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Daily Wrap and Flow

Reading the Daily Wrap and Flow is a quick and easy way to follow the ebb and flow of the Microsoft antitrust and SCO trials.  This page will always contain the latest commentary making it easy to bookmark.   This column is updated from time to time with the latest commentary on top.

November 20, 2006 - Monday

7:16 AM PST - Novell to Samba: We're Not Terminating MS Agreement (Groklaw)

I think the statement from Eben Moglen is most telling:
"They have showed us what we need to see, they have answered our questions, we had complete and unfettered access to senior executives at Novell.... We are now working by peaceable negotiations to protect our client's legal interest, and we see no likelihood that we're going to adopt steps that involve the use of legal compulsion. If we are unable to work the situation out peacefully, that may change."

It is the kind of statement you could expect at this point in time.

I guess Novell is working on a more definitive statement in response to Samba and/or Eben Moglen.  But, one thing should be clear.  Novell needs Samba.  Samba does not need Novell.

And I have to mention that a software developer has the right to decide on what basis the work is going to be licensed and distributed.  And while the GPL does not permit the picking and choosing of customers, it does only allow its use and redistribution when done according to the granted license.  Or, it could be a negotiated license.  But, in the case of the GPL there is no negotiation involved.  There may be a public discussion regarding the terms for GPL 3 and even GPL 2.  But, once that has been decided and selected it is not a negotiated situation.

So Novell can claim it wants to stick with the Microsoft agreement. But, it may have to do without Samba and possibly without the Linux kernel in the future.

There is no doubt that Microsoft is viewing this deal as a way to attack the GPL and Linux.  Simply put Microsoft has put up $300 million to $400 million in order to create a proprietary version of Linux which it would approve and even promote but from which it can extract royalties without proving squat.

You can tell someone is being dishonest and deceitful when they say they are seeking redress for their "IP".   Simply put they do not want to be sufficiently details so as to be shown to be lying.  IP consists of patents, trademarks, copyrights, trade secrets and perhaps service marks.  That is it.  There is no unidentified "IP".  So the tip off that it is simply FUD is the use of the IP logo.  You simply can not sue anyone for violating your IP.  It will always be dismissed for the failure to state a cause of action.  It must be patent violations, copyright violations, trademarks, service marks or trade secrets.

So which is it Microsoft?

And to Novell, do you really think you can get by without Samba and the Linux kernel? Not to mention all of the other GPL software.  Such as Java.



November 19, 2006 - Sunday

8:47 AM PST - Ballmer: Linux users owe Microsoft (ComputerWorld)

Who is this Ballmer guy anyway?  How does he know.

I think the appropriate response is that if Microsoft really believes that Microsoft has some right to a royalty from Linux distributions, he can hire a few lawyers, point out where he thinks the royalties are due and file whatever law suit they think is justified.

But on the face of the deal, Microsoft paid Novell almost ten times as much cash as Novell paid Microsoft.  So what does that tell you?  Oh, yea.  They really wanted those SuSE coupons to hand out to their top customers.  Choke.

There is no doubt that Microsoft wants to establish a method of payment from Linux to Microsoft based upon sales volumes.  And most importantly for Microsoft insert some provision into the distribution of Linux such that copies without the exchange of cash dry up.  And as mentioned earlier, it is not just for the minor revenue stream that may generate. From a competitive economic basis, every dollar that is paid for a copy of Linux permits a dollar to be tacked onto the top of Microsoft software.  It is all competitive in the end. And Microsoft is truly fearful of a competitor that can distribute unlimited copies of competitive software without cost.  And I do not just mean the key products like browsers.  Rather the heart and sole type products such as operating systems, office suites, messaging systems, etc.  The good stuff.  The stuff that makes up the monopoly revenue base for Microsoft.

I have said it before and it bares mentioning again.  It is not good business to sue your customers.  They do not like that.  And if Microsoft is going to go about suing Linux customers, those defendants are very likely to be Microsoft's own customers.  Or, certainly Microsoft customers will see themselves as targets too.

So it is understandable that Microsoft will FUD its way around and most likely not end up suing anyone.  Besides, Microsoft Corporation customers are just dumb enough to avoid looking too hard at lower cost platforms simply because Microsoft is frothing at the mouth.  At least that is precisely what Ballmer thinks.  So whenever Ballmer speaks along this line he insults his own customers.  And he threatens them with law suits too if they dare to stray.

Microsoft Corporation operates very much like organized crime.  Intimidation, threats, extortion, etc., just like SCO.  And now that the SCO follies appear to be a bust, Microsoft (the company that made sure SCO was properly financed) steps in with their own FUD efforts.

I doubt that Microsoft will sue anyone.  Certainly not their own customers.  And most likely not even the FSF or Red Hat.

And it is really too bad that Novell thought it was in their best interest to make a deal with Microsoft.  It is fine to get the $400 million or so.  But, community support for Novell is going to dry up.  The deal with Microsoft may not be dead on arrival. But its life span is likely to be very short.  In all likelihood Novell will have to nix the deal or do without GPL code from others.  And that will dome the company.

Another article surfaced this last week. And it was a Q&A with Bill Gates. 

It would appear that Bill Gates and Steve Ballmer now know how Microsoft Corporation is going down.  They may not know how soon.  And they may not know how quickly. But, I think they both know how.  Bill Gates simply does not sound sure of himself in his Q&A.  He wants to think that somehow customers have a preference for proprietary code. But of course, they do not.  There is no value proposition associated with proprietary code.  Customers still want to pick the best products. But, there is no extra value associated with a product being proprietary.  And that is so even if it is dominant.  If dominant or a monopoly it only means that the price is very high and expensive relative to alternative solutions.  It does not mean it is of better quality.  Better quality can be found in either camp.  And it is not the result of being proprietary or open.

Microsoft's fear is based upon the fact that anyone in the world can contribute to open code.  And they do not need to have a valid prospect of it being profitable in order to do so.  In the past, that has been Microsoft's comfort point.  They knew that no other proprietary solution is likely to challenge Microsoft simply because of the marketing muscle that Microsoft could flex.  OS/2 went away as did BEOS.  But, Linux does not appear to be going away.  Rather it is expanding even the number of fields or endeavors where it shows promise.  So from PDA, to cell phones back to desktops and laptops, open source products such as Linux show great promise.  And it is not just that some distributions are gaining increased distributions.  Rather it is because the R&D base is expanding rapidly.  And that base shows no signs of being limited.  It is truly a world wide development process.  And it offers so many other countries with a promise of value and local business development that no proprietary product can possibly match.

OLPC (One Laptop Per Child) is just an illustration of this value proposition.  It is easy to see just who is not helping with the OLPC effort.  Overpriced and closed products.  And now we have Steve Ballmer threatening to sue those kids if they accept a free laptop.

This is how Bill Gates and his money corrupts others.  The Gates foundation should be financing those laptops for the kids. But, you see, Bill Gates does not want to educate them.



November 17, 2006 - Friday

6:41 AM PST - Getting Cute with the GPL (Groklaw)

There are a couple of questions that the Groklaw article does not answer.  And of course it is obvious why answers are not readily available.

The first question is whether or not the Novell-Microsoft deal violates GPL 2.  I think it does.  Certainly in spirit if not in the letter.  But, what is clear so far in coming from Mr. Moglen is that his opinion is not being expressed yea or nea.  Now, please do not be too surprised here.  It is easy for me to state a rough opinion on that matter.  I do not represent the FSF.  Mr. Moglen does. So any public statement from him has to be made only in consultation with his clients.  And often times that means you do not make public statements at all.

And that is why in large part the word coming from Mr. Moglen relates more to the upcoming word changes for GPL 3.  That is fine.   The whole process of drafting GPL 3 is open.

The tricking part for GPL 3 is going to be in accomplishing what Mr. Moglen suggests.
"GPL version 3 will be adjusted so the effect of the current deal is that Microsoft will by giving away access to the very patents Microsoft is trying to assert."

