Hopefully my last Novell Microsoft Agreement Post; or Nobody reads this stuff

I wasn't going to post any more about the Novell Microsoft Agreement. I don't have anything else to add and really what else can be said. Don has posted on this issue after Novell contacted him as a result of him comparing the deal to “eating a bug for money”. A couple items in the post are too good not to share:
From Novell's point of view, the deal is supposed to be about giving customers some peace of mind over being sued for patent infringement. But the document that is supposed to explain this to customers is missing some information, and the documents that are actually supposed to contain the missing information are secret.
I don't think this is some big conspiracy, just the result of rushing something through without reading it very carefully. Novell and Microsoft are too big to pull off a conspiracy, but they're both bureaucratic enough to do paperwork that ends up being full enough of dumb mistakes to be pretty much meaningless.
Simple things first. If you still believe people read this stuff, try reading it. Covenant to Customers has two obvious mistakes: Novell spelled “Novel” and the awkward “on account of a such Customers' use of specific copies”, which looks like the result of someone starting a singular-to-plural edit and not finishing. The page has been up since November 2 of last year. Not a big deal, but like I said, nobody reads this stuff.
Now go back and read “Covenant to Customers” again. You get a bunch of Capitalized Words, some of which show up in the definitions section, and some of which don't. One of the terms is “Clone Product”. You don't get sued for running a Covered Product, but Covered Product doesn't include Clone Product, and Clone Product isn't defined. So which of the products included in the SUSE distribution are Clone Products? I asked, but that list is not available.
Not too encouraging when the company name is spelled wrong in the document. I can appreciate that novel is a word, so will pass a spell checker, but it would certainly seem to validate the nobody reads this stuff claim. He then goes into specifically what the Patent portion of the agreement protects you from:
You have a Covenant, so you're all squared away, right? But the Covenant says it covers Covered Products, and Covered Products doesn't include Clone Products, and you don't get a copy of the definition of Clone Products. Covered or not? You're just as mystified about the answer to “Will Microsoft sue me?” as you were before.
Another good one: “Microsoft reserves the right to update (including discontinue) the foregoing covenant pursuant to the terms of the Patent Cooperation Agreement…” Yes, the Patent Cooperation Agreement that you don't get to see.
Put it all together, and you get, “We promise not to sue you for running some but not necessarily all of the software you get from Novell, unless we stop promising not to sue you, and we won't tell you which software you get from Novell we might sue you for now, or under what circumstances we'll stop promising not to sue you for the rest.”
In others words, not much. His conclusion is right in line with what myself and almost all others have been saying:
That sense of wanting to win by product, not by litigation, is what protects you in the short term. What protects you long term is that the IT industry is just a series of recruiting contests. A company wins recruiting contests by serving good fajitas and letting an employee get a $70 laptop power supply without spending $200 in time on getting approval to buy it. A company loses recruiting contests when it's seen as succeeding through legal attack, not great product. Who wants to work on a product that customers have to be sued to buy? If a company's litigiousness makes it miss a round of recruiting, it misses the round of product that those recruits would have built, and game over.
Anyway, the check is cashed, the bug is eaten, Microsoft seems equally likely to sue you for running Linux no matter where you get it — not very — and if all goes well, a lot of that money will go to the many helpful, hard-working developers at Novell who are doing useful work. I guess what I learned here is that the patent deal doesn't really give Novell customers any special assurances.
Microsoft almost certainly wasn't going to sue you before. This agreement makes them no less likely to sue you. In reality, it probably did give Ballmer more fodder, which will have some impact. If you do see Microsoft start to sue, to me it means they think they are worse off internally than we think they are from an outside perspective. That's not saying a while lot. Companies with viable business plans and sustainable products don't depend on litigation for future growth. Just ask SCO.
–jeremy