rules and atmosphere of the site ;-) please.

---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.

[ Reply to This | # ]

The Novell-MS Deal: What Happens *After* the 5 Years?
Authored by: Anonymous on Sunday, December 03 2006 @ 04:56 PM EST
One thinks they are a little confused.

A patent isn't supposed to prevent innovation. A patent is supposed to
accelerate the commercialisation of an invention.

What chance the current US patent regime will survive 5 years ? I think a lot of
the landscape could be very different.

[ Reply to This | # ]

In 5 years it will be irrelevant
Authored by: Anonymous on Sunday, December 03 2006 @ 05:07 PM EST
The main focus of the Microsoft-Novell deal is to force Red Hat to sign a
software patent licencing agreement with Microsoft. Microsoft is threatening
Red Hat with converting a large number of Red Hat customers to Novell.
Microsoft will threaten Red Hat customers with software patent lawsuits and say
that Novell users do not face the threat of a lawsuit. Also Microsoft will
offer Red Hat customers free SuSE coupons if they will switch to Novell.

Red Hat has refused to agree to the Microsoft demands for a software patent
licencing agreement. Now that Microsoft is increasing the pressure we should do
what we can to help Red Hat resist Microsoft. Three things that I can think of
doing to help Red Hat are to lobby to abolish software patents, to hit the
Microsoft-Novell deal with GPL3, and to do everything that we can to harass
Novell into backing out of the deal.

However this fight plays out I think that it will be over well before the five
year term of the agreement.

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

[ Reply to This | # ]

The Novell-MS Deal: What Happens *After* the 5 Years?
Authored by: Nick_UK on Sunday, December 03 2006 @ 05:18 PM EST
"Is there anyone who writes code only for himself who was
in danger of being sued by Microsoft before, even if there
were a lot of solitary uses for software code? Just
forming the question makes me burst out laughing."

Too true. But the trend I see going on here with the FUD
MS et al are starting to dirty the waters with statements
like this - as if because they *think* they own it all, no
matter what they do own, the FUD sticks - and mainstream
press etc. start to believe it.

We are getting on sticky ground when a company with an
open check book start to make claims they can own all code
created - copywrite doesn't count here, as according to
the claim, they already have patent claim on it before you
even code it.

Who has the money to fight such a claim? How can you
disprove a proprietry software - you cannot look at the
code and see?

Then top this up with MS sponsering senators etc. and it
looks even worse.

Scary stuff.

Nick

[ Reply to This | # ]

IANAL
Authored by: Alan(UK) on Sunday, December 03 2006 @ 05:28 PM EST
I am a little confused about this patent thing. When is a software patent
actually infringed? A patent is a granted in return (for some money and) putting
a description of the patent in the public domain. Surely a software developer
who uses a procedure covered by a software patent is merely translating the
meaning (but not the actual words) of the patent into another form - namely a
machine readable one. Suing the developer for doing this sounds more like an
accusation of copyright infringement which it clearly is not. Is the action of
providing someone else with the means to infringe a patent itself an
infringement of the patent?

[ Reply to This | # ]

  • IANAL - Authored by: John Hasler on Sunday, December 03 2006 @ 07:55 PM EST
  • IANAL - Authored by: davcefai on Monday, December 04 2006 @ 01:00 AM EST
    • IANAL - Authored by: LocoYokel on Monday, December 04 2006 @ 01:39 AM EST
      • IANAL - Authored by: Anonymous on Monday, December 04 2006 @ 05:17 AM EST
I think it's useless anyway.
Authored by: Jude on Sunday, December 03 2006 @ 05:35 PM EST
IANAL, but I think the whole agreement would be useless even if the defects PJ
points out were remedied.

Supposed Microsoft were to sue a Novell customer despite this agreement. This
might happen even with no malfeasance on Microsoft's part; It could be a
misunderstanding: The customer thinks they're covered but Microsoft thinks
otherwise. Don't forget that Novell and Microsoft are already bickering about
when the deal means, so such mistakes seem very likely.

What exactly is a customer in such a predicament supposed to do? The customer
is not a party to the agreement, so I suspect the customer would have trouble
persuading a court that they are entitled to any protection. Heck, AFAIK the
customers can't even see the full text of the agreement, much less show it to a
judge.

My question to those more legally erudite than myself is this: How does a
Novell customer use this agreement to protect themselves if they happen to get
sued by Microsoft?

[ Reply to This | # ]

Question for Novell
Authored by: arch_dude on Sunday, December 03 2006 @ 05:38 PM EST
If I were a business, I would require Novell to answer this question, in
writing, before I would purchase a copy of SUSE:

"Do you have any reason to believe that Microsoft has any enforcable
patents that cover anything in any of the GPL'ed code in the SUSE
distribution?"

If the answer is "yes," then the terms of the GPL prohibit Novell from
distributing SUSE.

