Novell Goes Public with MS Patent Agreement Documents

May 27, 2007 Leave a comment

After a delay due to a stock option investigation, Novell has just filed its 10K. The filing includes, as attachments, documents from the recent Microsoft deal:

The text of the 144-page 10-K filing does not get into the specifics of the Microsoft deal, but it does include, subject to some redactions, the full three Microsoft agreement documents: the second amended and restated technical collaboration agreement, the first amended and restated business collaboration agreement and the patent cooperation agreement.

One of the most notable things about the report, according to Pamela Jones’ Groklaw Web site, is that it explains that Microsoft may be forced to stop distributing SUSE Linux coupons if the current text of the third draft of the GNU GPL (General Public License) 3 is included in the final license.

“If the final version of GPLv3 contains terms or conditions that interfere with our agreement with Microsoft or our ability to distribute GPLv3 code, Microsoft may cease to distribute SUSE Linux coupons in order to avoid the extension of its patent covenants to a broader range of GPLv3 software recipients, we may need to modify our relationship with Microsoft under less advantageous terms than our current agreement, or we may be restricted in our ability to include GPLv3 code in our products, any of which could adversely affect our business and our operating results,” the Novell filing said.

“In such a case, we would likely explore alternatives to remedy the conflict, but there is no assurance that we would be successful in these efforts,” the filing said.

That may explain why Microsoft has gone on the offensive about the GPLv3 during the past few weeks, claiming that free and open-source software infringes on 235 of its patents and directing its ire at the upcoming open-source license.

Keep in mind that the attachments do have redactions, which is standard operating procedure for releases like this. More details can be found on Groklaw.

–jeremy

Filed under Linux, Microsoft, Novell, Open Source

Can We Trust Microsoft with Claimspace?

May 25, 2007 2 Comments

Ted points to Claimspace, a service I had never heard of but that looks compelling to me as someone deeply involved in “community management”. He also brings up a good point. Will people trust Microsoft with this data? As it’s due out in June (although a release that lets you xClaim an arbitrary URI won’t be released for 6-8 weeks after that), we’ll soon see. This is another indicator, though, of the position that Microsoft has gotten themselves into after many years of predatory and abusive behavior. Ideas that are very very good in some cases just aren’t doable by Microsoft anymore. There are a couple initiatives that I can think of that in my opinion were both phenomenally planned and excellently executed by Microsoft but failed miserably because of the trust issue many people have (even outside the Open Source realm) with MSFT. Many people within the company are diligently trying to change this. I see it at conferences all the time. Really smart Microsofties doing really interesting things. People who clearly get it. Try as they might, I don’t think many of the perceptions people have will change until there is a fundamental shift up top. Until that happens, what I wonder is how many of these really smart people will continue to toil given the current circumstances. Not an answerable question, of course, but Microsoft is at a very interesting crossroads right now. People forget just how much IBM was hated in the past (and not even that distant a past). So… what will people think of Microsoft in 5 or 10 years?

–jeremy

Filed under Microsoft

Second Day OSBC Wrap up

May 23, 2007 Leave a comment

The OSBC is now officially over and here’s my second day wrap up. The opening keynote consisted of Rob Curley, Marten Mickos and Lee Thompson. I had never seen Rob speak before, but he is extremely entertaining and had some very good information. He maintained that what him and his team were able to accomplish in Kansas would not have been possible without Open Source. Marten gave an update on where MySQL is and the variety of models he thinks can be successful in OSS. Lee gave a very good overview of how Open Source is being utilized at E*Trade. During the recent February market dip, they were one of the only brokers to not suffer performance problems. He attributed that to the use of Open Source directly.

How Big is the Exit? What is an Open Source Business Worth in 2007 and Beyond?
* There was a consensus that the public markets for Open Source companies are highly dependent on Red Hat. This is from a perspective that if Red Hat were to falter, the Open Source image would be sufficiently tarnished that other OSS companies would not receive new funding and valuations in general would suffer. I wrote about this a couple years ago. I think as time passes, this becomes less and less the case.
* Investors and VCs really seem to like to “subscription” model in OSS companies. I think it’s a very good model, but am less convinced it’s the one true path (one insinuated that OSS companies that tried something different were pretty much idiots for instance).
* With OSS you need to think about your customers with razor sharp focus. Find their pain points, solve their problems and you will be handsomely rewarded.

