LWN: Comments on "Novell's IRC session on the Microsoft deal"

This clears nothing up

snitm — 2007-07-17T04:58:05+00:00

Nat,

We are only now starting to feel the very real negative impact of the MS/Novell deal. I work for a Linux company and the large OEMs (with extremely deep pockets) that we work with are making corporate edicts that "SLES is the only Linux allowed" purely because of all the sabber rattling Microsoft has been doing (as part of the deal with Novell and in subsequent FUD campaigns by M$ executives).

SO it has seemingly worked out quite well for Novell (and likely you) but as a Software Engineer I do _not_ liked to be pigeon holed on which Linux-based solutions I _must_ integrate/design into nimble and innovative solutions.

Even if Microsoft is making idle threats it has genuinely detracted from true competition in the Linux community; particularly where Linux interfaces with the enterprise.

Late followup

vblum — 2006-12-13T21:21:11+00:00

No idea whether this will ever be read two weeks after the fact - but just in case, I wanted to add that I did go Kubuntu in the end, on a brand new computer (with one of NVidia's famed cards ... as I was voted down in the decision).

Well ... that caused some issues for Kubuntu. What amazed me, though, is that when I went back to SUSE 10.2 for a try, _that_ experience was absolutely flawless - in fact, the most perfect Linux install I have ever had. (Essentially, nothing went wrong). Since I vowed to leave SUSE above (and honestly so) I thought it was more than fair to point out, in the same place, that that did not happen in the end. For me, OpenSUSE proved a completely superior distribution regarding the level of detail applied. So, I will wait and see what really comes of the Novell-MS deal after all.

Thanks!

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Duncan — 2006-11-30T08:00:45+00:00

>> [The deal] does not protect Novell from suit by Microsoft.

> Would't estoppel prevent this?

Perhaps normally, but in this case, no. The deal is specifically
worded /not/ to prevent MS from suing Novell itself, only certain downline
customers and (particularly controversially due to the extremely limited
wording, tho the articles mentions Novell is talking to MS about getting
this expanded) certain upline developers, in ordered to be able to wiggle
thru a loophole in the GPL v2, which would prevent Novell's redistribution
of GPLv2 software if the agreement covered Novell itself, without covering
the entire community, which the agreement certainly doesn't do and MS
would be unlikely to do.

... All conditional on my understanding of the issues, IANAL, etc...

Duncan

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grouch — 2006-11-29T15:29:56+00:00

I wonder why you try so hard to see an admission by Novell, when even Microsoft says that there isn't. And they would profit immensely from one. What do you get out of it?

I wonder why you try so hard to rationalize the agreement. I wonder what you get out of it.

The patent agreement between Novell and Microsoft is wrong insofar as it encompasses GPL code distributed by Novell or Novell's customers. It conflicts with the intent and purpose of the GPL. In fact, it fits the situation anticipated by the GPL in 1991:

Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all.
-- Preamble, GNU GPL

The only "admission by Novell" that I seek is that the patent agreement is wrong where it includes GPL'd code and is wrong where it imposes extra conditions on users (the divisive distinctions between commercial and non-commercial, developers and "end users"). Novell and Microsoft should go back to the table and correct this agreement.

This is Gnome/Mono speaking, not SUSE

lmb — 2006-11-29T15:14:50+00:00

It's fair to point out that Nat is the CTO of the business unit to which SUSE belongs, so indeed, a SUSE person _was_ in the lead.

This clears nothing up

niner — 2006-11-29T11:26:11+00:00

I wonder why you try so hard to see an admission by Novell, when even Microsoft says that there isn't. And they would profit immensely from one. What do you get out of it?

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nat — 2006-11-29T10:39:16+00:00

Novell is paying Microsoft to promise not to sue Novell's customers. Microsoft is paying Novell (much more money) to promise not to sue Microsoft's customers.

Novell does not state in any way that Linux infringes Microsoft IP. It was enough for Novell that Novell's customers were concerned (whether those concerns are valid or not).

