Novell Goes Public with Microsoft Linux Deal

InfoWorldMike writes "On the back of defending the agreement this week, Novell did as promised and published details of its landmark November 2006 Linux partnership agreements with Microsoft. Linux advocates are expected to scour the documents for signs of how the agreement may affect Linux and whether anything in it will put Microsoft or Novell in potential violation of the upcoming version 3 of the GNU General Public license (GPL). The GPL is used in licensing many components of the Linux operating system. Open-source advocate Bruce Perens said he would be looking to see exactly what Novell was given through the deal and whether there is any requirement for the Linux vendor to defend Microsoft's patent claims. 'What I'm actually looking for is, to what extent was there a violation of faith?' he said."

Actual Patent Agreement

Link to actual agreement [sec.gov]

I am no lawyer (but I do read contracts from time to time, as a 'hobby'), but this is really an odd 'covenant'. The agreement appears to not state what products are actually covered by the patent covenant, in bizarre ways. For example, "Clone Products" are not covered, "Clone Products" being presumably things like Mono and OpenOffice (as they duplicate Microsoft APIs and products); yet all such products already designed at time of signing are exempt, i.e., they are covered. Yet, the following projects are not subject to the exemption: "Wine, OpenXchange, StarOffice and OpenOffice", i.e., they are not covered. So OpenOffice appears to not be covered.

Likewise Samba would presumably be a "Clone Product", and not covered as well, except by the exemption due to its existing at time of signing. Yet this might not cover additional functionality added later. It just isn't clear.

No actual products are named aside from the quote above, and even they are not stated as being covered or not (just not exempted by a particular subsection). So, reading this, I can't tell whether Novell customers are in fact covered or not, in any way. The assumption was always that the agreement did protect them from patent lawsuits. But that assumption may have been wrong.

Is the contract specifically designed to not mention any products, effectively letting it be ambiguous and perhaps of no legal use - that is, only effective for PR purposes?

Re:Actual Patent Agreement

I suppose they expect to be able to warp the language later as need arises. "Clone Products" doesn't say anything. Linux itself could be declared clone, as it implements (clones) an existing concept. (posix/unix/os).

Re:Actual Patent Agreement

That's true, but note that "Clone Products" in this contract are only with respect to the other party. So Linux implementing *NIX isn't an issue since *NIX isn't a Microsoft product.

Re:Actual Patent Agreement

So Linux implementing *NIX isn't an issue since *NIX isn't a Microsoft product.

Yet ... ;-)

Re:Actual Patent Agreement

Really? Care to give a citation for that claim? Some features of Xenix were merged into SVR4 around 1990, but that's hardly 20 years ago, and I don't recall any mention of royalties being paid to Microsoft for using SVR4 source code. Anyway, Xenix would have required Microsoft to strike some sort of licensing deal with AT&T in the first place, as they owned the source code that Xenix was based on. I'm not sure what point SCO (old-SCO that is) ended their relationship with MicroSoft, but that may have predated the merging of Xenix features into AT&T's codebase anyway.

Re:Actual Patent Agreement

Cloned Products are more considered products which copy the full functionality of the origional app and all development is for improving compatibility or upgrading to match the current version. SMB is a good example of this. It is designed to be compatible with windows networking and that is about it, features added are used to improve compatibility or internal management of the compatibility of the software.

Re:Actual Patent Agreement

Well, they explicitly exempted OpenOffice and StarOffice, which I presume means that otherwise they would have been covered. If OpenOffice is a "clone" of MS Office, then I think you can cover just about anything competing in the same market.

Re:Actual Patent Agreement

Samba is an interesting issue. Jeremy Allison resigned from Novell as fast as feasible: as one of the core developers of Samba, I have to assume that Jeremy's work was a big factor in the Microsoft/Novell deal. And with all the little network applicance and storage tools currently on the market, and with almost all of them being Samba based, Microsoft had clear reason to limit the usability of Jeremy's work to direct Novell customers.

Remember also that Novell's Netware tools are still supported: network storage is a big market. And this deal left Microsoft and Novell with a big patent club to be able to use against mutual competitors, without either being restrained by the other company.

Mono is not Visual Studio

If it was it would have had a much better IDE and GUI that resembles Visual Studio.

Did you know that C#, Visual BASIC.Net, etc Microsoft gave the EMCA the rights to allow the standards for those languages to be given out to open source software?

Not only is there Mono, but also DotGNU that does a version of those languages.

They are not clones, but they are trying to make the languages available for multiple platforms. They also make Dotnet available for multiple platforms, because C# and Visual BASIC.net use Dotnet as part of their standard framework.

