Novell Responds To Microsoft's IP Claims

Azul writes "Ron Hovsepian, Novell's CEO, has posted an open letter to the Community, where he explicitly states Novell's disagreement with Steve Ballmer's claims of Linux infringing on Microsoft's intellectual property. From the letter: 'We disagree with the recent statements made by Microsoft on the topic of Linux and patents. Importantly, our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property. When we entered the patent cooperation agreement with Microsoft, Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents.'"

trouble ahead?, trouble behind.

[yagu]

Driving that train, high on cocaine.
Casey Jones is ready, watch your speed.
Trouble ahead, trouble behind
And you know that notion just crossed my mind.

With a beginning like this, who knows? They got the O.J. special and book release canceled!

Goodness, if the heads of the two "agreement" corporations are on pages so far apart for this deal, how can this possibly work? Reminds me of the IBM/Microsoft marriage for work on OS/2, which Microsoft continued to claim was blissful right up until the time they got enough ideas for their own Windows replacement and unceremoniously dumped IBM. Too bad, too... OS/2 (while not my fave) was a pretty decent system for its time.

Novell might actually be fueling MS's case ...

[Josh Lindenmuth]

Isn't the following statement in effect confirming Ballmer's ascertation that Linux users are violating Microsoft's patents?

"In this agreement, Novell and Microsoft each promise not to sue the other's customers for patent infringement. The intended effect of this agreement was to give our joint customers peace of mind that they have the full support of the other company for their IT activities."

If Novell did not believe that Linux users were accountable to Microsoft for using these technologies, why would they look to protect these users? Sure, it's great to offer this indemnification clause for the largest of corporate clients (who have at least some reason to be cognizant of the risk of MS litigation), but by doing so he seems validate Ballmer's views.

I can see it now ... The next big legal battle will be Microsoft vs. the world.

Deal Novell Out

[Frosty Piss]

Novell is feeling the backlash of their decision to cozy up to Microsoft, but this is just spin, it means nothing. The business arrangements that Novell made with Microsoft are what counts, and they still stand. It's time to deal Novell out of the Open Source pie, we must not allow them to taint Linux with "Microsoft IP".

Give Novell a Break

[roberthudock]

It does no one any good to alienate Novell. Seeing the open source community and MSFT working together is a step in the right direction.

What the fuck?

[khasim]

Our interest in signing this agreement was to secure interoperability and joint sales agreements, but Microsoft asked that we cooperate on patents as well, and so a patent cooperation agreement was included as a part of the deal. In this agreement, Novell and Microsoft each promise not to sue the other's customers for patent infringement. .....
When we entered the patent cooperation agreement with Microsoft, Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents.

So you signed a deal with Microsoft ... over patents ... that you claim do not exist?

Yeah, that makes a lot of sense.

Here's a free clue, you idiot. That last company that talked about "protecting" end users from being sued was ... SCO.

You might want to look at how beloved they are at the moment.

Re:Novell might actually be fueling MS's case ...

[rodgster]

Why has there been now news of Balmer's delusions until now?????

If was posted @ http://www.wservernews.com/ [wservernews.com] back on Friday?????

Here we go again. SCO part II only this time it a direct attack. Not a proxy attack.

Novell is a pawn in the action.

fine print and silver

[phrostie]

even giving them the benefit of the doubt, they should have read the fine print.

they've sold the community for 30 pices of silver.

Agree and Disagree?

[pembo13]

Novel seems to be essentially saying that they agree and disagree at the same time on a topic which was part of their formal agreement. This may make sense to a lawyer or CEO, but seems highly illogical to me. Furthermore, it seems safe to say that any business agreement with Microsoft ultimately benefits only Microsoft, the people over are great at that. I may dislike many aspect of the Microsoft Corp. but they are darn skillful business men. I'm just happy that I don't use Suse.

Empty words

[Augusto]

What matters is what Novell agreed with Microsoft, and that says it all.

Novell can say all it wants, but you can't fool everybody all the time. This makes this company look either totally naive and stupid, or blatant liars.

Re:Give Novell a Break

[pembo13]

If some highly infectious disease infects your leg, I'm pretty sure the doctors will advise you to amputate it.