That is fine you say. But, that is hard to accomplish when Microsoft (for example) is not a licensee of GPL 3.  So how can a license between say Novell and the FSF obligate Microsoft in some way.  Such as granting all necessary patent licenses without royalties, for example.  Well, you can not do it directly.  All you can do is impose an obligation on the actual licensee (such as Novell) to assure that is the case for its customers and their distributees.  Or, what?  Or, they (Novell) can not distribute the code themselves. In other words, if Novell can provide additional rights to its customers, it can be required to make sure that those customers can in turn re-distribute under similar circumstances.  Otherwise, one distributor can proprietize GPL code. And that is certainly something that even GPL 2 wants to avoid. But Microsoft (egged on by Novell) is giving Novell customers some promises which can not or may not be transferred to others.

The GPL currently has language such that if the licensee can not comply with its terms, the licensee must cease and desist re-distribution themselves.  This is a very nasty result.  Just keep in mind that SCO claimed it was going to force IBM to stop selling AIX and when it did not comply with that demand, SCO sued IBM for copyright violations.  The problem is that SCO had no such power to make the initial demand.  And yes, that is the primary subject of one of the motions for summary judgment pending as we speak.  And yes, I fully assume that IBM will be successful in getting their summary judgment motion against SCO on that issue.

And of course the problem is not really that Microsoft and Novell want to invalidate the GPL in some way.  Novell may be trying to figure out how to make a buck with Microsoft.  And that is okay.  Microsoft on the other hand seems willing to part with hundreds of millions of dollars if it can somehow invalidate the GPL or engage in business in such a way that it is ineffective.  And for Microsoft ineffective means getting developers to stop making contributions of code under the GPL.  And this is a deliberate attack by Microsoft upon all open source developers.  Possible patent royalties are almost a side issue.  Microsoft wants to discourage individual and corporate developers from using the GPL.  Pure and simple.  To think otherwise would be naive.

If Novell wants to harm the GPL in this way with its own code, that is its right I suppose.  But, if it was Novell's code they could dual license it anyway.  What Novell can not do is dual license code it gets by way of the GPL.  And this is why I believe that the Novell-Microsoft deal does violate GPL 2.  Novell has violated it because it thought it could make a few extra bucks with a few enterprise customers.  (Maybe IBM as indicated below. Maybe not IBM.)  And Microsoft wants to invalidate the GPL and collect a few royalties while it is at it.  Actually, Microsoft wants similar deals with all Linux distributors and it has said precisely that.

So the question is how do you stop Microsoft from collecting royalties on code contributed and licensed under the GPL?   Or, how do you prevent Microsoft from collecting some royalties from each copy of Linux distributed?  And, of course that means no more copies without money changing hands.  That is what Microsoft wants to force upon everyone else.  Microsoft competes with Linux.  And every dollar that consumers must pay for Linux permits Microsoft to tack on that dollar to each sale of its product.  That is the whole idea behind forcing a competitor to pay a license fee when you compete directly with them.  The problem is that the IP belongs to someone else.  And Microsoft is illegally trying to collect royalties on the work of others.

Is the FSF going to sue Novell?  Probably not.  I am sure Mr. Moglen and Novell lawyers have talked briefly about this.  And I am sure Mr. Moglen is not going to tip his hat until such time as an actual law suit is filed.  And I am sure the FSF and other distributors are not finished talking about this issue.  But, GPL 3 is on the way.

The only rub, if there is one, is that so far the decision makers for the Linux kernel have not expressed a preference for GPL 3.  Interestingly enough, the Novell-MS deal may tip the scales a bit.  And when you talk about the powers that be you are not just talking about the OSDL (Open Source Development Labs).  You are really talking about the individual and corporate contributors of the code.  I would expect that some contributors of GPL code may say the Novell deal is just fine with them.  But, certainly many others are saying "no way Jose".  There are certainly any number of contributors that are going to demand that if their work is going to come back to them by way of other distributions, it will do so with any and all protections and benefits that Novell now seems to think its customers want.  So Mr. Moglen is right on track.  If Microsoft is going to stick its nose and hand into the distribution system for GPL products it will have to give up any and all patent rights in that regard.  Right now, Microsoft wants to force GPL software to be paid for while it gets a monetary slice. That is what the Novell-MS deal means to Microsoft.  Simply put, a way to attack and prevent open source from competing with Microsoft unless it collects money too.  But, Microsoft is forcing its collection off money for the IP belonging to someone else.  A thief in other words.





November 15, 2006 - Wednesday

12:38 PM PST - Is the Microsoft-Novell deal dead on arrival? (CNNMoney)

You may have to comb the linked blog like you do here. Look for Wednesday, November 15, 2006.  (And yes, I intend to fix that problem with this site soon.)

Roger Parloff seems to report that the Microsoft-Novell deal is a dead one.

I am not sure it is completely dead. But, I do agree that the aspect of the deal with patents will be nixed.  For one Microsoft retained its right to revoke the deal. And as I said, when one party can willy nilly nix a deal so too can the other.  And I do think in this case that is practically the case.

No doubt some prospective Novell customers may be disappointed. But the above link points out the natural reaction about to be taken by the FSF.  And I agree that GPL 3 will be amended to nix deals like this.

It is not going to be easy to do since Microsoft is not a party to the GPL license.  And the linked articles suggests a deal like this in the future will require Microsoft to release all patent rights if it wants to bargain with a GPL licensee.  Actually, that can not be done directly since Microsoft has not agreed to anything.  But, GPL can have terms such that if Novell enters a deal in regard to patents it must do so with coverage for all other GPL licensees whether or not they get their code from Novell and whether or not they "pay money".  Or, what?  Novell must cease distribution under the GPL.  That is simple enough.

So the question is what can the FSF do about the current deal.  Or, if GPL 3 is not used for the Linux kernel going forward, how can such terms apply to Novell and other distributors?

Well, I happen to think that Linux will use GPL 3.  Although some things need to be worked out.  It is also possible to have a GPL 2.5 adopting new patent restrictions buy avoiding the DRM stuff if that is the impasse with GPL 3.

But, what about now?

The question is whether you can enter into an agreement with another party such that they violate their current contracts/licenses?  And the answer is that you can. But, maybe not without legal consequences.

For example, if current holders of copyrights do not accept that Novell has done, Novell and Microsoft can be sued.  Keep in mind that just about anyone can file a law suit against just about anyone they want.   The question is whether the law suit can be sustained.  You do not want to waste your money like SCO.  I have mentioned one possible action against Microsoft already. And that is "intentional interference with contractual relations".  This is an intentional tort which means that punitive damages can apply.

So if the question is whether Microsoft is trying to frustrate or harm those who benefit from the GPL on Linux when Novell complies with the license, then those same people may be able to sue Microsoft for the effort to cause harm.  And if there is anything that is clear in all of this, it is that Microsoft wants to take a swipe at the GPL.  And they want to impose royalties upon distributors under the GPL.  That is dead obvious.

The question is whether the FSF will do anything in court to nix this deal.

Certainly the first effort has to be to convince Novell that the deal is a bad one.  Bad one for Novell.  And a bad one for GPL licensees.  The fact that the deal tries to protect some people and not others is beside the point.  Certainly Microsoft does not expect unpaid contributors to pay royalties. But it is also illegal for Microsoft to muscle its way into royalty payments from those who are paid for their time or are commercially involved in developing and distributing Linux.  Microsoft Corporation has no such right.  And can be sued for attempting to gain such royalties.  Should be sued for attempting to gain such royalties is how it should be said.

So is the deal dead on arrival?

