What Microsoft and Novell agreed to [LWN.net]

Since last November, there has been much discussion of the deal between Microsoft and Novell. To an extent, it has all been talk in a vacuum, since the actual text of the agreement has not been available. That has finally changed, however; the terms of the agreement have been released as part of Novell's (delayed) annual regulatory filings.

It turns out that there are three different agreements: the patent cooperation agreement granting the patent non-licenses, the technical collaboration agreement describing the technical work each company will do, and the business collaboration agreement on the business arrangements. In the case of any disagreement between the agreements, the patent agreement wins out over the other two, and the technical agreement beats the business agreement.

We still do not get to see the full set of terms; they have been redacted, heavily in some places. So one is left trying to make sense of text like:

*** will exercise its *** to *** by no later than *** that (i) the *** OpenOffice (version 2 or later) *** does or will *** Office Open XML format ("Open XML"), and (ii) it will make a *** *** If *** does not *** it will *** within the same time frame that *** in the *** on a*** to *** Open XML. *** will provide its *** to*** at least *** in advance of *** The *** will be *** not to be *** will provide *** in the *** will *** of such *** the Term, including through *** in the *** is defined in the Business Collaboration Agreement.

Fortunately, the bulk of the agreement has not been so heavily obscured.

The core of the patent agreement is about what one would expect, given the conversation over the last six months:

Subject to the Parties' compliance with the terms of this Agreement, each party on behalf of itself and its Subsidiaries ("Covenanting Party") shall, under the terms set forth in Exhibit A, covenant not to sue the other Party's Customers ("Covenanted Customers") for infringement of Covered Patents of Covenanting Party on account of such Covenanted Customers' use of Covered Products of the other Party.

Of course, there's no end of fine print which should be read by anybody wanting to rely upon this non-license. To begin with, Novell's customers only get the non-license from Microsoft for as long as Novell complies with the terms of the agreement. Many of those terms - especially in the termination section - are blanked out. If Novell and Microsoft get into a big disagreement in the future, the non-license could vanish overnight.

The definition of "Covered Products" is complex and full of exclusions. In particular, "clone products" are not part of the deal:

"Clone Product" means a product (or major component thereof) of a Party that has the same or substantially the same features and functionality as a then-existing product (or major component thereof) of the other Party ("Prior Product") and that (a) has the same or substantially the same user interface, or (b) implements all or substantially all of the Application Programming Interfaces of the Prior Product.

Certain possible clone products shipped before the signing of the agreement are excluded from this definition, but four (Wine, OpenXchange, StarOffice, and OpenOffice) are explicitly excluded from the exclusion - though there is a complicated dance to the effect that those products are not necessarily clone products either. "Foundry products," seemingly being those which are developed by third parties, are excluded. Then, there's the "other excluded products" which include web-based office productivity applications, video game consoles, business applications ("such as accounting, payroll, human resources, project management, personnel performance management, sales management, financial forecasting, financial reporting, customer relationship management, and supply chain management"), "unified communications," and, interestingly, mail transfer agents. If you are a Novell customer running sendmail, and Microsoft claims patents in sendmail, you can still be sued.

There's a few other details; the non-license is, unsurprisingly, not transferable. There is an explicit clause that neither party is acknowledging any infringement or even that the other side's patents are valid. Lots of details on what happens when companies are acquired or spun off. And so on. Novell has recently stated that the company itself remains as open as ever to patent infringement suits by Microsoft, but that's only partly true: both companies have forgiven each other for any infringement which may have happened before the agreement was signed. There is one exclusion here: there is no forgiveness for distributing Wine.

One last thing worth noting: at OSBC, both Novell and Microsoft refused to comment on the possible impact of GPLv3, saying that it was inappropriate to talk about a license in draft form. Novell is a little more forthcoming in the "risk factors" section of its annual report:

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

The technical cooperation agreement contains relatively few surprises. Each company commits to working to make the other's system work better as a virtualized guest. There will be a special "shim" layer which implements Microsoft's top-secret hypercall API and glues it to Xen or another hypervisor. There will be information sharing on management interfaces for virtualized guests. An "optimization innovation laboratory" will be set up on the U.S. east coast to "showcase, test, and validate" the various virtualization efforts. There is an effort to collaborate on directory and identity management. And there is cooperation around the Office Open XML format; the first term of this agreement is the highly redacted section quoted above, so it's hard to tell what is really going on.

