Couldn't have said it better
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| Author | Content |
|---|---|
| ELF Nov 07, 2006 6:33 AM EDT |
Subject says it all. As SLES does not include any code copyrighted by me I am not in a position to request a public statement / clarification regarding the scope of their indemnification and whether or not this includes any GPLed software. But inquiring minds at FSF might wish to know. Eben are you listening? |
| incinerator Nov 07, 2006 7:06 AM EDT |
Oh, I think the scope of the indemnification they offer is pretty clear:
Novell: "Some of the code in (open)SUSE might infringe on ms' patents. Or it might not. We don't have a clue either way. However, we are paying microsoft money. In return MS has promised that until 2012 they won't sue you for patent infringement if our code actually did infringe on their patents. We don't know if they would sue anyone else nor not, they haven't told us." Novell's shot themselves into the foot here: If ms goes after another GNU/Linux distributor or other Free Software project for patent infringement, Novell will have to remove the infringing code from their products, as well. Since ms hasn't given them a patent license, they would cleary violate section 7 of the GPL otherwise. That might actually make it unlikely for ms to go after other GNU/Linux players. Every move against RedHat for instance would hurt Novell/SUSE, as well. Or perhaps that's what ms understands as "cooperation" *ggg* |
| cjcox Nov 07, 2006 10:14 AM EDT |
We're still all making assumptions over detailed information we don't actually possess. I guess word of the day is to OVERREACT first just in case. Yes... the royalty payment is probably the issue that needs to be understood the most in this deal. But Novell is most certainly NOT another SCO. Not even close. Now.. if Microsoft starts suing its customer base because of patents it believes are being violated by a customer's use of Linux... then certainly, Microsoft becomes a bit more SCO-like. Novell definitely has some unanswered questions that they need to address.... but let's not hang them... not yet... |
| Rascalson Nov 07, 2006 12:59 PM EDT |
Many will hang them just because of what this deal says about Novell. Also, how different legally is a covenant from a license? Covenant is just a cover up word. The end result legally is the same, a "license" to use the patented technology for the period of the cov^^^license. I don't see this pig flying for to long before there is a copyright infringement lawsuit against Novell from someone somewhere, as well there should be. |
| herzeleid Nov 07, 2006 3:10 PM EDT |
The new sco? hmm, let's see, Novell hasn't sent any letters to the linux community or to linux customers threatening lawsuits or demanding royalties, and suse linux remains 100% free, GPL'd and available for download. So, I fail to see the analogy with sco.... |
| dinotrac Nov 07, 2006 3:33 PM EDT |
herzeleid - Exactly. From what I can see, Novell had a little leverage (it was suing Microsoft) that it used to get a good deal for its customers and hence for itself. I have yet to see a single bad thing Novell has done except to make it possible for people to use SuSE linux without worrying that Microsoft will sue them. That's a bad thing, I guess. We certainly don't want any businesses feeling comfortable with Linux, now do we? Oh...while we're at it...I might mention that Red Hat indemnifies its customers the same way. They just didn't have the leverage Novell did. |
| devnet Nov 07, 2006 4:09 PM EDT |
The fact that there will be licenses made available through Microsoft to run "Microsoft Certified SuSe Linux" is enough to draw a SCO similarity. Look at Ballmer's nice comment: Quoting:Such talks would be a good idea, Ballmer suggested, since now only Novell's SUSE Linux customers are the only Linux vendors that have any assurance that Microsoft won't sue for patent infringement. That's enough right there...Microsoft will be gently brushing their customers over to the SuSe side of things...afterall, they don't want to get sued now do they? All the while they're charging them money to distribute SuSe and so that people can have that license. That's an indemnification license right there...no matter how you cloak it. Howdy SCO :D |
| dinotrac Nov 07, 2006 4:32 PM EDT |
>The fact that there will be licenses made available through Microsoft to run "Microsoft Certified SuSe Linux" is enough to draw a SCO similarity. No it is not. SCO went on the attack against Linux users and the Linux community. SCO sent trheats and SCO sued. Novell has not done that. They have made a business decision to protect its business and its customers. I have yet to see a singel concrete example of Novell misdeed towards Linux and the Linux community cited. What I see is paranoia and angst from people who apparantly want nothing that looks remotely like success for Linux and Free software. |
| dcparris Nov 07, 2006 5:58 PM EDT |