Is the Novell-Microsoft deal good for open source?
As you can imagine, this session was standing room only. Not hard to guess what the participants opinions were. LWN editor Jon – Bad. Novell rep Justin and Microsoft rep Sam – Good. The one surprise may have been Allison (if you don’t read her blog), who said it would probably be irrelevant. Some notes:
* Ballmer’s comments were definitely detrimental to the acceptance of the deal.
* If the deal would have been with someone else besides Microsoft, say IBM, it would barely have been news.
* Microsoft was the number one channel for SLES in Q1 2007.
* Microsoft has only gone on the offensive in patent litigation 2 times in its history. They are the defendant in about 30 cases or so in any one given point in time.
* Is Microsoft now a Linux distributor?
* AIG and BoA reps both seemed uninterested in the deal, saying it did not impact their buying decision.
* Would Microsoft consider joining the OIN?
* Customers are almost universally telling Microsoft that they want heterogeneous environments. 100%-anything seems to be a thing of the past

Community Development: Business Development for the 21st Century
* Open Source in a large way was started by disenfranchised developers
* For OSS companies, community management is about facilitation.
* Google lawyers actually have an SLA requirement for responding internally in some cases. Developers are that important.
* Many OSS communities are going from developers only to developers and users.
* The time and cost in fostering a community is easy to underestimate.

Overall a very good show, one in which I learned a good deal.

Note: For all these OSBC updates, items with * are not necessarily my opinions, just a summary of things that were said by various panelists.

–jeremy

Filed under Linux, Microsoft, Novell, Open Source, OSBC

"Is the Novell-Microsoft deal good for open source?" panel question

May 23, 2007 Leave a comment

I’ll post a full overview of OSBC day two later, but the “Is the Novell-Microsoft deal good for open source?” panel went over time and I didn’t have a chance to ask the question I had. From the panel, Justin from Novell indicated that Microsoft was the number one channel for SLES in 2007 Q1. My question is: do you think having one of your major competitors (one who is much bigger than you no less, and has a track record with these things) be your number one channel is (1) sustainable (2) sane (3) almost an admission of failure in being able to effectively compete in the marketplace on your own.

–jeremy

Filed under Linux, Microsoft, Novell, Open Source

Closing notes on the first day of OSBC

May 22, 2007 1 Comment

Overall I have to say I’ve really enjoyed the first day of OSBC. I’m getting an entirely different perspective on many things, which is good. It’s easy to get a bit insular when you are only exposed to a single side of an argument. After my last post, I noticed many more “community” members too, which is great. It’s amazing how often a few general themes have been brought up, even in sessions with widely disparate topics. A few notes from attended sessions:

What’s Next: Emerging Opportunities + Strategies
* It’s interesting that many Open Source projects do very little or no marketing, but have extremely powerful and well known brands. That’s one of the power of ubiquity.
* The value that can be derived from non-paying users should not be underestimated.
* Transparency, at all levels, is critical in an Open Source community. So is respecting user privacy and data.
* One reason cost per customer acquisition is less expensive is due to customer self-selection through quality experiences via gratis downloads.

A New Breed of P&L: The Open Source Business Financial Model
Larry gave an interesting look at the current state of Open Source software in relation to what he calls the golden age of software (mid80’s through late 90’s). His assertion is that things, such as the percentage of revenue spent on sales and marketing, have gotten way out of whack in the software industry. Open Source may be bringing us back to that golden age. Red Hat was one of his primary examples. More data will be available in the coming years, as the current crop of Open Source companies have a chance to mature.

Copyleft Business Models: Why it’s Good Not to Be Your Competitor’s Free Lunch
Eben is such a phenomenal speaker that I really can’t do this talk justice with a simple summary. However, here are some highlights:

* When he worked at IBM, software was a free lunch… used to sell hardware. Customers often submitted patches with their bug reports. For a variety of reasons this has changed in the current day and age, much to the determent of general software quality.
* An example of this is the comparison of how far hardware has comes since 1979. When IBM had 29G is took massive space and was very expensive. Now it takes up 2.5″ and is $40. Software on the other hand has almost become worse. He describes the situation as deplorable.
* An analogy for what the lack of standards can do. During the civil war, the north had a standard gauge for railroad ties. The south did not. This meant items often had to be unloaded just to be reloaded in the south. This became crippling and is an example of how much work can be wasted when there are no open and available standards.
* In his opinion, community adds a huge amount of value to a project, for a variety of reasons.
* The next draft of the GPLv3 should be Apache license compatible.
* With regard to the recent speculation about Microsoft, the GPLv3 and the fact that the Novell coupons do not expire; he can not say as much as he’d like, due to an NDA (one he thought would have expired by now, but hasn’t due to a Novell SEC filing delay). What he did say was that you need look no further than his actions and the actions of Microsoft to see what the Microsoft opinion on the matter is. He asserts they are quite concerned.

