Groklaw - The Novell-Microsoft Wheeler Dealers Speak

	When you want to know more...

Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines

ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

You won't find me on Facebook

Donate

No Legal Advice

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

Here's Groklaw's comments policy.

What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments

Sponsors

Hosting:

On servers donated to ibiblio by AMD.

Webmaster

The Novell-Microsoft Wheeler Dealers Speak - Updated

Sunday, September 30 2007 @ 12:03 PM EDT

You'll find an MP3 of a conference sponsored by the Massachusetts Technology Leadership Council on the Novell-Microsoft deal held in Boston on September 26th here, where representatives from Novell and Microsoft defend the patent deal. Here's the MP3 directly.

This is the conference that Dan Bricklin announced and asked us to help him come up with questions for, and we did, and then the conference was postponed and now reappears without Bricklin asking any questions at all (John Palfrey of Harvard's Berkman Center asks the questions instead] and with no Groklaw questions included. Fancy that.

Novell is getting money, they claim, market share, although you will note Andy Updegrove challenges that story, pointing out that sales leveled off after the initial spike. But the main takeaway, as they might put it, for me is that this is an anti-Red Hat deal, and Novell is thrilled about that. Justin Steinman reveals that to market their SUSE Linux Enterprise Server against Red Hat they ask, "Do you want the Linux that works with Windows? Or the one that doesn't?" It's just appalling. Let me ask you developers who are kernel guys a question: When you contributed code to the kernel, was it your intent that it be used against Red Hat? How about the rest of you developers? Is that all right with you, that your code is being marketed by Novell like that? I also have questions about antitrust issues, with Microsoft being Novell's partner in such deals and sales pitches. Nothing speaks louder about Microsoft's true determination never to be actually interoperable than this conference.

They all speak marketdroid language, which I don't, so I'll just tell you that what I get from it is they have no idea the damage they have done. They saw money. Well, Microsoft probably does. Note the answer to the question asked as to what Microsoft is getting out of it. It's about Longhorn and virtualization. They expect money from that. And it's about "the strategic impact" on their sales teams, so they can approach customers and claim they are working with Linux and interoperable with it, so customers that want Linux stay with Microsoft in the picture too. He actually says that before this deal, a customer wanting Linux would go 100% Linux. Microsoft was out of the picture. Now that the deal is in place, Microsoft gets to stay involved with Novell on the sales calls, staying in the picture, and don't forget that Novell is paying Microsoft, so I guess you could say that from Microsoft's perspective, all sales are Microsoft sales to some degree now.

All that is required for interoperability, as far as I am concerned, is for Microsoft to permit it by making available its specifications, as the Court of First Instance just told the company forcefully. My opinion is that Novell offers MonopoLinux, if you will, which damages all other Linux vendors, users, and programmers. They are unabashedly making money from Microsoft's patent saber rattling, even while claiming there are no patents infringed. But the threat is there, and they are benefiting from that fear, by advising people to avoid the threat by using only their products. Shame.

Steinman claims the community isn't as upset any more about this deal. I'm here to say, I am still upset about it, and even more so after hearing this conference. All the PR from Novell, the conferences, the blogs -- none of it changes anything. Novell claims it's good for Linux to get into places it never was before. That is a short-term plus for Novell, but the deal damages the entire FOSS development ecosystem. Long-term, that is the death of Linux as we know it, if Microsoft were successful in getting everyone to sign such a deal. That is, as I read it, the very purpose of the Microsoft's Patent Pledge for Non-Compensated Developers, which threatens Linus and any non-Novell programmer who contributes code that is used in any non-Novell commercial distribution.

