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Patent News from Novell and Moglen - Updated - OpenLogic Webinar in Ogg format
Wednesday, May 23 2007 @ 08:33 PM EDT

Novell has just joined EFF's patent breaking effort. The two will work together to lobby governments and international organizations to "reform software patents worldwide" with a particular emphasis on WIPO. And Novell is providing funding to the EFF Patent Busting Project.

And I have news directly from Eben Moglen and from Kevan Barney at Novell, each telling me that Novell will be going public with the complete terms of the Novell-Microsoft agreement, Moglen says before GPLv3 is finished.

Update: Now there is a report by Stephen Shankland that Novell's Bruce Lowry just announced at the Open Source Business Conference that the agreements will be attached to Novell's annual report, which it will file this month with the SEC. However, he also says some details of the agreements will be redacted. GPLv3 will be ready in four weeks.

Update 2: We have the Moglen webinar in Ogg now.

I asked Novell a number of questions when the Dell announcement broke about Dell buying SUSE vouchers from Microsoft, and in that connection, I asked when we would get to read the complete terms of the patent peace agreement. Here's Barney's answer:

As is customary, the terms of the agreements between Novell and Microsoft are confidential, although the parties have disclosed many aspects of those agreements. Additional terms of the Patent Cooperation Agreement will be made public in Novell's future SEC filings.

I don't know how customary it is to enter an agreement, which allegedly the end users have done with Microsoft, if they don't know all the terms of the agreement first. We were told the parties were Microsoft and paying SUSE customers, not Microsoft and Novell. The interoperability agreement and the marketing cooperation were between the two companies, I thought, but not the patent deal. That's how my paralegal brain took it. However, it's clear we will eventually get to know the terms fully. Moglen was a bit more specific:

I have high confidence that the full relevant text of the MS/Novell agreements will be made available by Novell before the final publication of GPLv3, and that your readers and other members of the community will then be able to see more fully what RMS and I have done, and why we have done it. I will comment more fully at that time.

The OpenLogic webinar audio where Moglen explained the GPLv3 effect on vouchers with no expiration date will be available shortly, as soon as we get it all uploaded. It's very long, so we have it broken up into chunks. In connection with that, Moglen noted that some of you had questions, and he indicated that you'll get the whole picture when the agreements are made public by Novell:

I'd like to make a brief comment on the discussion Groklaw readers have had about these slides and the role MS coupons play in connection with GPLv3. Your readers are at a great disadvantage because they cannot see the terms of the actual MS/Novell agreements, which would reduce their uncertainty very much.

And here are all the questions I sent to Novell and all of the answers. In some cases, they are non-answers, but it's still interesting, particularly the answer to the last question about a Chinese wall. My questions are numbered, and his answers follow sequentially:

1. In what sense is Dell a consumer of the vouchers? Are they a paying end user, so that Dell has the patent peace protection from the vouchers?

Dell is not a consumer of vouchers (aka certificates). Dell simply contracted for the right to purchase the certificates from Microsoft to enable Dell to resell these certificates to its customers.

2. If not, and they are merely a conduit, why wasn't the arrangement that they'd get the vouchers as customers actually asked for them?

Dell's activities in reselling the certificates are no different from that of a channel partner purchasing offerings at an agreed-upon discount rate and then reselling such offerings to end users. Any pricing and commercial terms would be confidential and set forth in an agreement between Microsoft and Dell.

3. Does Microsoft have any vouchers left to sell? If not, will it be getting any more? Or is Dell taking over the distribution of those vouchers?

Microsoft has more certificates available to sell. Dell's channel relationship with respect to a relatively small quantity of certificates is addressed above. How, when, or at what price Microsoft sells the certificates is for Microsoft to decide, but Novell is not aware of any efforts by Microsoft to transfer or outsource the distribution of certificates to any third parties.

4. If the latter, and if, as per 1 they are the consumer, then how is it going to work that Dell can pass along the patent peace? I thought that was what an end user could not do? Is there some written agreement between you and Dell or Microsoft and Dell that spells all this out? In other words, is there a guarantee that buyers of the voucher will get the patent peace promise?

Novell and Microsoft agreed that they would make patent covenants to their respective customers. Novell customers may receive Novell products directly from Novell, or indirectly through partners such as Dell. Novell customers who receive Novell products through Dell may qualify for patent covenants directly from Microsoft.

5. On the patent peace, when will we be given the full details? I read where Steinman said SEC regulations forbid you to talk about it now, but my understanding is that you could amend the previously filed SEC filing that already mentioned this deal. Could you tell me precisely what SEC regulation or rule compels you to keep this clarification private? I'm unclear how customers can decide if they do or don't wish to purchase, if they don't fully know all the terms. Do those who already got vouchers, for example, have all the definitions referenced in the agreement but not defined? When will the terms of the vouchers be made public? Do you have to buy one to read one?

As is customary, the terms of the agreements between Novell and Microsoft are confidential, although the parties have disclosed many aspects of those agreements. Additional terms of the Patent Cooperation Agreement will be made public in Novell's future SEC filings.

6. Steinman has just been quoted in BusinessReview Online as saying that the patent peace agreement has two parts, and that part of it was to allow Novell the legal right to access Microsoft code regarding Active Directory. Can you clarify if that is accurate? My understanding was that the patent deal was between Microsoft and your end users directly, not between Novell and Microsoft.