Re:Deal Novell Out

[Anonymous Coward]

"It's time to deal Novell out of the Open Source pie, we must not allow them to taint Linux with "Microsoft IP"."

Given the nature of Open Source, this is of course, impossible. Novell will have the same access to improvements as everyone else. Those that don't like that fact shouldn't be involved in Open Source.

Encouraged...

[TropicalCoder]

I for one feel at least encouraged by the fact that obviously Novel is very sensitive to criticism over this. I would like to even believe that they are reading Slashdot. If nothing else, that would be a very positive development. If major players and decision makers begin reading Slashdot and become sensitive to it, that would be a very positive thing for us all. Though the first few comments to this latest news show considerable skepticism, many others in previous discussions had come to the conclusion that there is really nothing to worry about.

Re:Give Novell a Break

[cryptoluddite]

Alienating Novell sends a signal that Microsoft's patent extortion will not be tolerated by the community. It says that, should Microsoft press patent claims, that companies and people using Linux will retaliate -- with countersuits, civil disobedience, lobbying, bad PR, and whatever else.

You can bet that Novell is only coming out with this "open letter" because of the pressure they are feeling. Contracts being canceled or not renewed, bile and bad PR everywhere, FSF lawyers looking into filing suits, etc. They are probably getting the most pressure from SuSE developers, who can't be at all happy about being periahs.

The best step for the OSS community would be for Microsoft to document their protocols and formats. For instance if we had documentation on how NTFS lays out the filesystem we'd have a safe r/w driver in under a month. This Novell-MS deal is bunk. The European trustbusters have already done more than this deal ever will.

What "right direction" is that?

[khasim]

Microsoft licenses proprietary code.

Linux is under the GPL.

Is the "right direction" for Linux to become a little bit proprietary?

If not, Microsoft has 100% access to the source code. Microsoft can be as "interoperable" with Linux as they want to be. Any time they want to be.

Microsoft can release whatever specs it wants, whenever it wants.

Now, why don't you go listen to Ballmer talking about how Linux users owe Microsoft money before you start talking about the "right direction" and "working together"?

Re:Novell might actually be fueling MS's case ...

[ldj]

The best move would be for users to ditch distributions that do not provide patent indemnification or to seek out third-party indemnification. If anything, Novell ought to be cheering Ballmer for steering more people in their direction.

I think the best move would be for people to revolt against the silly software patent insanity and refuse to play that game. The sooner we bring the software patent stew to a boil, the sooner we can move towards a balanced and healthy legal system in which to grow new technologies.

Corporate Mentality

[chill]

The bigger the corporation, the more lawyers work for it. Novell, while just a shadow of what they once were, still thinks like a big corporation. Threat or not, they knew that many of their corporate customers -- you know, the paying ones -- had their own lawyers whispering in their ear. It was worth a certain amount of money to them to not have to put the effort into figuring out if they were violating patents or not. The perception was there and that money now gives the perception of safety.

What the suits didn't understand is that while Linux is moving more and more into the corporate space, at its core it is still a community driven project. They drastically underestimated that community's dislike and distrust of Microsoft.

Good luck to them trying to serve both masters.

Re:Novell might actually be fueling MS's case ...

[BadAnalogyGuy]

Just like people should ditch the copyright system since it is so easy to copy that there's no way to police the infringement, right?

What you think "the best move" is and what a workable "best move" solution is are so different that it would take a thousand years for light reflecting off of you to reach the earth.

Re:Deal Novell Out

[strider44]

On the contrary. I think this is a great tactic of dealing with Microsoft: Take a few hundred million dollars from them and at all the parties say "I'm not with him!" Lets face it, Novell's been paid a few hundred million dollars to give the impression that there are patent problems with Linux, yet they've spun around and said "We don't think there are patent problems in Linux" and started talking about how Microsoft got the better of the deal by licensing Novell's patents!

For some reason this really tickles my funny bone.

That's bullshit.

[khasim]

Maybe, but corporate clients need interoperability, and this relationship will eventually provide them with a greater degree of Windows/Linux interop than they have today (while providing them with some of the legal protections they desire).