If the answer is "no," then I would not purchase the product because
Novel's actions show that they are an unethical company.

Going further: As I understand it, in most states in the US, a company cannot
repudiate a implicit "suitability for purpose" warranty. The warranty
comes into existance as an element of the sale. If this is true, then if
Microsoft does sue for infringement, Novel is liable.

[ Reply to This | # ]

The Novell-MS Deal: What Happens *After* the 5 Years?
Authored by: webster on Sunday, December 03 2006 @ 05:40 PM EST
.
1. Obviously everyone should send Novell a penny or so to satisfy the
"Novell received revenue" requirement.

2. One should ask Novell and M$ how this compiles with the GPL. Ask them which
they think should prevail to avoid confusion. Since they are in partnership, if
either says the patent covenant prevails over the GPL, then neither should
distribute or "conspire" this way. One should also ask for indemnity
from Novell against M$ under these circumstances. They won't offer it. If M$
does not respect the GPL, then Novell is no better off than Red Hat. This is
FUD even for Novell.

-------Novell is distributing free code under the GPL with the advantage that M$
won't sue their user if their user doesn't use it freely under the
GPL.------------

This might make the Novell free-wheeling user more of a target than the Red Hat
user.

3. Any developer promises to let M$ wrap up their code. They are doing free
work for the Monopoly. This will result in a fork - Novell-M$-Linux and the
rest of the world. This is a one-way affair, not a marriage.

4. "Captured", "covered", "Extendible Third Party
Patents", This is work for PJ.

---
webster

[ Reply to This | # ]

From Microsoft's point of view
Authored by: Chris Lingard on Sunday, December 03 2006 @ 05:40 PM EST

The classification of us as hobbyists is consistent. Microsoft have said this often, they want people to believe that people working either from home, or with their companies blessing, can produce far superior programs, than the thousands of closely supervised coders at Microsoft.

This is quite clever propaganda, people believe that there are no alternatives. Software is something that is shrink wrapped, and is made by huge multi-national companies. Linux needs to be demonstrated, but cannot get acceptance until Microsoft stop abusing their monopoly and allow computer suppliers to offer a choice.

The licences that they offer are directed at huge companies that can afford them. From the European point of view, the licences are priced at €50000, (was $50000). This excludes students and small companies.

A point that the press has not picked up is that Microsoft have to explain these fees to the European Commission, or at least to the team investigating their compliance. Microsoft have claimed that their "Intellectual Properly" justifies this fee; but the Commission believe that Microsoft should show the "originality" of their claimed property. Software patents are not enforceable here, and hopefully never will be.

But Microsoft have shown little originality or innovation, and instead depended on their abuse of monopoly to force us to buy their products.

[ Reply to This | # ]

Protest the Microsoft-Novell Patent Agreement
Authored by: grouch on Sunday, December 03 2006 @ 05:40 PM EST

Bruce Perens' "open letter to Novell's CEO Ron Hovsepian", over 2600 signatures, you can add yours:

Protest the Microsoft-Novell Patent Agreement

(Mr. Perens has cleaned up some of the more intense language used by signers but refrained from extensive editing, "The depth of anger about the Novell deal is really stunning.")

---
-- grouch

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

[ Reply to This | # ]

The Novell-MS Deal: What Happens *After* the 5 Years?
Authored by: Hygrocybe on Sunday, December 03 2006 @ 05:51 PM EST
To me, this final clause is the most disturbing:

"Microsoft further reserves the right to terminate this pledge and revoke
this pledge to You upon the expiration or termination of that certain patent
agreement entered into by and between Microsoft and Novell Inc., dated as of
November 2, 2006."

My interpretation is that once the Microvell agreement comes to an end,
Microsoft gives itself full rights to take any action it likes at any time
against any software developer(s), either as a group or individual. It's a
"Clayton's pledge", a promise when we are not having a promise. It's
just idle speculation, but this sounds awfully like the language Microsoft uses
in its EULA's to the effect that "you as the consumer have virtually no
rights except to do as you are told by this EULA, and Microsoft retains all
rights to do whatever we like.........".

Once you realise that, well.........there's no way I would give my code to
Microvell unless it was better protected. And that is what the GPLv3 hopes to
do.



---
Blackbutt, Australia

[ Reply to This | # ]

What if ...
Authored by: Jude on Sunday, December 03 2006 @ 06:02 PM EST
... someone buys a copy of Suse Enterprise Desktop and installs in on several
computers? That would be several installations but only one provable purchase
of the software. Is this Novell customer covered by the agreement or not? Would
someone have to buy a copy for each computer to be "safe"?

Also, what if someone buys a computer with Linux pre-installed from (for
example) Dell? AFAIK, Dell would be the Novell customer, which would seem to
leave Dell's customer wide open to Microsoft.