The covenants Microsoft makes to Novell customers do not provide Novell with access to Microsoft code. The terms of those covenants are publicly available on the Web sites of both Novell and Microsoft. As announced in November 2006, Novell and Microsoft have entered a Technical Collaboration Agreement under which the companies work to achieve interoperability between Novell and Microsoft offerings. When ISVs enter such agreements, the terms customarily provide for exchanging relevant technical information. Novell has no intention to distribute the code of Microsoft or any third party in an unauthorized manner, and employs customary measures to comply with our license obligations.

7. Did Microsoft sell its vouchers to Dell, if indeed they did sell them 100% to Dell, at least in part to avoid being a distributor of GPLd software and so coming under the terms of GPLv3?

Microsoft would be the best party to answer that question.

8. You mention that Dell bought them in part to show support and validation of the deal. Would not Dell buying vouchers directly from you have achieved the same result, with the end being that both Microsoft and Dell could sell vouchers?

Dell's limited participation in the Novell-Microsoft relationship includes elements of marketing, support and discounted purchase rates between Dell and Microsoft that would not have been possible in a simple two-way partnership between Novell and Dell. As we've said previously, the certificates are a unique offering that Novell created specifically for the Microsoft agreement, and thus it was important for Dell to participate in this offering as a symbol of their support for our agreement.

9. In the 2007 Open Source Think Tank video, Microsoft's Sam Ramji mentions, when asked if Microsoft actually has any IP in Linux, cloning. Can you explain? Was he referring to Mono? Samba? OpenOffice?

These questions would best be posed to Sam Ramji.

10. If Novell has access to Microsoft's code, do you have a Chinese wall set up, so that others who may accept the GPL code you write thereafter is not contaminated and hence liable to claims by Microsoft regarding copyright infringement, cloning, etc.?

This is not a novel situation; any ISV in a mixed-source environment must address this issue and there are customary ways of doing so.

Meanwhile, Antone Gonsalves at EETimes reports that Microsoft says it isn't attacking Open Source. It is just responding to customer demand. Shades of SCO. Must be the same customers SCO told us were begging them to set up SCOsource licensing. Here's what Microsoft's Bob Muglia said:

Muglia said Microsoft was focused on interoperability with open source software, not on challenging the use of its intellectual property in court. "Our approach is a licensing based one," Muglia said. "It's a real issue for customers, and one that Microsoft is addressing proactively."

I just can't turn off my paralegal brain, which translates that to say: We won't sue you as long as you pay us. I believe I can get similar terms from the Mafia.

This is just Microsoft's way of killing off the Open Source development model, as I see it. FOSS coders are individuals, not companies, and they give their work away, for the most part, so where are they going to get money to pay for licenses? And yes, Microsoft has to know that this is an attack, an arrow straight at the heart of FOSS. Anyway, Microsoft customers can get interoperability without anyone having to pay anything. Let Microsoft simply follow standards without extending them and open up enough for folks to interoperate, as the EU Commission has told them to. Then we can all interoperate and Microsoft's customers will be happy and so will FOSS.

I know. But that is the correct answer.

Update: Another part of Shankland's report has this offensive bit, from Justin Steinman. Who else?

Microsoft's patent tally news both pleased and displeased Novell, said Justin Steinman, the company's marketing director for Linux.

On the displeased side, Novell saw the news as "another round of, '0h no, here we go again.' We generally think comments like that aren't productive," Steinman said.

On the pleased side, Novell potentially can profit from the saber-rattling. "If Microsoft is going to go out and raise concerns, we are comfortable we can offer (customers) coverage," Steinman said. Overall, though, Novell wasn't pleased. "Do we wish the tone of the article had been different? I think so."

I could probably make some money selling my mother's blood, if I had no conscience. Or I could rob a liquor store. There's money in that, I hear. Profit isn't the only indicator of whether a deal is a good idea or not.

Update2: Here we go, the Moglen webinar in which he informed the world that the SUSE vouchers have no expiration date and what that will mean for Microsoft once GPLv3 is in place. It is titled "Maximizing the Value of Open Source in the Enterprise". Our thanks go to Rick Stanley for doing the Ogg file for us, and we thank OpenLogic also for giving him permission to make the proprietary file available in a format you can use. The webinar is quite long, so Rick also broke it into four segments for those of you on dialup:

Part 1
Part 2
Part 3
Part 4

As you can see from their blog entry, the thanks are mutual, because OpenLogic didn't know how to translate into Ogg format, and so he not only offered to do it for them, he taught them how to do it for the rest of their files, at their request. Thank you, Rick.

More news from OSBC. The panel discussion on "Is the Novell-Microsoft Deal Good for Open Source?" (there was a second panel, "Is Cancer Good for Communities?" -- kidding) had Jonathan Corbett explaining why it can never be good, as reported by Charles Babcock at InformationWeek:

Jonathan Corbet, an active Linux kernel contributor and executive editor of or Linux Weekly News for developers, said major software makers have patented "thousands of trivial functions" used repeatedly by other systems. "There's no way to write a non-trivial program that can't be claimed to infringe on someone's patents." Microsoft itself is on the defensive "in a couple of dozen patent suits" where other firms say Microsoft has infringed on their patents.