Microsoft has 100% access to the source code for Windows AND for Linux. If Microsoft wanted "interoperability" then Microsoft is in the best possible position to just do it.

And Microsoft can release any specs at any time so Linux could implement "interoperability" improvements.

The fact that Microsoft does not do either should tell you all you need to know about the "interoperability" bullshit.

Re:Novell might actually be fueling MS's case ...

[93 Escort Wagon]

"If Novell did not believe that Linux users were accountable to Microsoft for using these technologies, why would they look to protect these users?"

Oh, I can think of at least 348 million reasons why...

Rule of thumb...

[Ungrounded Lightning]

A rule of thumb when dealing with Microsoft.

Microsoft ALWAYS shafts their partners.

I've watched it happen repeatedly with big-name and little-guy companies here in the valley, and seen news of it elsewhere.

Cutting a deal with Microsoft is an invitation to big trouble and I fail to see how companies keep falling for it. (Perhaps there IS something to the PHB stereotype.)

Cutting a deal with Microsoft for (limited) licensing of their patents is an invitation to accusations of IP infringement - and the first shoe has just dropped.

But (like reading Microsoft source code) it's also an invitation to accidentally contaminating the open-source code base with actual Microsoft IP.

I expect THAT to be the second shoe - with Microsoft first FUDding up the customers, then going after Linux ala SCO, but with their ducks correctly aligned before filing the first suit.

Re:Novell might actually be fueling MS's case ...

[ldj]

Nice try to paint me as some sort of IP anarchist, but wrong. There is a vast difference between copyrights and patents, and, in my opinion (and that of many others), patents have no place in software. Most knowledgable people agree that currently there is practically no way to write software without infringing on someone's patent, either knowingly or unknowingly. That should be a red flag that the current system is screwed up in a major way.

Unfortunately, I don't know that things will change for the better until we have enough ongoing lawsuits over mostly trivial software patents to bring software advancements and competition to a crawl. After all, it seems relatively clear that software patents are more about milking and/or killing the competition than about spurring competition. And personally, I'd prefer to see the technologists win rather than the lawyers. Sounds like maybe you prefer the opposite?

Re:Novell might actually be fueling MS's case ...

[Anonymous Coward]

Just like people should ditch the copyright system since it is so easy to copy that there's no way to police the infringement, right?

I could not have said it better myself!

Re:Novell might actually be fueling MS's case ...

[civilizedINTENSITY]

"Isn't the following statement in effect confirming Ballmer's ascertation that Linux users are violating Microsoft's patents?"

Consider the symmetry of the contract:

Novell and Microsoft each promise not to sue the other's customers for patent infringement

Therefore, using your assertion, it must be equally true that Microsoft is admitting that stollen Novell code is in Microsoft's codebase.

;-)

Re:Novell might actually be fueling MS's case ...

[BadAnalogyGuy]

Let's say you started a company that builds televisions. Do you think you could build a television without encroaching on a patent held by any of the other television makers?

Patents are pervasive. There are very few original ideas and what original ideas there are are already in the queue to have themselves patented.

The only reason you think that software patents shouldn't be given the same amount of respect as any other patent is because you work with software every day. It is easy to write compared to, say, building a television. But ease of doing something doesn't mean that it shouldn't be subject to the same protection as something more difficult to do. Arguably, it should have more protection since the difficult things are already protected by the high barrier to entry.

They already did: it's called Bee Esss Deee

[postbigbang]

Although I'll give them credit for a lot of code, good old BSD is the well from whence many operating systems drink.

Given re-invention of code, or code I can 'steal', I'll look at good code and glean the best from it any time. So did Microsoft. So did IBM. So did Novell. It's the sincerest form of flattery, after all.

Re:Rule of thumb...

[Anonymous Coward]

It's reasons like this why Debian is so anal about the definition of "free". This is why I stick with Debian.

Linux's marketshare is growing faster than MS's.

[khasim]

It is, after all, the case that the fear of being sued is enough to keep some corporations from using software. Novell's intention was merely to mitigate fear to increase sales.

That MIGHT be reasonable ... if Linux's marketshare was flat or declining.

