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The Morning After - Reactions to Novell-MS - Updated 2xs
Friday, November 03 2006 @ 07:36 AM EST

I've collected for you a representative sampling of reactions to the unfortunate Novell-MS alliance. First, my own: this is apparently some kind of a covenant not to sue, not a true cross licensing deal. I think that's how they plan to step over and around the GPL. The Novell FAQ says the deal was worked out with the GPL in mind. Right. Like how not to abide by it. Hence the vagueness on what patents are being paid for. Is it possible they have set it up a bit like IBM's patent pledge? You don't have to list patents in a covenant not to sue. Handy workaround.

UPDATE: Here it is, some information on the patent agreement, the part Microsoft is sharing. We can read it together. How do you like this clause? "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." Oh, brother. Here's Microsoft's rather thin list of "community" supporters. The City of Seattle thinks this is great.]

They are claiming this was a Novell initiated partnership. Otherwise, I'd say my best guess is Microsoft threatened and Novell caved rather than go through patent litigation. It should have trusted the community instead, if that is what happened.

It also means we probably need to do some more tweaking on GPLv3. I think Microsoft doesn't care what you run if it's entertainment you are after, as long as it's DRM'd so they control access that way, and so long as there's a "Microsoft tax", so to speak, on Linux, which encourages the continued use of Office in the workplace as the de facto standard. It does intend to kill ODF, I gather, and Novell is apparently going to help them try.

Now, on all those stories about Microsoft falling in love with Linux, because it has to, Mary Jo Foley says this is bunk. It's Microsoft being Microsoft. It isn't waving any white flags:

There is no hell freezing over, no snowballs melting and definitely no white flags fluttering over the Microsoft headquarters building. Microsoft is not conceding that desktop Linux is gaining ground. It's not admitting that its closed-source strategy has failed.

Sure, Microsoft is [listen]ing to customers' requests for better interoperability. But if you think the Redmondians are throwing in the towel, vis-a-vis open source, you are underestimating severely Microsoft's well-proven ability to come out ahead on any partnership to which it commits....I'd agree with Tim Patterson, one of the commentors on my site, that Novell CEO "Hovespian fell into the trap."

I'd say she got that part right. Patterson:

Mary Jo is correct. It's all about the patent agreement. After the Q&A segment it was clear that the patent agreement was a defacto acknowledgement by Novell that Linux violates MS patents. Ballmer made it clear that the patent agreement protects ONLY users of SuSE Linux. When questioned about whether the patent agreement covered technology which will be developed or if it covers MS patents already existing in Linux the attorney made it clear that the agreement protects existing Linux in the form of SuSE.

So MS has found the big Linux vendor foolish enough to "legitimize" a patent claim on Linux by Microsoft. This makes it easier for MS to claim that Linux infringes their "IP" and claim that Novell recognized this "fact" and struck a deal.

Now it's only a matter of asserting claims against all distributors except Novell thereby thinning the herd and finally, deal with Novell SuSE last.

Mitch Ratcliffe on ZDNeT asks, "How Many Times Can You Sell Your Soul?"

The announcement that Novell and Microsoft will work together to improve interoperability between Windows and Novell's SuSE Linux, as well as cross-promote and support one another's products strikes me as eerily like one of those movies with Christopher Lee as Dracula.

Every time you see an old Dracula film, the same fool is making a deal with Drac to achieve eternal life, a life you know, as the viewer, is going to be awful and short. "Don't do it!" you want to shout at the screen, and so it is with this deal between the maker of Windows and the acquirer, as Novell once staked its future on UNIX, of SuSE Linux. I'm not saying Microsoft is evil, only that is makes these interoperability deals to defeat its partner, not to help them....Linux may win someday, but Novell will be found dead one morning with mysterious bite marks on its neck.

Amen, brother.

Warren Togami, who founded the Fedora Project, says Red Hat will never compromise, and he asks programmers to react by helping the Fedora Project now more than ever:

Red Hat engineering invests millions every year in FOSS development. These developers contribute in a great many ways to stimulate growth in the FOSS ecosystem and the community itself. Red Hat makes this investment for three key reasons:
* It makes business sense: A healthy relationship with community builds quality products faster, and with lower expense. It is indeed possible to make money and not compromise on values.

* Perhaps the technology leaders who made many of these key FOSS improvements are best able to support business customers.

* Many of the people at Red Hat believe in the ethical values of FOSS and the benefit that it brings to society.

As long as I work on the Fedora Project, Fedora will never compromise on the essential liberties of FOSS nor will it betray the community. But the price of liberty is not free, nor is it comfortable. And unfortunately, some "leaders" of our community are willing to compromise liberty for short-term convenience. I am disgusted by people like this, and by Novell's betrayal of the community today....

But ultimately, Red Hat cannot change the world alone. That is why the Fedora Project exists. We want to enable the community to work together to improve FOSS at a rapid pace, in partnership with the large and consistent contributions from our engineers. We strongly believe that this is the most effective way for the entire FOSS movement to advance. Yes, we made some big mistakes in our community relationship earlier, but we are learning, and continue to improve at an ever accelerating pace.

For these reasons that I urge the FOSS community to support the Fedora Project through volunteer contributions of time and effort.

I would agree that it's time for the community to give its full support to Red Hat and the Fedora Project. I have met Matthew Szulik. I liked him and I trust him. He does comprehend the GPL and community values. And I'll be doing what I can. They need folks to do documentation on Fedora, I noticed, and I can and will do that. Steven J. Vaughan-Nichols worries we may need to provide more help than that soon, that maybe Microsoft will be suing Red Hat and other vendors:

There's always been the potential for a software patent lawsuit involving Linux.... you know that anyone can sue anyone even without valid patents, as in the case of RIM and NTP.