That, Corbet said, makes it hard to reconcile Microsoft's offensive use of patents against open source. "When the CEO of Microsoft goes around saying Linux users have an undisclosed liability on their balance sheets, that's a classic fear tactic."

When Microsoft suggests that Linux developers have stolen its IP, "I feel that I've been called a thief," he said. As a result, he concluded, the Microsoft/Novell deal might be good for Novell "but it's not good for the community" of open-source developers and users.

People who don't grok the GPL have a harder time seeing the problem. There is a reason why around 70% of projects on Freshmeat are released under the GPL. FOSS programmers trust it. And anything that undermines it undermines their work and violates their trust. That is the bottom line.

I think Microsoft probably does understand that, and that is exactly why it wishes to undermine it. The Supreme Court in the recent KSR decision has thrown tacks in Microsoft's roadway, of course. All those obvious patents Corbet mentioned are not useful to anyone now, because they are obvious and can't stand legal scrutiny. And GPLv3 is the nuclear weapon that will finish the patent peace strategy. But I'll never forget that Microsoft tried this, and I'll never forget that Novell sold out the GPL for a personal leg up at the expense of the community. No doubt my future purchases will reflect that remembrance. And I hope the community and EFF watch them very, very closely as far as their lobbying effort is concerned. I am not comfortable that they comprehend the views of the community; how then can they represent it?


Patent News from Novell and Moglen - Updated - OpenLogic Webinar in Ogg format | 299 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: caecer on Wednesday, May 23 2007 @ 09:38 PM EDT
If needed.
Clickies are nice.

[ Reply to This | # ]

  • 0h no, -> Oh no, - Authored by: Anonymous on Thursday, May 24 2007 @ 05:53 AM EDT
OT here please
Authored by: caecer on Wednesday, May 23 2007 @ 09:40 PM EDT
I can't believe I was first!

[ Reply to This | # ]

Steve Ballmer must be a fan of the Sopranos
Authored by: The Mad Hatter r on Wednesday, May 23 2007 @ 10:05 PM EDT

At least it sure looks like it from my vantage.


[ Reply to This | # ]

And What Are You Up To Now, Novell?
Authored by: TheBlueSkyRanger on Wednesday, May 23 2007 @ 11:09 PM EDT
Hey, everybody!

I've read through the article twice now, and my Spider Sense is tingling.

Mostly, the vibes are coming from Novell. There is something about this
situation that I really do not trust at all.

Novell has lost a lot of talent, talent critical to keeping them going. We know
they've been snowing us since the beginning, saying their customers were
demanding the patent deal as opposed to regular indemnification.

1) Can they really come clean? Will they have to keep certain aspects of the
patent deal secret?

2) If they can keep it secret, will Moglen spill the beans?

3) Can Moglen call them out if they are less than candid? ("You forgot to
mention this. I saw the deal, remember? And you can legally reveal this. Now
hop to it.")

4) Why now? They made a bad deal with M$. They got a short term infusion, but
they are giving an awful lot back. Do they think that this can be shown as a
first step towards getting back in the community's graces, sort of like EV1
flipping for IBM? Are they hurting so much from the deal that they are trying
this to regain lost support?

5) Can they get out of the patent deal, or are they stuck? Could this be why
they are revealing all? It's the only option they have to try rebuilding
bridges with the community?

First, Novell announces it's going to try changing the world's mind on software
patents. Now this. It's one thing if they've seen the light and are trying to
do the right thing. It's a whole other situation if they are just looking to
throw a few bones to the FOSS crowd and fool them long enough to keep them

Dobre utka,
The Blue Sky Ranger
a former SuSE fan who is probably going to stick to MEPIS....

[ Reply to This | # ]

Corporate conscience?
Authored by: mrcreosote on Wednesday, May 23 2007 @ 11:30 PM EDT
"I could probably make some money selling my mother's blood, if I had no conscience. Or I could rob a liquor store. There's money in that, I hear. Profit isn't the only indicator of whether a deal is a good idea or not."

You obviously have not seen 'The Corporation'


[ Reply to This | # ]

Microsovell squirms
Authored by: grouch on Thursday, May 24 2007 @ 12:19 AM EDT
The more weasel words they use, the more I find Novell untrustworthy. They appear to be feeling the backlash and do not like it. I suggest they read The Cluetrain Manifesto and take note of 11, 20, and 23.

-- grouch

"People aren't as dumb as Microsoft needs them to be."
--PJ, May 2007

[ Reply to This | # ]

Before you start wondering...
Authored by: DrScott on Thursday, May 24 2007 @ 12:53 AM EDT
I am not related to Justin Steinman (just in time, man?). My last bit of Novell

softweare was WordPerfect, when it was on the Mac. My only Microsoft software
is Windows and the ParScore test grading program used by my college on my
office computer. All other Microsoft software has been wiped off of all my

Please don't hurt me. ;-)

Scott Steinman
Programmer, Memphis, TN

[ Reply to This | # ]

Authored by: Anonymous on Thursday, May 24 2007 @ 01:24 AM EDT
That doesn't sound like Steinman is pleased to me. That sounds like a reporter
is trying to portray him as being both pleased and displeased, and asked a very
leading question or took something out of context.

