Novell Responds To Microsoft's IP Claims

Azul writes "Ron Hovsepian, Novell's CEO, has posted an open letter to the Community, where he explicitly states Novell's disagreement with Steve Ballmer's claims of Linux infringing on Microsoft's intellectual property. From the letter: 'We disagree with the recent statements made by Microsoft on the topic of Linux and patents. Importantly, our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property. When we entered the patent cooperation agreement with Microsoft, Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents.'"

trouble ahead?, trouble behind.

Driving that train, high on cocaine.
Casey Jones is ready, watch your speed.
Trouble ahead, trouble behind
And you know that notion just crossed my mind.

With a beginning like this, who knows? They got the O.J. special and book release canceled!

Goodness, if the heads of the two "agreement" corporations are on pages so far apart for this deal, how can this possibly work? Reminds me of the IBM/Microsoft marriage for work on OS/2, which Microsoft continued to claim was blissful right up until the time they got enough ideas for their own Windows replacement and unceremoniously dumped IBM. Too bad, too... OS/2 (while not my fave) was a pretty decent system for its time.

Re:trouble ahead?, trouble behind.

Unlike with Windows, I doubt Microsoft could pull it off though ... the Linux advocates are too anti-Redmond to adopt a M$ linux clone.

The advocates (zealots?) wouldn't be the target market. MS would market it to the MCSEs and other who are MS-centric as 'Linux Done Right', offer full MS support, ease of installation and a sole-source supplier (MS themselves).

It would make MS billions of dollars.

They already did: it's called Bee Esss Deee

Although I'll give them credit for a lot of code, good old BSD is the well from whence many operating systems drink.

Given re-invention of code, or code I can 'steal', I'll look at good code and glean the best from it any time. So did Microsoft. So did IBM. So did Novell. It's the sincerest form of flattery, after all.

What's the problem?

I don't really see the problem with all this. Microsoft and Novell can say and do anything they like about patents, but it doesn't make a patent problem arise where there was none, nor does a lack of agreement make one disappear if there was one. Novell got a few hundred million bucks out of MS, and it doesn't affect anybody else one whit. Why not let em have it?

Rule of thumb...

A rule of thumb when dealing with Microsoft.

Microsoft ALWAYS shafts their partners.

I've watched it happen repeatedly with big-name and little-guy companies here in the valley, and seen news of it elsewhere.

Cutting a deal with Microsoft is an invitation to big trouble and I fail to see how companies keep falling for it. (Perhaps there IS something to the PHB stereotype.)

Cutting a deal with Microsoft for (limited) licensing of their patents is an invitation to accusations of IP infringement - and the first shoe has just dropped.

But (like reading Microsoft source code) it's also an invitation to accidentally contaminating the open-source code base with actual Microsoft IP.

I expect THAT to be the second shoe - with Microsoft first FUDding up the customers, then going after Linux ala SCO, but with their ducks correctly aligned before filing the first suit.

Re:trouble ahead?, trouble behind.

Casey Jones is ready, watch your speed.

Is this a commonly misheard lyric or something? It's "Casey Jones you better watch your speed.".

The lyric as you wrote it doesn't even make sense.

Re:trouble ahead?, trouble behind.

Some of us think OS/2 is still pretty decent, at least given its age. :-)
I'm glad it's working out for both of you. :)

Woot! Woot! Clue Train in the distance

Dear Novell Executives:

How many company's have entered into collaborations, with Microsoft, that did not end up with a rectal aperture far exceeding that of goatse? How many did? So, do you actually fell that lucky? Talk about a long shot. Well, I'm sure you are all busy packing your golden parachutes, and will be long gone before the fecal matter hits the rotary device.

Novell might actually be fueling MS's case ...

Isn't the following statement in effect confirming Ballmer's ascertation that Linux users are violating Microsoft's patents?

"In this agreement, Novell and Microsoft each promise not to sue the other's customers for patent infringement. The intended effect of this agreement was to give our joint customers peace of mind that they have the full support of the other company for their IT activities."