More to come tomorrow. Now to partake in the very nice spread that has been offered to all attendees.

–jeremy

Filed under FSF, GPLv3, Linux, Microsoft, Novell, Open Source, OSBC

Migrating to Ubuntu Linux from Microsoft Windows

May 16, 2007 2 Comments

It’s a great reminder that we’re making real progress to see stories like this:

Four years ago I tried about a dozen Linux distributions, to see if they were ready for an ordinary user to install as an escape from the Windows world. None of the distros performed well enough for me to recommend them to a non-geek unless they were going to hire someone to install it. After hearing Dell’s recent announcement that it will sell computers with pre-installed Ubuntu Linux, I decided to see if Ubuntu was user-friendly.

So, what was her experience now?

Conclusion

I think Ubuntu Linux is definitely ready for almost anyone with a Windows system who is tired of having their computer infested with spyware and viruses. It is also a way to avoid Microsoft’s “activation” demands. It’s free! It’s good! It works!

I will continue to use Windows for writing because OpenOffice.org does not have a feature I need. OpenOffice developers: Remember my enhancement request from 2000 or 2001 asking for an outline feature? The feature with more votes than any other feature request? Yes, that one! Your unwillingness or inability to give OpenOffice.org an outline view that works just like Microsoft Word’s outline is all that is keeping me from turning my Microsoft Windows partition into blank oxide.

That’s right – her only show stopper was the lack of an outline view in oowriter. To be fair, that’s not even directly Linux related (not to say that it isn’t an issue). Remember, Windows doesn’t even come with a word processor. Congratulations Ubuntu.

–jeremy

Filed under Linux, Microsoft, Open Source, Ubuntu

Cautiously Optimistic

May 16, 2007 Leave a comment

(via tbray) Here’s something you don’t see every day. A lawyer… from a large enterprise company (SUNW)… talking publicly about pending litigation… and sounding both reasonable and human in the process ;) It’s a brave new word. The topic? Patent troll cases. Two of them, both ludicrous from the looks of it. There is hope though:

You may believe that these are isolated examples. However, during the same time Sun was sued in these two cases, eight mobile phone companies, four major internet retailers and three computer companies were all sued for infringement by patent holding companies.

If this sounds like a waste of time, money and resources – it is. But, there have been some recent changes, both legislative and judicial, that make me feel at least a slight bit optimistic for a change.

On April 18th of this year, a bipartisan and bicameral bill was introduced in Congress entitled the “Patent Reform Act of 2007”.

Recently, the U.S. Supreme Court also announced two important decisions that provide more immediate relief. In Microsoft v. AT&T Corp. the court ruled 7-1 that “golden masters” shipped by Microsoft for installation on computers made and sold abroad are not “components” pursuant to 35 U.S.C. Sec. 271(f). Under U.S. patent law, no infringement occurs when a product that is the subject of a U.S. patent is made or sold in another country. It may be an infringement of a foreign patent, but U.S. patent laws do not apply. The exception is Section 271(f) which was enacted in 1984 in response to a case involving (of all things) shrimp deveining equipment. The defendant in that case conceded that it was prohibited from making or selling the infringing equipment in the U.S., but successfully argued that there was nothing in the law that prevented it from making the components for the equipment in the US and then having the assembled abroad.

and

In the current case, Microsoft conceded that it infringed AT&T patents related to digital speech compression. But, they objected to AT&T’s claim that a golden master should be considered a component under 271(f) and Microsoft, accordingly, liable for foreign damages.

In siding with Microsoft’s position, the court has brought some rationality into the world of software patents. Indeed, many in the software industry have been watching this case closely and considering whether (assuming the original decision was unchanged) it would be a reason for moving development efforts offshore.

How ironic that it was a Microsoft assertion that “brought some rationality into the world of software patents”, but there you have it. Hope that the pendulum may be swinging back to a more reasonable landscape where real innovation is protected and encouraged while litigious bastards, patents trolls and asininely obvious “innovations” are seen as such. At this point, I’ll take slight optimism. It’s a start.