[ Reply to This | # ]

Novell is helping Microsoft rewrite the covenants
Authored by: leopardi on Sunday, December 03 2006 @ 06:05 PM EST

See Nat_'s comments in the IRC log . So the covenants you see today hopefully will not be the ones which will apply in 5 years time.

[ Reply to This | # ]

What I am when I accept that what M$ says what I'ld be ?
Authored by: Anonymous on Sunday, December 03 2006 @ 06:47 PM EST
I dont understand how in a juridical board people
steady-steady can put the M$ doctrines as valid and
ask 'what I am now according to that what M$ said
arbitrarily what I would be' ? Obviously, exactly
what they want that you are.

One should not forget, that erga omnes the M$-Novell
contract is completely irrelevant, so as it would not
exist. But the shameless advices on the side of this
deal, directed not only to M$/Novell customers but to
everybody (inclusive, citizens/administration etc of other
countries), probably can and should be used for a criminal
process against the responsables of M$.

The only one can ask is, what Novell remains to be, within
this deal.

The history is full of examples how owners of power,
interests, unqualified products etc keep all means to stop
the progress. The last time we see this on the communism.
Only the details change. Insofar nothing principally
news. The question is only, if the USA is to weak to
survive such interests and attempts, or if it stops with
its progress.

[ Reply to This | # ]

Points to consider
Authored by: The Mad Hatter r on Sunday, December 03 2006 @ 06:54 PM EST


1) The agreement not to sue was written by a lawyer who was instructed to make
sure that Microsoft retained as many rights as possible.

2) Microsoft's aim is to be the ONLY operating system vendor, and the only
office suite vendor.

3) Any action that moves item 2 closer to fruition is to be taken (even if it's
illegal, if they can get away with it).

4) Free Software is a danger to Microsoft's business model, and must be
destroyed, or if not shackled.

5) Microsoft as a company has proven that they are willing to play hard ball.

When you consider the 5 points, especially item 2, everything makes sense.
Microsoft has no interest in helping Novell. While they may have signed an
agreement with Novell, and Novell may get some short term advantages from it,
the agreement (from Microsoft's point of view) is a tactical move to enable them
to move forward in item 2.

And the only market is really important to Microsoft is the United States. If
they can retain the US, the rest of the world doesn't matter.

Of course this is a guess - I could be totally wrong.



---
Wayne

http://urbanterrorist.blogspot.com/

[ Reply to This | # ]

openSuSE illegal
Authored by: Anonymous on Sunday, December 03 2006 @ 06:55 PM EST
According to the M$/Novell deal, openSuSE is 'illegal'
already now. And everybody whom it uses.


By this and generally, when the SuSE 'hobbyists' dont want
to loose their last respect within the open community (the
people certainly will survive firmas lime M$, Novell and
even the state), then they should close their firma, what
not hinders them to re-open it outside the M$/Novell deal
with a slightly different name (such like, FreeSuSE).
This inclusive would bring the M$/Novell deal in big
trouble, and also invert its effect what M$ expected just
now at the start of the M$-Visa selling ...

werner

[ Reply to This | # ]

Micosoft's "Patents"
Authored by: Anonymous on Sunday, December 03 2006 @ 07:19 PM EST
Hi Guys

I'm a mechanical engineer in Northern Ireland and have been involved in the
patenting of mechanical inventions. I believe we don't have software patenting
here or in Europe generally - and for very good reasons of which you are no
doubt well aware.

If Microsoft has any software patents that some distros of Linux infringe, it is
surely relatively easy for a group as large as the open source community to
identify these - after all, if they are granted patents they are in public
records which are nowadays. I have had to do this myself with engineering
patents.

Of course, we, and anybody else who is aware of the way M$ do business, all know
this is just FUD from M$ who wish to make profit by any means, and particularily
if it is at the expense of anybody who dares go into competition with them.

Perhaps the OSS should grab the bull by the horns and send a very well
publicized open letter from the open source community to M$ (Dear Steve/Bill -
or whoever's in charge there now) in a couple of major newspapers in the US
(even over here we've heard of the New York Times and the Washington Post).

The two gist of this should be "We show you your GPL infringements if you
show us our patent infringements" and, of course, "put up or shut up
and if you do manage to put up don't do a SCO but come up with some REAL
infringements". Do it politely of course - finish it "respectfully,
your industry colleagues."

Of course, if they do not respond within a couple of months, write ANOTHER open
letter stating that "because you have not responded to our open letter we
can only assume that you have no patents that any distros of Linux infringe -
Linux is of course open source and, like SCO, you have had ample opportunity
over the years to examine all our code to see if it infringes any of your
patents - we believe you actually have a department to do this - I'm sure you
would agree this is the case."