The business cooperation agreement talks about creating a joint marketing plan to sell the various activities described in this deal. Microsoft will kick in $60 million to make this marketing happen; Novell gets to decide how some of that money will be spent. The two companies promise to endorse each other's offerings. Microsoft will be tossing in another $34 million for a sales force trying to sell the combined offerings. There is a special term prohibiting either company from selling the combined Linux/Windows package as a single unit. Each company must separately license its part of the offering to the customers.

Microsoft commits to buying $240 million in SUSE Linux certificates. This section is highly redacted ("Microsoft may also *** through the *** in which case an *** will be *** from the *** for the *** in the Term") so there's a lot of presumably important details we'll never know about. Novell gets an exclusive deal in that Microsoft promises not to make any similar deals with other Linux distributors for three years.

The bulk of this set of agreements really is as boring as some people have claimed. It's two companies trying to make their products work better together and to increase the market for both. The patent agreement is worth some study, though, especially for anybody who is tempted to rely on it to make their business somehow safer. The exclusions from coverage by the non-license have not been highlighted by any of the PR from either company, but they do very much affect the real nature of the coverage provided. The complicated dance around exclusions may just be lawyers trying to nail everything down, or it may indicate a deeper agenda somewhere. For those of us wondering what is really going on, the release of the text of these agreements may have shed rather less light than we would have liked.

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What Microsoft and Novell agreed to

Posted May 29, 2007 1:56 UTC (Tue) by JesseW (subscriber, #41816) [Link]

I think you may be mis-reading our editors and PJ's views; they don't seem that far apart to me. PJ has said that much of the agreement is nothing special, that it is camouflage by MS and bait to sweeten the deal for Novell -- which is a point I don't think our editor would argue with. Also, if you read our editor's opening statement at the OSBC panel (http://lwn.net/Articles/235770 ), he makes it clear that he considers the deal important, and an attack on FOSS. I don't see a big divergence in views...

compromise view

Posted May 29, 2007 2:00 UTC (Tue) by qu1j0t3 (subscriber, #25786) [Link]

It's clearly a typical thought-out sneaky business deal. There, everyone's satisfied.

PJ has two qualities that impress this regular GL reader. She hasn't been wrong yet; and she has more integrity in her toenail than her reptilian targets can imagine.

compromise view

Posted May 29, 2007 2:17 UTC (Tue) by elanthis (subscriber, #6227) [Link]

"she has more integrity in her toenail than her reptilian targets can imagine."

Having read through the comments on many of her articles and seen her very strong personal attacks on posters who merely happen to disagree with her, even in a very polite, thoughtful, and non-confrontational manner, I no longer feel she has an ounce of integrity. Where as before I saw her as a sleuth-hound of justice, I now see her as frothing at the mouth.

compromise view

Posted May 29, 2007 8:45 UTC (Tue) by HenrikH (guest, #31152) [Link]

Could you please share some links to such evidence? I does my self read alot of the comments on Groklaw on a regular basis and must have missed here personal attacks completely.

compromise view

Posted May 29, 2007 14:48 UTC (Tue) by amikins (subscriber, #451) [Link]

I don't have a URL on hand, because this was some time ago, but I registered to post a concern on Groklaw some time ago that the bias was getting extremely apparent in her statements -- since it's been clear to me for quite some time that she's no longer after 'the truth' but 'the proof'. The truth is already decided in her mind, and she's just running around with her confirmation bias.

Well, pretty much immediately, my account was deleted, and she dismissed me as a MS troll.

I found this somewhat offensive, as I've been a staunch Linux supporter for years, and you can still find some of my registered posts here on LWN going back over four years. And that doesn't include any posts I made back before then as anonymous.

I'm not a particularly active member of this community, but I'd like to think I still count as a member.

compromise view

Posted May 29, 2007 16:46 UTC (Tue) by flewellyn (subscriber, #5047) [Link]

So you trolled her site and then were shocked! SHOCKED! when she reacted by treating you as a troll?