The reasons why they aren't clones is because you cannot take Visual Studio code and compile it on Mono and DotGNU unless you modify the code and tweak it. That is because Mono and DotGNU are written from scratch and not actual ports of Visual Studio.

OpenOffice.Org is not a clone of MS-Office either. It was written from scratch. The only thing it has in common with MS-Office is the MS-Office format files it can save as and read, and possible some primitive VBA support.

Mono and DotGNU are open source "alternatives" to Visual Studio, not clones.

OpenOffice.Org is an open source "alternative" to MS-Office.

Linux is an open source "alternative" to MS-Windows.

Tux is an open source "alternative" to Mickey Mouse.

Linus Torvalds is an open source "alternative" to Bill Gates

None of them are clones of the other.

The damage is done.

Whether people like it or not, whether the deal goes on as planned or not, or whether this in any way violates GPL, the damage is unfortunately already done - and not necessarily because of any effects that may come out of the agreement. The real damage is that the very thought this agreement will cause Stallman to pretty much COMPLETELY lose it, in the flying-blind-in-the-land-of-batshit kind of way. I can't imagine his behavior will get more reasonable anyway, and with his credibility already stretched and the tensions already rife within the community, it doesn't bode well. Open infighting amongst the FOSS community is just what we need right now......

Re:The damage is done.

I for one welcome our Zealot Overlord ... oh wait, he has been that way since before I was born?

The damage is done alright, but it is Novell that has taken a hit to their credibility. Everyone already knew RMS was a bit of a zealot, for better or worse, this won't change that. It has however ruffled the feathers of quite a few in the FLOSS community, and it could very well cause Novell to lose supporters in favor of Redhat, IBM or even Canonical. Whatever criticism you have about RMS it is hard to deny that helping Microsoft spread their FUD and trying to get a competitive advantage by splitting the OSS community is far worse than anything Stallman has ever done.

Re:The damage is done.

The Free Software / Open Source "community" is and has always been split. That's its greatest strength. Some people (like RMS) are into Free Software for idealistic reasons. Other people (like Linus) are into Open Source for practical reasons. People disagree about everything on every level - from the topmost philosophical level all the way down to the implementation details of the code. There's enough room for everyone and, frankly, the discussions and flamewars are healthy.

Re:The damage is done.

I don't see how it could be any other way, and it's great that everyone can try out "their thing", but sometimes having a standard is more important than its merits. For example I'm sure you can find lots of reasons why we should drive on the left or the right side of the road - but it sure as hell is easier when everyone drives on the same side of the road.

For example: No matter what program I run, I'd like the "Open file" dialog to look the same. No matter what I'm trying to print, I'd like the "Print" dialog to be the same. When I'm trying to find out why my video doesn't play, it'd be great to have one video backend. It finally looks like everything is starting to standardize on ALSA for sound. Linux is the epitome of "The great thing about standards is that there are so many to choose from!". It's getting better, but still could use a lot of work.

Re:The damage is done.

How could he have done so much excellent writing (e.g., his many manuals and a book of essays) and continue to be invited to speak all over the world if he had no ability to communicate? The basis of your entire post is nonsense. Even if you had a point, it is hardly _evil_ to sincerely express your beliefs. I'd say it's the opposite.

He's got foibles like anyone else. Your idiotic claim about him and Gates just shows you are talking out of your ass.

Re:The damage is done.

Stallman has enough handlers to help keep him out of the realm of shrieking in your face. He's actually matured, and gotten better at convincing strangers that he has some real answers for their concerns.

Richard has been prophetic about this: his concerns at the Novell/Microsoft deal, and about software patents in general, were exposed as completely correct when Microsoft started its recent claims of hundreds of patent violations without naming a single patent.

No protection what-so-ever

1.9 "Other Excluded Products" means (a) office productivity applications (word processing, spreadsheets, presentation software, etc.) of the Parties that are hosted by or running on a computer acting as a server for a connected client device, and (b) new features and functions in the following categories of products of the Parties, but not to the extent the products embody operating system software or other enabling technologies: (i) video game consoles (e.g., Xbox video game consoles), console games, video game applications designed to run on a computer, and on-line video gaming services (e.g., Xbox live); (ii) business applications designed, marketed and used to meet the data processing requirements of particular business functions, such as accounting, payroll, human resources, project management, personnel performance management, sales management, financial forecasting, financial reporting, customer relationship management, and supply chain management; (iii) mail transfer agents (aka email servers); and (iv) unified communications.

Looking at the list of excluded items, doesn't this mean that anyone that buys SuSE and thinks that they're protected from suit are just being fooled. I know that OOo comes as part of the distro as do other excluded things. So what does Novel think that they have to offer (besides FUD that is) to their customers? This deal also seems to leave MS open to cancel this deal at anytime. So, there is no protection. It seems to just be the illusion of protection and nothing more.