If Novell did not believe that Linux users were accountable to Microsoft for using these technologies, why would they look to protect these users? Sure, it's great to offer this indemnification clause for the largest of corporate clients (who have at least some reason to be cognizant of the risk of MS litigation), but by doing so he seems validate Ballmer's views.

I can see it now ... The next big legal battle will be Microsoft vs. the world.

Re:Novell might actually be fueling MS's case ...

The best move would be for users to ditch distributions that do not provide patent indemnification or to seek out third-party indemnification. If anything, Novell ought to be cheering Ballmer for steering more people in their direction.

I think the best move would be for people to revolt against the silly software patent insanity and refuse to play that game. The sooner we bring the software patent stew to a boil, the sooner we can move towards a balanced and healthy legal system in which to grow new technologies.

Re:Novell might actually be fueling MS's case ...

There are very few original ideas and what original ideas there are are already in the queue to have themselves patented. The only reason you think that software patents shouldn't be given the same amount of respect as any other patent is because you work with software every day.

Two-things: You're correct, there are few "original" ideas. And I would say any idea that isn't original (or is blatantly obvious) shouldn't be patentable. Technically you're not supposed to be able to patent an obvious or non-original idea, but regular slashdot readers will remember a litany of patent cases where the idea was obvious, unoriginal, or described something so broad and vague as to preclude all possible competition. If that rule was enforced, I wouldn't have a problem with software patents. But you actually make the point of the GP-poster who I think was pointing out (correctly) that there are WAY TOO MANY patents for software being issued, to the point that it is stifling creativity rather than encouraging it.

Secondly... You're comparing apples and giraffes... A patent for a TV-set is a patent for a device and the device alone... and not even for the whole device, but for parts of the device... They don't have a patent on the idea of viewing video over a cathode-ray-tube, they have a patent on an implementation of technology to ACHIEVE the viewing of video over a device in your home. If you can create a TV-set that works without the patented technologies you would be free to sell it without any license from anybody. This is as it should be--if your TV-set works better than the patented model then the patent has achieved its goal--it allowed the orginal inventor to get something for his work, while enticing you to evolve the tech to the next level. The key is, you have to PRODUCE something that WORKS in order to get a patent.

Software patents, as they've been used to date, are doing just the opposite. Software patents are being granted for basic, "helloworld.c" implementations of broad and complex concepts... "Software" developed not to create a marketable or usable product, but for the pupose of acquiring a patent that can later be used to hijack a successful competitors profits. "Oops, we realized a patent we filed a few years back might apply to your product. Please pay us several billion dollars." The patent-related-extortion of RIM comes to mind... Rather than create real products and patenting the original/unique components of THOSE products, they're instead setting up dozens or hundreds of projects whose goal is to achieve a patent, and not to actually bring any workable product to market. Instead of giving consumers access to MORE technology, as more of these bogus astroturf patents get filed, the effect is actually opposite: Innovators who can't afford to pay high licensing fees (or patent-search fees to an attorney) simply can't relase their products in any way that they can easily profit from, for fear of being sued into destitution by an "inventor" (whose "invention" was written as a fifty-line C program by a CS-grad student) who suddenly comes out of the woodwork waving a patent your search didn't find, and wanting half of your profits.

In fact, the RIM case should really underline the absurdity of the patent-situation in the software world, because the patents RIM was sued over were eventually invalidated, but RIM still was out several hundred-million from a settlement they made, and from attorneys fees. Even INVALID patents can be worth hundreds of millions of dollars with the right lawyer and low-enough ethical standards for yourself. THAT stifles competition, and THAT is just plain broken.

Re:Novell might actually be fueling MS's case ...

Let's say you started a company that builds televisions. Do you think you could build a television without encroaching on a patent held by any of the other television makers?

No, but... I wouldn't expect the people who buy the televisions I build to be liable for the patent infringement I do.