But Linux has been seeing double digit growth for years now. Linux server sales are growing faster than Microsoft's server sales. Sure, Microsoft has a larger share of the market right now so it doesn't take as much for Linux to grow faster ... but that doesn't matter.

Why would Novell want to "mitigate fear" that would hamper sales when sales are growing at a double digit rate?

The fact that it has the added bonus of potentially protecting their customers in the future if they happen to violate some patent Microsoft holds doesn't mean they're violating such now.

SCO is the last company that tried that argument. And I'll ask you the same thing I asked back then.

What company was the last company (not SCO) that sued end users for patent violations instead of or in addition to suing the company distributing the infringing product?

Go ahead, dig as much as you can. You won't find anything. It does not happen. There was not threat. There is no "fear".

While I might not agree with Novell's actions, I can understand their attempt to get their foot in the door by removing fears of Microsoft suddenly turning sue-friendly.

Again, Linux sales are growing at double digit rates. There doesn't seem to be much "fear" out there.

Re:Novell might actually be fueling MS's case ...

[Fnkmaster]

And for a company that broke even last year on an operating income of $100M and has a total market cap of about $2B dollars, that payment was not at all a trivial matter. Hovsepian would have been remiss to his shareholders to not sign it. Patent cross-licensing agreements are pretty damned commonplace.

I think the Novell guys probably realized there was some bad PR potential, but didn't see anything particularly bad in the agreement and saw lots and lots of greenbacks, plus the opportunity to use MS as a distribution channel. This seemed like a sweet deal when they looked at it. I just don't think they realized quite how negative the reaction would be.

Woot! Woot! Clue Train in the distance

[stox]

Dear Novell Executives:

How many company's have entered into collaborations, with Microsoft, that did not end up with a rectal aperture far exceeding that of goatse? How many did? So, do you actually fell that lucky? Talk about a long shot. Well, I'm sure you are all busy packing your golden parachutes, and will be long gone before the fecal matter hits the rotary device.

Let me get this straight.

[khasim]

The problem is, you're wrong.

So Microsoft has released the specs to allow Linux to interoperate with Windows? Tell me more ...

Now, granted, these are not the keys to the Windows kingdom, but it's a step in the right direction, and Microsoft should be encouraged to get as many specs out into the Open as possible, as soon as possible.

So by "interoperate" you mean ... "not interoperate"

And by "you're wrong" you mean ... I'm actually correct.

Come back when Microsoft opens up NTFS or Active Directory, okay? Or even when Microsoft has 100% support for ODF, as a default option, out of the box.

Like I said, Microsoft has access to all of the Linux code AND all of the Microsoft code.

Microsoft can open any spec it wants, whenever it wants.

Any other talk about "interoperability" is pure bullshit.

Re:Novell might actually be fueling MS's case ...

[QuantumG]

I agree with you, but I say the probability of infringing code is almost certainly very close to 1. You can't write anything that is non-trivial without stepping on a patent claim these days, and Microsoft likely owns at least one of them. The problem is that this meme competes with another meme, which I like to think of as the "irrational other player" meme. Everyone loves to think of Microsoft (and lawyers in general) as being insane. So rather than say "what would Microsoft have to gain by suing me?" and basing rational decisions on that, they say "I don't want Microsoft to be able to sue me" which, if you're writing or using software these days, is an impossible task.

Is there a legally binding agreement not to sue if

[HiThere]

Is there a legally binding agreement not to sue if you use them? Then it's worthless.

Having a patented spec be visible doesn't make it open, and is SURE doesn't make it free.

MS needs to listen, Ballmer needs to retire...

[TheNetAvenger]

Watching MS over the years, they have had good moments, and bad moments, done good things and done things that make your skin crawl...

The sad part of this is the 'business' model that Ballmer and his crew use as an Ideal are at the heart of almost every failed and every skin crawling activity MS has done.

MS was a good company at various times after the past 30 years, but if you notice those fleeting moments, Ballmer and his 'ideals' were the recessive thought mechanism in the company at those times. The 'older' Gates ideals and people emulating him are a lot less likely to hae ever pulled a lot of the crap MS has done in the past 15 years.

