Stallman Comments on Legality of Microsoft Novell Patent Agreement

December 5, 2006 Leave a comment

As promised, here's an update on the official word regarding the FSF's opinion on the legality of the patent portion of the recent Microsoft Novell deal.
However, there's another way of using software patents to threaten the users which we have just seen an example of. That is, the Novell-Microsoft deal. What has happened is, Microsoft has not given Novell a patent licence, and thus, section 7 of GPL version 2 does not come into play. Instead, Microsoft offered a patent licence that is rather limited to Novell's customers alone.
It turns out that perhaps it's a good thing that Microsoft did this now, because we discovered that the text we had written for GPL version 3 would not have blocked this, but it's not too late and we're going to make sure that when GPL version 3 really comes out it will block such deals. We were already concerned about possibilities like this, namely, the possibility that a distributor might receive a patent licence which did not explicitly impose limits on downstream recipients but simply failed to protect them.
Well, now that we have seen this possibility, we're not going to have trouble drafting the language that will block it off. We're going to say not just that if you receive the patent licence, but if you have arranged any sort of patent licensing that is prejudicial among the downstream recipients, that that's not allowed. That you have to make sure that the downstream recipients fully get the freedoms that they're supposed to have. The precise words, we haven't figured out yet. That's what Eben Moglen is working on now.
So there you have it: definitely legal under the GPLv2 and they'll do everything they can to make sure it's not legal under the GPLv3. How this will impact GPLv3 uptake remains to be seen.
–jeremy
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Filed under Linux, Main Page, Microsoft, Novell, Open Source

Novell Boosts OpenOffice.org and Microsoft Office Interoperability

December 4, 2006 Leave a comment

The previous post covered an article about Open Standards that ended with the following:
When Gutierrez announced his resignation as Massachusetts CIO in early October, he cited the legislature’s failure to pass a bond bill that included funding for key IT projects. Since the bill also would have funded non-IT projects, the stall didn’t appear to be directly tied to any remaining opposition to the ODF policy.
Ironically, on Nov. 2, Gutierrez’s last day as CIO, Microsoft announced an agreement with Novell Inc. that included a pledge to cooperate on development of translation software to improve the way ODF and Open XML work together.
What a difference nine months had made.
Here's some more information on that Novell announcement:
Novell today announced that the Novell® edition of the OpenOffice.org office productivity suite will now support the Office Open XML format, increasing interoperability between OpenOffice.org and the next generation of Microsoft Office. Novell is cooperating with Microsoft and others on a project to create bi-directional open source translators for word processing, spreadsheets and presentations between OpenOffice.org and Microsoft Office, with the word processing translator to be available first, by the end of January 2007. The translators will be made available as plug-ins to Novell’s OpenOffice.org product. Novell will release the code to integrate the Open XML format into its product as open source and submit it for inclusion in the OpenOffice.org project. As a result, end users will be able to more easily share files between Microsoft Office and OpenOffice.org, as documents will better maintain consistent formats, formulas and style templates across the two office productivity suites.
“Novell supports the OpenDocument format as the default file format in OpenOffice.org because it provides customer choice and flexibility, but interoperability with Microsoft Office has also been critical to the success of OpenOffice.org,” said Nat Friedman, Novell chief technology and strategy officer for Open Source. “OpenOffice.org is very important to Novell, and as our customers deploy Linux* desktops across their organizations, they're telling us that sharing documents between OpenOffice.org and Microsoft Office is a must-have. The addition of Open XML support reflects Novell's commitment to providing enterprise customers the tools they need to be successful, from the desktop to the data center.”
Some are calling this an OOo fork, which seems a little bit disingenuous. The add-in is BSD licensed, so OOo would be more than able to merge this upstream if they so desire. As more details get released on the recent Microsoft/Novell deal though, it's becoming clear that Microsoft got a bit more than was at first obvious. They have a lot of lawyers, so this should come as no surprise. The last article showed how important it is to Microsoft that OpenXML be considered an “Open” Standard. The ability for them to keep a large amount of Office installs may actually depend on it. This move will almost certainly lend credence to their claims, especially in the eyes of legislators who are unlikely to understand the finer points of the issue. That could end up being loss, not only for Open Source, but for the push for Open Standards. This issue is too important for it to be decided for the wrong reasons. It's an issue I'll definitely be keeping a close eye on.
–jeremy
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Filed under Linux, Main Page, Microsoft, Novell, Open Source

