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Some more details from Novell
Here's a new press release from Novell on its Microsoft deal. The company is getting almost $250 million from Microsoft up front. There's some real weasel words with regard to the GPL: "Under the patent cooperation agreement, Novell's customers receive directly
from Microsoft a covenant not to sue. Novell does not receive a patent
license or covenant not to sue from Microsoft, and we have not agreed with
Microsoft to any condition that would contradict the conditions of the GPL.
Our agreement does not affect the freedom that Novell or anyone else in the
open source community, including developers, has under the GPL and does not
impose any condition that would contradict the conditions of the GPL." Some serious hair-splitting is going on here.
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Some more details from Novell Posted Nov 8, 2006 0:30 UTC (Wed) by ronaldcole (guest, #1462) [Link] Well, I certainly don't want to enter into a patent cooperation agreement directly with Microsoft without some "consideration". And considering that Novell is getting $250M from Microsoft for what? nothing? then I'll expecting substantially more "consideration". I hope Ballmer brought his checkbook!!
Novell sells more than Linux Posted Nov 8, 2006 2:43 UTC (Wed) by berryji (subscriber, #5206) [Link] From what I read Novell is selling 70,000 SLES subscriptions to Microsoft for the US$240M, at almost US$3500 each. This doesn't appear to be patent-related income and would fall in the Exporting Coal to Newcastle category.
The patent income is separate - US$108M from Microsoft to Novell, and at least US$40M from Novell to Microsoft (over 5 years). Don't forget that Novell has proprietary-licensed products that may well account for the Patent Cooperation Agreement ("based on percentages of Novell's Open Platform Solutions and Open Enterprise Server revenues"). In addition to SLES, these include NetWare and the traditional Novell services that run on top of either NetWare or SLES.
Some more details from Novell Posted Nov 8, 2006 0:55 UTC (Wed) by BrucePerens (guest, #2510) [Link] The form 8K is on Edgar. It gives a sentence or two about the patent agreement. It looks to me as if this is a "license by any other name". It's difficult to see why this would not be considered to be a violation of the GPL terms. If FSF were to use that to enjoin Novell from distributing the C library, Novell would be sunk.Bruce
premature, I think Posted Nov 8, 2006 1:24 UTC (Wed) by JoeBuck (subscriber, #2330) [Link] The problem is that we are in the dark as to what the alleged patents are, or what the alleged license is. If the FSF tried to block distribution of the C library, couldn't Novell reply that they know of no issue with the C library, haven't made any deal concerning the C library, etc? They could play the same game with any other individual.It seems clear to me that if Microsoft threatens someone for use of the Linux kernel, and Novell then officially tells its customers that they are safe, that the Linux copyright holders could terminate Novell's license. But maybe there's nothing to stop Novell from hanging out in vague-language-land. They could claim, for example, that the real asset they are seeking to protect is Mono, which Novell owns and isn't GPLed, and any implication that they were talking about Linux was a misunderstanding. Pinning them down could be like nailing Jell-o to a wall.
premature, I think Posted Nov 8, 2006 3:53 UTC (Wed) by BrucePerens (guest, #2510) [Link] So, go looking for a patent in Microsoft's portfolio, at uspto.gov, that GNU LIBC might presently use but that we could do without. I'm sure you could find one.Thanks Bruce
premature, I think Posted Nov 8, 2006 5:30 UTC (Wed) by notamisfit (guest, #40886) [Link] Just out of curiosity, have there ever been any patent audits of the GNU/Linux system? I remember a bit of flap a few months back about MSFT being granted a patent on the whole VFAT long/short filename thing, but it seemed to blow over real quick.
premature, I think Posted Nov 8, 2006 5:58 UTC (Wed) by BrucePerens (guest, #2510) [Link] Dan Ravicher did one in which he found some 283 patents that potentially could read on Linux, two years ago. None of them had been litigated for validity. He can't show it to you, due to the triple-damages issue - if we know about specific infringed patents, we can be made to pay more in a lawsuit. This is a pernicious element in the law. I have not seen it either.Bruce
Software patent in US are simply pernicious Posted Nov 8, 2006 10:02 UTC (Wed) by frankie (subscriber, #13593) [Link] The true fight for FSF should be simply lobbying to remove sw patents in US. We had successfully do that in EU, and that needs to be done in US as well.
premature, I think Posted Nov 8, 2006 6:14 UTC (Wed) by drag (subscriber, #31333) [Link] Nobody in their right mind would ever volenteer for a patent audit. It's insane.