Novell's IRC session on the Microsoft deal

job — 2006-11-29T08:48:54+00:00

I'm sorry, I made it look worse than it really is by typing $40M/yr instead of $40M/5yr. But the money is still there and it's a recurring payment for a "royalty". Will the payment continue after the 5 years? For how long?

These are very simple questions that Novell needs to address but they keep evading them.

We already knew about the Microsoft cooperation with Xen, that is old news. If only $240M is hard cash that Novell will see from this deal, it was even cheaper than I imagined.

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grouch — 2006-11-29T03:02:36+00:00

Even repeating that endlessly and ignoring all counter arguments does not make this a fact.

Selective quoting out of context does not refute the statement.

Novell will be paying Microsoft for 5 years. Novell has named packages that are covered by the patent agreement. Those packages include code released under the GPL. What is Novell paying for? For Microsoft to not sue Novell's customers over non-infringement of non-existent patents? How much of each payment by Novell's customers is devoted to this protection payment for the non-license for non-infringement of non-patents?

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pzb — 2006-11-29T02:52:14+00:00

> At the same time, you say you are unaware of any patents that Novell is
> infringing on.
>
> Novell is not aware of any patents they are infringing on, and do not
> believe they are infringing on any. In this case, you believe MS is
> paying you for nothing.

You seem to have confused two things. This is a bidirectional agreement. Microsoft is paying Novell for a promise by Novell not to sue Microsoft's customers. Novell is paying Microsoft for a promise by Microsoft to not sue Novell's customers.

In Microsoft's statement they said "Microsoft and Novell have agreed to disagree on [...] whether certain Microsoft offerings infringe Novell patents." This would seem to be more related to payments by Microsoft to Novell than any discussion of Novell's infringement on Microsoft patents.

Novell's IRC session on the Microsoft deal

Arker — 2006-11-29T02:49:04+00:00

But they are distributed with the kernel. And being derivative works, they clearly don't fall into the 'mere aggregation' category.

Novell's IRC session on the Microsoft deal

nix — 2006-11-28T23:58:44+00:00

This is where the law leaves me behind, I'm afraid. If using syscalls
alone is considered not to impose tight enough coupling to contaminate
with the GPL, I can't see how using syscalls alone to read a particular
filesystem can be considered tight enough either.

(But then this is all completely academic for me anyway as everything I've
ever controlled the license for I've GPLed, except for a couple of LGPL
libraries written for a past employer. ;) )

This is Gnome/Mono speaking, not SUSE

vblum — 2006-11-28T21:12:34+00:00

Thanks for answering, really.

I would have felt more comfortable if someone from the SUSE distribution had been in the lead (no harm intended by that statement, this only reflects my honest impression while reading). It was my initial suspicion that chiefly the Mono proponents might have thought they'd benefit from such an agreement (to put out a perpetual criticism with respect to their project), while SUSE's developers did not stand to benefit much from an implicit admission that there were patent liabilities to be paid for in their distribution. The fact that Nat did most of the talking served to further that impression (with me, and me alone).

I am also aware that Novell takes the stand that there was no patent admission, but the agreement was immediately used to foster that rumour, no matter what Novell's intentions were - and I honestly think it was supremely naive to think that this would not happen.

I am sorry that this did so much damage to SUSE, really - I do not think the patent side of this agreement was a good idea at all. But, maybe time will prove me wrong (see Jon Corbets very reasonable article on the matter).

Best of luck, VB

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piman — 2006-11-28T19:51:56+00:00

Here's how I understand the question (and it's one I also have): You say the money is exchanging hands for patent licenses (convenants, whatever) for customers. At the same time, you say you are unaware of any patents that Novell is infringing on. So there are two possible ways to consider this:

1) Novell is not aware of any patents they are infringing on, but believe they are infringing on some (this is a reasonable belief given how many software patents there are). This implies that they also believe MS could theoretically sue their customers, and the protection is important.