Q&A: Novell CEO gives behind-the-scenes account of deal with Microsoft

November 30, 2006 Leave a comment

In a previous post I wondered what was on the mind of the execs at Novell after the recent Microsoft agreement. Computerworld has just posted a Q&A with CEO Ron Hovsepian. From the article:
How did the agreement with Microsoft come to pass? Who approached whom, and when? This past May, I picked up the phone and called Kevin Turner, the COO at Microsoft. I knew Kevin when he was the CIO at Wal-Mart. I said, “Kevin, I'd like to have a conversation about what the customer needs. If you could put back on your old hat as a customer, if I came in and started talking to you about virtualization on Linux, and this Microsoft guy showed up and started talking to you about virtualization on Windows, what would you say to us?” Kevin, being a good ex-IT executive, said, “I'd want both of those things together. I don't want the fighting; I don't want to deal with it. I'd tell you two guys to go figure out how to make it work.” I said, “Well, that's why I'm calling. How do we make that work around virtualization?”
My point of view is that customers are going to have J2EE stacks and .Net stacks in their shops. If I'm a CIO, that's what I'm dealing with: “What are you guys doing to make my life easier to make those things work together?” I saw virtualization as a key to us being able to do that in a different manner than we have in the past. That was the genesis of the whole conversation: calling up an old customer and having a conversation at the customer level. And then it took a lot of twists and turns.
and
What was your reaction when you heard about Ballmer's “undisclosed balance sheet liability” comments? Did you feel like you'd been blindsided? You don't want to get caught off-guard on any of those things. I do know things can be taken out of context, so I never overreact too far one way or the other. Obviously, I was disappointed, because the heart and essence of the deal was around the technology collaboration and what we want to get done for the customer. I know they're very committed to that — we've been having our regular conference calls with Bob Muglia [senior vice president of Microsoft's server and tools business]. We're right on our schedule to get all the details out in a reasonable time period.
We do not see any infringements, and we are not going to agree to any. Their desire to do some things around IP [intellectual property] came up as one of the things they wanted to talk about. We said, “Sure, we'd be happy to talk about some of those IP things,” because we have our own portfolio of IP, and we saw that when you look at the math, the balance of trade was $108 million to us and $40 million to them.
We never changed our position. All I cared about was, I lost a deal with a large retailer to Microsoft for the first time about 12 or 18 months ago. It was going to be an all-Linux deal, and I lost it because they were unduly influenced, in my opinion, to be fearful of these [IP and indemnity issues]. From my point of view that was really too bad, because Linux lost. Then I watched it happen three more times.
I think it's clear that Novell had good intentions going into this. I still question, from a business perspective, doing a deal like this with a company who has the record of Microsoft when it comes to business partnerships. It could be that it was perceived that this was the best way to keep Novell going. You can't fault anyone for that. I'm not sure this deal would have prevented them from losing the deals he mentions, and that's really the problem Novell is facing. We'll have to watch and see if they can turn things around.
–jeremy
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Filed under Linux, Main Page, Microsoft, Novell, Open Source

Credit Suisse Writes Off Novell

November 29, 2006 Leave a comment

A quick follow up on Novell. While I expected them to take a bit of punishment from the Open Source community for the recent patent deal some previous coverage, I didn't expect them to take any punishment from Wall Street. If anything, I expected them to get rewarded by the street. It looks like at least one analyst has actually downgraded them as a direct result of the deal though. From a sys-con article (which is an absolutely horrific site that very consistently crashes my browser):
Credit Suisse analyst Jason Maynard took down Novell on Monday grading it an “Underperform.” He reckons the flurry in its stock after its alliance with Microsoft was based on a “one-time event” – Microsoft paying Novell $308 million net – and that the 10% appreciation in the stock isn't sustainable.”
“Rather than provide a growth engine for the company,” he wrote in a note. “We think Novell's Linux patent deal with Microsoft will hurt the company's standing in the open source community. We don't see Microsoft providing a sustainable lift to Novell's distribution woes. With Oracle entering the market, we doubt there will be enough room to support needed Linux market share gains. Finally, Novell's legacy NetWare business continues to decline, and the level at which revenue can be sustained is unknown.”
Maynard figures Novell will spend Microsoft's money on acquisitions, both to diversify and to support its systems management and identity interests. He also figures Novell will restructure again but without any material upside.
Now it's clear that Novell is having some business issues. It's the reason they have a new CEO. To see “will hurt the company's standing in the open source community” in an analyst downgrade though is a first for me I think. I wonder what the C-level execs at Novell are thinking right about now?
–jeremy
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Filed under Linux, Main Page, Microsoft, Novell, Open Source

