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Is the Microsoft/Novell Deal a Litigation Bomb?

Posted by Zonk on Fri Nov 03, 2006 03:46 PM
from the pengui-bomb dept.
Microsoft Software Linux
mpapet writes "According to WINE developer Tom Wickline, the Microsoft/Novell deal for Suse support may one day control commercial customers' use of Free Software. Is this the end of commercial OSS developers who are not a part of the Microsoft/Suse pact?" From the article: "Wickline said that the pact means that there will now be a Microsoft-blessed path for such people to make use of Open Source ... 'A logical next move for Microsoft could be to crack down on 'unlicensed Linux' and 'unlicensed Free Software,' now that it can tell the courts that there is a Microsoft-licensed path. Or they can just passively let that threat stay there as a deterrent to anyone who would use Open Source without going through the Microsoft-approved Novell path,' Wickline said." Bruce Perens dropped a line to point out that most of the content actually comes from his post.
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[+] Microsoft To Announce Linux Partnership 534 comments
Carl Bialik from WSJ writes "Microsoft is entering into an unusual partnership with Novell that gives a boost to Linux, people familiar with the companies tell WSJ.com. From the article: 'Under the pact, which isn't final, Microsoft will offer sales support of Suse Linux, a version of the operating system sold by Novell. The two companies have also agreed to develop technologies to make it easier for users to run both Suse Linux and Microsoft's Windows on their computers. The two companies are expected to announce details of their plan today at a press conference in San Francisco. In addition, Microsoft won't assert rights over patents over software technology that may be incorporated into Suse Linux, the people said. Businesses that use Linux have long worried that Microsoft would one day file patent infringement suits against sellers of the rival software.'"
[+] Red Hat Rejects Microsoft Patent Deal Overtures 201 comments
Geekgal writes "Red Hat has slammed the door shut on any possibility of entering into a patent protection deal similar to the one Microsoft recently announced with Novell, eWeek is reporting. While Microsoft has repeatedly said it wants to work with Red Hat and would like to structure a relationship where its customers can be assured of the same thing as Novell's customers now are, Mark Webbink, Red Hat's deputy general counsel, says 'we do not believe there is a need for or basis for the type of relationship defined in the Microsoft-Novell announcement.' Interestingly enough, Microsoft also says that it has not ruled out going it alone and providing some sort of indemnification for its customers who also use Red Hat Linux." Meanwhile, Eben Moglen, the FSF general counsel, promises that GPLv3 will explicitly outlaw deals like this. (Of course everyone's on v2, so calling the Novell deal "DOA" would be premature.)
[+] Ballmer Says Linux "Infringes Our Intellectual Property" 820 comments
Stony Stevenson writes "In comments confirming the open-source community's suspicions, Microsoft CEO Steve Ballmer Thursday declared his belief that the Linux operating system infringes on Microsoft's intellectual property." From the ComputerWorld article: "In a question-and-answer session after his keynote speech at the Professional Association for SQL Server (PASS) conference in Seattle, Ballmer said Microsoft was motivated to sign a deal with SUSE Linux distributor Novell earlier this month because Linux 'uses our intellectual property' and Microsoft wanted to 'get the appropriate economic return for our shareholders from our innovation.'" His exact wording is available at the Seattle Intelligencer, which has a transcript of the interview. Groklaw had an article up Wednesday giving some perspective on the Novell/Microsoft deal. Guess we'll have something to talk about in 2007, huh?
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  • I don't get it (Score:4, Interesting)

    by Control Group (105494) * on Friday November 03 2006, @03:49PM (#16708471) Homepage
    I R'd the FA, and I don't have the first clue what this perceived threat is. How does signing this deal threaten commercial use of OSS? Don't the existing OSS licensing terms still hold? Why should it matter that MS can now show there's an MS-licensed path?

    Is this threat a software patent one? If so, how does this deal change the threat - if the patents already exist, couldn't they be used just as easily without the deal as with it?

    I'm no lawyer, I don't swim in corporate mega-deal circles, and I didn't even stay in a Holiday Inn Express last night, so it's possible (probable, even) that there's something obvious here that I'm missing. Can someone who knows more about it elaborate for me? Because as it stands, I don't see how MS controlling one licensing path for OSS can suddenly mean that all other methods of acquiring OSS become illegal.
    • There is some discussion that the whole plan violates the GPL big time.