This new Linux scare from Ballmer is just another mark in the 'oh crap he did not say that' box. I'm sure there are technologies in Linux that come from MS, even if you take distributions that read FAT32 drives, but on the same note, MS has also taken a lot from the *nix community and it would be so petty to drive the market into this type of war.

Ballmer's words remind me of Oracle's CEO (Ellison) a few years back, at every event or launch, instead of telling us how great their software was, he spent most of the time complaining about MS,and yet MS's products were slammin them in the market because they just worked better. If he or his people would have just spent more time making their products 'better' then could of actually been on stage showing us how much better they were, rather than only pitching how awful MS was.

Maybe ol' Steve is a nice guy, but he is just not helping MS. MS needs to put back in power 'idealists' that believe in 'consumers first' thought and not how they can squeeze the extra nickels out of their business models.

Even look at Vista, in a lot of ways it is a revolutionary OS if you look at the intelligence it implements and the architecture, yet marketing and the 'business' people don't get the genius from the development teams, and will have trouble selling it.

This is evident with the marketing and business people creating five freaking versions of Vista for consumers. It creates more confusion and is less profitable and could hurt the 'standard windows' base because of the differences. It would have been better for MS to have just added $20 to the cost and do only one version. In fact the Vista release like XP is in contradiction to the 'design' ideals of the NT group in having a shared code base to 'reduce confusion'. (Of course the code base is still shared, but the confusion is artificially added by the business and marketing people.)

My two cents for today...

Re:trouble ahead?, trouble behind.

[kfg]

There is no such thing as a "pact" with the Devil.

KFG

What's the problem?

[countach]

I don't really see the problem with all this. Microsoft and Novell can say and do anything they like about patents, but it doesn't make a patent problem arise where there was none, nor does a lack of agreement make one disappear if there was one. Novell got a few hundred million bucks out of MS, and it doesn't affect anybody else one whit. Why not let em have it?

Read!!

[Anonymous Coward]

Most folks haven't realized that Novell made a deal to protect MS customers and vice versa...there's no protections implied between the companies with regards to patents, they still can either sue or not sue each other.

And to be honest, to say that Linux does or doesn't infringe on any patents out there is quite naive. It'd be the same to say that Windows doesn't infringe on any patents is equally naive. To be quite fair, there are probably quite a few (300 some odd patents) which could be infringed upon with regards to Linux and Novell has just been forthright enough to try to protect their customers from that concern.

They haven't hurt the community in the process, they haven't unGPL'd anything, etc. They have however, made a deal with the devil, and surprisingly (note the sarcasm), have seen the devil continue on with the FUD which most are falling for.

The truth is MS can't really pursue it without major retaliation and to vilify Novell is nothing but silly and naive...so please read the accurate information before spouting rhethoric and continuing the spread of FUD...you're doing nothing but helping MS with this.

$400M to say we got nuthin.

[symbolset]

Microsoft has lawyers. Lots of them. If they have IP that's infringed and they know it, they have to sue to protect it or they lose it by neglect. If they had something, the money would have gone the other way. So, they haven't got cause for a suit or they'd have to sue.

What Microsoft does have is a fat wad of cash. That is exactly what a company like Novell that backdated Waaay too many stock options needs. The bonus is Novell gets $400M to promise to not sue a company they've got no grudge against.

The sad part for us is that Novell must now and forever be a leper. They've done great deeds in the past. There was great hope for their future. They're trying to fight the FUD now but you can't unring the bell. A shame they had to get weak kneed in the end. It's also sad Ballmer gets to say things like "Gee, that's a nice linux webserver you got there. Be a shame if one of our IP lawyers had to have it admitted as evidence." Makes you wonder if he was shaking down kids for their lunch money in school. I hope Novell's development teams have litte trouble finding honest work before the end.