Pretty much.  At least in its current form.  Working together on virtualization is fine.  Getting cooperation for common file formats is fine too. (Although I would have preferred Novell not have done that.)  And if Novell wants to license Microsoft's so-called Open XML stuff, it certainly has the right to do so.  But, what it can not do is impose additional restrictions upon its GPL customers.  Nor can Novell (as I understand the GPL) offer paying customers some promises or benefits while not passing them along to all subsequent GPL licensees.  The fact that the so-called promise comes directly from Microsoft is immaterial (form versus substance).  The truth is that Microsoft is only doing that at the direction of Novell.  Or, in exchange for money from Novell.  The fact that the promise does not come on Novell stationary is beside the point.  Deceptive, dishonest and deceitful all apply to this deal.  But, Novell does not have the power to engage in this kind of transaction.

Now I understand that the FSF has not decided for certain if the current deal does violate the GPL.  But, I think it does.  Certainly by spirit if not the letter.  And I think that the one thing that Linux distributors can not do is toe the line or step over it if they expect the community to support their efforts.  And I also think it is pretty clear that many in the open source community do not support Novell in this latest effort.  If I were a contributor to the Linux kernel I would be pissed.  And I would seriously consider suing Novell for a breach of the GPL. Certainly the FSF is considering this.  And certainly they are engaged in serious talks with Novell over this issue.

I think you have to keep in mind that the open source community does not have to agree completely on all issues.  But, when you do take the work of others under the GPL you do have to honor the spirit and the letter of that license and not actively engage in deceptive means to get around those obligations.  Entering into a legal agreement with Microsoft to do so really smells bad.



7:38 AM PST - Update: European Commission may fine Microsoft again (InfoWorld)

Microsoft is obviously acting dumb and stupid here in the hopes that it will not need to ever comply.  If the EU Commission (or its consultants) can figure out that 10% is missing then it is pretty clear that full documentation was prepared by some but selectively removed by others at Microsoft Corporation.  They can not be so dumb as to not know what has been omitted.

It is typical Microsoft thinking.  Act dumb and hope the fools will go along.

Of course what is really going on here is an effort to not disclose this key information to open source competitors and Samba in particular.  As it stands now Microsoft need only license this information on terms that Samba could not and will not accept anyway. And that means it is simply not going to have any measurable affect on the market in the first place.  But, I assume that Microsoft and Commission both know that eventually whatever is documented will have to be disclosed to even open source competitors.  Otherwise it will remain meaningless. So Microsoft is playing dumb today in hopes that open source competitors will not have sufficient documentation even when or if they do gain access.

Clearly Microsoft fears open source a whole lot more than they let on.  They hate the idea of competing against products which are both free and freely distributable.  At one time they accepted that with their own products by looking the other way when friends, families and others loaded Microsoft software multiple times.  No longer.  Microsoft no longer accepts free or freely distributable even when it is Microsoft products that are being passed around.  Today, everyone must be forced to pay money or do without.  And this effort here as well as the deal with Novell is geared to that end.  Forcing everyone to pay at least something (or do without) is one way of keeping the monopoly price high.  Practically speaking every dollar they can force others to charge per copy is a dollar on top of their own prices.

Microsoft hates to compete on any basis.  It much rather engage in illegal practices or as you see here act dumb and stupid.

6:34 AM PST - Novell Sends a Letter to Judge Kimball (Groklaw)

Well I am not sure if we are watching a release by the Keystone Cops or listening to a version of Who is on First.

From a legal perspective I still believe that the Novell case must go first. There are a number of legal issues that can be resolved in the Novell case that do provide a basis for a correct decision in the IBM case.  Not all of the IBM case rests upon a prior decision in the Novell case. But many issues due.  Who holds the copyrights is one. Whether or not Novell retained a right to waive off SCO is clearly another.  On the other hand I can not think of any legal issues to be decided in the IBM case that the Novell case is waiting on.  So in the end Novell does need to go first.  And I assume for now that is what the judge is thinking as well.

The problem is that SCO now wants Novell to speed up.  It may be as PJ suspects that something showed up in discovery. But it is just as likely that SCO has figured out a way to jam up the cases once again.  I certainly do not know what SCO is thinking here.  However, arbitration is pending in Europe.  Discovery is still ongoing in the Novell case. And many issues in the IBM case do depend upon the Novell decisions.

Frankly I doubt SCO has in mind the idea of mooting any issue before the courts.  Rather it has surmised that somehow the cases can be jammed up yet again.  Just remember that back when IBM first filed its motions for summary judgment, rather than reply with evidence it might have it instead only complained that discovery was not yet complete.  So I suspect that SCO again sees a way to defeat one summary judgment motion or another not based upon the evidence but rather some other obscure reason for not proceeding.  And of course you have the pending SCO bankruptcy to keep in mind.  SCO can not see that coming. And if it does, SCO may very well lose control over this litigation. (That is someone else may begin to call the shots, the trustee in bankruptcy).  So maybe SCO lawyers are just thinking that they can somehow avoid the constructive trust if they get to that issue much sooner rather than later. To be honest, I think SCO lawyers fear the pending SCO bankruptcy more than the IBM or Novell case. And reason might be that a trustee in bankruptcy might want some of those legal fees returned. After all, a trustee in bankruptcy has a duty to collect as much cash as can be collected from whatever sources might be available.  Over paying legal fees or fees paid that simply can be reversed would be one source for cash.  And that is one thing the current SCO management would not do.

So there are many things to be thinking about here on the part of SCO.  They are being squeezed to no end. And they know it. They are about to lose both the Novell and IBM cases not to mention the others as well.  And, most importantly, the lawyers may have to cough up some of their fees and return them to the SCO trustee in bankruptcy.

When do lawyers act out of their own interest rather than the interest of their client?   A lot more often than you might think.  I never have felt that SCO lawyers were acting in the interest of their client, SCO.

But that is just my opinion.


November 13, 2006 - Monday

6:52 AM PST - 'Take your covenant and shove it', Samba tells Novell [and Microsoft] (The Register)

I am pleased to quote the Samba release as well:

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.

The Samba Team.

The way that Microsoft and Novell have approached the patent issue with open source is not appropriate. It would appear it is very similar to what SCO had tried.  Make public accusations and then make selective deals with individual customers/distributors until all participants are paying royalties.  Royalties where none have been shown to be due.

And there is little doubt that Novell will pay the price (as have others in the SCO deals) for trying to gain a certain advantage by selling out their customers.

November 12, 2006 - Sunday

6:09 AM PST - Update: Microsoft's Novell deal not exclusive, just sales perks (InfoWorld)

I doubt that Microsoft would strike a similar deal with other Linux distributors.  Certainly they would be interested in pounding the wedge a little farther into that market. But it would appear that the deal covered by Unix and Linux patents as far as Microsoft is concerned.  And that might help explain the money flowing to Novell.

This deal is still a bit elusive however.

It appears to be revocable by Microsoft (and that usually means that Novell could cancel it as well).  But, does that mean Microsoft can pull on those strings attached to the money and draw that back as well?  I would assume so.

And then this bit:

Moreover, the Software Freedom Law Center is currently evaluating whether the patent part of the Microsoft-Novell deal, which involved the payment of more than US $40 million from Novell to Microsoft, violates the GNU Public License, the software license for Linux. The group plans to release its findings late Friday or early next week.

It has been mentioned before that Moglen was going to be able to review the agreement and then decide what to do if anything.

I doubt the agreement gives Novell a specific out if the SFLC does not approve it.  But, do not be too surprised to find the deal nixed.  Moglen may not go along.  And Novell may decide that the feedback it has been getting from current customers is not worth the benefits they thought they could achieve.

I would not say "film at eleven" but this deal may not be sealed.

I can say that the best for the Linux industry is to nix the deal.  After all Microsoft wanted it.  And when Microsoft wants something you are always better off walking away.  Even if that means leaving money on the table.



4:39 AM PST - Declaration of Thomas Roehr, Ex 253 - as text (Groklaw)

No kidding?  You mean you buy a used computer out there in the real world and the entire source code for the OS shows up on the disks?  Heaven's Betsy.  Are you sure?

I have to laugh.