      It makes you wonder whether or not Novell will be in compliance with the GPL. If not, they won't even have the rights to be a Linux vendor.
      • That's kind of what I was thinking. If the deal somehow restricts someone from redistributing code, then it's a clear violation of the original license. And if it doesn't, I don't see how it can be used to stop people from acquiring the relevant code.

        • Re: (Score:3, Insightful)

          by Intron (870560)
          MS doesn't distribute Linux, so they don't violate the GPL.

          Novell can make any deal that they want, as long as they don't try to pass any restrictions along with GPL code to their customers. In this case it looks like they are passing on the additonal benefit "You won't get sued by MS for patent violations".

          As for everyone else, they are free to redistribute, burn CDs, modify the code, mix it with Ubuntu, etc. You can't violate an agreement that you are not a party to.

          • Re: (Score:3, Insightful)

            by DragonWriter (970822)

            Novell can make any deal that they want, as long as they don't try to pass any restrictions along with GPL code to their customers.

            Either the agreement with Microsoft on patents is vacuous (because there is nothing violating Microsoft patents in the code Novell is redistributing), or Novell is not free to distribute that code under the GPL in the first place. (Now, its also possible that the patent covenant applies to non-GPL software Novell bundles with its commercial linux systems, in which case it is li

      • People have been dissecting it left and right, and the people who **actually** read the agreement have come to the conclusion realize that it doesn't violate the GPL.
        • The problem with the GPL is that once you distribute the code you give license to the patents contained with in the code. Thus if Microsoft distributes Linux it licenses the patents contained in the code. Also, enforcing a patent against the GPL revokes the license putting MS in very hot water.

        • Re:I don't get it (Score:4, Insightful)

          by Col. Klink (retired) (11632) on Friday November 03 2006, @04:01PM (#16708673)
          You may not be a lawyer, but Eben Moglen [com.com] is:
          "If you make an agreement which requires you to pay a royalty to anybody for the right to distribute GPL software, you may not distribute it under the GPL," Moglen told CNET News.com Thursday. Section 7 of the GPL "requires that you have, and pass along to everybody, the right to distribute software freely and without additional permission."
          • He says he didn't even read the terms of the deal - "depends on precise terms of the agreement that Moglen hasn't seen" - ... he has no idea what he is talking about. Patent protection != Royalty.

            • Re:Moglen is talking out of his a$$ (Score:5, Insightful)

              by Aim Here (765712) on Friday November 03 2006, @04:37PM (#16709227)
              The nature of the Novell/Microsoft deal is somewhat irrelevant. The problem is the threat of Microsoft launching patent attacks against ANYONE over anything in SuSE. The public statements say that Microsoft won't launch a patent suit against noncommercial distributors or against Novell - that still leaves commercial distributors open to a patent lawsuit.

              If THAT happens, Section 7 of the GPL kicks in and Novell loses the right to distribute GPLed code in SuSE. Section 7 is the 'liberty or death' clause which says that if you can't distribute GPLed code without some patent(or other) restriction being imposed on your customers, you cannot distribute GPLed code at all. The idea is to prevent code being proprietarised using legal machinery other than copyright - having someone offering GPLed code under a partial patent umbrella that effectively bars, say, commercial distribution, is exactly the sort of thing that section 7 was designed to prevent.

              (My theory is that the main reason Microsoft had to offer patent protection to at least one Linux distributor was to skirt antitrust problems if it starts using patent law to crush competition. )

              • Re: (Score:3, Insightful)

                by DragonWriter (970822)

                The problem is the threat of Microsoft launching patent attacks against ANYONE over anything in SuSE. The public statements say that Microsoft won't launch a patent suit against noncommercial distributors or against Novell - that still leaves commercial distributors open to a patent lawsuit.

                No more than they were prior to the announcement.

                Of course, its already a violation of the GPL to distribute a program under the GPL if it is encumbered by patents that would prevent recipients from redistributing it fre

            • He says he didn't even read the terms of the deal - "depends on precise terms of the agreement that Moglen hasn't seen" - ... he has no idea what he is talking about. Patent protection != Royalty.


              No, but patent protection may put you in a position where you can't distribute under the GPL, even if there's no money involved.

              7. If, as a consequence of a court judgment or allegation of patent
              infringement or for any other reason (not limited to patent issues),
              conditions are imposed on you (whether by court order, agreement or
              otherwise) that contradict the conditions of this License, they do not
              excuse you from the conditions of this License. If you cannot
              distribute so as to satisfy simultaneously your obligations under this
              License and any other pertinent obligations, then as a consequence you
              may not distribute the Program at all. For example, if a patent
              license would not permit royalty-free redistribution of the Program by
              all those who receive copies directly or indirectly through you, then
              the only way you could satisfy both it and this License would be to
              refrain entirely from distribution of the Program.