Does it make sense to do this or am I being naive? Is there something I've
missed - surely the effect of these letters would be positive publicity for
Linux, the GPL, FOSS etc portraying you as 'honest dealers' who just wish to
have the situation clarified.

The thing I don't understand is how a customer could be liable when purchasing a
product from a company that may infringe a patent. If any of my company's
patented designs were copied by another manufacture, we could not and would not
sue the purchasers of the copied machine - we would sue the manufacturers - I
can't believe software patenting in the US is so much different to this.

Good Luck

Stevieboy

[ Reply to This | # ]

Is their legal standing to sue to see the agreement?
Authored by: Anonymous on Sunday, December 03 2006 @ 07:19 PM EST
If this agreement is (as a paid SUSE user/licensee) between Microsoft and me,
entered into by Novell on my behalf, aren't I a "party" to the
agreement?

And if I am a "party" to the agreement am I not to be required to be
furnished a copy of the agreement?

In other words can I sue to recieve a copy of an agreement to which I have been
made party to?

IANAL and this point may already have been brought up etc.

any lawerly/knowledgeable imput appreciated.

warner

[ Reply to This | # ]

The Novell-MS Deal: What Happens *After* the 5 Years?
Authored by: Anonymous on Sunday, December 03 2006 @ 08:46 PM EST
What happens in 5 years?

I've wondered about this myself. If the agreement expires in five years, does
that mean
a) MS will NEVER sue over covered patents so long as covered copies of coverend
products are obtained during the next five years, or
b) MS promises not to sue during the next five years. If you buy a covered
product now, MS can still sue you once five years are up.

In general, the Covenant is designed to look like the answer is a): The
second paragraph is the only place where the Term (five years) is mentioned. If
a product is "distributed by Novell... before the end of the Term",
it's covered. There's even a little bonus: "Captured Patents" get
some protection for stuff Novell sells after the Term.
So as far as the first couple of paragraphs go, the promise is "we won't
sue --ever-- over covered products sold during the next five years."

But let's take a look at the last paragraph, which includes the stuff PJ
highlighted in red:
If MS invokes its mysterious right to "update (including discontinue) the
foregoing Covenant", "the covenant will continue as to specific copies
of Covered Products distributed by Microsoft ... before the end of the
Term."

WAIT just a cotton-pickin minute: "DISTRIBUTED BY *MICROSOFT*???!!!???

What they're saying is, MS can end this agreement -whenever MS feels like it,
as far as we know- and sue anybody, including Novell customers, even before the
five years are up. But they promise not to sue their own paying customers. How
reassuring.

So despite lots of wording to give the impression that the answer is a), the
real answer is b), or actually c): After, _or before_, 5 years, MS can sue you
for using code that's covered by this covenenant.

There are lots more problems: For example, there's no mention of any notice
requirement, so how will anyone know whether MS has already "updated"
the covenant? I'd worry about that kind of stuff, and about what's meant by a
"captured" patent, if this "covenant" weren't completely
worthless to begin with.

[ Reply to This | # ]

It seems simple, ...
Authored by: rsi on Sunday, December 03 2006 @ 09:00 PM EST
Don't buy, install, or use SUSE, OpenSUSE, or host any versions of your product,
packaged for either, and ask that it NEVER be compiled for ANY version of SUSE
or OpenSUSE. I do not develop any products, but will never again use, sell, or
reccomend ANY product of Novell, or SUSE, ever again!

I would respectfully, and sincerely ask IBM to DROP their support for SUSE's
products, and support Debian instead!

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It boils down to one word
Authored by: belzecue on Sunday, December 03 2006 @ 09:58 PM EST
TAINT

Noun: The state of being contaminated
Verb: Place under suspicion or cast doubt upon

That's what Microsoft gets out of the Novell deal. And Novell sold it to them at
a bargain-basement price.

In one fell swoop, MS get to:

1) Taint Novell in the eyes of the FOSS community
2) Taint Linux/FOSS code that passes through SUSE
3) Taint Linux in the eyes of the business community, by fostering discord and
division in the Linux/FOSS community

Again let me say: Thank you for encouraging this to happen, Hovsepian.
Coincidentally, Hovsepian anagrams to PAIN SHOVE, which I expect him to be
subject to in six months when Novell stock tanks (moreso). D'uh! Of all the
boneheaded plays...

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    The Novell-MS Deal: What Happens *After* the 5 Years?
    Authored by: Anonymous on Sunday, December 03 2006 @ 10:11 PM EST
    By msnthrp
    Two questions:
    How much GPL'd software has been incorporated into
    Microsoft products?
    If Microsoft sues for patent infringement on code, would
    they be required to open their source code to public
    scrutiny in order to bring it to court?
    I agree the Microsoft "we won't sue" isn't really worth the
    paper it is written on.