I hope I'm wrong. I hope that in the next few weeks, I'm not writing about Microsoft suing Red Hat. That Linux company has had more than enough trouble recently with Oracle. Or, maybe it won't be Red Hat. Maybe Ubuntu would be the target.

Why do I fear Microsoft might try this? I fear it because Microsoft's proxy war on Linux via SCO is finally coming to its endgame. And no one, probably not even in SCO's own offices, believes that SCO will win.

So, what can Microsoft do? It can bend, ever so slowly, to the simple fact that Linux is here to stay -- but at the same time, it can free itself to attack individual Linux companies in the court room.

Cynical? Yes. But after covering Microsoft for almost two-decades, I trust Microsoft the least when it looks like they're co-operating with others the most.

Remember Forgent. Just because someone has a stupid patent doesn't mean there is nothing that can be done about it. Patents don't trump antitrust laws, either. For the Novell point of view, you can read Michael Meeks's blog, yesterday's entry, particularly on the ODF sellout by Novell, not that he sees it that way. He says Miguel set this up, which doesn't surprise me, along with Nat Friedman, which does, but it's from their standpoint apparently about protecting Mono. Miguel:

So today we have secured a peace of mind for Novell customers that might have been worried about possible patent infringements open source deployments. This matters in particular for Mono, because for a long time its been the favorite conversation starter for folks that find dates on Slashdot.

Offensive enough for you? On the ECMA thing:

Anecdotally, I would like to point out that the work that happened through the ECMA TC45 has proved very fruitful, as things that were completely left out of the Oasis specification and in the original TC45 submission were put in there because Jody and Michael that have previously worked on Gnumeric and OpenOffice managed to get these things into the spec.

So instead of helping ODF, they are helping Microsoft in the name of interoperability. How do you get so turned around that you lose your way like this? It makes me think of some of the Manhattan Project guys, who cared only about the science without lifting up their eyes to the horizon to figure out what it all meant for the world that they were doing what they did.

UPDATE 2: - 11:12 AM Eastern.

Take a look at "Microsoft's Patent Pledge for Non-Compensated Developers" and read about how it works:

To further encourage these efforts, this pledge provides non-compensated individual hobbyist developers royalty-free use of Microsoft patents as set forth below.... Microsoft hereby covenants not to assert Microsoft Patents against each Non-Compensated Individual Hobbyist Developer (also referred to as "You") for Your personal creation of an originally authored work ("Original Work") and personal use of Your Original Work. This pledge is personal to You and does not apply to the use of Your Original Work by others or to the distribution of Your Original Work **by You** or others.

(emphasis mine) So Microsoft is purporting to provide hobbyists "royalty free use of Microsoft patents" as if they are understood to be infringed already.

But by my reading, the pledge only holds for you using your own software, not if you distribute it. And it doesn't apply to others using the work you may contribute to Linux. You personally won't be sued, but if Red Hat uses your patch, it could be. That's how it looks to me. But if you kept it to yourself, how would MS ever know? (I should also note that in Europe, a private hobbyist can never infringe any patent with his own private use of anything.) So that side is rather pointless. More to the point, how does this help if you open yourself up to legal shenanigans as soon as you share your work with anyone? Who will contribute to Mono now, if they are working for Red Hat or anyone, except for Novell employees?

One last thing. On the stage at the conference was Mark Tolliver at Palamida. My sources tell me he was the guy at Sun Microsystems, where he then worked, who did the deal with SCO. Make of that what you will.

The most interesting coverage is Simon Phipps':

Well, well. I'm sure in a few days some folk will wake up in Utah wondering what happened to them. The word on the street is that Novell had some deep patent dirt on Microsoft and went proudly to demand their bounty. Negotiations proceeded over several months, and the result (hurriedly rescheduled to respond to Oracle) was today's shindig in San Francisco.

So how was it that at the end of the day they ended up affirming software patents (something Microsoft wants and Free software people hate), set a precedent that open source distributors owe Microsoft money, slandered GNU/Linux as derivative and encumbered, and much more. Novell is now safe in the shade of a patent exchange and gets to talk about interoperability, a few private developers have a protection they hadn't been worrying about much and everyone else is left wondering if this means they are next for the visit from the Redmond enforcement department. What happened? Drugs in the soda? ...

This is not at all surprising; indeed, I've heard others say this is Microsoft's modus operandi, a ju-jitsu move that takes the weight of an attack and turns it back both on the attacker and the folks around them, usually without them even noticing (at least not to start with).

And finally (for now) I suggest you take a look at RedMonk's Stephen O'Grady's take:

A: It's significant, without question. Do I think it's big in a "Red Hat is doomed" sense, or "this is a tacit admission that the Linux IP is tainted" sense? Not at all. It's a significant alteration of the landscape - and a real boon for one project that I've been following for a while - but in and of itself means little. Could execution make this really significant? Certainly, but we'll see....

Q: Is the deal good or bad? Do you subscribe to the GROKLAW/Simon interpretation, or are you seeing things from the deIcaza/Matusow/Meeks perspective?

A: It all depends on who's asking. I think the deal contains both positive and negative implications, and that they must be considered separately.

O'Grady then carefully parses it out, and while I don't agree with all of his points, such as the value of the promise to noncommercial developers, which looks to me like a sham, it's a reasonable and carefully thought-through piece and well worth reading.

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