              Read the above very carefully. What is says is that if you sign an agreement that puts any restrictions on your distribution or on subsequent redistribution of a program licensed under the GPL, then you cannot distribute the program at all (because you can't place additional restrictions on redistribution or derived works of GPLed code).

    • Yeah, I'm in total agreement with you, this makes no sense at all.

      From the article: A LEAD DEVELOPER on the Open Source Wine project, Tom Wickline, has warned that Microsoft's deal with Novell is a cunning plan by Vole to take control over the commercial customer's use of Free Software.

      It seems to me they're really confused at the concept of free software. There's absolutely no way MS can stop companies from using open source software. For example, I use WinMerge, an open source visual diff program (wh
      • Suppose Microsoft decides to sue AutoZone and Chrysler for patent infringement because of their use of Linux. If the victims don't particularly feel like fighting, a logical settlement would be to "come into compliance" by migrating to the Novell/MS distro(s). I could see a lot of judges encouraging this sort of settlement rather than trying to figure out who owns what "intellectual property"...

        A few hundred commercial users later, you have the standard EmExEx scenario

    • I R'd the FA, and I don't have the first clue what this perceived threat is. How does signing this deal threaten commercial use of OSS? Don't the existing OSS licensing terms still hold? Why should it matter that MS can now show there's an MS-licensed path?

      I'll take a stab at this one, but I might miss a few points.

      1. Microsoft announces agreement with Novell for Suse, and says they won't pursue any patent claims against them (and quite possibly, only them).

      2. Suse feeds back technologies to the rest of t

      • It may be a trap in that MS is promising to business customers that "Suse's" brand of OO.org, mono, etc are "safe" from litigation for a few years. If you use Red Hat...well then we just can't guarantee your safe.

        From the GPL: "You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee."

        This in no way conflicts with the GPL or the goals of the GPL. It can in no way invalidate the GPL and so on. Since the GPL is our prot

      • And under the GPL I can pretty well use Linux any way I want, especially if I'm not distributing anything.

        Right, but if you're a business distributing Linux and making money off that and also, say, selling support services, and if any of the OSS you're distributing and making money on happens to infringe on someone else's software patents, then you and your customers can get your asses sued off.

        Micro Soft is promising not to sue Suse users' asses off. That's what this is about.

  • In one way, you can easily scream OMG ITS A TRAP! The article pretty much gives us the worst case senario, which leaves me thinking FUD. Yeah. That pretty much seems like it. FUD.
  • This might end up revealing a lot about how many people will accept loss of control for the sake of "pragmatism". If you don't mind non-free drivers, etc. then I suspect you'll like whatever MS/Novell concoct. No doubt it will contain plenty of non-free technology that the proverbial "average user" needs in order to get hisher nonfree hardware to work out-of-the-box, and so on.

    Acceptable?

  • Give me a break.... (Score:4, Insightful)

    by common middle name (657525) on Friday November 03 2006, @03:54PM (#16708555)
    I distrust Microsoft about as much as any other /. reader but this article is just stupid. The author seems to be implying that because Microsoft has made an alliance with a Linux vendor they all of the sudden own all open source software ever created and can just sue people for patent infringement at will. What a crock.

    People....CALM DOWN.

    The world is not coming to an end. Microsoft is not coming to steal your children.
  • TFA keeps refering to "the Vole". WTF is "the Vole"? AFAIK, a vole is a rodent endemic to Northern and alpine climes. I have no idea what it means in the given context.
    • I was wondering the same thing -- is there some witticism here that I'm missing or is it just some Dadaist/jackass version of "M$"?
    • I didn't know either, but apparently that's Inquirer's clever little nickname for Microsoft. You'd think they'd at least both mentioned once who they meant.
    • the Vole is a term coined by The Inquirer [theinquirer.net] to refer to Microsoft. They think they're very clever, they frequently come up with similar witticisms and like to pat themselves on the back for them.
  • in the code though.

    The Volnovo pact will mean that non-commercial individual contributors can make Open Source, but if anyone actually uses it for something other than a hobby or a non-profit organisation Vole can bring a software patent lawsuit against them unless they are a Novell customer, he said.