I have bought many used computers in my time just like Thomas Roehr. And yes, sometimes the unexpected does remain on the media.  I even had a friend I was helping buy a used system and the seller included a complete backup copy of the online data including the OS.  Of course, that was binary only as far as the OS is concerned.  Having the source code for the OS was the exception and highly controlled by just about everyone.  Except AT&T it seems.

And here you see a bunch of lawyers telling SCO that they should pay millions in legal fees and sue for what IBM did.  I have a word for such lawyers.  And it is not kind.  Nor will I repeat it here.

By the way, it was a good thing that my friend had those backup tapes.  On that system (a HP 3000 mini running MPE) you could use certain utilities to print up the user accounting structure from official backup tapes. And one item of information in particular that was useful was the system manager password (root if you will). And that was about the only way to take that used computer and impose your own management and control over the old system.  And, yes, it did contain a whole lot of source code written by the prior owner.  Mostly worthless of course since the prior owner was in a different business and the new buyer did not need those applications. Besides we did not speak Cobol.

I have to wonder how intelligent the SCO attorneys really are.  We know they can dance in the courtroom with their expensive suits and shoes. But do they understand anything about the computer industry?  I certainly am not surprised to see this declaration come along.  No doubt a number of readers of this blog have similar stories to relate in regard to their own personal experience.  So where is the foresight?  Where is the understanding that the lawyers had when they suggested SCO spend all that money on legal fees to sue IBM?

By this point in time, much of this is hindsight.  But lawyers owe clients a duty to know and understand not only the business that the client is in but the evidence that is likely to show up at trial.  We are talking about a 25-30 year time frame.  And if anyone knows how important historical facts can  be, it would be good lawyers.  IBM has them.  SCO does not.

Being able to dance around in court for months and years on the client's dime is not what I call good lawyering.  Good lawyering includes telling a client up front just how hard it is going to be to prove a given case in court.  And also telling the client all about the kinds of evidence that is likely to surface and be very difficult to overcome. Do you think SCO lawyers advised SCO management that since most of the conduct related to the case would be testified to by non-SCO people that they would have to make some assumptions regarding just what defenses IBM may offer and be able to support with evidence?  Intelligent and honest lawyers do warn their clients about things like this.  And this declaration is not "surprise surprise type stuff". Rather it what one should expect.

Plan A appears to have been to create such a stink that IBM would not defend itself in court.  As I recall the declaration coming from BayStar pretty much said that.  IBM will just quickly settle and SCO can go about scheming everyone else too. A simple con man (confidence man and fraud) has a better plan. The "mark" turns out to be SCO in this case.

Do not think that I believe that SCO and their lawyers should have actually known all of these kinds of things. They would not. Or, they may have known. But, lawyers do have to let clients know that any defense that IBM could raise against AT&T, USL, Novell, Santa Cruz Operation, Caldera or SCO can be raised against them. And important issues go back some 25 years or so. Intelligent lawyers know how difficult it is to sue for breach on a 20 year old contract that has gone through so many hands. Just about every defense in the book is going to show up and has.  And just about each of those defenses can be determinative in favor of IBM.  The only hard part is trying to guess which one acts first.  Actually, that is not so hard. It is highly likely to be the interpretation of the contract in favor of IBM. But there are so many other legal issues favoring IBM as well.  And most of them relate to contract law. And SCO lawyers claimed to be "contract lawyers".  That appears not to be the case.  At least not good ones. Nuisance lawyers is a better description. And every lawyer knows that the best way to defeat a nuisance law suit is to litigate it.  It just costs money. A lot of money.  It is fairly easy to see at this point that IBM has spent millions in legal fees to defend itself. And the same is true with Novell.

I doubt you will see Microsoft suing their own customers over Linux patent claims. I have already said I doubt you will see Microsoft sue any customers or Linux distributors over patents either. FUD they will do.  FUD is cheap. And if you are a known liar you don't lose any more credibility either.

All of this out of a simple declaration that many of us could have written?  I guess so.


4:19 AM PST - Microsoft's patent promise 'empty' (TheRegister)

What do you expect from Microsoft Corporation?  They have no interest except to deceive and misrepresent themselves.  They lie under oath in federal court. And they make promises to others that they know are misrepresentative and deceptive.

But we have expected more from Novell.

November 10, 2006 - Friday

7:34 AM PST - Open Source holds up in court (InfoWorld)

While this decision is welcome, it may not mean what the headline suggests.

The U.S. District Court for the Southern District of Indiana dismissed the case, finding the plaintiff had suffered no antitrust injury. And then the Seventh Circuit affirmed.

That suggests to me that the problem was with the plaintiff and the specific complaint rather than some kind of decision on the merits of the defense.

Frankly I find it very difficult to see a scenario where open source is going to present anything close to a monopoly or even monopoly power. GPL may tend to keep some prices low or even at zero leaving companies with a business plan to charge for support. But that is not a monopoly. And it does not reduce or restrict output in any way.  Quiet clearly it does the opposite. It empowers just about anyone to re-distribute themselves and/or offer additional or substitute support services.  That is a far cry from the proprietary you have to pay and do without support model.

What may not be too clear from this article or the case if you have been following it is that the plaintiff does have to show how he has been harmed by the defendants.  And that is very hard to show when none of them addressed any of their activities toward him.  Rather it would appear that Wallace wanted to appoint himself as a representative of many others and simply attack the form of competition that open source can bring.  The DOJ might be able to do that.  And the various Attorney Generals might be able to do that. But, private citizens (and companies) can only only represent themselves.  If Wallace could show how he was harmed because of something the defendants did, that might be a different story. But, of course, IBM, Red Hat and Novell (the defendants in this case) did not even know who Wallace was and did not care either.  And when that is the situation it is hard to prove that somehow their acts caused him harm. His case would be no stronger if he had sued Microsoft.  Actually, it would have been much better.  At least Microsoft has engaged in illegal acts.  And certainly Mr. Wallace could argue that he is unable to develop a browser and bring it to market because of those acts.

Simply put, it does not make a case just because you do not like what someone else is doing.  Or, that many others are doing it too.  Or, that they are not charging a high enough price for you to compete profitably.


7:13 AM PST - Microsoft/Novell deal violates GPL? (Infoworld)

It is unlikely a court of law will decide that issue although it is possible.  At least Novell was kind enough to allow Moglen permission to audit the agreement in order to ascertain whether or not in the minds of the FSF the GPL has been violated.

This article also mentions the comment or suggestion that the current deal may have slipped by the GPL by a pinch.  But, that GPL 3 would block it.  And keep in mind that Microsoft reserved a right to revoke it.  And generally that means Novell retains a right to revoke as well.

It would appear that the promises have been made to their respective customers for two reasons. One is the GPL itself and an apparent effort not to violate it.  But, the other is the high likelihood that key Microsoft customers (wanting to also be Novell customers) demanded it.  It may not have been IBM as suggested below.  But I think it is likely to be a group of Microsoft customers including IBM.

Major accounts are considering moving away from Microsoft as much as they can.  You can certainly count SUN, Novell and IBM on that list. And they are technology leaders. Certain governments at all levels have also indicated that direction or have already taken the step. So it is not entirely a surprise to see some major feedback headed toward Microsoft in this regard. Maybe what Microsoft got out of this deal is a few major accounts for a few more years.

In the long run this deal may not be good for Novell.  It is easy to understand scenarios under which it would not be.  Loss of community support being just one of them.  In the short run Novell is likely to get some business it may not have gotten otherwise.

Whatever the case, it does represent the movement that Linux is experiencing.  And strange it is to see Microsoft actually paying hundreds of million in order to help out a Linux competitor.   Of course, benefits do go both ways.

November 8, 2006 - Wednesday

7:30 AM PST - Details of Novell-MS Pact - the SEC filing - Updated (Groklaw)

I am using the Groklaw article here as the lead in because frankly PJ over at Groklaw deserves the credit. But, I want to also list four other articles which you are also encouraged to read. And then I have a few suggestions.