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    I SO wish Microsoft will sue...
    Authored by: bigbert on Sunday, December 03 2006 @ 10:18 PM EST
    Imagine this: Microsoft sues company ABC for "patent infringement" for
    using a non-SuSE distro. ABC, who just so happens to be doing some Very
    Important Work for a government, goes to that government and informs them. The
    government in question turns around and asks Microsoft to specify the
    infringement. MS umms and ahs (see SCO saga for the training run). Government
    passes law to nullify any MS patents.

    Far-fetched? Maybe in the USA, but there are quite a few other countries in the
    world, you know.

    And who knows, maybe the USA authorities will wake up one day and start to look
    really seriously at the meaning of the Langham Act and Anti-trust act. Come on,
    guys! What more evidence do you want?

    ---
    LnxRlz!

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    Does contributing to Suse prohibit further GPL distribution?
    Authored by: HappyDude on Sunday, December 03 2006 @ 10:24 PM EST
    Am I missing something? This part

    "...but only if, and to the extent, (i) Your Original Work becomes part of
    SUSE Linux, SUSE Linux Enterprise Desktop or SUSE Linux Enterprise
    Server,...ensure that as a result of Your contribution, openSUSE.org, and all
    further recipients of Your Original Work, do not receive any licenses, covenants
    or any other rights..."

    almost sounds like a contribution to openSuse prohibits the contributor from
    licensing the same "contribution" under the GPL and therefore
    prohibits contribution to any distrubution but Suse?

    IANAL and ISAVSE (I Sure Ain't Very Smart Either:)

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    Surely the whole deal has got to be a GPL Violation
    Authored by: Anonymous on Sunday, December 03 2006 @ 11:56 PM EST
    I have not seen this discussed elsewhere yet (and it comes to mind after
    reading the IBM PSJ memo's relating to SCO's violations of IBM copyrights) but
    on the face of it this whole agreement looks to be forbidden by the GPL.

    Novell are paying MS for every copy of SUSE sold which means that the
    payment from the customer is in part for patent protection, and in fact Novell
    & MS are in fact claiming this by stating that SUSE is the only distribution
    that
    is protected.

    The GPL only permits payments for:
    1. The costs of media
    2. Support

    Does the actual wording of the contracts really get around the payment
    problem.

    mrpaul

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    Captured vs Covered patents
    Authored by: Anonymous on Monday, December 04 2006 @ 12:23 AM EST
    Captured Patents are clearly defined as past tense,
    Covered Patents by their effective dates may include some
    Captured Patents, but is clearly intended to be future tense,
    to "cover" patents which have not yet been filed.

    But then I read only the Queen's English, not Patent bar docs...

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    In Microsoft's despite
    Authored by: Wesley_Parish on Monday, December 04 2006 @ 02:04 AM EST

    It appears that the only valid reason for continuing OpenSuSE is to spite Microsoft. (It has issues with kde in my experience: that could do with a bit more work! ;)

    Renaming it would make a lot of sense, and considering it incorporates Xen as of right:
    Chameleon Linux?

    ---
    finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

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    The Novell-MS Deal: What Happens *After* the 5 Years?
    Authored by: Anonymous on Monday, December 04 2006 @ 03:55 AM EST
    "however, the covenant will continue as to specific copies of Covered
    Products distributed by Microsoft for Revenue before the end of the Term."

    This part is not about Suse/Opensuse/FLOSS/Hobbyists

    This part is about *MS* products. They are writing that even if the deal falls
    appart MS gets 5 years of Novell patents free use, safe from any lawsuit.

    (You'll notice there is no reciprocity there)

    I remember when I first read the document that's the bit that made me realise
    how thoroughly Novell botched the whole thing. Novell gets a one-time upfront
    payment from MS in exchange for a 5-years free pass. MS gets ongoing Novell
    royalties, and can ask to renegociate Novell obligations at any time without
    fearing any Novell retaliation.

    That's probably one reason no one at Novell is proposing to amend the agreement.
    They know they have no leverage with MS, which can FUD to its heart content.

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    Microsoft Can Sue Novell
    Authored by: darkonc on Monday, December 04 2006 @ 04:39 AM EST
    Microsoft can, at any time, sue Novell for violating their Patent. If Novell claims that there is a scret pact what gives them immunity, then they would get sued by the FLOSS community for copyright violation (as a result of breaching the GPL).

    Novell Customers also have dubious (if any) coverage if they do local modifications to the code -- one of the unique advantages of using FLOSS.
    (Home users who never release their code might be covered by the (essentially useless) "We promise not to sue you if we will never see your infringing code" hobbyist promise.).

    As useless as it is, any 'protection' that you might have, however, still dissapears if MS invokes their right to revoke the promise. As far as I'm concerned, that 'trap door' clause almost makes this whole promise less than useless -- especially if, somewhere in the secret parts of the agreement, MS has the right to get a target list of customers who are 'protected' by the revenue product clause.

