[discuss] Implications of Microsoft-Novell deal on FLOSS

Russell McOrmond russell at flora.ca
Wed Nov 8 12:31:35 EST 2006

Evan Leibovitch wrote:
> IMO, the move in part is a gamble by Novell, that the support it loses 
> from the FOSS community is balanced by the market share it gains from 
> risk-averse IT managers who will turn to it because of the 
> non-aggression-pact with MS.

   Novell is now providing a FAQ on the agreement.


   I suspect if they came out with some of this information ahead of 
time they could have avoided a lot of problems.  Here is my summary of 
what they have written so far, and they state they plan to keep this 

   Q1)  They aren't receiving a "patent license or covenant not to sue 
from Microsoft to Novell (or, for that matter, from Novell to 
Microsoft).".   It is effectively Microsoft offering an indemnification 
to Novell customers for any possible infringement of Microsoft patents 
in SuSE, and vice versa.

   Q2) Microsoft wasn't threatening lawsuits/etc.  This is part of the 
whole desire for indemnification (IE: customers are concerned about 
lawsuits, not that there are lawsuits).

   Q3) Novell is not admitting that Novell infringes any Microsoft patents

   Q4) Novell does not plan to include any Microsoft patented code in 
any of their FLOSS.  "If any of our code is found to infringe someone 
else's patents, we will try to find prior technology to invalidate the 
patents, rework the code to design around the infringement, or as a last 
resort remove the functionality."

   Q5) Novell didn't receive a license or covenant from Microsoft, just 
a covenant to Novell customers from Microsoft.

   Q6) Novell's plans with the Open Invention Network (OIN) doesn't change.

    ( http://www.openinventionnetwork.com/ "Open Invention Network’s 
mission is to further software innovation by acquiring patents to be 
used for cross-licensing purposes to defend the Linux environment - 
making them available on a royalty-free basis." )

   Q7) No change to commitment to ODF, just working on more 
   ( It reads more like they treat MS's "Office Open XML" in the same 
way that .DOC would have been treated.  I suspect it is unlikely this 
code can be contributed to a FLOSS project given the patent encumbrances 
from Microsoft.  It will be like the legacy WordPerfect conversion that 
existed in StarOffice from Sun but not in OpenOffice, although that was 
a copyright issue which only needs developer time to replace.)

   Q8) Novel maintains that Mono does not infringe any Microsoft 
patents, and continues support of Mono policy to "work around, remove, 
or find prior technology on any patents that might read on any 
implementations in Mono".

>> Note: I switched the subject line from "ITWorld Canada: 
>> Microsoft-Novell deal spells death knell for Open Source?" as I think 
>> the headline was overly sensationalist and wasn't backed up in the 
>> story.  It seems more likely to me that this deal could be the 
>> beginning of the end of software patents than Open Source.
> So why are we against it? :-)

   We are against Software Patents.  I would be curious to know anyone 
who supports FLOSS being a legal choice for software authors and users 
who disagrees, given the incompatibility between FLOSS and software 
patents.  Software patents are viral in that, unless rendered harmless 
in some way, they take software under any copyright license and impose a 
per-unit royalty on the software, effectively making it non-FLOSS 
(proprietary). For cases like the GPL license it doesn't make the 
software proprietary, it just makes the software infringing if it is 
actually used.

   Software patents were the focus of the interview with the reporter.

   As for the specifics of what was wrong in this case, we are always 
mixing policy work with marketing work.  From a policy point of view 
having FLOSS seen to be threatened provides an opportunity to educate 
politicians and possibly get sane policy put forward.  There seems to 
need to be a crisis before parliament acts on issues.

   FLOSS seeming to be threatened might also delay deployments of FLOSS 
by risk-averse decision makers, and makes our marketing work harder.

   It is like many discussions in GOSLING.  What software the government 
chooses for their computers from a procurement point of view doesn't 
directly interest me.  I'm not one of those people who believe that 
there is some huge short-term monetary savings to adopting FLOSS, as I 
believe any financial benefits are long-term.   The more FLOSS that the 
government puses, and the more they become familiar with the advantages, 
the more likely they are to regulate the software industry in a way that 
protects this choice.   Individual people should be free to make their 
own software choices, whether proprietary or FLOSS, and the government 
shouldn't be supporting laws which remove FLOSS as a legal choice.

   The Government is itself risk-averse, and there are bureaucrats with 
various ideological ties to legacy software methods of production, 
distribution and funding that are always looking for ways to exclude 
FLOSS.  We want to make sure that legal liability for alleged 
infringement of patents doesn't become one of those excuses.

   The Novell deal appeared to try to temporarily push the viral 
software patent problem under the rug, and allow Microsoft to spread FUD 
against FLOSS and Linux in particular.  It is a short term deal, and one 
where it appears risky to adopt SuSE if there were actual infringements 
in the code given customers would then be exposed once the deal expires.

   While Ballmer is on the attack and using the confusion as one would 
expect him to (Hot-headed as he is...), Novell is only now attempting to 
correct the bad first impressions.

   a) Novell needs to have a much more clear software patent statement. 
  They may work with various other vendors, including RedHat, in the 
Open Innovation Network 
http://www.openinventionnetwork.com/about_members.php  , but they have 
never come out with a statement about the legitimacy of software patents 
in general.  Software patents aren't specifically a Linux or even a 
FLOSS problem, but a problem within software innovation in general. 
Novell is not part of http://www.communitypatent.org/

   Until there is a clear software patent statement there will be a 
lingering mistrust of where Novell may take this issue.  The problem 
with sitting on the fence is that you are very likely to end up with 
splinters up your a...

   b) They waited far too long to create their FAQ to explain how the 
covenant worked.  With the covenant being to SuSE customers it reads 
more like a another form of indemnification than a license.   This 
language difference is huge, and one leads to speculation of the 
legality/morality of the agreement while the other does not.

   c) Novell had to know this is going to be seen in a negative light 
for them by those who have been watching Microsoft for years.  Microsoft 
is known to eat its own children and treat its "partners" worse than it 
does many of its competitors.   Given this they should have known they 
had a huge public relations issue on their hands and should have spent a 
*LOT* of lead-time clarifying messaging.  They botched this badly IMHO.

  Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
  Please help us tell the Canadian Parliament to protect our property
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