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Novell to Samba: We're Not Terminating MS Agreement
Sunday, November 19 2006 @ 04:30 PM EST

According to this statement from Novell, in Joe 'Zonker' Brockmeier's article in Linux.com, they are not repudiating their Microsoft deal, despite the Samba Team's request:
Justin Steinman, director of marketing for Novell, has provided a statement that indicates Novell is not willing to ditch the patent agreement with Microsoft.

"Novell has the utmost respect for the Samba community and their contributions to open source. We are currently working on a public response to the Samba team that addresses their concerns. I can confirm that Novell will not be terminating our agreement with Microsoft, which was the primary request from the Samba team. We'd ask for your patience to give us another couple days to pull together the rest of our response."

We also learn that Eben Moglen has finished the audit and is in discussions with Novell, and he says this:

"They have showed us what we need to see, they have answered our questions, we had complete and unfettered access to senior executives at Novell.... We are now working by peaceable negotiations to protect our client's legal interest, and we see no likelihood that we're going to adopt steps that involve the use of legal compulsion. If we are unable to work the situation out peacefully, that may change."

That tells you he sees GPL issues in the agreement that need resolving. What is the danger? Moglen sees that Microsoft is dividing the commercial and noncommercial sectors of the FOSS community, and then after they do that, "Microsoft then will be able to use its patents to sue to block the development of software in the non-commercial sector without the fear of suing its own customers, which is the force that now constrains them from misbehavior with their patent portfolio."

So that's the game. You can see confirmation in this interview with Microsoft's Bob Muglia in this article by Peter Galli in eWeek:

But one of the things I think is very important is that as time has gone on we have separated in our mind some attributes of open source. There are two things: the open source development model, which is the community-based development model of which there are multiple ways of doing licensing, such as GPL-style licensing and BSD-style licensing, and then there's commercial licensing. We are clearly in the latter camp....

There is a substantive effort in open source to bring such an implementation of .Net to market, known as Mono and being driven by Novell, and one of the attributes of the agreement we made with Novell is that the intellectual property associated with that is available to Novell customers. But we certainly have no intention of releasing the source code to .Net to the community, but the community is free to go with Mono and enhance that and build solutions for customers.

The community is not going to "go with Mono". That much I can guarantee, as things now stand. And may I publicly say thank you to Sun for putting Java under the GPL? As for Microsoft and how they view agreements, let's look at the Zune story. James Coates of the LA Times tells the story:

But let me turn to some reasons why Zune's early sales appear anemic and its short-term prospects aren't much to write home about. It's got a lot to do with image.

While aping Apple may be a good business strategy, there is an unpleasant whiff about how the Zune underscores Microsoft's reputation as a ruthlessly competitive behemoth focused on bucks and still more bucks.

Start with how Microsoft spent more than a year suckering potential Zune competitors in the Windows world into a program called Plays For Sure designed to make all mobile music players work instantly with Windows computers....

The companies lured into Plays for Sure ranged from the makers of the Creative Zen, the Sony Walkman, the Arcos players, the ATO brands and others. Likewise joining were most of the online music stores like Rhapsody by Real, Yahoo Music and Napster. So after all these folks banded together to play nice with Windows using Microsoft's Media Player software, Zune came along like--dare I say--a thief in the night.

I know that this isn't thievery in the legal sense, but Microsoft set up the Zune device so it will not play music downloaded from online stores other than Microsoft's Zune Marketplace that is designed to copy Apple's one player/one music store business model. Zunes will not play any of the downloaded copyright-protected music, movies and other content from outfits like Amazon.com, Cinema Now, Starz and the already mentioned Real Rhapsody and Yahoo. Then to give the knife an added twist, Microsoft set up Zune to have its own distinct software rather than running on the Windows Media Player that all competing players must use.

Novell. How naive are you? If Microsoft plays out its strategy as Moglen projects, and the noncommercial programmers are no longer able to write code for the community, will you benefit? Will anyone? Or will you be like the dupes who signed on to Plays For Sure on Microsoft's Media Player?

I remember when Novell knew what Microsoft was all about. Remember their webpage, Unbending the Truth: Things Microsoft Hopes You Won't Notice, answering Microsoft's Get the Facts campaign? Try going there now. Poof. Redirects you to some pablum about Novell's SUSE being better than all other Linux distributions:

Why Choose SUSE Linux from Novell?