2) Novell is not aware of any patents they are infringing on, and do not believe they are infringing on any. In this case, you believe MS is paying you for nothing. You say "It doesn't matter if the allegations from MSFT are true or not" but MS certainly believes it, and believes it enough to pay you millions of dollars. Alternately, MS is irrational, and just likes throwing money at you.

This means there are three possible outcomes. First, Novell is waffling and believes they did actually purchase real protection for their customers, but doesn't want to admit it to the people who they didn't purchase it for. Second, Novell and Microsoft have very different opinions about the efficacy of the contract they have agreed to, MS believing it means something and Novell believing it doesn't. Third, Novell is doing business with a company that is completely irrational.

None of these options reflect very well on Novell. So please, explain what exactly Novell is paying for, and why.

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lmb — 2006-11-28T18:54:12+00:00

Even Microsoft has released a press announcement to the effect that Novell did not acknowledge any such thing.

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niner — 2006-11-28T18:32:24+00:00

"the fact that entering into such an agreement [...] is an implicit acknowledgement of patent infringement."

Even repeating that endlessly and ignoring all counter arguments does not make this a fact.

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grouch — 2006-11-28T17:47:37+00:00

The patent "agreement" covers packages distributed by Novell which includes GPL'd code. Novell purchased blanket patent protection for these packages from a single patent holder. Denying the "agreement" is a license (permission to use) does not change the effect of the agreement. Novell's statements that "[...] Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents" does not change the fact that entering into such an agreement with Microsoft while specifying packages that are covered by that agreement which include GPL'd code is an implicit acknowledgement of patent infringement.

Novell purchased the patent license on behalf of Novell's customers. Novell's customers cannot pass that license along when the customers distribute the GPL code received from Novell. This is not the same as the indemnification sold by, e.g., Red Hat. Red Hat is selling a warranty, as provided for in the GPL. Novell is selling a specific patent holder's promise not to sue, also known as a license, which is a grant of permission to use any patents, regardless of validity, that the specific patent holder may have that read on the packages distributed by Novell.

The agreement's blanket coverage for any and all patents held by the patent holder is not equal in its coverage for all persons included. It divides the people it covers into end users and developers. It further divides developers into commercial and non-commercial. It is an inequitable license, which goes against the intent and purpose of the GPL even though it covers packages which include GPL'd code.

Novell has enhanced Microsoft's FUD machine. Novell has purchased rights for its customers from a single patent holder. Novell's customers cannot pass those rights along with the code those customers redistribute. Novell has purchased a license from Microsoft which flies in the face of the intent and purpose of the GPL:

For example, if you distribute copies of such a program, whether gratis or for a fee, you must give the recipients all the rights that you have. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights.
-- Preamble, GNU GPL

Novell's purchase of a non-distributable patent license from a single patent holder, which covers packages that include GPL'd code, named by Novell, is a violation of the intent and purpose of the GPL.

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mrfredsmoothie — 2006-11-28T17:16:40+00:00

> While the deal does include a technical cooperation agreement that helps
> make sure that Free/Open Source software and Microsoft products work
> together better, it does not give Novell a license to any of Microsoft's
> patents. It also does not protect Novell from suit by Microsoft.

Would't estoppel prevent this?

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nat — 2006-11-28T15:56:31+00:00

The deal covers all Novell products including openSUSE, SLES, SLED, and our proprietary products.

And Novell promises not to sue Microsoft customers over their use of MS products.

This clears nothing up

nat — 2006-11-28T15:53:51+00:00

My better instincts compel me to shy away from responding to these ad hominem attacks, but I'm just too sensitive not to point out that Miguel and I have written and released and funded the development and release of millions of lines of free software, and I think that should count for something.

But I guess you can draw your own conclusions.

I also really don't understand the actual material damage that people are claiming this Novell/MS deal does. Maybe you can explain that to me.