How can Novell not care about that? They are benefiting from code that was written by people who are now not protected from patent claims from Microsoft, and Novell is making money from doing a deal with the company threatening them. All the money they are making is hence tainted. They didn't write that code 100%, after all. They didn't write most of it. I don't think anyone cares if Novell wanted to sign some deal about Mono or Moonlight or any code they actually did write. But taking other peoples' code and going against their wishes, as reflected in the license, is not acceptable and it never will be. Money doesn't make it right. Broader acceptance of Linux now doesn't make it right either, if it threatens the long-term survival of Linux by altering the Open Source development model in a way that prevents Linux and FOSS from flourishing.

At the time the deal was announced, I spoke by email with Novell and SUSE guys, and you'll remember the IRC conversation led by Nat Friedman, and they all told me and us that the programmers' deal wasn't acceptable, but that they had told Microsoft it needed to be changed, and they told us it would be. So, guys, how's that going? How about an answer on that?

Corporations are not so smart about long-term issues. I know that. But no one I know is "cautiously optimistic" as he avers about this deal. If they were, they'd be wrong.

You'll find all the documents on the deal on Groklaw's permanent Novell-Microsoft Deal page or in this article I wrote when the SEC documents were filed. Steinman also says in the Q & A that Novell's code will be released as Open Source, but Microsoft's, which Novell has been able to view due to the agreement, will not. Anyone but me see patent dangers in all of that Novell code?

They talk about how they figured out how to wiggle around the GPL, while pretending to respect it. The Microsoft lawyer there says the company is "very active" in looking for ways to work with the Open Source community without violating GPLv3, arrangements "similar" to the Novell deal. In other words, that type of exact deal is blocked. They are trying to figure out how to get around v3 in some way that is similar but not blocked.

They talk about customers demanding that IP issues be solved, so it's off the table for customers. The Microsoft representative says its customers told them they want Microsoft to support ODF and Open Source. Instead, they do this and pretend it's the same thing. Of course, the large customers don't understand the implications of this deal to the FOSS ecosystem, but Novell should. Microsoft surely does. Microsoft avoids true interoperability by hand picking only those who pay them to have access to specs, some of which are no doubt patent-burdened, and in addition agree to damage the GPL by agreeing that end users are the ones that need protection. Don't forget Steve Ballmer's statement: "If a customer says, 'Look, do we have liability for the use of your patented work?' Essentially, if you're using non-SUSE Linux, then I'd say the answer is yes."

It's very plain that this was driven by marketing on Novell's side. Steinman actually praises Silverlight and the Moonlight tagalong. Miguel will be speaking about Moonlight on a Microsoft stage, he says, and he's proud of that. If the community can't see deeper than this, Microsoft will win. It's like frogs in a pot of slowly warming water.

The bottom line? They don't get it. They still don't get it. They are putting the chance to do deals above their responsibilities to the folks who wrote the code they are making money from.

I'd like to repeat my unasked and unanswered questions that I posted when Bricklin first asked us what to ask Novell and Microsoft, because I'd still like them answered, despite realizing that there is no basis for "cautious optimism" that I'll ever get an answer:

1. Both Nat Friedman and Miguel de Icaza are reported to have visited Microsoft to say that the patent agreement as written isn't acceptable, and Microsoft said itself publicly that a change was needed. Where is the rewrite? When might we expect it? What will the changes be?
2. For Mr. Palfrey: If Linus or Groklaw or any FOSS developer sent a registered letter or published an Open Letter to Steve Ballmer, asking for a specific list of Microsoft patents that he believes support his claim that Microsoft has "IP" in Linux or FOSS, if Microsoft failed to provide the list, would the defense of waiver later be available? What other strategy might be successful, since no one in the FOSS community is interested in violating Microsoft patents, if any actually existed, but no one can ameliorate without specificity? How can such a specific list be forced out of them?
3. For Novell: You promised the community that you would use your patent portfolio to protect Linux. Now you ally with this Microsoft statement, that the deal is "enabling both companies to recognize commercial value from their respective patent portfolios." Why did you break that promise? Do you care that the majority of the FOSS community is opposed to software patents? How do you reconcile the clear intent of GPLv2 that no restrictions, such as a patent license, can be added to the GPL and what you signed?