Microsoft bankrolls Novell to tune of $308m (TheRegister)

Novell deal to cost Microsoft hundreds of millions (InfoWorld)

Linux Pact for $348 Million (NYTimes)

Microsoft paying Novell $308 million for Linux pact(CNet, the censorship group)

Now what are these articles not telling you?

If you read the Groklaw article you understand a point that PJ is making quite well.  This agreement between Novell and Microsoft results today in Novell being paid a rather significant amount of funds yet the agreement only seems to benefit unidentified Novell customers.  Present or future Novell customers.  And who might they be?  Or who might it be?

Out of the blue mention one major company very much interested in using and supporting Linux but from which nothing has been heard over the past week or so.

IBM, you guess?

IBM is an easy guess.  It could be another. Or, it could be several.

But, I get the very strong feeling that Microsoft is doing this deal not so much because it may frustrate or split the Linux industry in some way (including driving a stake into the GPL), but rather because major Microsoft customers have demanded it.

Certainly most Microsoft customers might take a pledge or promise of indemnification from either Novell or Red Hat for that matter as being just as good or better than any promise coming from a convicted monopolist. But, maybe not IBM.

IBM has said nothing about this deal.  IBM has already expressed a major interest in converting to and support Linux at almost every opportunity.  And certainly IBM is a sufficiently significant Microsoft customer to have some real leverage over what Microsoft does and does not do in regard to shall we say "customer relations".  And if you read the Groklaw article you do get the very strong feeling that this is all about Microsoft's customers (and future Novell customers) rather than Microsoft's desire to promote Linux sales.

Microsoft does end up promoting Linux sales but just who is in line to benefit directly from that?  Certainly not Microsoft unless that customer (or those customers) were about to jump the ship completely.  Then I can see Microsoft paying $300 to $400 million or so over to a Linux distributor and the end benefit arriving at the door of a customer (or customers).

SLED 10 is a great product.  So too is SLES.  But, I can see IBM saying that a promise from Novell is not enough to make a move.  I can see IBM thinking that a promise from Red Hat is not enough either.  Certainly IBM does not like being in the SCO litigation even if that case has flopped on the deck pretty much dead from drop. And you might remember my comments below when this deal was first announced.  I listed the 3 or 4 reasons why Microsoft might have agreed to this deal.  The press I quoted failed to mention significant Microsoft customers.  I added it as a thought.  Now it appears that the thought might be center thinking.

Yes, I do believe that Microsoft would jump at any chance to drive a wedge into the Linux marketplace.  But, this is an expensive wedge.

I also believe that Microsoft will be required to make significant monetary concessions to any number of current customers in order to keep them as Linux takes hold in the marketplace.  And which marketplace is Microsoft most in fear of losing?  Its monopoly on the desktop.  So if IBM (or perhaps a few others significant long time and large enterprise Microsoft customers) were about ready to drop Microsoft completely for a deal with Novell instead,  I can see Ballmer jumping all kinds of chairs rather than throwing them around.  He can throw the chairs around later.  But, initially he has to jump them.

Am I all washed out?  It can happen you know.

I think this may be a mistake for Novell because it does serve to alienate itself from the rest of the Linux industry and more importantly the Linux community.  But, if my suspicions are valid, maybe Novell could not swing the deal with IBM (or whomever it was or is).  And do you think that Novell and IBM may have talked up this deal in private a bit?  I can see that.  I can see Microsoft and Novell hitting heads on the wall while IBM is sitting right there.

Are we going to find out?

Most likely.  The chances are pretty good that we will learn who has cashed in those Novell-MS coupons.  And IBM (under the right terms) might be willing to run MS stuff a while longer. You just have to assume that is Ballmer is paying $300 million or so today, he is counting that as a discount against major business he was about to lose.

If so, this deal is a sign that Linux has arrived.  It would be a sign that Linux is not only mainstream but is driving some major business and some major concessions.

Keep in mind that I have absolutely no facts upon which to base this supposition about IBM.  For all I know, IBM is just a place holder.  A pronoun.  It could easily be some other company.  It could even be a collection of companies.  But, even if IBM does not value the promise not to sue or even an indemnification agreement, it is not above a discount on products and services. And you have to get a feeling in reading the Groklaw article that somehow this is all for the benefit of unidentified customers.  Perhaps potential customers of Novell and/or current customers of Microsoft.

IBM has been too quiet not to be on the short list.

Pure speculation without a doubt. But what do you read between all these lines?


November 7, 2006 - Tuesday

10:24 AM PST - Perens: 'Novell is the new SCO' (The Register)

In many ways Novell is the new SCO.  Both paid by Microsoft to do some FUDmustering.

I would disagree however that Novell signing a deal with Microsoft is some kind of acknowledgment that Novell is selling stuff sprinkled with Microsoft IP claims.  Rather you have to put this into the same category as a law suit settlement or a cross licensing agreement where no such acknowledgment is included in the deal.  In fact, according to the announcement the net payment is going to Novell not the other way around.  And that would suggest that Novell holds IP claims against Microsoft for either Unix, Linux or both.  Of course as sales volumes change that too may change.

However it is a lot like what SCO was doing because of the intended affect upon other Linux distributors.

In the final analysis it is also likely to have a similar impact as what SCO did.  Novell (SCO) business goes down. And business for other Linux distributors picks up.  In the end it may matter whether customers want a promise of indemnification from Red Hat or a promise not to sue from Microsoft the convicted monopolist.  Just keep in mind that three separate Microsoft employees testified under oath that they thought illegally commingled code was legalized if a few icons were temporarily removable.  Of course all three including Bill Gates himself were lying through their teeth and they each know that for a fact. So does the rest of the world.

And what do you see being pointed out here?  Microsoft claims the deal is revocable.
<>A quote from Perens: "We should note that the promise is revocable. Microsoft can withdraw it - change or discontinue it - at any time. You can't depend on any promises made here."

Well, when you have an agreement that is revocable by one party it is almost always revocable by either party. (An option would be an exception. But, only up until the time the option is  executed.) Besides promises not to sue are not that useful.  Patent litigation is very expensive. And it is not very likely that either Microsoft or Novell would have sued each other anyway.  In fact, I doubt they would have.  As I have already suggested below that Microsoft is not likely to sue Red Hat or any of its customers either.   And in part that is true because much of the value of doing so can be achieved simply with FUD. Besides any Red Hat customer is also likely to be a Microsoft customer too.  And we have all seen how stupid it can be to start suing your own customers. (You can sue your customers but you better be sure your other customers will agree it was necessary and not just a threat to them too.)

The more interesting legal challenge is being made to the FSF.  I mentioned earlier that I was not sure that the FSF held the Linux kernel copyrights. And they may not hold them all certainly.  But, if what Novell has done does violate the GPL, the FSF may have to decide whether or not to bring an action against Novell (and possibly Microsoft as well).  Intentional interference with contractual relations comes to mind if Microsoft were to be sued. And that might be one reason for them (Microsoft) to renege on that deal.

And you still have the possibility of the GPL 3 to be modified in such a way to include coverage of external agreements that have the same affect as a cross licensing agreement, etc.

Besides this agreement by its very terms is only good for 5 years.  What do you do after that?  File a bunch of law suits?  Cross licensing agreements are not much good if only in affect for 5 years.  I know that five years is a long time in the software industry. But that phrase usually is in relationship to new technologies coming along.  It does not necessarily suggest that all existing technology will be of no value in such a short time. (It took MS 5 years to cough up Vista.)  Copyrights certainly are valid for much longer periods of time.  And even patents are good for 17 years or so.