Novell Dumps the Hula Project

November 28, 2006 Leave a comment

Conspiracy theorists of the Open Source community unite; Novell has just dropped official support for Hula shortly after announcing their agreement with Microsoft. For those unfamiliar with Hula, here's a snippet from the original press release just over 18 months ago:
BOSTON (LinuxWorld Conference& Expo 2005) — Feb. 15, 2005 — Novell today announced the formation of Hula, a new community project to create an open source collaboration server. The server will provide innovative calendar and mail functionality, filling a major void among open source offerings. Hula will be based on code taken from Novell's NetMail collaboration server product, an award-winning, proven technology foundation with an installed base of more than 4 million users.
Novell has donated the core components of NetMail to provide a starting point for the Hula project. Hula today includes standards-based e-mail, calendaring and address book functionality that can scale to 250,000 registered users on a single PC with 50,000 simultaneously connected users. Novell's contribution of such a significant product into open source – more than 200,000 lines of source code – demonstrates Novell's continuing commitment to promoting open source as well as the company's deepening involvement in helping to lead key community initiatives.
So do I think Novell ditching their Exchange replacement is directly related to the Microsoft deal? Realistically, probably not. I know it's hard for some to believe, but it's not always about Microsoft. The truth is, the project never really seemed to gain much traction. It's a shame, because an Open Source Exchange replacement is a critical missing piece right now. I can't emphasize this enough. Many shops I see use Windows (and in some cases end up ditching Linux in an effort to have only one server platform) solely because of Exchange. It's also a shame because Hula showed some promise. While I thought it was odd that they chose to rewrite some of the services instead of just using something tried and true like Postfix, some of the features Hula promised looked very nice. Luckily the project lives on and in the Open Source spirit I hope someone picks it up. Without a corporate sponsor though, it's unlikely a project like this will get much enterprise uptake. Luckily Zimbra just keeps getting better and better every time I look at it. With SOX compliance promised soon, Zimbra could be well positioned to give Exchange a run for its money.
–jeremy
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Filed under Linux, Main Page, Microsoft, Novell, Open Source

Linux users to Microsoft: What 'balance sheet liability'?

November 22, 2006 Leave a comment

Continued coverage of a story I've been watching closely. Computerworld has an article the covers the reactions of a couple CIO's to the recent Microsoft-Novell agreement. From the article:
“I do not believe that my company has an “undisclosed balance sheet liability,” Russ Donnan, CIO at business information provider Kroll Factual Data, said in an e-mail response to questions from Computerworld about the Microsoft deal. Kroll Factual, a Loveland, Colo.-based subsidiary of global services provider Marsh & McLennan Companies, uses Red Hat Linux servers along with Windows servers in its data center.
Donnan, who described himself as “not a huge fan of software patents,” said “the threat of such a 'liability' would not in any way influence” whether Kroll would stick with Red Hat or move to SUSE or even Windows. “Steve Ballmer is posturing for mind share to enterprise executives, knowing it will have little to no impact on IT executives,” he said.
Barry Strasnick, CIO of North Quincy, Mass. financial services provider CitiStreet LLC, was even more emphatic.
“Like many IT executives, I took great offense to Ballmer's comments,” Strasnick wrote in an e-mail. CitiStreet uses Red Hat Linux widely in its data centers. “If Microsoft really thinks there is some code in Linux that violates their patents, they should publish those lines of codes immediately instead of just posturing in the press. [Fear, uncertainty and doubt] may have worked for IBM in the 1970s (some of us are old enough to have been around then), but not today.”
And Microsoft's assertions might be even backfire. “There were some applications I had been thinking about moving to a Microsoft platform, but this has now totally alienated me from Microsoft,” Strasnick said.
As mentioned in the last post, if Ballmer was using this as a litmus test, I think the response he got was clear. You'd think if Microsoft really thought they had a legitimate case, they'd probably have sued already. The problem is not only whether Microsoft code exists in Linux, but whether Linux code exists in Microsoft products. One litigation would set off a chain of others, and in the end I think we could likely get rid of any offending code (if there even is any) quicker and with less collateral damage than Microsoft could. Keep in mind that due to the Open nature of Linux code, patent violations are much less likely to exists than in the closed nature of Microsoft code where things can be hidden.
It's also good to see that the industry has gotten a bit wiser to these kinds of issues. I'd say in no small part due to the SCO case, industry tech executives are acutely aware at this point that claims like this are FUD. Not only that, you can see FUD now disenfranchises and alienates people. The industry may be at a watershed moment. One that marks the beginning of a time when the consumer is the one in charge, not the monopoly. We still have a long road ahead, but it's the rays of light like this one that recharge your batteries, rejuvenate your passion and remind you you're on the right path.
–jeremy
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Filed under Linux, Main Page, Microsoft, Novell, Open Source