> I might mention that Red Hat indemnifies its customers the same way. Actually, Red Hat does offer indemnification in a rather different way. Red Hat offers something akin to assurance, whereas Novell forged a deal with Microsoft. It might accomplish the same 'protection', but how much is Red Hat paying Microsoft for it? Had Novell sold an assurance package like this, it wouldn't have appeared to be an illegitimate deal with the devil. Iow, why go to Microsoft for such assurance, especially given how far they can be trusted? I don't know if I buy the "Scovell" hype, but still. It is a rather different situation. I know. That still doesn't answer the question of Novell's misdeeds, but I am here only attempting to show how their assurance is different from Red Hat's. |
| dinotrac Nov 07, 2006 6:13 PM EDT |
>why go to Microsoft for such assurance, especially given how far they can be trusted? For the same reason you go to the Lord for salvation -- because he can offer it. Think about it. Would you rather seek salvation from the Creator of the Universe or some priest who says he's got an in and can make sure things go very well for you in the afterlife? For that matter -- wouldn't you rather never have to use your health insurance? RedHat can offer something akin to insurance -- an offer to pick up the tab. Novell, on the other hand, can promise that you won't need to be indemnified because nothing will happen. |
| devnet Nov 07, 2006 7:23 PM EDT |
Quoting: No it is not. Says you. I say it is. Quoting: SCO went on the attack against Linux users and the Linux community. SCO sent trheats and SCO sued.And I make it clear in the beginning of my article what things are about...licenses, IP/patents, and indemnification. Not about attacking Linux or the community or suing. There's no paranoia here...there's only perception. I perceive this 'deal' as being a whole bunch of crap that makes Novell look a bit like SCO...and I see Microsoft and their statements supporting this. If you see otherwise in that statement I quoted above, please share. Otherwise, concede...because changing the subject by talking about attacks on Linux and how SCO did it isn't working...I'm not comparing those things...only one...indemnification and funding through Microsoft...both of which SCO also did. |
| dinotrac Nov 08, 2006 12:19 AM EDT |
>concede Concede what? Even the indemnification issue doesn't work for you unless you want to lump Red Hat in there too. First, an apology if I have used the word "indemnify" to describe the Novell deal. I don't feel like going back through my posts, but, if I have, I apologize. It is not the correct term. When you offer to indemnify somebody, you are offerering to hold them harmless, which, as a practical matter, means that you are offering to cover their costs. To my understanding, that's not what Novell has done. Instead, they have secured an agreement from Microsoft not to sue. That's actually a ton better than indemnification. Now...here's where the details matter: Novell secured an agreement from a third party for the protection of it's customers. SCO threatened to initiate lawsuits against companies that were not its customers. Completely different animals. |
| devnet Nov 08, 2006 6:25 AM EDT |
Red Hat isn't making money off of the indemnification clause put into their license...they're not partnering with the company that is selling "get out of jail free" cards to do it. Now...Novell may not be threatening their customers with lawsuits...but Microsoft is taking care of that for them. Paragraph 2, http://www.eweek.com/article2/0,1759,2050848,00.asp So while they're not directly threatening the community, they're partnering with someone who is...sure Microsoft always threatens the community...being the arch enemy for many years. But this statement linked to above is a direct, yet subtle, threat toward anyone NOT using Suse Enterprise Linux. Two simple facts make me draw the correlation: 1. They're taking money from Microsoft for and giving their own customers indemnification just like SCO 2. They're lying to the community now...SCO liked to lie quite a bit too Proof for #2 is on the Novell FAQ page: http://www.novell.com/linux/microsoft/faq_opensource.html Look at Q1 Quoting:"Our agreement with Microsoft is focused on our customers, and does not include a patent license or covenant not to sue from Microsoft to Novell (or, for that matter, from Novell to Microsoft). Novell's customers receive a covenant not to sue directly from Microsoft." What the heck is that? They contradict themselves in the same sentence? Fishy to me my friend. I especially like Ballmer saying Quoting:Microsoft has joined into this Windows-Linux collaboration projects because "customers want it" and because "if we're interoperable we are going to take more business from Linux," Yes Novell, let's partner with someone who wants to take our customers. That's smart. Next thing you know FedEx and UPS are going to clasp hands and sing ring around the rosy. It's also nice to know I'm not the only one drawing correlation: http://www.channelregister.co.uk/2006/11/07/perens_on_ms_nov... Now go back up and look at Ballmer quoted in that article in paragraph 2 I pointed to. So it's good that Novell can keep Microsoft on a leash eh? |
| dinotrac Nov 08, 2006 6:35 AM EDT |