Well, maybe that's too harsh to entirely assume that the reporter is shading
things. But the quotes as presented there certainly don't support the claim of
"pleased", so I think it's certainly too harsh to assume that Steinman
is actually pleased about this to any significant extent just because the
reporter says so.

[ Reply to This | # ]

I hope I'm wrong
Authored by: kozmcrae on Thursday, May 24 2007 @ 01:24 AM EDT
I think we're living in exiting times. Boy, do I hate exiting times. History
will look back and call this the New Enlightenment, or some such thing. It's
the end of an era that had its birth in the Industrial Revolution and is now
meeting its demise in the FOSS revolution. Bill Gates, Steves Ballmer and Jobs
would have been quite comfortable in company with Cornelius Vanderbilt, Andrew
Carnegie and J. P. Morgan. But our society has grown weary of an economic
structure that treats us as; the lowest common denominator, mindless consumers,
cattle, money trees. They keep us in a consuming stupor by bombarding us with
an endless stream of propaganda from every available medium. I know because
I've been without TV for a year and my mind is just beginning to wake up.

I wouldn't expect Microsoft to embrace FOSS any more than I would expect a slug
to cross a line of salt. It won't happen. When the details of this whole
charade, everything Microsoft has done since the anti-trust trial, are revealed,
even the most hardend of us will be stunned. If Microsoft were forced to abide
by every law, rule, and business ethic, they would dissolve just as the slug
crossing the salt would. They can only survive through subterfuge, bully
tactics, propaganda, and less-than-legal business deals.

I believe Microsoft has a grand plan to neutralize FOSS and to completely
subjugate GNU/Linux. They want GNU/Linux to be their next operating system. Of
course the first thing they would do with it would be to strip out 75% of its
functionality. It would be added back later of course as "upgrades".
And it would be made to be more "interoperable" as per "customer
demand". Unfortunately that move would make TurboVista aka Microsoft Linux
completely incompatible with "traditional" Linux.

To illustrate one aspect of Microsoft's plan I submit Exhibit A, The SCO vs IBM
case. It has succeeded wildly beyond Microsoft's dreams. But SCO was crushed
you say, and illustrates what happens to companies dumb enough to challenge
Linux. Winning the case wasn't the goal. The goal was to take out one of
Linux's strongest and most dangerous allies, IBM. But they're still around you
say. Yes, but their "fight" and resources have hopefully been broken.
I don't think they would take on Microsoft now in a similar case. SCO was a
sacrificial beast. To me this theory explains the alternate reality that SCO
was operating in. The only reason for its being was to suck as much money and
resolve out of IBM as possible.

If, after all the dust has settled and it turns out that I'm very wrong, then
please come back here and taunt and ridicule me because I'll love every minute
of it. It will mean a new and wonderful day for digital freedom. Remember,
*after* the dust has settled, not before. Thank you.


Coming soon: Signature 2.0

[ Reply to This | # ]

Robots.txt vs SEC
Authored by: IMANAL on Thursday, May 24 2007 @ 01:37 AM EDT
While pulling rugs and carpets, I guess a robots.txt file
won't work vs SEC.

IM Absolutely Not A Lawyer

[ Reply to This | # ]

Patent News from Novell and Moglen
Authored by: Anonymous on Thursday, May 24 2007 @ 01:40 AM EDT
"Or I could rob a liquor store."

My brother told me never to rob a liquor store, the real money is at a

Alas, my brother was busted for attempted robbery of a supermarket and did 7
years straight in a state run cross bars bed and breakfast for his act of

To bad the same most likely won't happen to the Capo di tutti capi at M$.


[ Reply to This | # ]

They almost got away with it
Authored by: phourth.wall on Thursday, May 24 2007 @ 01:51 AM EDT
One of the most eagerly anticipated events at OSBC was a panel in its legal
track entitled "Is the Novell-Microsoft Deal Good for Open Source?".
Microsoft, Novell, and the Open Source community had an opportunity to come
together to have a conversation about a deal concluded last November which has
changed the Open Source landscape at least among the chattering classes if not
the actual open source developers. During the panel, Novell announced that
details of this deal will be released in redacted form by the end of this

Justin Steinman, Director of Marketing, represented Novell. Sam Ramji, Director
of Linux Labs, represented Microsoft. The community was represented by Allison
Randal, who is Open Source Evangelist at O'Reilly and by Jonathan Corbet,
Executive Editor, The panel was moderated by Black Duck CEO, Doug

Steinman explained that the deal, for Novell at least, amounted to business as
usual. It just meant making customers more comfortable as well as getting more
customers. 40,000 new licensees in Q1 2007. The deal imposed no new restrictions
on Novell's engineering practices or products. Instead there is the promise of
being able to engineer better facilities for virtualization as well as to
enhance interoperability with products from the leading provider of software in
the industry. In response to the community's concern about possible patent
attacks as a result of the deal, Steinman stated that Novell was aware of no
specific intellectual property infringements by Linux. Its just that its
customers could breath a bit more freely now than they could before the pact
with Microsoft. Blessed by the agreement with Microsoft, Novell customers can
worry less about incurring risks in using open source.