Update: A reader found this Forbes article from 2004, which you may find illuminating:

Microsoft is done dismissing Linux. Martin Taylor's job is to embrace it, so the software giant can figure out how to squelch the phenomenon....
Entrepreneurs in the industry smile at the mention of his name because they know, for one thing, that Taylor is a straight-up, nice guy, but also that his real job is to better understand Linux so Microsoft can do a better job of crushing it. In 2001 Microsoft Chief Steve Ballmer likened Linux to "cancer." Now, says Taylor, "Linux is going to be around forever. We've got to understand it." ...
Microsoft has finally met its match against software that is largely downloadable for free. Investors discount it into the stock price. In a private meeting with executives in May, Ballmer griped that Microsoft's profits have more than doubled in the past six years, but the stock, at $29, is right where it was then. "Linux creates a cloud of uncertainty over Microsoft. Every time Red Hat reports earnings, Microsoft seems to take a hit," says Goldman Sachs software analyst Richard Sherlund.
The reality is a bit less dire. Microsoft's revenue climbed 14% this year to $36.84 billion. What Linux is doing is taking away greater opportunities....Taylor is fond of pointing out that the battle against Linux is an increasingly familiar one. "Before, Linux was this cloud we didn't get, now it is Red Hat, Novell, IBM. We know how to compete with companies. I was high-fiving everyone I could find when Novell bought [German Linux distributor] SuSe. We already won once against Novell."
Inside Microsoft Taylor is building a network of information and relationships aimed at overpowering the rival operating system....
Microsoft is actively sowing uncertainty and doubt among potential Linux customers over who, if anyone, owns the intellectual property behind open-source software. In May 2003 it paid $21 million for software licenses from SCO, the tiny Utah company suing IBM for $1 billion for contributing code to a Linux product that allegedly infringes on its Unix copyright. Linux advocates saw it as a thinly veiled investment in the lawsuit.
At a recent gathering of venture capitalists Ballmer went so far as to suggest Microsoft might own intellectual property in Linux and assured the audience that Microsoft would pursue any violation of its own patents. Before he spoke, a fire alarm went off. "It was eerily symbolic," says a venture capitalist in attendance. "We all scattered." Microsoft denies this, and says it will not litigate.

It's a very long article, and this is just a relevant taste, and I encourage you to read it all. If that isn't anticompetitive behavior on the part of a monopoly, pray tell, what is? Does it get better if it outsources the anticompetitive behavior and gets Novell to do it with Microsoft?

I also want to thank John Palfrey, who did answer the one question of the three that was posed to him.

I notice this morning that the EU Commission has opened formal antitrust proceedings against Qualcomm, and notice why:

The European Commission has decided to open formal anti-trust proceedings against Qualcomm Incorporated, a US chipset manufacturer, concerning an alleged breach of EC Treaty rules on abuse of a dominant market position (Article 82). Qualcomm is a holder of intellectual property (IP) rights in the CDMA and WCDMA standards for mobile telephone. The WCDMA standard forms part of the 3G (third generation) standard for European mobile phone technology (also referred to as "UMTS"). This follows complaints lodged with the Commission by Ericsson, Nokia, Texas Instruments, Broadcom, NEC and Panasonic, all mobile phone and/or chipsets manufacturers. The complaints allege that Qualcomm's licensing terms and conditions are not Fair, Reasonable and Non-Discriminatory ("FRAND") and, therefore, may breach EC competition rules.

I guess it would be good to brush up on those rules. It seems to me that requiring Linux companies to alter their traditional development model in a way that means doom for that model to get relief from the threat of litigation is going a bit far.

The Novell-Microsoft Wheeler Dealers Speak - Updated | 556 comments | Create New Account

Comments belong to whoever posts them. Please notify us of inappropriate comments.

Corrections here

Authored by: MathFox on Sunday, September 30 2007 @ 12:13 PM EDT

Iff any

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