Novell's IRC session on the Microsoft deal

pzb — 2006-11-28T15:49:36+00:00

> Is it correct that the $350M payment from Microsoft is a one-time payment?
> In that case the $40M royalty (that's Novell's words, not mine) per year
> in the opposite direction is very significant. Is this to be regarded
> as a loan, or does Novell simply not count on lasting more than 8 years?

The terms, as published in a SEC filing by Novell, say that Microsoft will pay:
- $240 million for SLES subscription "certificates". Novell has suggested that there will be approximately 70,000 certificates per year over five years. This is about $686 per certificate. The normal cost for a one year subscription to SLES on non-mainframe hardware, including support, is either $799 or $1499. So this seems like a faily good deal, especially if they are for the higher level of support
- Microsoft will make an up-front net payment to Novell of $108 million [...] under the Patent Cooperation Agreement. My understanding of this is that the $108M is an up front payment of the payments Microsoft would have made over the 5 year terms for percentages of their revenue on some of their products. If you use a conservative discount for prepayment, this is worth at least $120M.

According to the same SEC filing, Microsoft has agreed to spend:
- $12 million annually for marketing Linux and Windows virtualization scenarios ($60M over five years)
- $34 million over the term of the agreement for a Microsoft sales force devoted primarily to marketing the combined offering

Although Novell will not directly see this money, as Microsoft is spending their own money, it is about $94M over five years being spent to help market and sell Linux, specifically SLES.

As for payments and expenditures from Novell, the only amount listed in the filing is:
- Novell will make ongoing payments of at least $40 million over five years to Microsoft based on percentages of Novell's Open Platform Solutions and Open Enterprise Server revenues. This means that Novell will pay at least approximately $8 million per pear, based on their revenues from NetWare and SUSE Linux products. (OPS is the Novell name for Linux, and OES contains NetWare and SLES)

So, only focusing on the patent agreement, this is almost guaranteed cash-positive for Novell. Add to that the $240 million of "certificates" that Microsoft is buying, and Novell is getting lots of money. They only way that this would signficantly change would be if Novell suddenly saw a huge uptick in NetWare and Linux revenues, which means they would pay more to Microsoft. I think Novell would be very happy with this, as it means sales are way up, which makes Wall Street happy, and allows more money to be spent on product development.

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nat — 2006-11-28T15:41:32+00:00

Hey, so I did my best to answer corbet's question. I wasn't in the discussions in Redmond where they figured out how much money goes in what direction, so I wasn't sure how to best answer him. I said that the payments were for the promises, and mentioned how other patent-related payments often happen.

What is left unanswered exactly? I'm totally open to more questioning on this.

Novell != Novell's customers

lmb — 2006-11-28T12:51:48+00:00

Exactly. It is Novell's policy to never ship infringing code. Never has been, never will be. SUSE, Ximian and the rest of the Novell OSS engineering will never introduce "patent bombs"; we're still the same good guys as we've always been. We'll treat any known "infringement" a bug and fix it.

I really don't get how people come up with this strange idea. Gedankenexperiment time: Don't you think, even if it _were_ true, it would be kinda obvious if suddenly MS sued someone for a patent infringement introduced by a Novell engineer from now on? Do you really think this would stand _any_ chance in court? With those anti-trust and conspiracy guns focused on MS/Novell right now?

Nothing has changed. Code from Novell engineers is not unsafe; if anything, it is safer than before. And we got a lot more cash to spend on development of OSS code now.

Software patents are still bad and need to disappear, or at least radically reformed (and I think you'll eventually see even more activity in this direction as well); because the real threat are still the patent troll companies.

A patent troll injecting code via a malicious or even unsuspecting independent developer is much more low-key; that's the much better conspiracy theory, you know.

And even then: The code would simply be ripped out and rewritten. Linux goes on.

This clears nothing up - Cleared up now perhaps?

gravious — 2006-11-28T12:40:32+00:00

You (and I believe just about everyone else) are missing the real purpose of the deal. Microsoft and Novell have a common enemy and that enemy is Red Hat.

