Samba team letter to Novell – please reconsider

Novell does not see their users in the same way as the FSF. They see them as "customers", they used that term several times in that article. RMS and the FSF see them as users whose most pressing needs are the 4 freedoms. Novell sees them as customers who need hand holding.

I think it's safe to say that most of the users Novell is trying to attract see themselves as customers who need handholding. That's what potentially makes this a good strategic move on Novell's part.

The main problem I can see is that a number of people have now agreed that the agreement breaks the GPL. We'll have to wait to see what the FSF says for certain, but the expert opinion so far doesn't look promising.

Quoting from Novell's new page:

" Novell's end user customers receive a covenant not to sue directly from Microsoft for their use of Novell products and services, but these activities are outside the scope of the GPL."

The GPL is the license covering the use and distribution of the Novell products in question. How can customer use of the products be "outside the scope of the GPL"?

I agree, this "covenant" is a license which Novell cannot sublicense. Thus downstream users/developers cannot add their own innovations.

Propriatary software can't match free software for innovation. This agreement is a lame attempt by MicroSoft to virally infect freedom software with M$ IP. Trying to put Novell's users back on the feudalistic serfdom track. Novell will try to be the vector, the protein shell that is to infect OOo with M$ IP RNA to try to create the illusion that "Open XML" is actually open. Then M$ can hope to con European governments into adopting it with enough bribes, threats and the fig leaf of the Novell bastardized version of OOo.

The same is to happen with Mono and Samba. Embrace, extend (with M$ IP), and extinguish software freedom. Except it ain't gonna happen.

This covenant seems a lot like a support contract to me. Novell sells support for SUSE, I can use SUSE with out it but not with official support from Novell. The same with this covenant. If I am worried that MS will sue me for using Linux then I can buy "support" through Novell to not be sued.

I personally am not worried about professional support or being sued so I will donate my money to other projects that won't waste my money on MS. Since it seems that the only patents that MS holds that Linux violates are the icon on the desktop one and the double clicking the mouse one. But it seems that there is enough prior art on these that if MS sued someone they would loose the patent and not get any money from it.

The main question is why did MS make this deal, because it seems that its good for Novell in the business sector to have a MS approved distro, then the powers that be can get linux without offending the almighty MS. But MS seems to be spending more money on this deal then they are getting out of it.

> What they have negotiated sounds a lot like a quitclaim.

I agree that's how Novell is trying to position the agreement. I'm not sure Microsoft agrees. Of course, as always, Microsoft is trying to use this in multiple ways and therefore refuses to clarify.

> That's just because you're smarter than the average bear.

Now if I could just figure out where I left that pic-a-nic basket I had for lunch. :)

@dinotrac: I don't think a quitclaim is time-limited and paid for with royalties.

> I don't think a quitclaim is time-limited and paid for with royalties.

A quitclaim has whatever value the buyer and seller can agree to, and can be paid for however they wish.

sander -

Not usually, and the Microsoft/Novell deal is not exactly a quitclaim, but it is in the nature of one.

I just see that a deal with the devil is a bad deal. If Country A says that they won't attack Country B or its citizens abroad, but sabre-rattles and threatens Counties C, D, E, F, etc., you wouldn't say that was a moral choice, even if it made practical sense for Country B. That's usually just something to lull a worthy opponent and ready them for a sneak attack. I think Novell is crazy to trust Microsoft on any level, and I think anyone else who does is also a little too trusting. I hope that I am wrong, I really do, but I'm not getting near SUSE, and Microsoft has done nothing...NOTHING...to warrant the least amount of trust on any level.

>I just see that a deal with the devil is a bad deal

In which case one could never sue for peace after a war, or, that Reagan and Gorbachev could not have reached a deal that, for the first time in modern history, actually reduced the nuclear arsenals of the US and the Soviet Union.

Sometimes the devil is the very person you need to make a deal with because it is the devil who wants to hurt you, not your friends.

> Sometimes the devil is the very person you need to make a deal with because it is the devil who wants to hurt you, not your friends.

Only if I can have Daniel Webster as my representative. :)

I don't know. You might prefer Stallman. He definitely doesn't mince words, and has a good eye for attempts at re-defining terms.

>In which case one could never sue for peace after a war, or, that Reagan and Gorbachev could not have reached a deal that, for the first time in modern history, actually reduced the nuclear arsenals of the US and the Soviet Union.

Those weren't deals with the devil, those were deals between devils.

>Sometimes the devil is the very person you need to make a deal with because it is the devil who wants to hurt you, not your friends.

Not exactly a lesson that gets taught in Sunday school, eh? Or in a synagogue, or a mosque.... I wonder why?

> You might prefer Stallman.

I think Stallman would be too likely to fall for the gambit used in "The Devil and Daniel Webster". He's too single minded.