What was that you were saying about confirmation bias, again?

compromise view

Posted May 31, 2007 0:26 UTC (Thu) by amikins (subscriber, #451) [Link]

"So you trolled her site..."

I'm really quite puzzled. What is "trolling"? I'd always heard it defined as a personal attack, or a statement set up to get one in return (flamebait, and the like). When did the definition expand to include dissenting opinions and a different viewpoint?

compromise view

Posted May 31, 2007 22:36 UTC (Thu) by giraffedata (subscriber, #1954) [Link]

Trolling is posting with the goal of getting not just a response, but a flood of them. Some people enjoy that kind of power. An easy way to troll is to post a dissenting viewpoint to a non-objective forum. It's impossible to tell from the content of a post whether it is a troll or not, but of course if a reader is so biased that he can't possibly believe the poster really believes what he said, that reader would have to assume it is a troll.

I guess some people have confused the wrongness of trolling with the idea that it's impolite to interrupt a group's festival of agreement with an opposing argument.

My guess is that the latter is the reason your post, and participation in the forum, was inappropriate and calling it trolling was just an error.

compromise view

Posted May 30, 2007 10:06 UTC (Wed) by NigelK (guest, #42083) [Link]

Agreed. It's got so bad that, in far too many people's eyes, there are only the following categories of poster:

* those who agree with a site's viewpoint (be it Groklaw or whoever else)

* those who troll

* those who are paid to post various points of view

Rarely do you get someone with a different viewpoint respected in a forum unless they have a proven track record of helping out a community - we're talking Torvalds-level, here, and even then I'm seeing too many comments along the lines of him only having various viewpoints because some companies give him money.

Lots of people have problems with Groklaw's stance on the MS/Novell deal, Tivoization, binary blobs, GPL3, MS technology support, editorial style, etc, etc. It is wishful thinking to be able to dismiss them as trolls and shills - surely people can just disagree without one group trying to silence or smear the other?

As an exercise, chew on this: when was the last time Groklaw criticized anything that the FSF did? Considering how controversial the FSF's views and actions are, why is it so surprising that so many people disgree with them? And why is it so surprising that so many people disgree with Groklaw sometimes as a result?

"trolls" and group-think

Posted May 30, 2007 16:13 UTC (Wed) by zlynx (subscriber, #2285) [Link]

I agree.

On far too many Internet discussion areas, whether they are email lists, web forums, or newsgroups, people who disagree with the group are excluded.

They are labeled as trolls or shills and forcibly ejected from the group, or they are shouted down or flamed until they leave.

Then the group congratulates themselves on how all right thinking people agree with them. After all, you don't see anyone disagreeing, do you?

What these groups need is a disinterested moderator who will point out the good and bad facts and arguments of any side and enforce politeness. Unfortunately moderators are human too with their own opinions.

Someone needs to design an open-source discussion moderator AI. :)

compromise view

Posted May 29, 2007 4:39 UTC (Tue) by bronson (subscriber, #4806) [Link]

she has more integrity in her toenail than her reptilian targets can imagine.

Did you read Novell is forking OpenOffice!!? I can think of one or two other borderline lies pushed by Groklaw. Don't get me wrong, P.J. is amazingly good at what she does, but she does cross the line once in a while.

Don't misquote, please.

Posted May 29, 2007 5:02 UTC (Tue) by khim (subscriber, #9252) [Link]

If you'll go to the link supplied you'll see that correct line is Novell "Forking" OpenOffice.org - there are quotes around the word forking. And the press-release clearly says "Novell’s OpenOffice.org" so it's not PJ's invention either. It's still not clear if Novell will try to add Open XML to OpenOffice.org or if it'll create separate Novell's edition with this support embedded.

There are saying: "don't stop to tie shoe-laces in the middle of neighbor's plantation". Novell clearly did just that: even if his intentions were pure (and that's sill unclear) they were presented in such a way as to look highly suspicious. And PJ guessed the worst. We all had no idea what the actual goal of agreement is (we still don't) so how can you blame her ?

compromise view

Posted May 29, 2007 8:34 UTC (Tue) by nim-nim (subscriber, #34454) [Link]

If you'd followed the Openoffice.org story for some time you'd have known Novell has effectively maintained an Openoffice.org fork for many years now.