In summary, I do not think the feedback that Novell has received has been positive at all.  They do have a survey on this point. (Take the Novell Survey.) And my guess is that a lot of current customers have expressed dismay at the deal.  And I am sure IBM, the FSF and others have some private conversations going on in the background.  GPL 2 was written to avoid allowing agreements related to patents to make Linux essentially proprietary. And this agreement between Novell and Microsoft tends to do that.  And one very good reason for Microsoft to insist upon a revocable agreement is to give them an out if things go wrong (i.e. Microsoft gets sued  or Novell sells too many of those licenses to Microsoft customers).

So I do not think Red Hat or its customers are likely to end up in court but the FSF and Novell might.  And do not be surprised if a law suit is filed against Microsoft as well. And it may not be the FSF going it alone either.  Red Hat, IBM and other contributors to Linux all have rights to have the GPL enforced even against Novell.  And any other company that acts in a deliberate way to interfere with that license agreement.  Intentional interference in contractual relations is an intentional tort to which punitive damages can apply.  Maybe now you understand why Microsoft insisted on a revocable agreement?  My guess is that they (Microsoft) are not interested in this FUD and sue game unless they can do it on the cheap. (They have read the IBM and Novell cross complaints against SCO.)





6:29 AM PST - Correction or update

A reader reminded me that Novell's Linux distribution is not entirely released under the GPL. And that is true. A number of the Linux distributions are released likewise including Xandros, Linspire and I assume others as well.

I guess the point to make is that the Novell-MS agreement was not limited to the non-GPL code.  Rather it was intended to cover all code GPL or not. And that is the most important idea to keep in mind.  This is particularly true when trying to ascertain whether Novell has violated the GPL by reaching that agreement.   And it can have consequences when contributing code to either the Linux base or SuSE.

When and if you contribute code for which you approve the GPL license, you do have a right to make sure that is the only license under which it is released by someone else down the line.  Or, at least a license fully compatible with the GPL.

And I am sure that part of the motivation on the part of Microsoft is to cause a disruption to the ability for contributors and developers to release code and control under which licenses it will be made available.  And this presents the problem.

If Novell is breaking the GPL by this agreement, it is going to be necessary to make some adjustments or the GPL itself becomes watered down and can lose its ability to be enforced.

You have to know that Microsoft hates the GPL not so much for what it is but rather it provides competitive technology at lower prices combined with vastly increased distribution options. And that is what Microsoft fears.  And for good reason.  So any effort they can engage in that compromises the GPL will be attractive to them.  Earning some royalties on Linux sales is important too.  But, in the long run, they want to restrict the distribution of open source code and raise a minimum cost to each copy distributed.  That effort provides a basis on top of which they think they can charge a premium price.  But think in terms of a tide raising all boats in the harbor.  If you restrict the distribution and add costs to each copy, that provides cover for a more expensive premium product. And that is what they hope to achieve.

It is also possible that the wording of GPL 3.0 might be changed to cover agreements similar to that between Microsoft and Novell.  While cross licensing is not the same as mutual covenants not to sue each other, they do have very similar affects.  Money changes hands.  And law suits do not result.  So you do get into the discussion about what matters most, form or substance.  And in this case, the substance does violate at least the spirit of the GPL.  And there is little doubt in my mind that Microsoft intended to get Novell to violate the GPL. If it could.  Proof of that is the statement from Microsoft, "they said it could not be done".

This is an attack upon the GPL. No question about that.

November 6, 2006 - Monday

6:44 AM PST - Linux advocates wary of Novell-Microsoft tie (InfoWorld)

It may take awhile in order to understand the importance or impact of the Novell-MS agreement.

The virtualization issue can be easily dispensed with.  Red Hat, SuSE and other Linux distributions will easily integrate with Microsoft systems via VMWare is no other way.  So anything done in that regard is simply an alternative to letting VMWare handle it.

The patent and open format issues are more complex.

At first blush there should be no problem with Novell and Microsoft agreeing not to sue each other for patents.  However, Novell is likely to be violating the GPL by doing so.  And, yes, Novell's SuSE distribution is released under the GPL.  Comments coming from the FSF clearly lay out the problem. And it is possible that the FSF may have to sue Novell for such a violation.  This assumes that the copyrights for Linux have been assigned to the FSF which I am not sure is the case.  But, whomever holds them, it may be necessary to sue Novell to stop a distribution of GPLd code by Novell if their agreement does violate the GPL.  Failing to do so now, could be construed by the courts as a waiver of such claims. And this presents a very real problem immediately.

The second problem relates to patent claims that Microsoft may or may not make against Linux.  My earlier conclusions in this regard (detailed earlier and below) still stand.  I do not think Microsoft will file for patent violations against Red Hat or anyone else.  But, that is not to say they will not make as much hay as they can with the issue.  The SCO effort financed by Microsoft failed. And now Microsoft created its own claim out of thin air.  No doubt every mention by Microsoft to buy SuSE and use it will be accompanied by the suggestion (if not an outright claim) that Linux now has patent violations.  Novell paid up. So everyone else must also.  It will be a FUD campaign.  I frankly do not think Microsoft would want to risk litigating the issue and having Linux cleared.  Or, for that matter have Red Hat and others engineer their way around any presented patent claims.

And then there is the issue over ODF and Microsoft's XML format.  On its face it would appear a benefit to Microsoft's competitors to have greater interoperability between MS XML and ODF. And certainly some customers will see it that way.  But, doing so almost guarantees that two standards will be fighting it out indefinitely rather than a single standard available to all. The ODF way of course would and will result in an open standard not restricted by anyone.  Microsoft on the other hand wants to place restrictions upon customers and competing applications such that it (Microsoft) can maintain control.  And that control will be used against customers.  There is no other use for it.  And the down side to this agreement may be that Microsoft is better able to secure some form of a "standard" label and have it attached to MS XML.  Competing standards defeat the very purpose of a standard in the first place. And unfortunately, this agreement makes that more likely in the long run.

So is this agreement good or bad?  I guess it depends upon your viewpoint.  And whether you want an immediate improvement in exchange for a long term problem.

The best long term solution for open source and Linux in particular is to make certain that all Microsoft technology is steered clear.  And that includes any technology supposedly covered by ambiguous and cleverly drafted promises not to sue.  Replace the technology with superior thinking rather than being trapped by false and misleading claims made be lawyers hired by convicted monopolists.

Novell wanted a leg up against Red Hat.  And you can not fault them for that. But giving Microsoft a FUD campaign can be a mistake.  And Novell likely has violated the GPL in the process.  If not the letter then certainly the spirit.

November 5, 2006 - Sunday

8:01 AM PST - Red Hat adds new Linux legal protection (CNet, the censorship group)

Ok, it seems that Red Hat has decided to add additional protection against possible legal attacks against Linux.
The leading Linux seller quietly slipped the indemnification provision into a question-and-answer page on their Web site after Novell and Microsoft announced a technical and patent partnership on Thursday.

That is fine. But, I tend to agree with the response from Red Hat:
"Our management and board looked at it and said, 'Look, this isn't worth a hill of beans, but if saying it will make people feel better, we'll say it.' We've added it to the program," Webbink said.

Mark Webbink is Red Hat's deputy general counsel.

There are many practical reasons why that is so. Both, why it might make people feel better. And why it does not mean much.

Will Microsoft sue Red Hat (or any of its customers)?  I doubt it. And I do not think Microsoft's FUD is going to be any more effective than that coming from SCO either.  Perhaps significantly less so.  The industry and the public now has a better understanding that allegations do not mean much.  In the end, it is the proof that counts.  And Microsoft is following on the heels of a busted SCO effort.  Both for the same reason. Both financed by Microsoft. 

You just have to realize that Microsoft has no problem using lies, deceit, fraud, misrepresentation, etc. And they will finance anyone else who uses those same methods. That is the Microsoft culture.


November 3, 2006 - Friday

12:16 AM PST - The Morning After - Reactions to Novell-Ms - Updated 2xs (Groklaw)

The question you have to ask yourself is "Whether or not Microsoft will sue Red Hat for patent infringement?".