For his part, Ramji of Microsoft was slick, but not quite slick enough to avoid
crashing at the end. The room was stacked with strategically positioned, execs
both from Novell and Microsoft. Everything was going smoothly. Ramji knew just
when to speak, just when to pass, and just when to smile. His bottom line was
that Microsoft is learning to participate in the Open Source ecosystem. Watch
our actions and don't take every deviation that's reported in the press too

Questions were asked and answered about whether Novell was still free to
contribute their OOo patches back to and not just be trapped in
Novell's own Microsoft-protected edition. Nat Freedman, Novell's CTO of Open
Source, affirmed that there are no restrictions whatsoever.

Questions were asked and answered about why Microsoft was presenting mixed
messages to the market and would this pattern continue. Both Microsoft and
Novell stayed on message. Steady, straight. Microsoft maintained that it has
been participating in the open source community first with "Windows
Installer XML" (WiX) then with other projects like codeplex, a sourceforge
like repository of community projects. Microsoft was characterised by Ramji as a
big company with many different spokespersons. He said it functions like a
democracy. Consequently, the free press, which also functions as a democracy, is
free to assemble different statements together to weave their own interpretation
of various Microsoft positions. In short, Ramji said, watch our actions, and
don't read too much into what you see in the press. During the panel Microsoft
reiterated that it does not want to pursue litigation. Instead, it invites
anyone to enter into agreements, like the one with Novell, for the use of its
IP. Specifically, Red Hat is welcome to "come to the table".

So far so good. Everything seemed to be working smoothly. But that was until the
end, when their luck seemed to run out. They pulled out big guns at the end to
try to ensure a smooth landing, but in their eagerness they failed to follow

As the final question for the panel, asked pointedly why Microsoft had
quantified but not revealed the specific patents that open source was being
accused of infringing. No other company with a rich patent portfolio has become
involved in a media campaign to instil uncertainty about undisclosed liabilities
in the conduct of business by the public at large. So Microsoft's counsel for
open source, Jim Markwith, was invited by Ramji to explain. He had been silently
sitting in the front row of the audience and he spoke with surprising
awkwardness. He explained that no company lists publicly their active patents.
It is administratively prohibitive. Usually specific patents are only discussed
under non-disclosure when patent licensing or exchange is being pursued.

Finally, and obviously deviating from the script, Mr. Ramji attempted to explain
that the release of specific counts of offending patents amounted to Microsoft's
attempt at greater transparency. This left the room in somewhat of a state of

At the end of the day, if you follow Microsoft's advice and judge it literally
by its actions, a clear pattern emerges. By participating in conferences like
OSBC, by supporting companies like Novell, SugarCRM and others, Microsoft will
try to grow the open source market so that both Microsoft and open source
companies can reap the benefits of a larger pie, a pie that furthermore meets
the needs of customers for heterogeneity and interoperability. But it won't
quite be free. The open source community must ultimately come to Microsoft's
table to discuss appropriate terms of agreement.

With this kind of messaging from the giant in the business, there is no doubt
that it amounts to a shakedown of the market: we will send you customers, and we
will protect and help you expand your businesses, but you must pay us our
rightful share for this protection and generous support.

It seems that Microsoft and Novell do not quite get it. Indeed, a correct code
of conduct goes far beyond the open source pieties of share and share alike.
Correct conduct forbids the dominant market leader from joining with its
competitors to interfere with the free and competitive working of the market.
It's a clear violation of trust. Divisive messages as well as practices that
restrain competitive freedoms should be carefully and correctly observed by
regulatory agencies in the US, the European Union and elsewhere. But more
importantly, everyone who believes that prosperity can only come from nurturing
healthy competition and preventing unnecessary monopoly, should vote with their
collective wallet in protest.

[ Reply to This | # ]

Customers who receive products through Dell *may* qualify for patent covenants
Authored by: Anonymous on Thursday, May 24 2007 @ 02:34 AM EDT
Now this may just be a mishap or legalese but it surely does not inspire
confidence that 'Novell customers who receive Novell products through Dell *may*
qualify for patent covenants'. It seems to imply that these certificates have
strings attached that could also make them useless for the end user. I would be
grateful if someone with authority could clarify this.

BTW, are these certificates physical certificates that the end user receives and
hang on his wall, or redistribute?

[ Reply to This | # ]

What are they doing with my language?
Authored by: Ian Al on Thursday, May 24 2007 @ 04:29 AM EDT
First, thanks to PJ for shining a light on the covenant from a different angle.

I don't know how customary it is to enter an agreement, which allegedly the end users have done with Microsoft, if they don't know all the terms of the agreement first.
I wouldn't enter into an agreement with Eben Moglen, himself, if he would not reveal all the terms of the agreement. As far as Microsoft is concerned I don't accept any agreements with them unless I have no alternative. The folk who are likely to be sued by Microsoft for patent infringement are large companies. It would be an offence for which they could be sued by their investors to enter into an unwritten, unsigned agreement with Microsoft for which they do not know the precise terms.

Now to the beef which is getting a little past its sell-by date.

Novell customers who receive Novell products through Dell may qualify for patent covenants directly from Microsoft.
Now, I have told you all off before about using 'can' when you mean 'may' and 'may' when you mean 'might'. I want to know how good Novell's use of the English language is. Is that customers may qualify or might qualify?