In no sane world should the _users_ of Linux systems be liable for patent infringements. The individual people who committed the infringing code may be, but the users shouldn't be. Simply possessing the infringing source code shouldn't be counted as infringing.

Re:Novell might actually be fueling MS's case ...

I agree with you, but I say the probability of infringing code is almost certainly very close to 1. You can't write anything that is non-trivial without stepping on a patent claim these days, and Microsoft likely owns at least one of them. The problem is that this meme competes with another meme, which I like to think of as the "irrational other player" meme. Everyone loves to think of Microsoft (and lawyers in general) as being insane. So rather than say "what would Microsoft have to gain by suing me?" and basing rational decisions on that, they say "I don't want Microsoft to be able to sue me" which, if you're writing or using software these days, is an impossible task.

Re:Novell might actually be fueling MS's case ...

And for a company that broke even last year on an operating income of $100M and has a total market cap of about $2B dollars, that payment was not at all a trivial matter. Hovsepian would have been remiss to his shareholders to not sign it. Patent cross-licensing agreements are pretty damned commonplace.

I think the Novell guys probably realized there was some bad PR potential, but didn't see anything particularly bad in the agreement and saw lots and lots of greenbacks, plus the opportunity to use MS as a distribution channel. This seemed like a sweet deal when they looked at it. I just don't think they realized quite how negative the reaction would be.

Re:Novell might actually be fueling MS's case ...

"Isn't the following statement in effect confirming Ballmer's ascertation that Linux users are violating Microsoft's patents?"

Consider the symmetry of the contract:

Novell and Microsoft each promise not to sue the other's customers for patent infringement

Therefore, using your assertion, it must be equally true that Microsoft is admitting that stollen Novell code is in Microsoft's codebase.

;-)

Deal Novell Out

Novell is feeling the backlash of their decision to cozy up to Microsoft, but this is just spin, it means nothing. The business arrangements that Novell made with Microsoft are what counts, and they still stand. It's time to deal Novell out of the Open Source pie, we must not allow them to taint Linux with "Microsoft IP".

That's bullshit.

Maybe, but corporate clients need interoperability, and this relationship will eventually provide them with a greater degree of Windows/Linux interop than they have today (while providing them with some of the legal protections they desire).

Microsoft has 100% access to the source code for Windows AND for Linux. If Microsoft wanted "interoperability" then Microsoft is in the best possible position to just do it.

And Microsoft can release any specs at any time so Linux could implement "interoperability" improvements.

The fact that Microsoft does not do either should tell you all you need to know about the "interoperability" bullshit.

Let me get this straight.

The problem is, you're wrong.

So Microsoft has released the specs to allow Linux to interoperate with Windows? Tell me more ...

Now, granted, these are not the keys to the Windows kingdom, but it's a step in the right direction, and Microsoft should be encouraged to get as many specs out into the Open as possible, as soon as possible.

So by "interoperate" you mean ... "not interoperate"

And by "you're wrong" you mean ... I'm actually correct.

Come back when Microsoft opens up NTFS or Active Directory, okay? Or even when Microsoft has 100% support for ODF, as a default option, out of the box.

Like I said, Microsoft has access to all of the Linux code AND all of the Microsoft code.

Microsoft can open any spec it wants, whenever it wants.

Any other talk about "interoperability" is pure bullshit.

Re:That's bullshit.

People say that Microsoft doesn't innovate, but those same people complain that they are being locked out of Microsoft technology if they don't use Microsoft products. Seems a funny argument.

There's nothing funny about it - it makes perfect sense even if you believe that Microsoft doesn't innovate. One of the reasons people say that Microsoft doesn't innovate is that MS has a history of buying or in some cases acquiring in more underhanded ways, innovations from other companies. In such cases, there may be innovations that one would want to interoperate with, but they don't originate with MS. Secondly, the desire to interoperate with MS software has nothing to do with whether MS software is innovative. So long as significant numbers of people use MS software, other people will have an interest in interoperating. For example, I may have to deal with documents that people send me in MS Word format, but that doesn't mean that I think that there is anything innovative or otherwise attractive about that format. I'm stuck with other people's choices.