Rubbish: not only are we smarter than you give us credit for, you are wandered off into fantasy land without the rest of us.

1: Novell and Redhat are not enemies. They ceratainly are competitors and the competition may get fierce but I believe the spirit of FOSS binds us all. FOSS has many enemies, Microsoft is just one of them. Microsoft's desktop/office monopoly makes them an enemy of everyone, including FOSS in an economic and polotical kind of way. If Redhat has a propietary enemy it sounds like it could be Oracle.

2: There is room in the server market place for many vendors. What makes you believe that there is only room for one? Prove it. In every fair market there are lots of players. Why should this case be any different?

3: I happen to believe the noises coming out of Novell. I think they are *brain-damaged* possibly to do a deal with Microsoft, of all companies. Though when you think about it, it was inevitable that the Ximian guys were on a collision course with Microsoft the minute they started Mono. Novell has a ton of software, they get a pile of cash. I think they realise by now (what with Ballmer's gleeful crowings - God I can't stand that man, bring back Bill, all is forgiven) that they may have stepped in some doo-doo on the way to greener pastures.

4: You're always going to piss off the extremists.

5: Tell me how any of this will destroy Apache or Samba or the Linux kernel. Get real.

with respect, Anthony

Novell's IRC session on the Microsoft deal

AlexHudson — 2006-11-28T11:58:36+00:00

You're missing the point; I'm not talking about the end-user infringing, therefore their running the software is irrelevant.

Novell's IRC session on the Microsoft deal

khim — 2006-11-28T11:50:51+00:00

Running the software can not infringe: GPL explicitly states that you can run anything you want as long as you are not distributing "the program"...

Novell's IRC session on the Microsoft deal

khim — 2006-11-28T11:47:26+00:00

Sorry, I don't think that merely *reading /sys* binds you by the requirements of the GPL (if it does, then reading /proc does too, and I can think of a good few proprietary apps that do that, and nobody complains.)

/proc and /sys are quite different: /proc is decoupled from kernel internals, /sys is 1-to-1 mapping for kernel structures. Yuo can as well claim that your program is not bound by GPL if it uses just /dev/kmem to change the kernel and install 10Mb of code there: you are just using open()/read()/close(), right ?

Novell's IRC session on the Microsoft deal

AlexHudson — 2006-11-28T11:29:52+00:00

It's not that grey an area. If you don't infringe the license yourself, but basically set it up so that the end user running the software infringes it, you're still liable - it's contributory infringment.

For something to be CI, you generally have to prove 1) knowledge of the infringing activity and 2) that a material contribution was made [i.e., assistance].

Canonical must be aware that shipping the drivers built in is infringing, otherwise they would do it that way. They've also set it up so that users machine's automatically combine the material in an infringing way. Those two facts satisfy 1. and 2. above, to my mind.

Novell's IRC session on the Microsoft deal

job — 2006-11-28T10:39:11+00:00

One thing I really want to know is this:

Is it correct that the $350M payment from Microsoft is a one-time payment? In that case the $40M royalty (that's Novell's words, not mine) per year in the opposite direction is very significant. Is this to be regarded as a loan, or does Novell simply not count on lasting more than 8 years?

Microsoft sunk $50M into Baystar/SCO for implying that Linux has a per unit royalty ascribed to it, but quickly got out when IBM turned it into a PR coup. Getting one of the bigger Linux vendors to do this work for them for $350M must be considered a very good deal.

This is Gnome/Mono speaking, not SUSE

aj — 2006-11-28T10:11:49+00:00

This is AJ speaking ;-). No, I was busy getting out 10.2 RCs and only chimed in where I felt my input was really needed. Nat was sitting besides me and I did not feel the need to take over.

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epeeist — 2006-11-28T10:03:39+00:00

> Yes, Nat has officially sold out.

I may be maligning him, but are we sure that he and de Icaza were firmly in the FOSS camp in the first place?