Pay the Danegeld, never be rid of the Dane

I wrote here at the time that the point of a secret covenant was for the companies to be able to sell the same peace more than once.

PHBs need to understand they can't buy peace -- Not ever. They have to take it by choosing to be Free and Open.

Novell's contributions to the OIN need to be reassessed now because the value of the patents they contributed may have been wiped out by this agreement. How many other OIN partners have worked a deal like this or outright licensed away their patents? Is the Open Invention Network a complete sham?

Novell took money from Microsoft. Microsoft always gets something valuable in return. I continue to believe the "something of value" was a pledge for Novell programmers to leverage MS IP in their products so that when this deal expired their customers would be hooked into paying MS licensing fees for products that run in Linux. It's the only way Microsoft encouraging deployment of Linux makes sense from a Microsoft point of view.

It certainly will be easier to do with Novell offshoring most of their development. High profile evacuations in their onshore development teams show an important trend. The FOSS developers who create great work because they have both skill and a passion for the "free as in liberty" aspect of open source software have fled. Offshore they can hire coders who are interested in personal liberty from the oppressed economic conditions of their community and are less concerned with the Freedom of others who fare better than them at a minimum. It's not a formula for good code. Passion adds considerable quality to the output - perhaps quality that cannot be had any other way. A software system is not a microwave oven.

Novell desperately needed that money from Microsoft because delays in their financial reporting caused by an audit of options grants allowed their major creditor to call loans that would have seriously impacted their operation. Somebody needs to have a close look at how this squeeze play was engineered. Its timing is suspicious in the extreme. It would not surprise me if both the investigation that triggered the audits and the creditor were both suspiciously motivated. All FOSS companies need to have a close look at their exposure to being leveraged in this way.

It is my hope and belief that Novell regrets their dance with the devil and they're trying to escape his fee. We will see if they can do it. In any case it should be more clear to all that dancing with the devil is a dangerous game.

wow...

The GPL is used in licensing many components of the Linux operating system.

Finally a summary that contains a very much needed and comprehensive definition of the GPL. That's something every geek's been dreaming about since Slashdot was born!

Fair is Fair

You know, companies are mostly free to make deals with other companies provided no laws are broken.
Microsoft is free to use GPL'd code, provided they follow those (GPL, LGPL) agreements.

OTOH, if **any** company doesn't follow the agreement - GET THEM!
Too many of them - http://gpl-violations.org/ [gpl-violations.org]
Linksys being the most famous: http://lwn.net/Articles/51570/ [lwn.net]

Personally, I'd love to see Microsoft found guilty of violating the GPL/LGPL, but I know how hard they work to ensure that doesn't happen - at least a few years ago they worked really hard.

OTOH, OSS developers should also respect when a company decides they don't wish to be part of any OSS-based licensing. Personally, I avoid doing business with those companies, unless absolutely necessary and I keep the amount of business to the minimum possible.

Re:Fair is Fair

Straight from the text of the GPL: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it."

Microsoft product names listed in the agreement

Under the business collaboration agreement it lists the Novell and Microsoft products under agreement

...Novell and Microsoft agree to provide a combined offering consisting of SLES and a subscription for SLES support with Microsoft Windows Server, Microsoft Virtual Server and Microsoft Viridian.

It looks like Microsoft has given up and just started naming their products appropriately.

No right to distribute

From Exhibit D

Non-Assertion of Patents Pledge

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. A "Non-Compensated Individual Hobbyist Developer" is an individual software developer (i.e., a person and not any corporation, partnership or other legal entity), including a developer of open source software, who receives no monetary payment or any other forms of consideration that can be valued monetarily for their creation of their Original Works. The fact that You may be employed as a software developer by, and receive a salary from, a corporation, partnership or other legal entity, does not disqualify You from treatment as a "Non-Compensated Individual Hobbyist Developer" under this pledge, provided Your activities related to the creation of Your Original Work are performed during Your free time and outside the scope of Your employment. The Microsoft Patents subject to this pledge are all patents issued world-wide to the extent they are owned or controlled by Microsoft or its majority owned subsidiaries. For additional information on obtaining rights under Microsoft patents to contribute Your Original Work to an open source project, please see Microsoft's Patent Pledge for Hobbyist Contributors.

WTF is that? This is meaningless drivel. The whole point of free software is freedom to work on it community. If all I do is mod code at home and use it at home it ain't open and I'm not free. This also puts a big cloud over free software use commercially, ie. when i participate in and/or lead free software projects are part of my day job...which is a big component of this. Free software is a treasure trove of problem solutions. They are effectively saying you can work on or use that software without paying M$.