Re:Deal Novell Out

On the contrary. I think this is a great tactic of dealing with Microsoft: Take a few hundred million dollars from them and at all the parties say "I'm not with him!" Lets face it, Novell's been paid a few hundred million dollars to give the impression that there are patent problems with Linux, yet they've spun around and said "We don't think there are patent problems in Linux" and started talking about how Microsoft got the better of the deal by licensing Novell's patents!

For some reason this really tickles my funny bone.

Re:Deal Novell Out

I work for SUSE/Novell and my job involves working on GPL'd software.

Do you really think that Microsoft is going to be handing us source code to their proprietary applications? Seriously? Because that's not ever going to happen and I'm not sure what makes you think that it would. I mean, this is Microsoft we're talking about. They don't even like to share source internally from what I hear, and none of us have any interest in seeing closed source in the first place.

Do you really think that any of us engineers, us "jerk-off[s] from Novell", are going to intentionally harm Linux? Seriously? The same Linux that many of us use at work and at home, the same Linux that many of us have been using for upwards of sixteen years? No, we're not going to intentionally "open the flood gates for M$ litigation" because that doesn't make any sense. I know, I know, you're enjoying the hysterics and you don't actually know what's going on so you're stirring up the pot all the same, but, really, why would we do that? Honestly, ask yourself, why would those of us who get to have the dream job of writing open source software intentionally poison Linux? Calm down.

Re:Deal Novell Out

Is there any strong evidence that Microsoft was actually behind the SCO incident?

Sort of.

It's been known for a while that to help out with the lawsuit SCO recieved a massive cash injection to the tune of $40 million or so from Baystar Capital. Baystar is a VC company that controls a lot of Microsof money.

Since the time of the investment until a few weeks ago, the offical line was that Baystar acted on its own, and the fact that it was Microsoft capital being used to bankroll SCO's legal team was a mere coincidence.

But then maybe a month ago, the court heard testimony that not only did Microsoft know about Baystar's investment into SCO, but that the investment was at least encouraged (at worst, ordered) by Microsoft.

You can find all the relevant court documents, commentary, and links on Groklaw.

Not quite a smoking gun, but very compelling evidence that Redmond was putting its money where its mouth was, at least in a roundabout and obfuscatory way. There are no serious suggestions that what Microsoft did is actionable, yet it is pretty clear that they were up to their same old dirty tricks

Hmm...

Who notices a typical CYA mentality here? Have the cake and eat it, too?

Give Novell a Break

It does no one any good to alienate Novell. Seeing the open source community and MSFT working together is a step in the right direction.

Re:Give Novell a Break

If some highly infectious disease infects your leg, I'm pretty sure the doctors will advise you to amputate it.

Re:Give Novell a Break

No, its really more like kissing a whore on the mouth that you already knew had multiple STDs, and then wondering why no one will go out with you when you brag about it. MS antitrust issues (past and present) as well as their history of screwing "partners" makes this a much better analogy.

Re:Give Novell a Break

Alienating Novell sends a signal that Microsoft's patent extortion will not be tolerated by the community. It says that, should Microsoft press patent claims, that companies and people using Linux will retaliate -- with countersuits, civil disobedience, lobbying, bad PR, and whatever else.

You can bet that Novell is only coming out with this "open letter" because of the pressure they are feeling. Contracts being canceled or not renewed, bile and bad PR everywhere, FSF lawyers looking into filing suits, etc. They are probably getting the most pressure from SuSE developers, who can't be at all happy about being periahs.

The best step for the OSS community would be for Microsoft to document their protocols and formats. For instance if we had documentation on how NTFS lays out the filesystem we'd have a safe r/w driver in under a month. This Novell-MS deal is bunk. The European trustbusters have already done more than this deal ever will.

What "right direction" is that?

Microsoft licenses proprietary code.