It used to exist because the SUN upstream was awfuly slow at integrating changes needed by Linux users. Upstream changed and the fork could have been slowly de-emphasised. Instead it's been re-oriented to include features purely Novell-specific. To my knowledge Groklaw's coverage of this bit is essentially correct.

compromise view

Posted Jun 4, 2007 9:02 UTC (Mon) by jschrod (subscriber, #1646) [Link]

No, it is not correct.

PJ wrote: Novell *will* fork OO, and implied heavily that the support for OOXML is the reason for it and that this fork is enabled by the patent agreement.

Follow the link and read the story that starts with "Well, if there are any Novell supporters left, here's something else to put in your pipe and smoke it. Novell is forking OpenOffice.org."

That Novell maintains a branch of OO since many years, is not mentioned in the article at all. It was brought up by readers in the comments, but no update to the actual article was added by PJ. Instead, an update added a further slur.

In addition, your naming of Novell's branch as a "fork" is smelling suspect. Novell contributes heavily to OO's code base and most of their contribution has been tested first in their branch. Usually one calls that situation only a fork if the respective parties don't try to keep their code lines in sync, which is the case here. Or do you also name Andrew's -mm kernels a "fork" of Linux?

Joachim

FYI: I have no business connection to Novell, besides being a (paying) user of SUSE Linux. Many years ago, I know some developers at SUSE, with Olaf Kirch (we go to the same pub ;-) the last one left a few months ago. I answer to your post because I remember this frothing article from PJ as well; it was the tipping point where I thought "now she's gone over the line in the Novell/MS story."

compromise view

Posted Jun 4, 2007 10:00 UTC (Mon) by nim-nim (subscriber, #34454) [Link]

A fork is a fork and there's nothing pejorative about it. That's how people @sun and @novell call Novell OpenOffice. Sorry if it hurts your feelings

compromise view

Posted Jun 4, 2007 10:48 UTC (Mon) by jschrod (subscriber, #1646) [Link]

A fork is a fork and there's nothing pejorative about it.

Of course, that's right. I'm a contributor to XEmacs since its 19.* days when it was called Lucid Emacs and Jamie ran the show, and this is clearly a project that was never afraid of calling itself a fork. The Novell OO story is different, though. Nevertheless, it may be that you, in your personal dictus, call all branches forks; that was why I asked you if you consider Andrew's kernels a fork. But sadly, you chose not to answer that.

That's how people @sun and @novell call Novell OpenOffice.

Would you please care to back that up? For a start, do a Google search for "novell openoffice fork" on the three sites openoffice.org, sun.com, and novell.com. The search results do not support your statement.

Actually, I don't even need that. If your personal usage of "fork" includes all changes to projects that are independently released, I'm fine to use that meaning for the sake of discussion with you; even though I don't consider that interpretation of the term "fork" as mainstream.

See also David Wheeler's essay or the Wikipedia entry on forking. The keywords used to describe forks are usually competing, independent, and distinct piece of software. While I see them in the FSF Emacs/XEmacs shism, I don't see them in the OO branches or the main Linux branches.

Sorry if it hurts your feelings

Oh, I'm so sorry. Instead of reacting to my comments about your factually false presentation of PJ's article, or instead of answering my question what you consider a fork, you resort to ad-hominem comments. Tsk, tsk. But I can tell you that my feelings are not involved here, so you cannot hurt them.

Please stop dissing Suse developers

Posted Jun 12, 2007 12:13 UTC (Tue) by okir (guest, #31371) [Link]

Indeed, calling the OOo contribution by people like Jan Holesovsky and
Michael Meeks a fork is incorrect at best.

It's one thing to speculate about the motives behind the deal, and
Microsoft's hidden agenda. But I think it's bad style to bash the open
source developers at Suse, Ximian and in other parts of Novell for the
decisions of their management. These folks have done, and are still doing
good work, and deserve credit for their contributions.

What Microsoft and Novell agreed to

Posted May 29, 2007 2:07 UTC (Tue) by phgrenet (subscriber, #5979) [Link]

PJ is also considering that MS is a dying company... This is isn't an opinion shared by everyone.

Dying company ? Yup !