I do not think so.  You are welcome to read around and pick up all kinds of ideas about what the Novell-MS agreement may mean for other distributors. And certainly if you read the information coming from Novell and MS, there is no protection for other Linux distributions.  But, I do not believe that means there are IP problems in Linux.  As we have all seen by the SCO follies, making an accusation in public is very different than proving them in a court of law.  So while it is easy to suggest that the agreement not to sue each other between Novell and MS may imply law suits elsewhere, I do not buy it.

Do not think for a moment that Microsoft will not fire up its FUD machine here.  It most likely will.  But, the harder it tries to disparage Red Hat the more business gets sent over to Novell.  And say what you will, but it is not in Microsoft's interest to see Novell do well.  In fact, if you conclude that Microsoft would like to see all Linux distributors do poorly, that would include Novell as well.  And that is so even if Microsoft has some to gain from Novell paid royalties.  Royalties do not stand up to direct sales.

So aside from the FUD factor, I doubt Microsoft will do anything in regard to non-Novell products.  Certainly they have made some promises in that regard.  So while I would not trust a thing Microsoft says or does, I do not think they will be acting in any affirmative manner.

Why you say?

I suppose it goes back to the promise or commitment made by Red Hat.  Way back when, Red Hat promised it would rewrite or correct any technology found to be in violation of any copyrights.  Of course this commitment was made in response to the SCO follies.  But, without a doubt the same response would be forthcoming in response to any specific claim made by Microsoft.  And here the word "specific" is important.  If Microsoft is going to file a law suit, it does have to identify which specific patents are supposed to have been violated.  It is not like the rope-a-dope stuff that SCO is going through.  Patents (at least) have specific numbers assigned to them.  And that identification has to be disclosed right up front.  You can look at the patent cross-complaint filed by IBM against SCO.  There they are.  Right there.  None of this vague "you violated our IP crap" coming from SCO.

Besides, Red Hat is fully capable (with the help of the open source community) to re-write and/or replace just about any piece of code once it is accurately identified as somehow falling into a violation.

And I think the idea that Microsoft is not going to sue Novell (by agreement) but will sue a bunch of other players just does not make any sense.  Red Hat can certainly defend itself if necessary to do so.  And it would not be acceptable to the community at large if Microsoft were to sue lessor players.  Google can defend itself.  So too can Ubuntu.

So my guess is the first instance of Microsoft trying to actually file a law suit will result in a call to arms like no other to rewrite and/or replace any identified technology.  And in the meantime,  the FSF and Red Hat or who knows who else will defend any such law suits.

Unless the FUD put out by SCO that tried to create a  bad name for all of Linux, any effort by Microsoft would result only in sending some business over to Novell.  And, as I have already suggested, Microsoft does not really want to do that.

So I would have to guess that Microsoft is left with a FUD effort and that is about it.  And it is a FUD effort without many teeth.  Sure, Novell is paying some royalties as part of the agreement. But it is a two way deal.  And a cross licensing agreement (even if it is only a reciprocal promise not to sue) is not the same as straight royalty payments because of identified patents.

Besides, if major enterprise customers were able to goat Microsoft into making a deal with Novell, that same customer group is not going to look kindly at Microsoft suing Red Hat.  When customers day they want choices and even want competitors to get along and provide support to customers, that includes Red Hat and others too.  Enterprise customers do not care if it is Red Hat or Novell.  They want the competing technologies to get along with each other and allow them (the customers) to get their day completed.  That is what they want.  They do not want to hear that Microsoft is suing Red Hat.  And that is particularly so if they are a Red Hat customer.

So it is possible that the new deal will encourage some customers to begin or even expand their use of SuSE Linux but I doubt it is going to be very instrumental in causing them to switch from Red Hat to Novell.  Besides that switch does Microsoft no good.  Or, is even a negative because Novell is covered, right?

Of course, we shall see.

10:22 AM PST - A milestone for sure

Regardless of how you view the Novell deal with Microsoft, it does mark a rather significant milestone for the industry.  Microsoft must be the last remaining major player in the industry to support Linux in one way or another.  With Oracle coming on board just last week and now Microsoft jumping in, you have to wonder about the future.

From Novell's point of view their agreement may or may not have been a good idea.  Certainly in the short run it may open up some accounts for them.  And as far as the technology goes that adds significant credibility to Linux.  Even Microsoft has to pay attention and help at least some customers use some technology other than their own.  I do not remember Microsoft passing out coupons for OS/2.  Although at one time I did have a copy of OS/2 from Microsoft. It must have been version 1.0 or something.  The point here is that Linux is not going the way of OS/2 and perhaps a number of other proprietary systems.  I was always fond of HP's MPE (MultiProgrammingExecutive) for their 3000 series of minicomputers.  For me it predated DOS and anything else that Microsoft ever cooked up.  And it was always superior in many ways.  But, today it is being discarded by HP in favor of HP-UX, Microsoft and indeed Linux.

So I think you have to look at the big picture when evaluating the significance of deals like this.

It is certainly a plus to get a seal of approval from Microsoft even if they do not sell or support it directly.

But, issues remain whether the Novell deal violates the GPL, will result in lessened support from the community for SuSE, or will result is an increased FUD factor coming from Microsoft. But, one thing is clear, the Linux industry is in constant change.  With Oracle coming on board (good or bad) and Microsoft showing up to promote only the SuSE version, it will be interesting to see how the community and the remaining major Linux distributors react.

One of the very real advantages that Linux offers is its ability to support many different distributions which can be targeted to different market segments.  The enterprise market is one market certainly. But, there are many others.  And while Red Hat, Novell, Mandrivia, Ubuntu and perhaps Xandros do target business users,  a number of distributions are more focused upon individual or home users.  And, of course, some are targeted more to the software developers. These markets are quite different.  And while they do affect each other in many ways, development and marketing programs need to be different.  (Even Microsoft has had to alter its EULA just over the past couple of days because of resistance by consumers.)  And here we see Microsoft conceding to enterprise customers over Linux support.

In my mind, in time we will see Red Hat and even Ubuntu direct one or more distributions to the enterprise desktop just as has been done by Xandros, Mandrivia and recently Novell (SLED 10).  And once Red Hat and/or Ubuntu decide to focus upon that marketplace (along with their servers of course), the Novell/MS deal may be less significant than it now appears.  And besides, the MS/Novell deal is over in 5 years or so.  Now five years is a long time in the industry when it comes to technological development. But it is not very long when you look at the time for a significant customer base to evaluate alternative platforms and begin a movement or implementation.  So by the time we see significant implementations for SLED 10 (11,12,13, etc), this agreement will be on the ropes. And do not forget about Google either.

Clearly Novell and Microsoft thought they each had enough to gain by making the deal.  And it is not too hard to guess what those benefits might be in the short run. But the long run is a bit more difficult because so many other scenarios come into play.

In a complex economy, opportunistic players seem to look for vacuums to fill.  And I would suggest that desktop Linux is still one of those vacuums.  Maybe it is not quite a vacuum just yet. But, it is a huge revenue base for Microsoft Corporation. And that simply means billions in opportunities for others. Xandros is looking. So to is Linspire. And Mandrivia. But, once we have had that "year of the Linux Desktop", a number of additional distributions are likely to jump in as well.  There are enterprise accounts to be earned.  And there are consumer accounts as well. When Microsoft can charge $250 or so for a consumer OS and have the guts to restrict users as they do, opportunities are knocking.



7:48 AM PST - 2 Giants in a Deal Over Linux (NYTimes)

As suspected yesterday the deal with Microsoft was in part a response to pressure from large enterprise customers.  There is no question that customer benefit from cooperation.

6:46 AM PST - The Morning After - Reactions to Novell-MS (Groklaw)

[Also see the joint letter to the Open Source Community from Novell and Microsoft]

In assessing the impact of the Novell-MS agreement, you have to keep in mind what Microsoft detests most about open source and Linux in particular.