It's going to cost a lot. It's unlikely that it will actually protect you or find all possible violations, it's just as likely to make you MORE liable. etc etc.
If you do end up finding a big patent then then best case scenerio is that you end up having to rewrite a significant portion of your program.
Also then keep in mind that every person who is trying to use or redistribute software from your code pre-rewrite is now unable to use it.
Now imagine some moron actually takes Bruce's horrendous advice and goes and finds a very obvious patent violation on GNU Libc or whatever.
This would not only make it impossible for Novell to distribute the software, but also it would make it impossible for Redhat to distribute the software, because if they do it's very likely that they would get sued by the patent holder (which now knows about it and will probably be greedy about it)
So Redhat would have to rewrite Libc to work around patent violation and then hurries up and releases Redhat 5 "the non-patent encumbered version" and everybody who is using Redhat 4 and 3 and 2 and earlier versions now have to delete that software. They can't distribute that anymore. For their customers still using that software they would probably have to re-release those versions also with a non offending libc.
Debian would have to delete their software also. They'd have to recompile everything around the new library or face lawsuites. They'd loose the right to distribute the GPL'd software just like Novell did. Everybody who uses any software with GNU Libc that distributes anything would have to cease and desist until they can replace everything that uses the patent violating portion of the Libc and release everything with the rewritten libraries...
And you could imagine what would happen if the change was significant enough that it was no longer backward compatable for whatever reason!
And Novell would be able to just as easily keep distributing the non-patent violating version, just like everybody else.
It would accomplish nothing except cause a gigantic amount of greif, waste money, waste of time, and have a huge disruptive effect on the community.
premature, I think Posted Nov 8, 2006 6:35 UTC (Wed) by BrucePerens (guest, #2510) [Link] Nobody in their right mind would ever volenteer for a patent audit ... it's just as likely to make you MORE liable. etc etc.1. Someone already did it. He did not publish the list of patents, and thus protected the rest of us from increased liability.
premature, I think Posted Nov 8, 2006 6:55 UTC (Wed) by drag (subscriber, #31333) [Link] "Doctrine of Laches", eh?
So basicly your saying that in order to screw over Novell, without screwing everybody else over, I'd have to find a patent violation that is invalid because the patent holder (Microsoft) let it slip for so long that a judge may end up throwing it out of court.
What is going to stop Microsoft from just saying that the violating function in the code was non-obvious enough that it was hidden from them so that this is news to them and they are now well within their rights to persue licensing terms or get a cease and desist order?
I think that if I were to publicly release knowledge of a patent violation and Microsoft acted on it immediately there would be no way to successfully pull a laches defense.
As a defendant you would have to prove that Microsoft was negligent in persuing a claim. The burden is on the defense to prove laches... If Microsoft acted quickly after a claim became public how I would prove that they were secretly sitting on this in private?
And if I could find a patent violation that at the same exact time was easily proven to be a invalid claim then how would this help prove that Novell was violating the GPL?
The whole thing doesn't make any sense.
diclosure Posted Nov 8, 2006 7:04 UTC (Wed) by Ross (subscriber, #4065) [Link] Is there any way to force Novell (or Microsoft) to disclose the alleged infringements? It seems like their statement that they exist plus making an arrangement where the software in question continues to be distributed might create some sort of obligation, but I can't think of anything concrete.
diclosure Posted Nov 8, 2006 11:18 UTC (Wed) by lmb (subscriber, #39048) [Link] Neither Novell nor MSFT admit to any infringements. If Novell learned about a patent violation in the code - even though MSFT has agreed not to sue the customers - the code would still be rewritten.
diclosure Posted Nov 8, 2006 13:56 UTC (Wed) by louie (subscriber, #3285) [Link] But they give the appearance of admitting infringements, which is what matters for purpose of FUD against their competitors.
diclosure Posted Nov 8, 2006 15:48 UTC (Wed) by riel (subscriber, #3142) [Link] OK, lets use an old maffia movie as a parabel for this situation. "See that shipping container over there? My lawyers tell me there are patents in it. I have not read any of them and I am sure you do not want to do that either, but with this many patents I am pretty sure you must be infringing on something. Right?