    Well sure, but only if you assume that there are patented procedures in Linux. Do we know that there are? I'm almost sure that there are in the Wine project. But can anyone point to an example of something i
    • I also think the article is inane fear mongering, but isn't CIFS patented? (I tried to search but uspto.gov is a mess.)
  • Or could be, rather. It seems to me that Microsoft would have to be idiots to try and pull the kind of crap SCO were doing.
  • Seriously, as the article said Microsoft needs a new deterrent for all the players in the free software movement. SCO is history, now they need a new partner, someone who's not as big (or will be) as Microsoft is today. A major linux vendor is the perfect way to achieve that. Microsoft will keep continuing to push only that much technology that they would like to - I doubt whether we'll see MAPI being opened up, whether the doc format will, whether we'll see a pam_ad etc ... All Microsoft wants is to look good in the press, give a cozy feeling to its customers and more importantly have a position to draw lines in the free software movement. Patents and litigation will be seen as a major drawback by all the majors looking at deploying free software solutions. I am not talking about the average bearded nerd here in /., but the multi-millionaire CEOs who don't know jargon from garbage.

    As for me, I am in India, I can keep laughing whenever talk about software patents happen.
    • As for me, I am in India, I can keep laughing whenever talk about software patents happen.


      while India has already ordered [ffii.org] legislation of software patents.

  • If Microsoft attempted to assert their patents against a complete sector of activity could it be construed as anti-competitive and a basis for new anti-trust proceedings?

    I would hope so.
  • i agree with Wickline that this is the next ploy by MS to try and subvert/control/destroy OSS, especially as it pertains to commercial enterprises. at the end of the day MS are always going to try and involve the courts, as it is the easiest and most cost-effective. why innovate when you can litigate? i wonder how this will affect the new patent review group (here [slashdot.org]), as this news makes it look like a mexican standoff, with GE casting the deciding vote.
  • 1) The inquirer? Seriously?
    2) The article isn't even coherent. None of what's said here make any logical sense, and even less legal sense.

    I need a trash bin on the side of /. I can drag things to.

  • I don't get it either (Score:4, Insightful)

    by acvh (120205) <geek.mscigars@com> on Friday November 03 2006, @04:03PM (#16708699) Homepage
    not to mention that the linked article, and articles linked from that, are pretty much incomprehensible. Microsoft and Novell agree to work together to make Linux and Windows work together, Microsoft agrees to support SUSE for Novell customers, therefore Microsoft owns Linux? Sloppy reasoning, sloppy writing, sloppy discussion.
  • Ofcourse they can cooperate as they will and develop software under any license. I would not complain if they would do just that.

    But why, do they have to threat with suing commercial opponents?

    I guess Microsoft by now is only used to playing the monopolist and only wants to operate in the linux market with the rules they have become used to.
  • The SCO case taught us the taxonomy of what's inside Linux, and it's protected. Add to this the GNU utilities, also hand-crafted by RMS. Any patents that Microsoft pulls out of its sleeve and sends torts about will be fodder for the EU community to go ballistic about, and worse, hurt Microsoft's chances to make friends with the OSS & F/OSS communities.

    No, this is a case of the enemy of my enemy is my cross-licensed friend. This would never happen while Ray Noorda was alive, but alas, he's gone now. It's
  • I think the confusion is a result of using the terms "unlicensed linux" when that's not the case. They're referring specifically to the way a linux server or desktop would interact with Windows machines CIFS/SMB etc. Also, many of the Windows desktop features emulated in KDE/Gnome could be patented by Microsoft...like old Apple/MS lawsuits over the GUI in the first place.

    Personally, I think Novell has the touch of death for everything it gets involved in. It's not enough for them anymore to issue gro

  • Is the deal in conflict with GPL? (Score:5, Informative)

    by feranick (858651) on Friday November 03 2006, @04:07PM (#16708761)
    "It's possible that Thursday's deal between Microsoft and Novell could conflict with a provision in the General Public License (GPL), according to Eben Moglen, the attorney for the Free Software Foundation that created and oversees the Linux license. "If you make an agreement which requires you to pay a royalty to anybody for the right to distribute GPL software, you may not distribute it under the GPL," Moglen told CNET News.com Thursday. Section 7 of the GPL "requires that you have, and pass along to everybody, the right to distribute software freely and without additional permission." Article from CNET: http://news.com.com/2061-10795_3-6132156.html [com.com]

  • Novell's just keeping Vista open to NDS/Netware (Score:4, Insightful)

    by HighOrbit (631451) * on Friday November 03 2006, @04:10PM (#16708783)
    I don't see anything necessarily nefarious in this. As I commented in the earlier article, most likely, Novell is may making sure that Microsoft continues to support NDS/NetWare (which is now the Linux-based Open Enterprise Server) by having the client software supported on Vista. Microsoft wants to make sure that .Net has a foothold in the linux/unix backend market. They both get something out of the deal. Novell gets Windows desktops to provide a market for their server products. MS gets Novell supported Mono/.Net-based servers to provide a market for the desktop and application products. Anything that grows the NDS/Netware line is good for Novell. Anything that grows .Net is good for MS. They both win.