It is not so much that Linux is a competing product.  Rather it is that it is free to distribute (as in beer) and it is free to further develop (as in speech).  It is really both.  Open source developers may treasure the free speech aspects of it but many customers only truly benefit from its lower cost, etc.   And that is the problem for Microsoft.  Its R&D is high and it must sell its products in order to pay for that development and earn a profit.  So, for Microsoft, the thought of a freely available alternative technology is scary to say the least.

So when Microsoft looks toward this agreement with Novell, it is looking for ways to slow up or discourage the ongoing technological development in open source products.  Unless, of course, it can benefit from lower cost R&D etc yet retain some proprietary right over the work.

So if you look at this agreement from that perspective it is easy to see how and why Microsoft would exchange some promotion of Linux (SuSE) for a commitment from Novel to pay Microsoft royalties.  Of course the agreement states that royalties go both ways.  As it written now, the bigger payment actually goes from Microsoft to Novell because Microsoft's market is bigger (greater volume).  But, what happens as the SuSE market expands?  Payments start to go back toward Microsoft.

And, as can be observed, this agreement is structured such that it is a promise not to sue rather than a normal cross licensing deal.  And this may be to sidestep restrictions in the GPL itself.

So just what does Microsoft get out of this deal?

Well, it certainly gets some help with its virtualization software. And that it needs.  But, it also gets some needed creditability as far as its so called Open XML efforts.  Microsoft wants to qualify MOOX as an open standard. And perhaps this agreement may provide the necessary support for that.

What does Novell get?

Novell does get some promotion and support from Microsoft.  Certainly those coupons help a lot.  But, The covenants not to sue each other or each other's customers can give Novell substantial help in the marketplace.

But, it does serve to drive a wedge into the Linux marketplace.  So in total, Microsoft is up to its old tricks again.  It certainly tried this by supporting SCO.  But, that effort has failed miserably thanks in large part to Groklaw and the efforts of many individuals as well.  I guess it is yet to be decided how and if this new agreement with Novell will act to limit the growth of Linux or open source software in general.

If you read the response from Red Hat it is clear they do not like the deal.  And it is not just because a competitor has gained a foot up.  It is also based upon principal.  And an effort to honor the spirit of the GPL as well as the literal interpretation.

In the short term some customers will certainly welcome the increased cooperation between a Linux distributor and Microsoft. But in the long run this agreement may only serve to increase the minimum cost to all customers due to royalty payments flowing to Microsoft. Maybe it is a good thing that the agreement is only 5 years or so long.

The pregnant question is whether Microsoft will use this agreement with Novell to sue or hit up those customers, individuals and companies in the open source community that are not covered by the Novell-MS deal.  Certainly Microsoft will make hay out of the claim that its IP is somehow embedded in Linux and potential customers should fear law suits if they do not buy from Novell. So from that perspective it is a wedge into the Linux marketplace.

The question will be how well the rest of the Linux industry can react.  Are their likely to be additional agreements with RedHat, Ubuntu, Mandrivia, Xandros, Linspire, etc?  Frankly I doubt it. But we have seen agreements between SUN and Microsoft already.  And as I recall, that agreement also promised a new era of communication and inter operability.  Has that occurred? Debatably not.

Virtualization will improve between SuSE and Microsoft.  And perhaps Microsoft will gain a MOOX plugin for OpenOffice from Novell at least.  And perhaps some customers will benefit from an improved relationship between Novell and Microsoft.  But, things could get very ugly between Novell and the rest of the Linux industry.

November 2, 2006 - Thursday

3:31 PM PST - Three [maybe four or maybe five] reasons why Microsoft will put Linux on their desktop (Infoworld)

1.  Scenario one: Looking to the future and seeing the proverbial handwriting on the wall, this stops the bleeding of Windows to Linux desktops. (Infoworld)
2.   Scenario two: Did the desktop OEMs push Microsoft toward this deal?
3.   Scenario three: The most intriguing possibility of all. Did increasing sales of Apple Macintosh which now has Intel inside and uses OS X which is a form of Unix which is the parent of Linux, have anything to do with this decision.

or 4. Microsoft may be hiding the fact that they need help with their virtualization strategy, and just might be borrowing off Xen and Novell's investment in it to get there. (Also, InfoWorld but from Paul Venezia)

or 5.  Maybe instead of those OEMs making demands upon MS, a few key enterprise customers have done so?

It is pretty clear what Novell gains by all of this.  And no doubt each of the above suggestions did play some role.  Maybe you could think of a few more?

Maybe MS wants to try one more way to split up the Linux industry and hopefully cause some self destruction?  (Change the SCO horse for Novell?)

Or, maybe the next time a City of Munich comes along they can do a package deal rather than wift completely?

2:37 PM PST - Novell releases FAQs on the deal.

[Please see the FAQ page (above link) from Novell to answer the following questions]

Q. What are you announcing?

Q. What does this mean for Linux?

Q. Will Novell and Microsoft stop competing?

Q. Is this in response to recent events, such as Oracle's announcement about Red Hat?

Q. What are the financial benefits to Novell? To Microsoft?

Q. What are the specifics of the agreement?

Q. Does this mean that Microsoft will now sell Linux?

Q: What does this mean for customers?

Q. Why is the patent agreement important?

Q. The press release indicates Microsoft is also pledging not to assert its patents against individual, non-commercial open source developers. How is this connected to Novell?

Q. How will the technical cooperation work?

Q. What are the main components of the business cooperation agreement?

Q. By making it easy to run Windows virtualized on Linux, isn't Novell undercutting its own Mono project, which shares a similar goal?

Q: What does the patent agreement cover with regard to Mono and OpenOffice?



1:48 PM PST - Microsoft to support Novell's cancer (TheRegister)

Interesting language I suppose. Microsoft has claimed that Linux is somewhat like cancer. I guess now that MS might be including coupons, etc., they may have to throttleback their rhetoric.

And, yes, it does appear that Linux is coming into a new age with Oracle and now Microsoft trying to do their best to somehow partake.  Details still to come, of course.  Interesting  bedfellows for sure.

And I wonder if Novell will end up buying the Delphi/Kylix stuff from Borland.  That deal seems to be under wraps lately.  But, I think Novell would be an ideal candidate to take over for Borland.  Novell does offer Mono and with Delphi/Kylix they could support .Net on Microsoft and Mono on Linux, plug compatible so to speak.

I do not see this as anti-RedHat however.  Unless, of course, there is some effort here to put Novell where Microsoft thought SCO might end up.  Lots of changes seem to be going on.  And Linux is going to be a lot stronger for the wear.


1:00 PM PST - Microsoft to do a Linux deal with Novell? (Cnet, the censorship group)

More news but I guess details will not come prior to 2:30 PM or so today.

The CNet article does mention virtualization. But it also mentions "Microsoft patents" that might be incorporated in Linux.  Interestingly, the article suggests that Novell's antitrust suit against Microsoft is not to be affected by this agreement. (Not completely surprising.) But, no mention is made of possible UNIX license issues.  Of course, Microsoft thinks it paid money for a UNIX V license and it appears likely that Novell will get the funds for that.  So it is hard telling if the SCO litigation came up in discussions.  I would guess it certainly did.  As perhaps the antitrust litigation.  But, sometimes obvious talking points are too premature for resolution.

[Update: An article on Reuters points out that Microsoft did pay Novell for one antitrust charge already.  Some $536 million. But, the WordPerfect claims remain pending before the court.]




12:47 PM PST - Microsoft, Novell reach agreement on Linux: source (Reuters)

Well, I guess we will have to wait for the details.  But, I have no idea what "allow open-source Linux software to work with MS software" is supposed to mean.

My first guess is that dual booting will not be violation of the MS EULA?  Or, perhaps that MS will actually charge money to help SuSE run?  Not very likely.  It could be related to virtualization capabilities as well.

I always laugh with the tech press makes statements but it is not possible to ascertain what is meant by it.  Maybe they do not know?



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