Novell's IRC session on the Microsoft deal

nix — 2006-11-28T09:53:09+00:00

What `more intimate access' does udev use? netlink sockets use the socket API: normal system calls. inotify is a normal system call. Digging through /sys uses open()/read()/close(), normal system calls.

This is Gnome/Mono speaking, not SUSE

vblum — 2006-11-28T09:12:25+00:00

Errr ... in what world would those SUSE developers live? This Novell-MS agreement and its fallout would seem to have direct consequences for the professional careers of everyone involved, no? (regardless of how it plays out in the end)

Also, may I humbly suggest that this is not an America/Japanese topic. The reality is that software gets written in Europe with American / Japanese laws in mind - it would be supremely impractical to settle for software that is (temporarily) legal only in a part of a completely interlinked world. Americal software patents affect us directly here in Europe, already today.

This is Gnome/Mono speaking, not SUSE

niner — 2006-11-28T08:41:26+00:00

Maybe they just didn't have time to attend, or just didn't want to. It is after all a very uninteresting topic for an engineer.

And don't forget: in reality it is a purely American/Japanese topic, as Microsoft could not inforce any software patents in Europe.

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niner — 2006-11-28T08:29:52+00:00

But _what_ obligations to the community are broken by Novell? I am part of that community, and I just don't see it. Could you please enlighten me?

Novell != Novell's customers

niner — 2006-11-28T08:27:34+00:00

Novell itself is NOT covered by any license or covenant. So how could they not fight the patent and distribute the GPL software anyway?

It's customers don't have to fear Microsoft, but Novell does, same as ever. So Novell still has every reason to avoid Microsoft's patents.

This is Gnome/Mono speaking, not SUSE

k8to — 2006-11-28T08:11:19+00:00

Partially I think it is the personalities. Andreas Jaeger was never very loud. There are other much more .. vocal members of the SuSE Linux team, but they may not have been vetted for this irc meeting for the same reasons.

Novell's IRC session on the Microsoft deal

khim — 2006-11-28T08:07:10+00:00

I see no problems there. Their position is quite clear: we hate GPLv3, but not enough to "take our marbles and go home". Not yet anyway (perhaps if the final version will be sufficiently different we'll do take our marbles and go home).

That's normal reaction for most corporations. GPLv3 is designed to protect user at the expense of corporations - why the hell corporations will like it ?

Acceptance is enough...

This is Gnome/Mono speaking, not SUSE

vblum — 2006-11-28T08:00:50+00:00

AJ gets completely drowned out by Nat. It seems very disturbing that it's not the SUSE guys speaking here (whom I care about, as a SUSE user) but the Mono guy (about whose agenda I couldn't care less). This stinks. A good distribution is being dragged through the mud by a bunch of rookies with a narrow political agenda.

Jon, good questions. I note they were not answered, which is also not reassuring.

I have been a SUSE User for >8 years now, and I like the guys that made this distro work. I actually know some of them personally. My only consideration in my picking a distro is, do they have a future (enough mindshare/enthusiasm behind the distro), or not. Now I think, maybe not. The wrong people appear to be making the decisions now - this cannot possibly be without repercussions among their developers. What a capitally bad idea.

I will go FC within the next 1-2 days.

Novell's IRC session on the Microsoft deal

khim — 2006-11-28T07:59:29+00:00

Kernel modules are in gray area. If they are not distributed with the kernel!

If you distribute anything with the kernel - you better use GPLed source or you can use "mere aggregation" clause from the GPL ("mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License"). There are no other choice.

Kernel authors unambiguously said: "user programs that use kernel services by normal system calls" are not affected. But kernel modules (and even programs like udev which use more intimate access to kernel then "normal system calls") - they are affected.

Yes, there are small possibility that you can twist the GPL (given pretty damn good lawyer) enough to make the Ubuntu somehow look non-infringing. But if Novell is getting such a severe beating for it's use of GPL loophole then why Ubuntu (who also uses loophole - even if different one) must be accepted ? It's hypocrisy...