Linux is under the GPL.

Is the "right direction" for Linux to become a little bit proprietary?

If not, Microsoft has 100% access to the source code. Microsoft can be as "interoperable" with Linux as they want to be. Any time they want to be.

Microsoft can release whatever specs it wants, whenever it wants.

Now, why don't you go listen to Ballmer talking about how Linux users owe Microsoft money before you start talking about the "right direction" and "working together"?

What the fuck?

Our interest in signing this agreement was to secure interoperability and joint sales agreements, but Microsoft asked that we cooperate on patents as well, and so a patent cooperation agreement was included as a part of the deal. In this agreement, Novell and Microsoft each promise not to sue the other's customers for patent infringement. .....
When we entered the patent cooperation agreement with Microsoft, Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents.

So you signed a deal with Microsoft ... over patents ... that you claim do not exist?

Yeah, that makes a lot of sense.

Here's a free clue, you idiot. That last company that talked about "protecting" end users from being sued was ... SCO.

You might want to look at how beloved they are at the moment.

So in other words...

Microsoft just wasted a few hundred million dollars? Congrats to Novell...

fine print and silver

even giving them the benefit of the doubt, they should have read the fine print.

they've sold the community for 30 pices of silver.

Re:fine print and silver

they've sold the community for 30 pices of silver.

Except that in the case of Judas the 30 pieces of silver were a legal requirement; had he refused the money then his evidence would have been inadmisible under the Law.

The idea was that in order to prove that the evidence was given in good faith, the witness had to accept payment.

In Novells case, I don't think this holds...

Agree and Disagree?

Novel seems to be essentially saying that they agree and disagree at the same time on a topic which was part of their formal agreement. This may make sense to a lawyer or CEO, but seems highly illogical to me. Furthermore, it seems safe to say that any business agreement with Microsoft ultimately benefits only Microsoft, the people over are great at that. I may dislike many aspect of the Microsoft Corp. but they are darn skillful business men. I'm just happy that I don't use Suse.

Empty words

What matters is what Novell agreed with Microsoft, and that says it all.

Novell can say all it wants, but you can't fool everybody all the time. This makes this company look either totally naive and stupid, or blatant liars.

Encouraged...

I for one feel at least encouraged by the fact that obviously Novel is very sensitive to criticism over this. I would like to even believe that they are reading Slashdot. If nothing else, that would be a very positive development. If major players and decision makers begin reading Slashdot and become sensitive to it, that would be a very positive thing for us all. Though the first few comments to this latest news show considerable skepticism, many others in previous discussions had come to the conclusion that there is really nothing to worry about.

Microsoft Bites Back - MS PR response to this

They've agreed to disagree, or so they say.

We at Microsoft respect Novell's point of view on the patent issue, even while we respectfully take a different view. Novell is absolutely right in stating that it did not admit or acknowledge any patent problems as part of entering into the patent collaboration agreement. At Microsoft we undertook our own analysis of our patent portfolio and concluded that it was necessary and important to create a patent covenant for customers of these products. We are gratified that such a solution is now in place.

http://www.microsoft.com/presspass/press/2006/nov0 6/11-20Statement.mspx [microsoft.com]

Groklaw's reaction ...

http://www.groklaw.net/article.php?story=200611202 03431766 [groklaw.net]

In that case, with all due respect, you should not have signed an agreement called a patent cooperation agreement that gives Microsoft the opportunity to say the things Mr. Ballmer has been saying. I believe that is obvious now. And you should have considered the GPL, its importance to the community, and considered what paying royalties means in that context. And we hope you will fix this.

And MS ...

Microsoft and Novell have agreed to disagree on whether certain open source offerings infringe Microsoft patents and whether certain Microsoft offerings infringe Novell patents....

We at Microsoft respect Novell's point of view on the patent issue, even while we respectfully take a different view. Novell is absolutely right in stating that it did not admit or acknowledge any patent problems as part of entering into the patent collaboration agreement. At Microsoft we undertook our own analysis of our patent portfolio and concluded that it was necessary and important to create a patent covenant for customers of these products. We are gratified that such a solution is now in place.