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

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    Novell - Microsoft Deal - So What...
    Authored by: Anonymous on Monday, December 04 2006 @ 04:45 AM EST
    While I think that Novell have been foolinsh in making this deal as I think it
    will rebound on them (and only them), as far as I can make out, from Microsoft's
    point of view, this deal is worthless.

    They have paid Novell $360M or something and received a small amount of FUD in
    return. They could have spent that on FUD advertising and received a much
    higher FUD return.

    The problems as I see them are these:

    1. Novell's distribution of Linux incorporated Novell proprietary code &
    trademarks etc, so you can't just copy the disk and give it away.

    2. As far as the GPLed and other FOSS code goes, they are distributed under the
    GPL (or other licence) only. Microsoft may want to give me a patent promise, but
    it only puts an obligation on me should I want it to. In other words I can
    redistribute the FOSS code and the promise simply doesn't apply. No different
    from before.

    3. Microsoft have to sue. Because of the SCO case, we have our own FUD running
    "Linux is clean, and even if it isn't there are big beasts around to defend
    it", Which most businesses seem happy with.

    So the deal is in the end worth $360M to Novell which they have probably already
    lost in goodwill and it is worthless to MS as they will have to sue and then be
    counter sued.

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    The older message to Hobbyists...
    Authored by: macrorodent on Monday, December 04 2006 @ 05:06 AM EST

    With all the talk about MS promising not to sue hobbyists if they keep their programs to themselves, I am reminded of the famous 1976 Open Letter to Hobbyists by Bill Gates ( http://en.wikipedi a.org/wiki/Open_Letter_to_Hobbyists), where he implores microcomputer users to not make unauthorized copies of his BASIC software.

    What a difference 30 years and acquiring a monopoly position makes! In 1976 Microsoft had to try to persuade people from copying commercial software with reasoning (with which you can agree or disagree, but at least it was a discussion). Today they royally make a gracious promise not to sue hobbyists for their own programs, as long as they keep them to themselves. The contrast is amazing!

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    What happens if...
    Authored by: cricketjeff on Monday, December 04 2006 @ 05:24 AM EST
    Novell offer for sale the entirety of sourceforge for $0.01?
    Anyone who was sued would simply need to send one cent to Novell and tell the
    evil emperor where to go.
    Shouldn't be too hard to implement and it would royally annoy M$!

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    The Novell-MS Deal: What Happens *After* the 5 Years?
    Authored by: Anonymous on Monday, December 04 2006 @ 06:23 AM EST
    There was an interesting post above from Ted Powell about whether a protected
    customer is allowed to redistribute. Well, the answer seems to be that they
    can, but the recipient doesn't get the protection offered by this agreement.

    My first thought is are Novell simply trying to lock their customers in to their
    own solution (following MS' footsteps?). The protection only applies if you get
    all your SUSE updates and bug fixes from Novell. If you take advantage of the
    community nature of Linux you do so at your own risk.

    Secondly, I'm going to throw in a what if here. What if Novell was planning to
    use this agreement to allow them to engineer greater compatibility between SUSE
    Linux and Windows servers? There's no question Novell has the ability to do
    this, but did they feel they needed some guarantee from MS before doing so? Ok,
    so there's no evidence whatsoever of this, however, if it happened:

    Novell could update SUSE and provide greater integration with Windows for their
    customers. That's a great selling point, BUT: Those customers are now tied in
    to SUSE. They can't get those features elsewhere, and they cannot redistribute
    the product (even internally?).

    To do this I'm guessing Novell would have to release part of SUSE under an
    alternative licence to the GPL, so it may be that this argument is a bit of a
    red herring anyway...

    But if Novell were trying to emulate the MS software model, this agreement would
    have been ideal: They get to add functionality users need, while at the same
    time locking users in to their product. All the benefits of FOSS without that
    pesky interoperability and the risk of customers jumping ship to competitor
    products.

    Myxiplx (too lazy to log in)

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    Oops! Who did you buy your SUSE Linux copy from?
    Authored by: luvr on Monday, December 04 2006 @ 06:45 AM EST
    Whew... I double-checked this with the original document, to make sure it wasn't a typo, but read this again:
    Microsoft reserves the right to update (including discontinue) the foregoing covenant pursuant to the terms of the Patent Cooperation Agreement between Novell and Microsoft that was publicly announced on November 2, 2006; however, the covenant will continue as to specific copies of Covered Products distributed by Microsoft for Revenue before the end of the Term.

    If I understand this correctly, then you will not be safe if you bought your SUSE Linux copy from Novell. You had better gotten it from Microsoft instead!