  • And read people's analysis - just not the mainstream press, who spun this sensationally as "MS validates Linux." It becomes clear quickly that this is a very cold move to:

    1. make it clear that Novell has the only authorized Linux, and anyone else is open to lawsuits. This is an attack on one of Microsoft's main challenges, Linux, as well as open source in general. They also make it clear that anyone but Novell who is funding open source development is subject to lawsuits.

    2. make it clear .net (and mono) are

  • Bad read (Score:3, Informative)

    by sys49152 (100346) on Friday November 03 2006, @04:16PM (#16708895)
    So MS has said that it won't sue Novell's customers, and Novell said it won't Sue MS's customers, (sad, BTW, that this is what it comes to) but how does this protect the corporate Linux adopter from everyone else with a lawyer? If corporate CIOs and legal departments are truly holding off on Linux and open source (and apparently they are) because of potential litigation over IP issues, then I don't see how this is much of a help. If I now go out and install Suse, what's to keep Oracle, or TIBCO, or Cisco from suing me. Do RH and Novell have to secure covenants from every copyright/patent holder in the industry?

    Besides, hasn't the SCO thing proven that suing your customers is not a good idea (despite what the music industry is up to). If MS sues Citigroup for using Red Hat, then I'd put my money on Citigroup.

  • And to quote direct from Steve Balmer's mouth... (Score:4, Informative)

    by advocate_one (662832) on Friday November 03 2006, @04:17PM (#16708911)
    The distributors of other versions of Linux cannot assure their customers that Microsoft won't sue for patent infringement. "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," Ballmer said.

    "I suspect that [customers] will take that issue up with their distributor," Ballmer said. Or if customers are considering doing a direct download of a non-SUSE Linux version, "they'll think twice about that," he said.
    the link to the article is here [eweek.com]

    I'll let you draw your own conclusions... but he is definitely banging the old "Linux infringes our patents" FUD drum...

  • Patent Agreement (Score:3, Insightful)

    by NullProg (70833) on Friday November 03 2006, @04:33PM (#16709155) Homepage Journal
    I was all for this at first until I read the patent agreement for OpenOffice, Samba and .Net.

    • If Microsoft wanted to interoperate with OpenOffice, all they had to do was support ODF.

    • According to Miguel de Icaza. there are no patent concerns with Mono because Microsoft has granted RAND+Royalty Free licenses to any patents they might own that are required to implement the ECMA 334/335 standards.

    • Didn't the EU just recently decide the SMB/CIFS implementation was legal?


    I personally think Microsoft is trying to plant a patent FUD turd inside the head of any CIO thinking of deploying Linux.

    Hey Miguel de Icaza, what are your thoughts on this?

    Enjoy,

    • Re: (Score:3, Insightful)

      by nonmaskable (452595)
      Which Miguel are you asking? The old Miguel been telling people for years that there are no patent issues with Mono. Today's Miguel says there are serious patent issues, and only Novell customers are safe from Microsoft litigation.

      Which one is right? Can you believe either? Wanna bet the future of the Linux desktop on the answer?

  • this "patent deal" is not GPL compatible: (Score:5, Informative)

    by free2 (851653) on Friday November 03 2006, @04:51PM (#16709409)
    7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.
    This means that , should MS enforce its patents on other open source companies, not even Novell can distribute GPL programs covered by the same patents.
    • Microsoft just got one of the major Linux vendors to roll over and be Microsoft's personal patent bitch and endorse the idea publicly that Linux is infringing on Microsoft IP and therefore inherently unsafe for business use...

      This was tried with SCO/Caldera/Corel/Whatever Linux, and worked oh so well. 6 years later, there are Linux distros galore to be had. And it's not as if MS actually owns Novell or SuSE either.

      -b.

    • In could not have been in response to Oracle and Red Hat. This has been planned out for years (Novell bought SuSE nearly 3 years ago), and the Microsoft-Novell discussions started in April 2006, well before Oracle made their announcement.

      I *knew* something was fishy when Novell bought SuSE.

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