Ian Al

[ Reply to This | # ]

Can FSF ask Microsoft to clarify (or retract) its patent claims over GNU code?
Authored by: leopardi on Thursday, May 24 2007 @ 04:56 AM EDT

Since Microsoft currently distributes GNU code under GPLv2, surely FSF is within its rights to ask Microsoft for clarification of its patent claims in relation to this code? If Microsoft asserts patents over this code would FSF be able to prevent Microsoft from distributing the code under GPLv2?

Or does Microsoft's distribution of the code imply that all users of the code automatically have a license from Microsoft for all applicable Microsoft patents relevant to the code? Or is this only the case with GPLv3?

[ Reply to This | # ]

Would it be an agreement?
Authored by: Anonymous on Thursday, May 24 2007 @ 05:50 AM EDT
"I don't know how customary it is to enter an agreement, which allegedly the end
users have done with Microsoft, if they don't know all the terms of the
agreement first."

Well, under English law it wouldn't be an agreement as there
has been no meeting of minds or an ability to fully agree to a standard

Isn't it the same in the States?

[ Reply to This | # ]

I fear too many cinics reside among us ...
Authored by: Anonymous on Thursday, May 24 2007 @ 07:03 AM EDT

just an opinion !

Open to debate !


[ Reply to This | # ]

Who's the Customer???
Authored by: Anonymous on Thursday, May 24 2007 @ 07:42 AM EDT
WHo's the customer that has been requesting this patent protection/assurance -
Maybe it is just Microsoft. THey gave a wad of cash to Novell so does that make
them a customer? Are they looking to NOT have their patents challenged so their
saber rattling has a chance of spounding less bogus?

Look at the money and you might find the "customers..."

but then I might just be a cynic...

[ Reply to This | # ]

Some Funny ha-ha Patent News from Novell and Moglen - Updated - OpenLogic Webinar in Ogg format
Authored by: talldad on Thursday, May 24 2007 @ 08:54 AM EDT
And here's more from the Microsoft Humour Dept.:
t;> Microsoft too busy to name Linux patents</a>

El Reg reports on Microsoft-people-statements at an Open Source Business
Conference (OSBC).
<i>Microsoft patents attorney Jim Markwith told OSBC it would be
"impossible" for Redmond's bureaucrats to respond to the volume of
responses that would result form [from] disclosure. Also, apparently, it's
ungentlemanly to name names.

"Most people who are familiar with patents know it's not standard operating
procedure to list the patents," Markwith said. "The response of that
would be administratively impossible to keep up with."</i>
'Far better to rattle sabers instead.' opines Vulture Central.


John Angelico
Down Under fan &
OS/2 SIG Co-Ordinator

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Some Funny ha-ha Patent News
Authored by: talldad on Thursday, May 24 2007 @ 09:03 AM EDT
Trying again to post so that it looks and works clicky! And here's more from the Microsoft Humour Dept.: Microsoft too busy to name Linux patents El Reg reports on Microsoft-people-statements at an Open Source Business Conference (OSBC).
Microsoft patents attorney Jim Markwith told OSBC it would be "impossible" for Redmond's bureaucrats to respond to the volume of responses that would result form [from] disclosure. Also, apparently, it's ungentlemanly to name names. "Most people who are familiar with patents know it's not standard operating procedure to list the patents," Markwith said. "The response of that would be administratively impossible to keep up with."
'Far better to rattle sabers instead.' opines Vulture Central. ROTFL!!

John Angelico
Down Under fan &
OS/2 SIG Co-Ordinator

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What can hidden clauses in an agreement do?
Authored by: Anonymous on Thursday, May 24 2007 @ 09:43 AM EDT
Do I read this right -- Novell Customers are being subjected to a hidden agreement with Microsoft the terms of which they don't even know!?!?!
I don't know how customary it is to enter an agreement, which allegedly the end users have done with Microsoft, if they don't know all the terms of the agreement first. We were told the parties were Microsoft and paying SUSE customers, not Microsoft and Novell.
Wow that's scary.

What can be in these agreements? Anything? Clauses that Novell customers aren't allowed to sue Microsoft? Clauses that Microsoft gets the Novell customers' IP? Clauses that Microsoft gets Novell customers's first born?

Who would work with someone who subjects you to a Microsoft agreement without even telling you the terms to the agreement!?!

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EFF on the EFF and Novell deal
Authored by: Anonymous on Thursday, May 24 2007 @ 09:44 AM EDT
"EFF has long been at the forefront in addressing the key challenges of the
digital age, including worldwide intellectual property issues," said EFF
Executive Director Shari Steele. "The support of Novell -- a company
founded on the proprietary software development model but now strongly embracing
the open source approach -- will be a great boon to our efforts to rid the
industry of innovation-killing patents. We hope Novell's example encourages
other software vendors to join the effort."

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Patent News from Novell and Moglen - Updated - OpenLogic Webinar in Ogg format
Authored by: Anonymous on Thursday, May 24 2007 @ 10:00 AM EDT
We have the Moglen webinar in Ogg now.
Please create a clickable link for this.