I like Suse. I've used it for years. I use OpenSuse and hope it will keep itself clear of that but I'm looking for alternatives. Ubuntu has a chance but anything that puts GNOME first is crap. I don't like Mono or the rest of Miguel's M$ fan-boyism. I don't want M$ crap in my life and haven't had it there for years.

Re:No right to distribute

I like Suse. I've used it for years. I use OpenSuse and hope it will keep itself clear of that but I'm looking for alternatives. Ubuntu has a chance but anything that puts GNOME first is crap. I don't like Mono or the rest of Miguel's M$ fan-boyism. I don't want M$ crap in my life and haven't had it there for years.

You don't need to use GNOME to use ubuntu, just use Kubuntu [kubuntu.org] instead. You get all the goodness of ubuntu plus KDE.

Microsoft will buy Novell

Its just a matter of time... but this is hardly news at this point.

Another Unintelligible EULA

From reading the comments and the snippets in the comments it sounds like it's another damned unintelligible EULA. One of the main reasons I prefer GNU/Linux is their EULA (it may have the GPL and others but in those I can find sites that fully explain it in a common language as well as gives me some tangible rights as well as restrictions.)

No acknolwedgement of Infringement

It's worth noting 3.4:

  3.4 No Acknowledgement of Infringement. Nothing in this Agreement shall imply, or be construed as an admission or acknowledgement by a Party, that any Patents of the other Party are infringed, valid or enforceable.

Which will hopefully finally put an end to all the nonsense conspiracy theories [boycottnovell.com] that "Novell admitted that Linux infringes patents" etc., even though Novell have constantly re-iterated [novell.com] that such a claim was ridiculous. As I've said several times before, blaming Novell for Microsoft's recent claims is just completely unfounded, and in fact there's nothing new or particularly recent about it; Microsoft have always been flooding the market with falsities about Linux's infringement on their patents.
 
Hopefully the published results will provide the community with a general better understanding [opensuse.org] of the deal, so that at least if they disagree/hate it, they do it for real reasons (which seems to be rare).

Re:Conspiracy Theory?

No, the conspiracy theory going around was that Novell agreed to those claims as well even though they've continuously denied it. That this deal hasn't been good for Novell is another myth a lot of people apparently like believing, curiously enough. While in actual fact Novell's stocks have gone up, they've got quite a few more Linux engineers than before, and SLE adoption is greatly increasing. Not exactly doing badly, are they?

Considering Softare Patents are acts fo fraud ....

...all this is really a distraction from dealing with the core issue of the fraudulent perspective of the patenting software.

See: http://threeseas.net/abstraction_physics.html [threeseas.net] re: what is universally considered NOT patentable.

Landmark?

Novell did as promised and published details of its landmark November 2006 Linux partnership agreements with Microsoft

Landmark? Eyesore, more like it.

Partnership? Toady, more like it.

Did as promised? Spin doctoring, more like it.

Partnership agreements? Pact, more like it.

What Perens Is Looking For

Another conspiracy theory he can use to attack Novell since the "Novell is trying to be bought out by Microsoft" one was so ridiculous it just made him look like an idiot.

Naturally in any legal document you can spin the thing any way you want - despite or perhaps because of the supposedly rigorous legal language - so I'm sure he'll come up with something to let him get more play in /. and Linux Today.

...for which Novell receives revenue.

"not to assert Microsoft's patents against those customers for the customers use of products and services of Novell for which Novell receives revenue. "

So where does free software fall in this statement. Does Novell receive revenue for all the FLOSS it distributes? Sounds like BOHICA time to me.

Good News or Bad News

Is this good news or bad news? I can not say for sure as when I read the contract I am not sure what I am really reading. All I can say is that Micrsoft has done illegal or used legal loopholes to gain a strangle hold on the computer industry, who is to say it will not happen again. I for one will have to be on the side that says they are trying to screw over Linux and I can say I do not like that one bit.

Re:Faith? Get the fuck out.

No your not the only whose skeptical about religion here. But "faith" as it is used here is a legal term [law.com].

Re:Faith? Get the fuck out.

Am I the only one on slashdot with such a limited vocabulary?
There, fixed that for you.
Sadly, the answer is probably no.

Re:There's a fifth column in Linux

Gnome - KDE

MS - Linux

Its time to put an end to these childish rivalries and Machiavellian plots. I think a good start would be for Dice-K to go over and personally meet each of the Yankees TODAY, and tell them how much he appreciates their skills and looks forward to seeing them in June at Fenway.