novell and MS- some open questions

I wrote nearly 1500 words on Novell and MS earlier in the evening, but I think I’ll sit on most of them for now as I think them through some more. [Disclaimer: I spoke to Nat on the phone for a bit this evening, and I used to work for Novell, left on good terms, and still have lots of friends there.] Here are the open questions from the end of that post, though:

  • What will the exact terms of the patent non-assert be? (My guess: they’ll be good for individual hackers, and fixable in the future if need be- MS has nothing to fear from non-commercial hackers, and lots to gain politically by making nice with them. Whatever the terms are, it would be silly to act on them in any way until we see exactly what they are- basing action on a press release/FAQ would be insane. :)
  • How will the non-assert interact with the GPL v2, and specifically with GPL/LGPL code written by Novell? (My guess: It is hard to see how this could go well, but Novell has some very smart lawyers who I assume have been thinking about this for a long time, probably playing off the fact that this is technically a positive gift to some folks and not technically a restriction on others.)
  • Will MS extend similar agreements on fair, acceptable terms to everyone who seeks to commercialize open source? Or have they chosen to knight a single competitor in this space? (My guess: they will not make such an offer; this is a divide-and-hold-off tactic, seeking to put Novell on the same footing as Apple- present, with some market share, helping to hold off the antitrust crowd, but mainly harmless. Hard to blame Novell for taking the opportunity, though, even if it does establish precedent that they owe MS royalties on Linux.)
  • Will Novell continue to open the interoperability code they write (like the Evolution Exchange plugin)? (My guess: they’ll continue to open it, but the omnipresent threat of MS’s patents will substantially chill commercial uptake by other vendors.)
  • Does this commit MS to substantive work with ODF, or is Novell’s act of breaking ranks with Sun, IBM, etc. one-sided? (My guess: very hard to know until we see more details, but overall ODF has more to lose here- it must be seen as the choice of ‘everyone but MS’ to have a really good chance of succeeding, so this is damaging to ODF, even though it is clearly very good for Real Users.)

There is a lot to mull over here. I do think Novell’s intent here is positive, and some people are clearly overreacting. But we have to approach it with deep skepticism- any move which privileges one vendor above all others is not MS showing love for Linux, but MS showing love for a single Linux vendor, which is a very, very different thing, and we should keep that in mind. It is clearly good for Novell and MS; likely good (short term) for most users; likely ambiguously good for individual volunteer developers; very ambiguous for the free software community (if you define it to include all of our commercial partners); likely (long term) bad for users who should prefer open standards; likely ambiguously bad for Novell’s competitors. However you want to look at it, it will take a while to sort through all the ramifications, even once we have all the details that are still currently lacking.

[Later: I’ve seen a lot of responses; most of them lacking substance and perspective. Matt Asay’s response seems to be the best of the bunch so far- says sane and substantive things about the business part of it, and doesn’t go into the tricky community-impact minefield that no one is doing a good job of addressing of yet.]

12 thoughts on “novell and MS- some open questions”

  1. I have to disagree with Greg and Luis about the Novell and Microsoft sellout. How can the following (simplified): Microsoft covenants not to sue Novell’s Customers and Subsidiaries’ Customers for infringement under Patents of Microsoft on account of Customers’ use of a Product

  2. A: As you might expect, they run the gamut. GROKLAW and Simon are both skeptical of the motives and pessimistic about the implications, Shankland reports that the deal may be unlawful, Luis has some unresolved questions, while Matt believes it will have little impact specifically on Red Hat or the community more broadly. On the other end of the spectrum, Miguel’s excited about the impact it will have on Mono, Michael

  3. Here is a question I sent to Miguel in response to his request for them:

    You probably have a thousand versions of this question already but just in case:

    The press release/open letter makes mention of patent “coverage” for
    (among other things) Samba and

    It mentions that the protection is for “customers” and “individual,
    non-commercial open source developers”

    However the above mentioned software is distributed under the GPL and
    LGPL respectively.

    These licenses make it quite clear (in the Preamble and GPL section 7
    and LGPL section 11) that any patent licensing must be for “everyone”
    not a limited subset of people as described by the two groups above.

    Has Novell done the right thing in terms of the plain meaning of the (L)GPL?

    The wording in the press releases, FAQs and letter seem very specific
    and don’t seem to indicate that they have. If anything they seem to be
    weaseling (I tried to find a less pejorative word, honest!) around
    clear intent of the GPL by considering a “promis[e] not to assert” a
    patent as something different to a license to use one?

    Thanks for your time (and all the software you have had a hand in that
    I use every day).

    The patent bit is the only bit I don’t get. All the other stuff may or may not make sense but it is their choice to make. But I don’t see how the patent stuff can work with the (L)GPL software they specifically named. If the agreement allows them to use the patent covered software and that allowance isn’t extended to everyone I don’t see how they can continue to distribute the software.

  4. As a lawyer (in training) how important do you think the following statement you made is;

    “even if it does establish precedent that they owe MS royalties on Linux.”