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Throwing tacks in the road
Authored by: kattemann on Thursday, May 24 2007 @ 10:08 AM EDT
More like calthrops ...

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The Next Sun
Authored by: Observer on Thursday, May 24 2007 @ 11:09 AM EDT
The funny thing here is that, now that Sun finally seems to "Get It" and is starting to be consistent in their Free and Open Source message, Novell appears to be stepping up to fill the place they have left behind. It used to be you never knew from one day to another if Sun was going to embrace you or stab you in the back. They'd do something like releasing as Open Source, and then refuse to release their iron fisted grasp on Java. However, they are finally turning around.

Now, it's Novell that is alternately playing the Hero and the Backstabber. They pounce on SCO like an angry mother bear defending her cubs, and then go behind our back and sign an exclusive patent truce with Microsoft. Now they are turning around and fighting Patents, and throwing in lots of cash to boot.

I guess the lesson is that Corporations are made up of many different individuals, each with his or her own priorities and agenda. Depending on who has the loudest voice at the moment, or how consistent the vision is from the Top, you may never really know what to expect from them. Don't be surprised, and don't get caught with your pants around your ankles.

The Observer

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Cheers for Rick
Authored by: grouch on Thursday, May 24 2007 @ 12:05 PM EDT

Instead of flaming us, Rick was offering to convert the video to an open format for us! On top of that, when we emailed him back all excited, he offered to document how he did it and send us directions so we could convert the rest of the videos! How's that for community building?

-- The open source community comes through again! , 2007-05

Nicely done, Rick Stanley and OpenLogic. The former could have joined in firing the "flak" OpenLogic mentions receiving. The latter could have feigned superior knowledge (ever seen PR departments pull that, usually coupled with the 'responding to consumer demand' line?), focused on the character of emails they received, and could have been less motivated to ever seek an open format as a result. Instead, Rick's double offer of a converted video and the documentation of how it was done, combined with OpenLogic's acceptance of that offer, resulted in helping a great many people.

-- grouch

"People aren't as dumb as Microsoft needs them to be."
--PJ, May 2007

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Maybe I'm a naive optimist ...
Authored by: Anonymous on Thursday, May 24 2007 @ 12:36 PM EDT
.. but it looks from Novell's recent actions and statements that it might, just
might, be coming to the conclusion that its deal with Microsoft was a mistake.

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A Question for Microsoft
Authored by: Anonymous on Thursday, May 24 2007 @ 01:12 PM EDT
Microsoft's PR machine works overtime to put a positive spin on things, and
perhaps even sometimes to obscure. :)

If a reporter could ask a question on your behalf, a question that you think
would cut through the PR to the heart of the matter and clarify Microsoft's
intent for the public, a question that would be really difficult to spin, what
would that question be?

If the community could come up with a really revealing question, then that
question could be put to Microsoft spokespeople as often as possible, whenever
the opportunity presents itself.

This is one attempt at a question, and if this is worth doing I am sure that you
can come up with better ones:

"Microsoft offers patent peace to Novell's customers, but will not extend
that same peace to the people who make it all possible--the developers. Is that
ethical? Is that even logical? It doesn't seem logical, unless the real agenda
is to harm free software. Do Microsoft's customers really want it to make these
threats? To threaten the unpaid developers that make the free software that they
have come to depend on for running their businesses?"

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Thanks to OpenLogic & Eben Moglen
Authored by: ansak on Thursday, May 24 2007 @ 02:14 PM EDT
Thanks again to Professor Moglen for his clear presentation of the issues surrounding GPLv3 -- political, but only calmly, clearly so.

Thanks to OpenLogic for hosting the webinar and broadcasting the result. (Thanks, too, to Rick Stanley for helping them produce the audio as ogg files).


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The Dirty Little Secret of All Corporations
Authored by: Prototrm on Thursday, May 24 2007 @ 04:00 PM EDT
There's one thing nobody in a company will ever say out loud (at least if
they're smart). However, it is the secondary goal of all companies, right up
there behind making a profit.

The secret? Put all your competitors out of business, and do it in a way that
won't get you in trouble, where you have plausible deniability, or where you can
defend yourself against retribution (legal or financial).

I don't care if it's a SCO, Microsoft, IBM, or Sun, the goals of the
organization is the same. Immoral? What's morality got to do with it anyway?
It's business.

Now, here's the catch: FOSS has become a major competitor of software companies.
It's big enough and good enough to become a target. Now the standard way of
dealing with a stubborn competitor is sell cheaper, have better quality or more
variety, buy the competing company outright, merge with it to form a new firm,
or (as a last resort) take them down by legal means. Companies are having
trouble getting a handle on which solution will get rid of FOSS entirely. We all
know that the SCO method has failed. IBM and Sun appear to be trying a merger,
but may discover that FOSS holds the controlling shares of the new company. I
think Novell has just realized who really calls the shots in their organization,
and they're looking for a way to regain control.

Microsoft, meanwhile, is searching for its own answer using proxies. None of
their old solutions work against FOSS, and they're not very happy.

Oh, one last thing. Take a look at what FOSS proponents are saying. They're out
to destroy the competition, too, by supplying product that is cheaper (no cost),
better quality, and with more variety. Like I said, there's nothing wrong with
that at all.

It's just business.