By the way, you have a really nice data center. It would be a shame if something were to happen to it..." This tactic has been used before by other large patent holders. By being deliberately vague about which patent (or patents, or none) could be infringed, or even about which software is alleged to infringe on any patent, it becomes impossible for the "accused" (who has not been accused of anything) to defend himself. This way the large patent holder can play "patent poker" with the other players, bluffing their way to the easy money without ever showing their cards to anybody. Luckily for them, patent law and the price of patent lawsuits mean that nobody will ever call their bluff and ask to see the cards... Chances are Microsoft is perfectly happy to just go around and collect the easy money from all the players who fold early and stop at that. After all, there is a risk in showing your cards and no good reason for them to go through that trouble.
Some more details from Novell Posted Nov 8, 2006 8:44 UTC (Wed) by gravious (subscriber, #7662) [Link] As <b>berryji</b> pointed out Novell sells proprietary as well as Open Source code. We have no way of knowing at the moment whether Novell truly messed up. Let's leave the accusations of violation for another time, shall we? The royalty payment could easily cover non-Open Source products. From their website they seem to have in the range of 350 products. The reaction to this deal is melodramatic and hysterical. What amazes me is that Microsoft could have rolled their own distribution for a small fraction of the price. Maybe going with an existing presence gives them more credibility. Anyhow - this day had to come sooner or later, let's keep our undies on, huh?
Some more details from Novell Posted Nov 9, 2006 11:21 UTC (Thu) by drag (subscriber, #31333) [Link] Probably helps Microsoft to keep pressure on Redhat and Oracle and such.
Having a strong #2 keeps the #1 weaker type of thing. Standard sort of business activity.
Plus they probably knew that the self-destructive self-rightous (think Debian developers seemingly to almost purposely trying to delay stable release through politics) elements of Linux community would come out in force after a deal like this.
Microsoft blows 300 million dollars every time they feel like collectively scratching their asses, so it's not a big deal.
Basicly if you made 25,000 dollars a year, this is the same as lending your neighbor 150 dollars or something like that. It's not a tiny amount, but it's not that big of a deal either.
Some more details from Novell Posted Nov 8, 2006 1:24 UTC (Wed) by bojan (subscriber, #14302) [Link] Ah, weasel words indeed!
Let's get one thing straight first - a covenant not to sue is a promise not to sue. This is called a licence! A patent licence in this case.
So, Novell's press release boils down to this: the customers get a patent licence directly from Microsoft, paid for by Novell. The question is: can any of the customers pass those rights from the patent licence, to any people they distribute the software to? No, they cannot - it applies only to them.
Looks like a potential violation of GPL to me, if there is to be a court judgement or an allegation of patent infringement by Microsoft. Violation by whom? Well, it would seem that Novell here wants to pass the buck to users, saying: "Look it's not us that have the licence, it's them - we're not in violation."
Here is a scenario:
1. Microsoft alleges that something in FOO infringes their patent(s).
2. Novell's customers have a patent licence (ie. Microsoft promised them not to sue), however, they cannot any longer make royalty-free distribution of FOO, as the licence isn't transferrable to others.
3. Instant GPL violation, therefore those customers cannot distribute FOO at all.
Does that sound right?
Some more details from Novell Posted Nov 8, 2006 1:38 UTC (Wed) by ncm (subscriber, #165) [Link] Not only that, then Novell can't distribute any more either. Just by suing any random Linux user, MS can put Novell out of business. For the executives at Novell, I guess that's OK, once they've pocketed their cut of the $250M. Beyond that, MS gets to make the FSF shoulder the blame for shutting down Novell.
What's more likely is that MS won't sue, and just rely on FUD.
If MS does sue, it seems more likely that the FSF will demand that Novell indemnify everyone that MS doesn't, including the defendant, as a condition of continuing to distribute their code.
So, in practice, it's business as usual, except that some Novell suits get a nice bonus, and any remaining Suse customers get to pay an MS tax.