Linux* is about more than an operating system. It's about applications and databases that run on Linux. It's about technical support. It's about consulting expertise. It's about training. And most importantly, it's about you. How will Linux help you run your business better? Not all Linux distributions are created equally. With SUSEŽ Linux Enterprise Server 9 from NovellŽ, you get the best-engineered Linux from a vendor that can deliver a global ecosystem to surround it.

I can confirm that SUSE Linux is unique in Linux distros in one respect -- it's the only one the FOSS community has now utterly repudiated, and that won't change unless Novell hits reverse. If you think that won't impact SUSE quality as we go forward, you probably are new to these parts. (You might find this thread of interest.) No, only Wayback will show you what Novell used to know:

Recently Microsoft has been challenging the suitability of Linux for the enterprise, bending the truth quite a bit to make it fit their view of the world. This site is dedicated to unbending the truth and setting the record straight. Take the time to explore the facts, and you'll understand why Microsoft is challenging Linux, and why Linux is often a better choice than Windows for satisfying the business needs of enterprises.

They even had a page to answer Microsoft's patent threats:

CLAIM: Customers who deploy Linux are at risk for patent violation and copyright issues.

FACTS:

* Novell has no intention of asserting its patent portfolio against the Linux kernel or other open source programs included in Novell offerings.

* Novell will use its patent portfolio to protect open source products against potential third-party patent challenges, meaning that Novell is prepared to asserts its patents against such third parties. Novell is continuing to actively grow its patent portfolio, which currently corresponds to Novell's pioneering products in areas such as networking, directories, resource management, and identity management.

* Get more information on Novell and patents.

* Novell believes that customers and the marketplace are best served when technology investment decisions are driven by vendor innovation and competition. As with all purchasing considerations, customers should keep software patents in perspective. In reality, open source software poses no greater risk of patent infringement than does closed source software. And, while some software vendors may attempt to counter the competitive threat to Linux by making arguments about patent risks, they would assert patents against customers at their own peril. They would also do so against competitors (such as Novell) at the certainty of provoking a response. We urge customers to remind vendors that all are best served by using innovation and competition to drive purchasing decisions.

* Intellectual property rights systems vary throughout the world, and where patent protection is available for software, Novell has and will continue to use patents as a legitimate means of protecting software offerings. We believe that the current system in the European Union has served the industry, the individual member states and Novell well, and that it generally promotes innovation and competition in the industry. Accordingly, Novell does not see the need for the proposed changes to the current system.

* In the event the European Union were to allow broader patentability of software, Novell would nonetheless be able to freely market its software offerings, whether closed or open source, in Europe and other jurisdictions that presently favor software patents.

* To highlight how difficult patent protection can be, the United States Patent and Trademark Office recently rejected all of the claims of Microsoft's patent on the FAT file system, which Microsoft describes as "the ubiquitous format used for interchange of media between computers, and, since the advent of inexpensive, removable flash memory, also between digital devices."

* Novell has previously offered customers protection against similar threats to open source software by using its unique contractual and intellectual property rights from its position in the historical ownership chain of UNIX and UnixWare.

* Novell offers an indemnification program for copyright infringement claims made by third parties against registered Novell customers who obtain SUSE Linux Enterprise Server 8 (or later) and who after January 12, 2004, obtain upgrade protection and a qualifying technical support contract from Novell or a participating Novell or SUSE LINUX channel partner.

* Novell holds unique contractual and intellectual property rights because of its position in the historical ownership chain of UNIX and UnixWare. These rights include:

* The rights to license UNIX technology pursuant to a Technology License Agreement between SCO and Novell, including the right to authorize Novell customers to use that UNIX technology in their internal business operations

* The rights to take action on behalf of SCO under legacy UNIX SVRX licenses pursuant to the Asset Purchase Agreement between SCO and Novell

* As Novell previously confirmed, copyright registrations on UNIX SVRX releases, consistent with its position that it retained ownership of these copyrights.

So, here's the question I have for Novell: what happened to that promise to protect FOSS with its patent portfolio? Novell did say it. We relied upon it, and OIN is totally separate from the above promise. I mention that because some Novell guys have been saying that Novell never made any such promise or that the OIN patents fulfill the promise. Read the promise again. Novell clearly promised to use its patent portfolio, not OIN's, and Novell appears to have just bargained that patent portfolio away, giving Microsoft a clear path to now bring patent infringement claims against everyone else. Novell's character and honor is on the line. And we await your statement with interest.


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