>Red Hat isn't making money off of the indemnification clause put into their license. How do you figure? Red Hat offers indemnification for the same reason that Novell values the agreement with Microsoft: It's a lfot easier to sell to corporations if you can offer protection. Increasing sales = making money. |
| devnet Nov 08, 2006 6:52 AM EDT |
Yes but Red Hat didn't make a monetary gain by offering that indemnification. Novell made 204 million+. To them, it was a necessity to have in place. To Novell it was something they could capitalize on...legal or not. Sure increased sales = making money...no one is disagreeing with it. But Red Hat doesn't make this indemnification the forefront of their business, nor do they get kick backs from MS for it. This deal has solidified Novell capitalizing on this interest. MS PR turbines are kicking into overdrive as we speak to showcase this issue. Protection from Novell could have come in a purely non-monetary way through the same type of clause Red Hat makes. The fact is, it didn't. Instead, they made money on it and are now funded by Microsoft. Thanks ScoVell. |
| dinotrac Nov 08, 2006 7:04 AM EDT |
>Novell made 204 million How do you figure? |
| devnet Nov 08, 2006 7:07 AM EDT |
sorry, 240 million... http://www.businessweek.com/ap/financialnews/D8L8JGB00.htm |
| dinotrac Nov 08, 2006 7:22 AM EDT |
ummm... I didn't see a breakout for the agreement not to sue. This may come as news to you, but Microsoft and Novell were engaged in a litigation. I'm a guessing $240 mil was the price for settling that. If you're going to look at it that way, the actual number is more than $750,000,000 because Novell had already settled an antitrust lawsuit they had filed against Microsoft. I find this odd, though... You seem to think that companies shouldn't sue Micrsoft, or, if they do, they shouldn't succeed. Would it tick you off if Red Hat sued Microsoft for antitrust, infringement, business slander or whatnot> Would it tick you off if they extracted a cool couple hundred mil from the Redmondites and a promise to stop doing bad things? I guess it would, as that seems to be your position here. |
| devnet Nov 08, 2006 8:14 AM EDT |
dino, There hasn't been a settlement on the litigation filed. It stll continues. I assume you're speaking of the Quattro Pro and Wordperfect litigation that Novell and Microsoft are involved in. I don't remember seeing that this has ended. I honestly don't care if the role was reversed and Red Hat was in the fray. I think that anyone or any company that pays Microsoft money so they won't sue with their invisible and unapparent eye pee inside Linux code is selling out. And any company that calls a covenant a license is just trying to circumvent the GPL. My position isn't that companies shouldn't sue Microsoft...just that companies should pay Microsoft to not be sued. To me, that's extortion. |
| dinotrac Nov 08, 2006 8:26 AM EDT |
There hasn't?
Interesting.
I'll have to take a closer look at who got what for what. I'm rather amazed that settling the suit wasn't part of the deal |
| jdixon Nov 08, 2006 3:50 PM EDT |
OK, here's from the most recent article currently at the top of the LXer news queue: "Under the patent cooperation agreement, Novell's customers receive directly from Microsoft a covenant not to sue. Novell does not receive a patent license or covenant not to sue from Microsoft, and we have not agreed with Microsoft to any condition that would contradict the conditions of the GPL. Our agreement does not affect the freedom that Novell or anyone else in the open source community, including developers, has under the GPL and does not impose any condition that would contradict the conditions of the GPL. Therefore, the agreement is fully compliant with the GPL." IF I understand this correctly, it's as follows: Novell does not have a covenant with Microsoft, Novell's customers do. However, is this covenant transferable? If not, no one who is a Novell customer can be a Linux developer, because they have an agreement which cannot be transferred, thus violating the GPL. Does this sound correct? |
| dinotrac Nov 08, 2006 3:56 PM EDT |
>Does this sound correct? No. Under no circumstances will I believe that any competent court would reach that conclusion. More likely, they would view that as something separate and outside of any software license. It exists whether or not Novell customers create any software. |
| dcparris Nov 08, 2006 3:58 PM EDT |
> However, is this covenant transferable? If not, no one who is a Novell customer can be a Linux developer, because they have an agreement which cannot be transferred, thus violating the GPL. Hmmm... I also wonder how that would play into the issue. |
| jdixon Nov 08, 2006 4:41 PM EDT |
Dino: > Under no circumstances will I believe that any competent court would reach that conclusion. I'm inclined to agree with you. I think they'd rule since the covenant was made with the GPL in mind, that it HAD to be transferable. But... that assumes a competent court. I don't have your confidence in their existence. |
| jdixon Nov 09, 2006 7:06 AM EDT |