Suse users aren't even safe. Posted Nov 8, 2006 3:42 UTC (Wed) by AJWM (guest, #15888) [Link] Are they? Novell has a license^Wcovenenant from MSFT not to sue its customers. MSFT goes ahead and sues customer A.
What will Novell do? What can Novell do? It's not a party to the suit. Sue MSFT in turn? For what? Why bother?
What can customer A do? It has no explicit grant from MSFT. Can it argue "but you promised Novell you wouldn't sue customers"? MSFT would just say that that's Novell's problem, not A's. Doctrine of laches? Well, maybe -- but what is the exact wording, and do you really want to drag out a lawsuit with MSFT?
Of course, it _still_ remains to be shown whether MSFT really has any IP at all in Linux et al, or whether this is just a grand FUD scheme. Certainly worth a few hundred million to MSFT, what with Vista about to be released and a couple of pending lawsuits with Novell to settle anyway.
I'd also be interested in seeing Novell's reaction once it starts receiving cease & desist letters from GPL'd code copyright holders -- bearing in mind that every copy they distribute after getting one of those is, if found to be infringement, _willful_ infringement.
Suse users aren't even safe. Posted Nov 8, 2006 4:10 UTC (Wed) by drag (subscriber, #31333) [Link] Don't say 'IP'.
When you mean software patents then say software patents.
'IP' means anything from copyrights, trademarks, trade secrets, cross licensing scemes, and all sorts of different things that are covered under all sorts of different rules and have different effects if your violating them. It's a meaningless term.
And it would be sad to see Novell go as Novell has been a huge asset to the Linux community. Much more then, say, IBM has.
Cross licensing scemes dealing with patents are standard fair for big software companies. Since there is no even remotely reliable way to tell weither or not your violating somebody else's patents then the only solution that these guys have come up with is just to cross license everything. IBM gives Microsoft money in exchange for patent licensing, Microsoft pays IBM money for their licensing. Now IBM can't sue Microsoft and Microsoft can't sue IBM.
The worst mistake that Novell has done so far is trying to play this up like it's a good thing. They realy don't have much choice in it, it's almost a nessicary evil. They should of kept fairly quiet about it.
As for it violating GPL and such I remain very much unconvinced.
Suse users aren't even safe. Posted Nov 8, 2006 5:56 UTC (Wed) by leoc (subscriber, #39773) [Link] Novell has been a huge asset to the Linux community. Much more then, say, IBM has.Is that including the $50 million dollar charity investment IBM made in Novell back in '04 that allowed them to continue to exist?
Suse users aren't even safe. Posted Nov 8, 2006 7:49 UTC (Wed) by drag (subscriber, #31333) [Link] Maybe, but does the $240 dollars Microsoft just dumped into Novell mean that all of a sudden mean that MS is better them IBM?:-) In fact it seems that that deal with IBM seems very similar to this one. So Novell was able to more easily integrate with IBM's servers and Middleware (which I suppose is all propriatory software) with that deal. With this deal they are now more easily able to integrate with Microsoft's desktops and Office and whatever the hell else was going on. Except for the patent stuff, which I have mixed feelings, this is may be a good thing. Most people realy do need Linux to integrate well with Windows. Windows certainly ain't going to go anywere soon, being on 95% of all desktops and all that. Anything that anybody can do to make Linux admin's lives easier in this regard is a big boon. So it looks like this was a good move on Novell's part. Except for the patent business I suppose, which I don't know much about at this point. One thing that I am curious about is this OpenOffice.org "Office XML" filter that they are going to make. Is this going to be open source? Does anybody know the licensing of it?
Suse users aren't even safe. Posted Nov 8, 2006 17:40 UTC (Wed) by AJWM (guest, #15888) [Link] Read the "IP" in my message as "Infrastructure Patents", where infrastructure in this case means the underlying software.
Happy now?
Patents and the GPL Posted Nov 8, 2006 7:42 UTC (Wed) by sveinrn (guest, #2827) [Link] If Microsoft identifies specific GPL components of Suse Linux that is violating specific Microsoft patents, then Novell must clearly either rewrite those components, challenge the patents or stop distributing the components.