–jeremy

Filed under Microsoft, MSFT, Sun

Kudos to Bill Hilf

May 15, 2007 Leave a comment

As the head of Microsoft’s Linux Labs, Bill Hilf needs to have thick skin. I’ve seen Bill speak a number of times and despite his employer I was surprised to see some of his recent quotes:

“They are full-time employees, with 401K stock options. Some work for IBM or Oracle. What does that mean? It means that Linux doesn’t exist any more in 2007. There is no free software movement. If someone says Linux is about Love, Peace and Harmony, I would tell them to do their research. There is no free software movement any more. There is big commercial [firms] like IBM and there is small commercial [firms] like Ubuntu,” he said.

While it should come as no surprise that part of the issue here is overly-sensationalist journalism (a topic I have covered multiple times), it still takes a solid person to make a public correction… as Bill has:

A few folks have emailed or called me about statements I said in the Bangkok Post about the ‘end of Linux’ and ‘there is no free software movement.’ My statements were shaped in a sensationalist way, not surprisingly, this isn’t the first time the press has used shock value to get headlines. It then hit Slashdot and the blogosphere where a couple hundred people have called me every name under the sun. I have a tough skin – need to in this job. But days like this suck, to be honest.

I get asked Linux related questions from the press, most of which are probably obvious to you. One of the questions I often get asked is about the development of Linux by free software developers. I answer this by saying that most customers who use Linux, use a distribution like Red Hat or Ubuntu or SuSE and that although there are certainly a lot of developers who work for free, most of the people who do the daily work on the Linux kernel are paid to do so. Typically they are paid by IT companies who have a commercial interest in Linux. This isn’t FUD, it’s reality (Corbet from LWN did a great analysis of this here citing “at least 65% of the code which went into 2.6.20 was created by people working for companies”). And I answer this question because I get asked about it in press interviews.

But I’m rethinking that last part. Mostly because I don’t think it matters. If the software is open, it’s open, that does not change based on who developed it or why. In this article it sounds like I say ‘because they are paid, then free software is extinct!’ which, of course, is silly. I know this and I think it’s a combination of me not being clear and this particular article shaping it in a certain direction. But I’ll take the blame: I shoved my foot in my mouth and it came across as idiotic.

Thanks for the clarification, and I look forward to the promised comments on the recent Fortune story on ‘Microsoft versus the Free world’.

–jeremy

Filed under Linux, Microsoft, MSFT, Open Source

Microsoft takes on the free world II

May 15, 2007 Leave a comment

(a follow up to this post) As was expected, nearly everyone is commenting on the recent Fortune article about Microsoft and Patents. Even Linus has weighed in:

“It’s certainly a lot more likely that Microsoft violates patents than Linux does,” said Torvalds, holder of the Linux trademark. If the source code for Windows could be subjected to the same critical review that Linux has been, Microsoft would find itself in violation of patents held by other companies, said Torvalds.

“Basic operating system theory was pretty much done by the end of the 1960s. IBM probably owned thousands of really ‘fundamental’ patents,” Torvalds said in a response to questions submitted by InformationWeek. But he doesn’t like any form of patent saber rattling. “The fundamental stuff was done about half a century ago and has long, long since lost any patent protection,” he wrote.

“So the whole, ‘We have a list and we’re not telling you,’ itself should tell you something,” Torvalds said of Microsoft’s stance in the Fortune story. And for good measure, he added: “Don’t you think that if Microsoft actually had some really foolproof patent, they’d just tell us and go, ‘nyaah, nyaah, nyaah!'”

There’s so much good commentary on this this it’s not possible to link to everything, but I’d like to highlight a few. The OIN has posted a press release that contains some “facts to provide clarity around Linux and patents” and also points out that “In less than a year, OIN has accumulated more than 100 strategic, worldwide patents and patent applications that span Web / Internet, e-commerce, mobile and communications technologies. These patents are available to all as part of the free Linux ecosystem that OIN is creating around, and in support of Linux. We stand ready to leverage our IP portfolio to maintain the open patent environment OIN has helped create.”

Sun CEO Jonathan gives an extremely apropos summary of what Sun did when faced with adversity and pressure in its market:

So what’s my view on this interview in Fortune – in which one of Sun’s business partners claims the open source community is trampling their patent portfolio?

You would be wise to listen to the customers you’re threatening to sue – they can leave you, especially if you give them motivation. Remember, they wouldn’t be motivated unless your products were somehow missing the mark.