    Another thing that strikes me, is the consistent reference to specific copies of covered products. Sounds to me like a hideous way to express the concept of properly licensed copies--as in one license per computer (or per CPU), perhaps? In other words, buy a SUSE Linux package (from Microsoft, naturally), install it on two computers, and oops... You're no longer properly covered (at least as far as the second computer is concerned).

    Feels to me like Microsoft is trying to grab hold of Linux--which, in turn, confirms my suspicion that they may want to implement the Windows User Interface as a Desktop Environment on top of a Linux infrastructure. (They certainly won't start developing a whole new Windows Operating System ever again, will they?)

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    Historical parallel???
    Authored by: Anonymous on Monday, December 04 2006 @ 07:57 AM EST
    Molotov - Ribbentrop Non-Aggression Treaty?

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    The Novell-MS Deal: What Happens *After* the 5 Years?
    Authored by: Rascalson on Monday, December 04 2006 @ 08:16 AM EST
    "I will mention in passing that the media is misinterpreting or at least
    overstating Richard Stallman's remarks about the agreement and GPLv2's section
    7, in my opinion. There is no "blessing" of this agreement to date that I am
    aware of, and I think I'd be aware of it if it happened."

    Thats putting it
    mildly. The Novell employees, apologists, and astroturfers are clinging to it
    with the vise like grip of a drowning man.

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    "... as distributed by Novell ..."
    Authored by: rao on Monday, December 04 2006 @ 09:11 AM EST
    ... Customers’ use of specific copies of a Covered Product as distributed by Novell ...

    So if you modify anything in the distribution then you are no longer protected? Applying a security patch to Firefox for instance. Would that terminate the agreement?

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    The Novell-MS Deal: What Happens *After* the 5 Years?
    Authored by: gbl on Monday, December 04 2006 @ 10:30 AM EST
    Who says that Novell will exist in five years time; for that matter what happens if Novell does collapse? Where does OpenSUSE go and what happens to any agreements with MS?

    Only Linspire seem to have ever survived an encounter with Microsoft. They may have had to change the name but MS paid Linspire a huge amount of cash to not challenge MS trademarks which were looking very vulnerable.

    ---
    If you love some code, set it free.

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    Legally, everyone is compensated by default
    Authored by: Anonymous on Monday, December 04 2006 @ 11:14 AM EST
    Unless they specifically defined non-compensated in this deal, which I think
    they deliberately did not, then;

    If you develop code under GPL then AFAIK you can be considered compensated in
    form, not in money but by improved code by others. Hence, legally, there are NO
    non-compensated GPL developers. So their "gesture" is another empty
    promise. Actually it's worse because they're trying to say there are
    "non-compensated" coders out there while they know there's not. More
    bluntly, that's called lying.

    Even apart from this "little" detail, the whole deal stinks so much
    I'm sure even Hovsepian smells it. But he thinks it's worth it because he gets
    to stuff his pockets with MS money. Simply put, you're stuffed by Novell as
    designed by MS. To stay away from the stink, you just stay away from Novell.

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    It looks like the date the earliest of MS patents expire.(nt)
    Authored by: jesse on Monday, December 04 2006 @ 11:43 AM EST
    It looks like the date the earliest of MS patents expire.

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    Hmm ...
    Authored by: sschlimgen on Monday, December 04 2006 @ 12:39 PM EST
    Does anyone else look at this deal and think-

    M$:Novell::SCO:EV1

    ?

    ---
    Meandering through life like a drunk on a unicycle.

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    M$ FUD re: purported patent IP in Linux
    Authored by: sschlimgen on Monday, December 04 2006 @ 12:46 PM EST
    Dear Santa:

    All I want for Christmas is for a Linux company (Red Hat, are you listening?) to
    file a Lanham Act suit against M$ over Ballmer's FUD statements. Then I'd like
    to see them use discovery rules to force M$ to back up Ballmer's spew with
    specific patents they allege Linux infringes.

    Thanks, Santa

    Steve

    PS - oh, and I'd also like a pony.

    ---
    Meandering through life like a drunk on a unicycle.

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    The Novell-MS Deal: What Happens *After* the 5 Years?
    Authored by: Anonymous on Monday, December 04 2006 @ 12:48 PM EST
    As big business sees innovation developed by newer or smaller companies, they
    have the right to offer to purchase that company along with its technology.
    Remember, technology doesn’t make profits, only successful products and services
    marketed by companies can achieve this. In this case the product is open source
    and free, but the companies that are making the profits are not. I personally
    feel that Microsoft would loose all respect in the big business world if they
    bought a company like Novel or Red Hat. So if you can’t buy them… what next?