The upshot is that we've got $400,000,000 worth of proof that Microsoft's got nothin. Nothin, that is, except a metric ton of coupons good for one free SLED install they couldn't unload even as wrappers for free ice cream cones. Can you imagine the sales call? "Yeah, I got this coupon for a Linux install we can sell ya, but after five years if you're still running it we have to sue ya. Oh, and our BSA thugs will be around regularly to make sure you don't exceed your linux quota, k?" They'll have to paper the halls of One Microsoft Way with expired coupons. The companies that adopt Linux under Novell's indemnity will discover that Linux is rock solid, swift and sweet. When they realize Microsoft's always had nuthin, they'll migrate painlessly to a distro that's less tainted. Perhaps this is the dirty trick that convinces them to get all the way out of business with these creeps.

I blame Ransom Love for this whole mess, because he killed Unix. Him and all the chowderheads that think this indemnity nonsense has more value than six inches of used dental floss. It's a bad thing to be mugged at the point of a lawyer. It's cowardly to be blackmailed with lawyers that have nothing.

Re:$400M to say we got nuthin.

[Anonymous Coward]

not so true...keep in mind that Novell has some patents that predate MS. There's a reason MS paid more to Novell. Don't count Novell out so soon for wanting to protect their customers from an SCO like situation, which is what they did...they in no way said they wouldn't sue MS over patents, just not their customers.

Re:Groklaw's reaction ... to Microsoft's reaction

[Anonymous Coward]

If you threaten to sue and force other people to go out of business, you already abused software patents.

Re:Novell might actually be fueling MS's case ...

[RodgerDodger]

Let's say you started a company that builds televisions. Do you think you could build a television without encroaching on a patent held by any of the other television makers?

No, but... I wouldn't expect the people who buy the televisions I build to be liable for the patent infringement I do.

In no sane world should the _users_ of Linux systems be liable for patent infringements. The individual people who committed the infringing code may be, but the users shouldn't be. Simply possessing the infringing source code shouldn't be counted as infringing.

Re:question about the threat

[foreverdisillusioned]

If MS has these patents, do we really believe that fear of alienating their customers is enough for them to refrain from suing people? Couldn't they sue IT companies -- linux companies, IBM, etc., without damaging their relationships with large corporate customers? And aren't those large customers so locked in that they really don't have anywhere to go if they're alienated, anyway?

Err, wouldn't Microsoft suing IBM over patent infringement be the legal equivalent of shooting themselves in the foot with a bazooka? IBM, according to their own website (http://www.ibm.com/news/us/en/2006/01/2006_01_10. html), has more patents than any other tech company and they've been around since long before Gates was in diapers--I would hazard a guess that Windows infringes on far more IBM patents than Linux infringes on Microsoft's. I'm not saying Microsoft wouldn't have the balls (and lack of brains) to try this, but the resulting shitstorm would likely take 10+ years to resolve and could very well result in the downfall of M$ or patent law reformation... and I'd be overjoyed to see either. And even if M$ somehow prevailed, I'm willing to bet a significant portion of the EU and Asia would say "fuck you!" if asked to pay royalties on Linux.

Re:Woot! Woot! Clue Train in the distance

[ceplinboston]

> How many company's have entered into collaborations, with Microsoft, that did not end up with
> a rectal aperture far exceeding that of goatse?

I know at least about two -- Apple and Sun. And yes, there are many examples confirming your suspicion.

Matj

Re:Deal Novell Out

[jrumney]

Novell's been paid a few hundred million dollars to give the impression that there are patent problems with Linux.

Since when did the patent holder ever pay an infringer a few hundred million dollars? The only impression this has given me is that Microsoft must be infringing on Novell's patents.

Re:Novell might actually be fueling MS's case ...

[ldj]

Exactly! Thanks for spelling out the scenario, Karl.

In a sense, copyright is to software (and books, music, video, etc.) as patents are to hardware: They cover a specific creation or implementation of a concept. The implementation is protected, not the general concept. In the case of software patents, it seems the general concept, whether or not there exists an actual implementation, is protected -- to the detriment of the industry as a whole.

Re:Deal Novell Out

[mkcmkc]

I don't think you will do this intentionally, no. But the fact that the agreement was signed in the first place, and the fact that you're denying that anything bad could possibly come of it, suggests that you're wide open to being tricked--big-time--by Microsoft. And in a way that may cause a lot of collateral damage in the wider Linux community.

Your subsequent apologies, should this happen, won't really help anything. The time to fix things is now.