Open Letter to the Community from Novell

November 21, 2006 1 Comment

Novell has released an Open Letter to the Community. From the letter:
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. 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. Novell has a significant patent portfolio, and in reflection of this fact, the agreement we signed shows the overwhelming balance of payments being from Microsoft to Novell.
Since our announcement, some parties have spoken about this patent agreement in a damaging way, and with a perspective that we do not share. We strongly challenge those statements here.
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.
Our stance on software patents is unchanged by the agreement with Microsoft. We want to remind the community of Novell's commitment to, and prior actions in support of, furthering the interests of Linux and open source, and creating an environment of free and open innovation. We have a strong patent portfolio and we have leveraged that portfolio for the benefit of the open source community.
I think it's clear that Novell may have underestimated the negative response from the community. They may also not have expected Ballmer to do this, which certainly made the situation worse for them. Having Novell stand up clear on the issue is a good thing, and should help to quell fears that Microsoft is using the agreement to plan something. Microsoft has already responded:
“Microsoft and Novell have agreed to disagree on whether certain open source offerings infringe Microsoft patents and whether certain Microsoft offerings infringe Novell patents. The agreement between our two companies puts in place a workable solution for customers for these issues, without requiring an agreement between our two companies on infringement.
“Both of our companies are fully committed to moving forward with all of the important work under these agreements. The agreements will advance interoperability between Windows and Linux and put in place a new intellectual property bridge between proprietary and open source software. Customers and participants throughout our industry will clearly benefit from these results.
“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.”
On the bright side here, if Microsoft was using this to test the water then the decisive and united response from the community and the rapid public response from Novell should have sent the correct message. We will fight for what we believe in, and will do so in an educated and organized manner.
–jeremy
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Filed under Linux, Main Page, Microsoft, Novell, Open Source

Microsoft CEO says Linux "uses our intellectual property"

November 17, 2006 3 Comments

That didn't take too long, did it. From the article:
In comments confirming the open-source community's suspicions, Microsoft CEO Steve Ballmer Thursday declared his belief that the Linux operating system infringes on Microsoft's intellectual property.
In a question-and-answer session after his keynote speech at the Professional Association for SQL Server (PASS) conference in Seattle, Ballmer said Microsoft was motivated to sign a deal with SUSE Linux distributor Novell earlier this month because Linux “uses our intellectual property” and Microsoft wanted to “get the appropriate economic return for our shareholders from our innovation.”
“Novell pays us some money for the right to tell customers that anybody who uses SUSE Linux is appropriately covered,” Ballmer said. This “is important to us, because [otherwise] we believe every Linux customer basically has an undisclosed balance-sheet liability.”
The full transcript of the conversation is also available. I think it's a little more clear now what Microsoft's intentions were with this deal. At least Ballmer is being a little more forthcoming than in some previous situations:
“So we built a technology bridge, and we built an IP bridge and a commercial framework that supports that. Novell said to us, 'Hey, look, if you're serious about this stuff, you better help us promote Suse Linux.' To which we said, 'You know we're trying to sell Windows, that's what we do for a living! Windows, Windows, Windows, baby! We don't do Linux that way here.'
“What we agreed, which is true, is we'll continue to try to grow Windows share at the expense of Linux. That's kind of our job. But to the degree that people are going to deploy Linux, we want Suse Linux to have the highest percent share of that, because only a customer who has Suse Linux actually has paid properly for the use of intellectual property from Microsoft.”
So the question becomes, will Microsoft move forward with litigation or are they just trying to create enough uncertainty in the Linux market to hinder Linux adoption. I'd guess they may not have a solid plan yet and it could potentially go either way. One thing that might hold them back from litigation is something a bit like the mutually assured destruction of the cold war. If they really start the patent suits flying then IBM, Sun and others (who also have massive amounts of patents) could retaliate. The result would almost certainly be ugly for Microsoft. The EU, and to a lesser extent the DOJ, may also be weighing on the mind of Microsoft if they were to sue. I'm sure they don't want any more monopoly headaches than they already have.
As for Novell, I think they are now realizing that the community is strongly against them. It will be interesting to see if this has any impact on their bottom line over the next 4 quarters or so.
–jeremy
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Filed under Linux, Main Page, Microsoft, Novell, Open Source, Red Hat