Posted May 29, 2007 4:50 UTC (Tue) by khim (subscriber, #9252) [Link]

And this is strange part if you'll think about it. Since 2000 or so Microsoft was reduced to selling better-looking buttons: Windows XP, Office 2007, Vista. And it's pretty clear that a lot of people don't need new better-looking buttons. So Microsoft is slowly dying. Unfortunately it's dying dinosaur: even if it's on death bed it's still powerful enough to kill a lot of small animals in its convulsions.

Dying company ? Yup !

Posted May 29, 2007 12:19 UTC (Tue) by hein.zelle (guest, #33324) [Link]

Nah, I don't buy that. Comparing the development in windows / office to what's happened in the last X versions of KDE or GNOME, I think you see pretty much the same thing happening - "better looking buttons", to put it crudely. Sure, there's also the occasional innovative change that comes by, but there aren't that many.

Dying company ? Yup !

Posted May 29, 2007 16:07 UTC (Tue) by tialaramex (subscriber, #21167) [Link]

Agreed, Microsoft isn't going away. Office and Windows are still very good if you're willing to overlook the vendor lock-in concern. The market, and Microsoft's directors, would like Microsoft to create some other profitables niches that aren't dependent on Office or Windows - and it seems as though sooner or later that will work for them, right now the XBox 360 is a good cancidate for a breakthrough.

Suppose though that XBox 360 loses to Wii and PS3 and Microsoft give up and leave that market altogether, further suppose that Zune is a flop (not a huge stretch) and Microsoft's online ventures remain mostly unprofitable. So in 2017 Microsoft still has only their Office and Windows business units (they actually have proper names for these units but I'm lazy) paying for the whole business. Even if that happens, they're still a fairly successful large company, with a mountain of cash in the bank and lots of smart employees.

Dying company ? Yup !

Posted May 31, 2007 10:01 UTC (Thu) by cortana (subscriber, #24596) [Link]

Hm, I thought it has always been the case that the only MS divisions that make money are those that sell Windows and Office. Everything else is run at a loss.

I think the Xbox division made a profit in one quater, ever (the one when Halo 2 was released).

Dying company ? Yup !

Posted May 29, 2007 12:41 UTC (Tue) by pjm (subscriber, #2080) [Link]

I think you're rather trivializing the changes in those software products. (Try looking at the wikipedia pages for those products if you're interested.) If Microsoft is dying because of having had nothing to sell but prettier buttons since about 2000, then it's rather surprising that it still has billions in profit per year.

Dying company ? Yup !

Posted May 30, 2007 1:48 UTC (Wed) by smitty_one_each (subscriber, #28989) [Link]

Dunno. "Death grip on governments in the US" is hyperbole, but not by much, as the ODF struggle in MA revealed.

Dying company ? Yup !

Posted May 29, 2007 13:33 UTC (Tue) by i3839 (subscriber, #31386) [Link]

I'm afraid that there are too many small companies too deep into MS software and data lock-in to get out of it easily. MS does more than generic software like an OS and office suite, it has a lot of (customer tuned) business software too. Not speaking out of experience here, so can't back it up. It's just a thing people seem to underestimate, as that market is huge.

Maybe MS is getting old, but dying? Nah.

MS died once already.

Posted May 29, 2007 15:37 UTC (Tue) by AJWM (subscriber, #15888) [Link]

Today's -- this century's -- Microsoft isn't the same company it once was. Back when it was a growth stock, the share price was doing amazing things, employees were happy to be paid in options and nobody cared about dividends.

This is no longer true. The share price peaked a few years ago. Relative to the Dow Average, Microsoft has been underperforming (check the last four years or so). Since stockholders aren't seeing growth, they demand dividends, and this is drawing down MSFT's cash reserves. Employees want to be paid in real money, not (relatively) worthless options.

Microsoft may not be dead, but its old way of life is. None of their new projects are financially successful - which goes to show that most of their prior success was a combination of luck and first-mover advantage (yeah, and ruthless business tactics), and their only cash cows - Windows and Office - are meeting increasing competition from OSS alternatives.

There's an adage about business: "you're either growing, or you're dying". Microsoft isn't growing.