All of which is to say – no amount of fear can stop the rise of free media, or free software (they are the same, after all). The community is vastly more innovative and powerful than a single company. And you will never turn back the clock on elementary school students and developing economies and aid agencies and fledgling universities – or the Fortune 500 – that have found value in the wisdom of the open source community. Open standards and open source software are literally changing the face of the planet – creating opportunity wherever the network can reach.

That’s not a genie any litigator I know can put back in a bottle.

There’s one recurring theme that you’ll see in most of the commentary. This action is fairly definitive proof that Microsoft sees clear and imminent danger. They, for the first time in a long time, see something they can’t kill. It’s starting to show that they don’t know exactly what to do next. Stephe, a former Microsoftie, has the following advice:

Microsoft needs to get back in the business of building exceptional solutions to customer problems, instead of chasing a 1990s dream of IBM’s secondary revenues from hardware patent licensing, or worse yet threatening those same customers.

[Disclaimer: Microsoft is a client. But I swear I’m reconsidering that decision. It’s unclear to me that the mortgage payment is worth this much aggravation.]

What Microsoft will do remains to be seen. It seems the current near-universal consensus is that they won’t sue anyone, but will continue to try to squeeze money out of those willing to pay or partner, while figuring out the next strategic move. That may have an unintended consequence though. I’ve heard Don Marti say many times that much of the software industry is really a recruiting contest. You need look no further than Google for proof of this. The really smart engineers though, like to build cool software… not win by (or even have to deal with) litigation. Now sure, Microsoft has a lot of money to throw at the problem, but with a fairly stagnant stock price and plenty of companies doing really interesting things, money is no longer going to be enough to keep the very best. The long term implications of that should not be underestimated. Neither should the disruptive force of Open Source. Will either lesson be learned?

–jeremy

Filed under Linux, Microsoft, MSFT, Open Source, Sun

Microsoft takes on the free world

May 14, 2007 2 Comments

Some thought it was inevitable, while other thought it would never happen. From a recent Fortune article:

Free software is great, and corporate America loves it. It’s often high-quality stuff that can be downloaded free off the Internet and then copied at will. It’s versatile – it can be customized to perform almost any large-scale computing task – and it’s blessedly crash-resistant.

A broad community of developers, from individuals to large companies like IBM, is constantly working to improve it and introduce new features. No wonder the business world has embraced it so enthusiastically: More than half the companies in the Fortune 500 are thought to be using the free operating system Linux in their data centers.

But now there’s a shadow hanging over Linux and other free software, and it’s being cast by Microsoft. The Redmond behemoth asserts that one reason free software is of such high quality is that it violates more than 200 of Microsoft’s patents. And as a mature company facing unfavorable market trends and fearsome competitors like Google, Microsoft is pulling no punches: It wants royalties. If the company gets its way, free software won’t be free anymore.

The conflict pits Microsoft and its dogged CEO, Steve Ballmer, against the “free world” – people who believe software is pure knowledge. The leader of that faction is Richard Matthew Stallman, a computer visionary with the look and the intransigence of an Old Testament prophet.

Then come the details:

Microsoft counters that it is a matter of principle. “We live in a world where we honor, and support the honoring of, intellectual property,” says Ballmer in an interview. FOSS patrons are going to have to “play by the same rules as the rest of the business,” he insists. “What’s fair is fair.”

Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez sat down with Fortune recently to map out their strategy for getting FOSS users to pay royalties. Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents.

The 235 number is fairly close to the previously given (and disputed) 228. While the lengthy article does get some minor details wrong, it’s a good way to get up to date on the situation if it’s not one you’ve been following. On to why Microsoft choose to do this now. It could be that they think the GPLv3 has teeth and are trying to get out ahead of its release. It could be that they’ve not been as effective as they thought they’d be at battling Open Source and Linux more directly. Regardless of the reason, I agree with Larry:

If Microsoft believes that Free and Open Source Software violates any of their patents, let them put those patents forward now, in the light of day, where we can all evaluate them on their merits. If not, then stop trying to bully customers into paying royalties to use Open Source. It’s time for Microsoft to put up or shut up.

(Tim put it nice and succinctly: Four Words for Microsoft: Litigate or shut up

It appears that the battle lines are being drawn and the cold war of software patent world may be coming to an end. The players involved here are huge and the amount of money astronomical. Who has the most to lose? I’d say Microsoft. How will this play out? We’ll all be watching closely, that’s for sure. One has to wonder how Novell feels about their recent deal right about now.

–jeremy

Filed under GPLv3, Linux, Microsoft, MSFT, Novell, Open Source

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