"Find out just what any people will quietly submit to and you have found out the
exact measure of injustice and wrong which will be imposed upon them."

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Microsoft plants landmine, steps on it.
Authored by: cybervegan on Thursday, May 24 2007 @ 04:04 PM EDT
But just like the evil villain in the movies, they'll be back for the sequel (or
should that be SQL?).

The orbiting patent-ray satellite may appear to have been disabled for now, but
we don't know what else they have secreted in the bunkers under their Redmond

And their cache of PR and FUD missiles seems undepleted, though mostly
ineffective against the rise of the anarchic masses of the FOSS hordes, which
seem to be gathering allies apace.

It's now become clear that, like I said a while back, Novell didn't buy what
they thought they bought. They're going to have to *work* for that cash
injection they got from MS. Next step "Microsoft Suse Linux"?

Just kidding, but you *never* know...

:-D cybervegan

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

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  • Perhaps? - Authored by: Anonymous on Thursday, May 24 2007 @ 05:13 PM EDT
Query - can I use the Linux Kernel, or should I use Hurd?
Authored by: Sesostris III on Thursday, May 24 2007 @ 04:06 PM EDT

For curiosity, I was perusing the latest changelogs at the The Linux Kernel Archives for and 2.6.22-RC2.

There are a number of contributions made by folk with the email addess ***@suse.**. I assume that they work for Suse, aka Novell!

I know that many here no longer use any Suse distribution due to the actions of Novell. Given that, how can use of the Linux Kernel (with ongoing contributions from Suse) be justified? Should I use Hurd instead?

Just a query.

Sesostris III

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Patent News from Novell and Moglen - Updated - OpenLogic Webinar in Ogg format
Authored by: jdg on Thursday, May 24 2007 @ 07:21 PM EDT
You have asked the right question and now that I have a little time to think I
will make a quick stab at an answer [IANAL]. Welding IE to the operating system
is not an advantage to customers. Having a single supplier is not an advantage
to customers. Given those two, an attack on a competitor is to the disadvantage
of the customer and the marketplace. QED monopoly/constrained behavior.

This contrast with the Wallace case vs IBM and Linux where Wallace was
essentially a non-competitor (and what harm has he shown to himself?) in the
market that is not dominated by Linux and there is no harm to the customer and
there are clearly many different companies offering Linux and bigger companies
offering other operating systems.

The patent case just decided by the Supreme Court in another case where the
court put all the pieces together and came up with an insightful ruling. The
Court looked at the purpose of the patent laws and determined that the charge
was to have limited grants of monopoly to spur the ..economic arts (or something
like that). They took this like rather than taking a slavishly legal opinion
and perpetuating it like the patent appeals court has done (repeatedly).

SCO is trying to appropriate the "commons"; don't let them [IANAL]

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Obviousness, patent nonsense, and employment
Authored by: Wesley_Parish on Friday, May 25 2007 @ 08:10 AM EDT

Recently I had an interesting experience. I applied for work. And one of the hoops I had to jump through, besides the dreaded interview, was completing a "test" that they sent me: to write a program in whatever language I chose, that printed out one word for multiples of three, another for multiples of five, and yet another for multiples of both three and five. I chose to use C, since that is a language I am quite familiar with, and a verion of the program I wrote is included to show you what I wrote.

/* Fitz-Bitz */
/* Being a program to print the numbers from 1 to 100,
* and print the word "Fitz" for multiples of 3 instead of the number,
* print the word "Bitz" for multiples of 5 instead of the number,
* and print the word "FitzBitz" for multiples of 3 and 5.
/* Copyright by Wesley Parish, and for whatever it's worth,
released under the LGPL.*/


void main(void)
int i;

for(i = 1; i /* run a modulus test on the integer. */
if((i % 3) == 0 && (i % 5) == 0){
else if((i % 3) == 0){
else if((i % 5) == 0){
else { /* default behaviour */
printf("%dn", i);

What astounded me, such that I could not get my head around it, was that they said this little program impressed them. Because all it does is exactly what has been requested. The use of the modulus operator - the "remainder" division operator - is for a very good reason - after all, any number above the ones required, divides into those numbers. It is after all, the remainder you're interested in.

But that's irrelevant. The reason why that little program's arrived on this web site is to pose the question,

what patents have I infringed by writing it?
I'm sure there's some here and there. Most US software companies have been very, very assiduous and thorough about patenting stuff-and-nonsense through the years. If so, please let's see them.

I want to know what I'll be done for if I'm ever so foolish to apply for a job with a software company in a software-patent-ridden country, and have to submit such a program to assure them I can actually program a computer.

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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Patent News from Novell and Moglen - Updated - OpenLogic Webinar in Ogg format
Authored by: Anonymous on Friday, May 25 2007 @ 12:05 PM EDT
Three questions:

1) Is there a time limit for MS to sue? I would have thought that a clock
started to run at the time MS became aware of the "infringement", and
ran out in a small number of years.

2) Does the refusal of MS to reveal the patent numbers supposedly infringed
limit their ability to sue, because it represents a refusal to mitigate damages?

3) Is anyone aware of MS owned patents that would be difficult to design around?
My impression is that inventing around is much cheaper/easier than fighting in
many cases, even for obviously bogus patents.

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