But if no such cases are known to Novell, are they still in violation of the GPL?
Patents and the GPL Posted Nov 8, 2006 13:18 UTC (Wed) by jondkent (guest, #19595) [Link] Simple answer would be no. It has supprised me how people have reacted to this whole thing without knowing any details. Groklaw went down a peg with me with the stories they ran without any thing to back up the statements and Bruce is all over the place. Novell the new SCO!!! Thats the most idiotic statement I've seen so far.
Although this is messy, GPL violation is not a problem here IMHO, its the preception thats the problem. If patents do become an issue Novell is screwed, but then so is everyone else, but there is nothing to stop the problem being coding around.
Basically it looks far far worse than it really is and maybe everyone should take a step back and look at the details before commenting.
Some more details from Novell Posted Nov 8, 2006 9:13 UTC (Wed) by arjan (subscriber, #36785) [Link] From the GPL:
Finally, any free program is threatened constantly by software
and
For example, if a patent
The GPL doesn't care if you don't license it to yourself.....
Some more details from Novell Posted Nov 8, 2006 9:36 UTC (Wed) by sveinrn (guest, #2827) [Link] > if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you
But in this case there doesn't seem to be any specific patents covering any specific part of Linux. So I don't think Novell is in real trouble before they start telling people that they are not allowed to redistribute parts of SLES due to patent violations.
So could it be that Microsoft is really targeting software that is not GNU-licensed? After all, many of the server components that is perceived as a threat to Microsoft is not under the GPL at all. Could Novell end up as the only legal distributor of LAMP/LAPP?
Some more details from Novell Posted Nov 8, 2006 13:20 UTC (Wed) by pzb (subscriber, #656) [Link] For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.As far as I see, from what Novell and Microsoft have published, there is no requirement that anyone pay a royalty for distribution. Novell is paying Microsoft so provide something, but it does not impact distribution.
Some more details from Novell Posted Nov 8, 2006 14:03 UTC (Wed) by arjan (subscriber, #36785) [Link] this argument went out of the moment the microsoft and novell sales people started telling customers the contrary (and yes that has happened already; these folks caught on quick)
Some more details from Novell Posted Nov 8, 2006 12:41 UTC (Wed) by icin (guest, #28193) [Link] LOL - The whole patent thing is laughable, it reminds me of the Mutually Assured Destruction (MAD) rationale for everyone have nukes. Everyones got a patent but no-one wants to use them in anger.
Some more details from Novell Posted Nov 8, 2006 13:24 UTC (Wed) by nix (subscriber, #2304) [Link] ... except it doesn't work: patent trolls can sue with impunity because, as they don't make anything, they can't be infringing any patents.
Some more details from Novell Posted Nov 8, 2006 15:41 UTC (Wed) by meffie (guest, #3120) [Link] In fact, it is called MAD by the patent attorneys. This is the strategy practiced between large companies.
Some more details from Novell Posted Nov 8, 2006 18:18 UTC (Wed) by MisterIO (guest, #36192) [Link] I really hope that this patent s..t will never come to the EU!If you moved your servers(I mean those of every distribution)out of the US,for exaple to a EU country,wouldn't you solve all these idiotic problems?Why don't you move the software production industry from the US to the countries that don't have these kind of problems to signal this big problem as a real problem for the economy of your country?
Some more details from Novell Posted Nov 8, 2006 20:43 UTC (Wed) by sholdowa (guest, #34811) [Link] Dunno, Spamhaus might, though (:
Some more details from Novell Posted Nov 8, 2006 19:59 UTC (Wed) by zealot (guest, #37421) [Link] So "Novell does not receive a patent license or covenant not to sue fromMicrosoft, [...]". I wonder what's the difference between a patent license and a "covenant not to sue", and I suspect the latter is just an euphemism for the former. Novell allegedly does not violate the GPL, but what about their customers? "Under the patent cooperation agreement, Novell's customers receive directly from Microsoft a covenant not to sue." If "covenant not to sue" is supposed to mean patent license, Novell's customers might be in breach of the GPL as soon as they distribute or modify any GPL'ed software! Not exactly what you'd expect from your average Linux distributor...
P.S: bojan already had the same idea earlier in this thread, and lays it out better
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