That said, it still could take a decade or two to die. (My guess is -- barring some government breakup because of another anti-trust action -- that the company will linger on pretty much as-is, becoming decreasingly relevant but still big, until Gates and Ballmer leave. Then various pieces of it will get sold off over a few years until there's nothing left. Unless of course they can manage to completely turn around the corporate culture.)

Possible endgames

Posted May 31, 2007 11:56 UTC (Thu) by robilad (subscriber, #27163) [Link]

I'd put the time frame at around 5 years, depending on whether someone wants to invest a handful of billions of fresh money from China / Russia / India into pairing Microsoft down, and plundering their cash kitty by using the same successful tactic that worked so far : patent lawsuits.

While Microsoft spends 100M per year defending themselves on patent lawsuits, they also spend more than 1 billion per year on lost lawsuits (and there is a couple more coming, as far as I've seen, from Alcatel/Lucent, among others) or making those dreaded patent deals. With 1 billion fresh money flowing into Microsoft each month, there is a lot more Microsoft could afford lose, and remain the duck laying golden eggs for patent scheme 'investors'.

The fun thing about patent lawsuits is that Microsoft is virtually indefensible against an investment fund playing patent lottery against them, and there is a variety of reasons for others (outside USA) to get involved: money, market power, long term strategic interests, etc. In addition, since Microsoft started the patent war, it won't get any backup from other local companies in the field, until it quickly starts arguing for abolishing the current software patent regime in the USA. Not going to happen. ;) So it is ripe for plucking.

Finally, people with hot money outside the US now know how the US capital market works, and where the levers are. China has recently acquired a nice stake in Blackstone, for example, which is a fun little company that specializes in carving up beached whales. That deal has received highly hysterical commentary by the Economist, for example.

To give you just one fun scenario, Blackstone has the third-largest stake in Deutsche Telekom, who happens to have some interesting patents, now that Microsoft is going into the phone business in order to fight off the iphone. There are many other fun businesses Blackstone has a major stake in, and as Microsoft blunders around searching for a new profitable foundation outside its core competencies, it will inevitably tap into patent mine fields. Whoever controls them, gets to extract healthy royalties from that company, one way or another.

So, I guess Microsoft's worst case scenario could go a bit like this:
1) They will start facing an increasing number of high payout lawsuits globally, as more investors want to get their fair share of Microsoft's pile of cash,
2) They will start bleeding real money, resulting in a stock price correction,
3) They'll be carved up by a consortium of private equity firms

And only afterwards will the software patent laws in the US change to avoid 'losing' more of the local 'IP industry'. ;)

Dying company ? Yup !

Posted May 29, 2007 16:43 UTC (Tue) by TxtEdMacs (subscriber, #5983) [Link]

RE: " ... too many small companies too deep into MS software and data lock-in to get out of it easily."

While I do not know about small companies, I know something about the situation that existed at a few very large companies. One was a quite large pharmaceutical company, where I had a short assignment, that used a consultant doing nothing other than customizing Office applications for a wide set of users. Next I saw a power user at an insurance company customizing his own applications. And finally, at a very large financial firm where I spent personal capital pushing alternatives, I was informed that such customizations permanently precluded ever breaking away from MS applications.

Don't despair, for some, particularly developers, the Linux Desktop option appeared to have a chance, whether it succeeded I do not know*. This same person that said this also told me Linux had no chance at this company, since its history was in Sun's Unix and Windows. Nonetheless, Linux on the server was almost a monopoly by the time of my exit, though there were still many Windows servers still in use. This was a LARGE firm.

* [I have this propensity to shot my mouth off at inconvenient moments. That resulted in my being shown the exit. This result stemmed from my naive belief that I should deliver what I had promised. I compounded the error by explaining how ignorant the decision makers were. Might have survived had I not copied the user on this set of hot emails.]

What Microsoft and Novell agreed to

Posted May 30, 2007 11:24 UTC (Wed) by cpm (subscriber, #3554) [Link]

There was a really nice story on NPR's Market Place a couple of weeks back,
that was essentially a complete rehash of the Fortune Magazine article with the
tiny bit of balance removed. The Market Place story pretty much flatly
stated that Linux is in violation of Microsoft's patents and some Linux
users may be in trouble. There was no counterpoint in the story.

There is nothing unintended in anything Microsoft implies. They know exactly
what they are doing. Playing nice ain't in it.