Edit: Here's a link (http://www.gckschools.com/vhs/eng3/fall/romantic/danwebread....) for those unfamiliar with the story.

Quoting:think Novell is crazy to trust Microsoft on any level

How do we know that Novell trusts MS? Maybe they saw this just as a way to get some money from MS, and a way to increase their enterprise business. Novell has said that they don't believe that there is anything infringing code.

They originally went in for working together on interoperability, and maybe thought MS would be willing to work on that, since that was one of the key aspects in the EU anti-trust case. Then MS, since they had Novell in the negotiation room, added the patent thing and since Novell doesn't think there is any infringing code in linux, samba, mono, OO.o said what they hey, why not we get some money and a MS stamp of approval on our distro. Since these are business men they didn't think, how will this affect our relationship with our community, they just saw the dollar signs.

>Those weren't deals with the devil, those were deals between devils.

Now isn't that an interesting observation, one which punctures your whole argument.

Devils (as opposed to The Devil) tend to lie in the eye of the beholder. Even when it's Microsoft. For that matter, from the perspective of a Microsoft employee or reseller, Microsoft could be the one who made a deal with the devil.

>How do we know that Novell trusts MS?

Bingo.

In the old days, Texas oil men would make deals with a handshake. That's trust.

The use of a legally enforceable agreement requires that you trust your lawyers more than it requires you to trust the other guy.

Trust is still nice, but it's good to get a backstop.

I can't claim credit for pointing this out by any means, but if Microsoft did take someone to court and succeeded at shutting down their distribution of anything in suse, then Novell would be in violation of the GPL and would have to stop distributing suse. I agree that Microsoft simply asserting their IP claims probably doesn't put Novell in violation of the GPL.

This gives rise to the interesting case where Microsoft could take a small distribution to court, win because the distribution doesn't have any money to fight the case, and shut down the sale of suse due to GPL violations. Novell would have to stop distributing Linux, would have no way to defend itself because they weren't the ones being sued, and to boot could not retaliate against Microsoft because of their agreement. Of course this is a hypothetical situation, but I sure hope Microsoft sues me for giving my friend a copy of Debian.

bigg -

Huh?

How does Microsoft suing some other distribution put Novell in violation of the GPL? Would that also shut down Red Hat, Ubuntu, Mepis and all of the other Linux distributions? If not, why not?

dino: it would. All distro's would have to cease distribution and remove the offending code when MS wins a court case on patent infringement. Bigg's point is that MS may have postponed suing a distributor for fear of retalliation from Novell. The MS-Novell deal means that Novell can't retalliate - paving the way for MS to sue a small distro distributor without money to defend itself.

A nice theory but if I were MS, I'd fear IBM's retalliation more than Novell's.

> would have no way to defend itself because they weren't the ones being sued,

That what amicus briefs, paid lawyers, and financial assistance are for. No one can stop Novell from helping the target of Microsoft's suit with free legal advice and money.

> The MS-Novell deal means that Novell can't retalliate...

How? Novell has no agreement not to sue Microsoft, or vice versa. Their agreeement is not to sue their users.

>Bigg's point is that MS may have postponed suing a distributor for fear of retalliation from Novell

Y'know, that one actually makes a modicum of sense. I'm not at all sure that I buy it, but that makes a lot more sense than some of the stuff I've seen put out. And, yes, if there is an actual patent infringement, that would be the case. Of course, that would be the case with or without the Novell-Microsoft agreement.

It won't go down that way, though, for one simple reason. It's a legal concept called res judicata. Essentially, a finding of fact in a court of competent jurisdiction can bind others and be applied to other cases in the same jurisdiction. This is different from rules of precedence because the fact has to be the same fact. For example, Microsoft's position in antitrust lawsuits was made more difficult because of the federal government's courtroom victory. Plaintiffs will still have to establish specific fact scenarios and demonstrate damages, but the fact of Microsoft's monopoly status in desktop PC's has already been established. That's a big deal.

So...if you're Red Hat or Oracle or IBM, you do not want a significant federal court finding that Linux code violates a patent, lest that finding find its way into an action against you.

Quoting:So...if you're Red Hat or Oracle or IBM, you do not want a significant federal court finding that Linux code violates a patent, lest that finding find its way into an action against you.

The GPL requires that infringing code would have to be removed anyway, so after MS wins against a small distribution, everyone would replace the code and Linux would be patent free again. This means that the ruling would be irrelevant to another lawsuit, right?

>This means that the ruling would be irrelevant to another lawsuit, right?

No. Relief for patent infringement includes compensation for lost royalties, not just an order to remove offending code.

The other case to consider is that the code may not infringe but the defendant lacks the legal resources to establish that. I have no doubt that the sharp lawyers available to the likes of IBM or Oracle could find a way to make the case that an issue was not actually contested, but why start 10 paces back of the starting line with a bag of cement on your shoulders.