    Would you care to expand on this? I am interested

  5. I’m a bit confused. They way I get it is that Microsoft promisses not to sue Novell customers for any infringement on patents owned by MS used in Products shipped with Novell products. And novell promises not to sue Microsoft or its customers for infringement on Nevell owned patents.

    If I understand this correctly I dont see any problem with the GPL per se. Novell has to grant a patent license for the GPL software anyway, but that does not mean they cant sue for use of their patents in non gpl software. Vice versa Microsoft has to grant a patent license if they release GPL software, otherwise they have no such obligation. And losing right to use GPL software when they do sue is not likely to deter microsoft, since they use the gpl for what?

    So in the end this just means that for the developers covered by the agreement life is simpler, for all others life is the same.

    As for software development by novell and others in the community. I don’t quite see Novell replacing much of the Linux infrastructure with proprietary components because of this. As a commercial vendor on the linux market they are still dwarved by Red Hat and community wise they’re openSuSe isn’t blessed with the largest number of contributers either. Meaning that Novelll needs said community and needs being part of it. Alienating from it will only move it back to where it was pre linux. And we all know how well they were doing there, even though back then I’d pick Netware over Windows servers anyday the market acted differently.

    The only part worrying me a bit is the part affecting ODF, but we’ll see how that plays out. The rest is more Novell covering its legal behinds and getting some cooperation for interoperabilty in the works. I fully expect the fruits of that to show up in GPL software.

  6. John: not precedent in the strict legal sense, just that if at some point they ever have to go to court, it would look bad to a judge to say ‘well, we used to pay them royalties, but now we’ve decided we don’t have to.’ I’m sure they have lots of language in the contract to make sure that it in fact does not create any sort of meaningful legal precedent, though- they’re not dumb. It just looks like a tacit admission that our IP infringes on MS’s.

    Elroy: “So in the end this just means that for the developers covered by the agreement life is simpler, for all others life is the same.” Well, yes and no. That’s exactly what they are going to say to make sure they aren’t bothered by GPL problems. But it’s not just the same for everyone else. For the commercial players, they’ll be getting questions all the time about this, and why their code isn’t covered. For the non-commercial contributors, they’ll have to think twice about going to work for anyone except Novell. It creates another layer of fear and uncertainty that wasn’t there before. Anything concrete? No. But definitely changes things for those people.

  7. Luis: Put that way, yes there probably will be questions asked of other commercial parties like Red Hat and IBM to name two very big ones. But that will fade. It’s just a temporary effect from the media coverage. When the dust settles people will realize nothing concrete has changed.

    As for the noncommercial developers, they may need to realize that with the current patent regime in the US and some other countries as well. They are probably infringing some obscure patent anyway. Nothing has changed for them as well. The only way the could and can be sure is a change in law, and right now the best thing they can do is still avoid reading any patents and just do your thing.

    You fight FUD with facts, not with some of the comments I’ve seen online recently. I was especially disappointed at the tone of the articles on Groklaw, who are usually very good at fighting fud with fact.

    I’m glad to see you keep a cool head and just pose a couple of questions with your opinion on what you think the answer is. If you are wrong people can tell you, as they can when you are right. I really like your comments and your style. it’s why I read your blog and will continue to do so. Whith the whole lawschool thing it can only get better :)

    Just don’t all Cry Havoc and let slip the dogs of war ;) before all the facts are out.
    (The military order Havoc! was a signal given to the English military forces in the Middle Ages to direct the soldiery (in Shakespeare’s parlance ‘the dogs of war’) to pillage and chaos.)

  8. “Put that way, yes there probably will be questions asked of other commercial parties like Red Hat and IBM to name two very big ones. But that will fade. It’s just a temporary effect from the media coverage.”

    There are strong reasons to think it won’t fade. Specifically, there is no commercial benefit to Novell if it fades, and very strong commercial benefit to Novell if it doesn’t fade. So why would it? If they are serious about fulfilling their fiduciary duty to their shareholders, Novell’s advertising will strongly feature their patent guarantees- and by implication note that businesses who use RH and Oracle Linuxes are patent violators. I’m not sure what the practical impact of this would be- possibly nothing. But I think Bruce has it mostly right in his post– the impact is likely very large, at least politically if not on the community.

  9. […] Even that this is just a big conspiracy theory here are two opinions that I find a lot interesting: Miguel de Icaza (well known OSS hacker and Novell’s employee, via his personal blog) and Tom Wickline (WINE lead developer, via The Inquirer) express their own thought about it, but pay attention to the fact that different points are discussed. As a “paused” .NET developer, specially over Novell’s Mono (free .NET implementation that runs on Windows, Linux, MacOS ando others), I’m greatly interested in seeing what Microsoft might bring to this great project, but as a Linux/OSS enthusiast I’m scared about what can happen if Mr. Tom Wickline is right once that things point already to a possible step back on ODF support by Novell in favor of OfficeXML. You can find another very interesting opinion at Luis Villa’s blog. […]

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