Corporate Mentality

The bigger the corporation, the more lawyers work for it. Novell, while just a shadow of what they once were, still thinks like a big corporation. Threat or not, they knew that many of their corporate customers -- you know, the paying ones -- had their own lawyers whispering in their ear. It was worth a certain amount of money to them to not have to put the effort into figuring out if they were violating patents or not. The perception was there and that money now gives the perception of safety.

What the suits didn't understand is that while Linux is moving more and more into the corporate space, at its core it is still a community driven project. They drastically underestimated that community's dislike and distrust of Microsoft.

Good luck to them trying to serve both masters.

question about the threat

My gut reaction to this deal is very negative.

I really like a lot of what Novell has done on the desktop, and some of the mono desktop apps are pretty terrific. But I sort of feel like I ought to be moving toward KDE now, and distancing myself from anything mono.

The question I have, though, is about the patents. Either MS has patents that can be used to attack linux or they're pulling another SCO on us.

So much of the argument against Novell hinges on the fact that they're enabling MS with this deal. As I understand the argument, it says that corporate customers will buy Novell, to be safe from potential lawsuits. If MS can pick off a critical mass of commercial users who are willing to pay, they can start to sue other people without damaging relationships with their large corporate customers. Even non-novell customers will have a way out -- they can buy Novell.

If MS has these patents, do we really believe that fear of alienating their customers is enough for them to refrain from suing people? Couldn't they sue IT companies -- linux companies, IBM, etc., without damaging their relationships with large corporate customers? And aren't those large customers so locked in that they really don't have anywhere to go if they're alienated, anyway?

To me, this really isn't about Novell. I don't pay them, and I don't code for any projects, so I understand that they don't really care about me. It would be irrational for them if they did. But this sort of burns the bridge to Novell and mono as far as I'm concerned. That's done.

But how big is this threat? Is this the beginning of legal threat spanning years and years. with fronts opening up in legislatures, in anti-trust enforcement agencies around the world, etc.?

Is this real, or is this a bunch of baseless stuff that's going to dog us for years?

If a free OS that's built from scratch by volunteers can't be allowed to exist in the current intellectual property law environment, what then? Does this mean we either have to give up and finally take on the intellectual property framework at some really fundamental level?

Re:question about the threat

If MS has these patents, do we really believe that fear of alienating their customers is enough for them to refrain from suing people? Couldn't they sue IT companies -- linux companies, IBM, etc., without damaging their relationships with large corporate customers? And aren't those large customers so locked in that they really don't have anywhere to go if they're alienated, anyway?

Err, wouldn't Microsoft suing IBM over patent infringement be the legal equivalent of shooting themselves in the foot with a bazooka? IBM, according to their own website (http://www.ibm.com/news/us/en/2006/01/2006_01_10. html), has more patents than any other tech company and they've been around since long before Gates was in diapers--I would hazard a guess that Windows infringes on far more IBM patents than Linux infringes on Microsoft's. I'm not saying Microsoft wouldn't have the balls (and lack of brains) to try this, but the resulting shitstorm would likely take 10+ years to resolve and could very well result in the downfall of M$ or patent law reformation... and I'd be overjoyed to see either. And even if M$ somehow prevailed, I'm willing to bet a significant portion of the EU and Asia would say "fuck you!" if asked to pay royalties on Linux.

Somebody who is doing something about it...

Read the interview Moglen: How we'll kill the Microsoft Novell deal [theregister.co.uk].

Alright that's the legal piece. There's also www,boycottnovell.com [boycottnovell.com] and the Samba disapproval. Other links and ideas welcome.

Why would microsoft do this?

I was kept wondering how on earth did steve balless say that linux is infringing microsoft's patent? Did he really know what the heck he is saying? Linux is the kernel not the whole system. I dont think novell even o