    As technological change happens faster and faster, it becomes difficult for big
    companies to be the only innovators in the game. “What happen after 5 years?”
    may not be as big about technology ownership rights and litigation but more as a
    perceived marketing tool to say “we are Microsoft and we are still the leader in
    the big business technology game.” This gives them the rights to build
    proprietary software products on top of an open source developed foundation and
    still make a profit just like anybody else. This sounds ok to me. But, if you
    think Microsoft plans to tie up ownership rights with litigations in five years,
    I personally feel the big business financial world will see this as a poor way
    to choose to do business. The consequences will be that big business will choose
    another company not in litigation to play the big business technology game with.
    Then what happens to Microsoft? I truly believe that Microsoft is different than
    companies like SCO.

    I feel it is time for open source developers to BE PROUD of their great
    contributions to innovation and quality. You are now being recognized POSITIVELY
    by the present big business software leader Microsoft. This gives your work big
    business world credibility as never before. Congratulations for your efforts! I
    appreciate that you have become a big player in the big business technology
    game. I love American freedom for I have a choice, to work with Microsoft or
    with any one of thousands of open source developers worldwide. I am so grateful
    for choice.

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    The Novell-MS Deal: What Happens *After* the 5 Years?
    Authored by: Anonymous on Monday, December 04 2006 @ 01:06 PM EST
    "If you as an individual programmer write code, contribute it, and it's
    covered by the patent agreement during the five years, what happens to it
    afterward? "

    That would first imply that I am writing code that infringes on somebody's
    patent.

    Isn't this what we'd like to see not happen in the first place?

    Could this be correctly licensed under the GPL anyway?

    Would the code get rejected if it violoates someone else's IP?

    In other words, I would knowingly/intentionally be creating code that carries a
    patent problem.

    Now, if I was working for Novel and writing code for them and they as my
    employer decided that was the correct thing to do, then OK by me. But then, I
    would not be an independent programmer.

    I could think of better hypothetical situations worth pondering.

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    Planning the Counter-Attack
    Authored by: darkonc on Monday, December 04 2006 @ 04:35 PM EST
    If Microsoft distributes it's chits for customers to receive GPL software that is limited in terms of how that customer can use and/or distribute the software without fear of patent violation, then I would say that MS and Novell are acting in collusion as a composite entity in the distribution of that copy with un-GPL permissions

    As such, if they claim that a user of that copy doesn't have full GPL rights on those copies, then they would be guilty of (possibly contributory) copyright violations with respect to that code.

    This means that if MS should sue somebody for patent violations in Linux, then that would-be victim would be required to bring in Novell as a 3rd party counter-suit defendant.

    Does that sound plausible?

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

    [ Reply to This | # ]

    by and for -MS Deal: What Happens *After* the 5 Years?
    Authored by: Anonymous on Monday, December 04 2006 @ 06:47 PM EST
    This is a deal engineered by microsoft for microsoft with a multi hundred
    million dollar bait. I hate to say it, but Novell had better plan on replacing
    all FOSS code they distribute, with in house developed stuff, and plan on doing
    everything over from scratch.

    The only way they will get anywhere with this is to spin off all their FOSS
    projects into a new company. Maybe they can get away with running it as a
    wholly owned subsidiary, and reserve all the patent exchange stuff with the Unix
    they own or will shortly own.

    How come Novell hasn't put a lien on all the Unix property, pending payment of
    monies owed, or did they try that?

    [ Reply to This | # ]

    The Novell-MS Deal: What Happens *After* the 5 Years?
    Authored by: theMutant on Tuesday, December 05 2006 @ 01:01 PM EST
    The reason the deal took place in the first place is that M$ realized that Linux
    is not going away and that it had better start working with Linux vendors to
    some extent. Now, they obviously feel that they will still be able to control
    the market but they also know that their shenanigans are becoming more
    publically known and that they won't be able to get away with them for too much
    longer.

    Their attempt to restructure their licensing agreements failed.

    Windows Server 2003 only looked successful on paper (in reality, I know of many
    places that only had 2003 licenses because Microsoft required that the license
    be upgraded even though their server was still 2000.

    Vista is going to backfire due to the high cost of migrating. Plenty of
    corporations will take the plunge because they cannot see a workable
    alternative, but they will be very angry at all of the software they will have
    to pay to upgrade simply because they have switched to Vista.

    In 5 years time, the FOSS community will have made the necessary improvements
    that will convince medium and large businesses that Linux is not only ready for
    the server room but also for the desktop. The decision makers at these
    companies will begin seriously looking at switching. M$ will lose a lot of
    business.

    Everyone keeps asking what happens if M$ chooses not to renew the agreement. I
    think that this is not the right question. The real question is will Novell
    want to renew the agreement? Will M$ still be perceived as a litigation threat
    to its customers? Will this type of agreement be necessary in order to get
    Microsoft to have its products work cooperatively with Linux and other FOSS
    software? In my opinion, the answer to all of these questions is no.

    ---
    David W. Cooney, CNB (Certified Novell Bigot)
    IANAL

    [ Reply to This | # ]

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