Samba Team Asks Novell to Reconsider

November 12, 2006 Leave a comment

More on a story I have been closely watching, it looks like the Samba team has officially requested that Novell reconsider the recent patent agreement they made with Microsoft. From the Samba site:
The Samba Team disapproves strongly of the actions taken by Novell on November 2nd.
One of the fundamental differences between the proprietary software world and the free software world is that the proprietary software world divides users by forcing them to agree to coercive licensing agreements which restrict their rights to share with each other, whereas the free software world encourages users to unite and share the benefits of the software.
The patent agreement struck between Novell and Microsoft is a divisive agreement. It deals with users and creators of free software differently depending on their “commercial” versus “non-commercial” status, and deals with them differently depending on whether they obtained their free software directly from Novell or from someone else.
The goals of the Free Software community and the GNU GPL allow for no such distinctions.
Furthermore, the GPL makes it clear that all distributors of GPL'd software must stand together in the fight against software patents. Only by standing together do we stand a chance of defending against the peril represented by software patents. With this agreement Novell is attempting to destroy that unified defense, exchanging the long term interests of the entire Free Software community for a short term advantage for Novell over their competitors.
For Novell to make this deal shows a profound disregard for the relationship that they have with the Free Software community. We are, in essence, their suppliers, and Novell should know that they have no right to make self serving deals on behalf of others which run contrary to the goals and ideals of the Free Software community.
Using patents as competitive tools in the free software world is not acceptable. Novell, as a participant in numerous debates, discussions and conferences on the topic knew this to be the case. We call upon Novell to work with the Software Freedom Law Center to undo the patent agreement and acknowledge its obligations as a beneficiary of the Free Software community.
I've also seen multiple sites around the net requesting a full boycott of Novell products. Novell had to see this (or at least some level of community dissent) coming. The question to them may have been whether they'd lose enough business to prevent the deal from being profitable on the whole. Regardless of the legality of the patent deal (I've still seen no official word from the FSF of the Section 7 issue, but Eben Moglen has been granted confidential access to the legal terms of the agreement, in order to scrutinize it and ensure its compliance with the GPL), Novell has clearly gone against the sentiment of the community here and the spirit of the GPL. What long term implications that will have remains to be seen. One shouldn't forget that Novell really isn't an Open Source company in the same way that a company like Red Hat is. Novell still has a lot of proprietary software, sure; but the issue goes much deeper than that. They have a long history as a closed source company and a lot of long time employees who aren't necessarily Open Source people. It comes down to being a systemic cultural thing. While they have many people who really get it, that's not necessarily the case for the average employee. Coupled with the fact that Novell has a long history with Microsoft and I don't find this deal as surprising as some. Do I think Novell will back out of the deal at this point? Unlikely, but it will be interesting to see their response if Eben decides they've violated the GPL. I'd guess we'll know soon.
–jeremy
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Filed under Linux, Main Page, Microsoft, Novell, Open Source

Is Microsoft Going to Start a Linux War?

November 9, 2006 Leave a comment

On the topic of misunderstanding the GPL, we have this doozy. From the article:
Microsoft has been leery of doing too much with Linux because of all the weirdness with the licenses and the possibility that one false move would make a Microsoft product public domain at worst, or subject to the GPL at best. As far as old-school software companies are concerned, the GPL—the GNU General Public License—is a ridiculous pain to deal with, especially if you have a unique invention that you want to bring to the party—and want to make money doing so.
Sharp operators have been playing with various ways to avoid bumping into the GPL while using Linux in proprietary applications.
Huh? How are we still running into things like this? For better or worse, a ton of proprietary code runs on Linux in a 100% legal and legitimate manner. Just ask Oracle or BEA or Veritas. I'm not sure where this misconception comes from, but we need to get rid of it. Porting your app to Linux in no way puts your application at risk of becoming GPL'd. As to where the “public domain” assertion came from, I won't even venture a guess. As for the “unique invention that you want to bring to the party”, plenty of companies have innovated, used an Open Source license and made money. Sleepycat and Innobase are two examples of innovative companies (neither really have any competition in their space even today) that used Open Source licenses exclusively, became very profitable businesses and then were seen as so good that a proprietary company acquired them and then kept them Open. There are many other examples of companies that are staying independent and making good money doing so. I've said it at least once before, but I'd really like it if the GPL had a Creative Commons style “human-readable summary”. It could go a long way toward clearing up some of these consistent misunderstandings.
–jeremy
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Filed under Linux, Main Page, Microsoft, Novell, Open Source

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