Dino: Regarding the Novell/Microsoft lawsuit. Given that the patent agreement is supposedly between Microsoft and Novell's customers, this explains why the lawsuit wasn't settled in the same agreement. They didn't want to give even the appearance that the agreement was actually with Novell. Odds are that there will soon be a separate agreement covering that lawsuit. Now, whether Novell has the legal authority to negotiate an agreement on behalf of their customers without their consent is a debatable point. I'd think not, but IANAL. |
| dinotrac Nov 09, 2006 7:15 AM EDT |
jdixon - >ow, whether Novell has the legal authority to negotiate an agreement on behalf of their customers without their consent is a debatable point. I'd think not, but IANAL. Absolutely they do. In this case, the customers are third-party beneficiaries. The agreement is between Novell and Microsoft, but the beneficiaries are Novell customers. They give up nothing -- they never had any right to be sued by Microsoft and Microsoft has every right to decide who it will and will not sue, presuming that a bsis for suit even exists. |
| hchaudh1 Nov 09, 2006 8:37 AM EDT |
@dinotrac You said Novell made a business decision to protect its customers. From what? |
| tuxchick Nov 09, 2006 9:01 AM EDT |
hchaudh1, from having too many software choices and too much excess money. |
| jdixon Nov 09, 2006 9:12 AM EDT |
> In this case, the customers are third-party beneficiaries. Only if the agreement imposes no requirements on them. If the agreement not to sue is not transferable, then it breaks the GPL, which imposes a requirement. If it is transferable, then Microsoft has just agreed not to sue ANY Linux user, which I don't believe. |
| dinotrac Nov 09, 2006 9:18 AM EDT |
hchaudh1 - tc : Mythology is full of horrible beasts: werewolves, ghosts, vampires, Chupacabras, etc. More frightening than all of them is Redmondus Abomicus. Novell has secured protection from the mighty RA, which beats wearing a garlic necklace any day. |
| dinotrac Nov 09, 2006 9:20 AM EDT |
jodxon >If the agreement not to sue is not transferable, then it breaks the GPL, I have no idea what the heck you think you are talking about here. Transferrable from whom to whom? I presume that it would transfer to the buyer if somebody were to buy out Novell. That's pretty standard practice in business agreements. Why would that have anything to do with the GPL? |
| jdixon Nov 09, 2006 9:31 AM EDT |
Dino: This is my understanding. I already know you don't agree (see my comment above and your response), but I think we agree that it would finally have to be settled in court. If you're a Novell customer you are covered by the agreement not to be sued. If you distribute a GPL'ed program (i.e., by giving a copy of your OpenSUSE DVD to a friend), you have to be able to transfer that agreement to them, or you're violating the GPL Either Microsoft did not intend for the agreement to be transferable, in which case it breaks the GPL and (by their own comments that they did not intend to break the GPL) is null and void, or they did and it thereby effectively covers all Linux users. |
| tuxchick Nov 09, 2006 9:38 AM EDT |
How can a Novell customer be sued anyway? Since when are customers liable for their vendor's misdeeds? |
| dinotrac Nov 09, 2006 9:47 AM EDT |
TC - A Novell customer can be sued for infringement (just like anybody else) if they use patented technology without the authorization of the patent holder. Each unauthorized use is a separate violation. |
| tuxchick Nov 09, 2006 10:07 AM EDT |
dino, that sounds just plain daffy. Are you sure? So if I purchase say, a toaster that violates someone's patent, the patent holder can sue me? So the law is even dorkier than my darkest, most cynical imaginings? |
| jdixon Nov 09, 2006 10:19 AM EDT |
> So if I purchase say, a toaster that violates someone's patent, the patent holder can sue me? I believe so, yes. However, unless they give you some chance to make things right first (i.e., by stopping use of the toaster and shipping it to them to prove non-use), I think a court would take a dim view of any significant liability on your part. Dino would know better than I do. |
| dinotrac Nov 09, 2006 10:45 AM EDT |
tc - Yes. They wouldn't, because there is no money in it, and it is ridiculously expensive to go after end-users on a toaster. Going after corporations for their use of software is a different matter. Which may be a clue for me... I've been trying every which way to come up with a good way to illustrate why I don't think this can be a GPL problem, and maybe this is the clue I need. I would bet that Microsoft already has an informal convenant not to sue individual linux users. Not published, terms not disclosed, but, somewhere, someway, somehow, I suspect Microsoft management has made it a business policy not to sue individual linux users just because it's expensive and brings needless bad karma. That could be thought of as a covenant not to sue, a very secret "Hey guys!! don't worry, we're not going to sue you, but we don't actually want you to know" Hmmm. Doesn't sound as good as I hoped it would. Darn. Back to the drawing board. |
| dek Nov 09, 2006 11:04 AM EDT |
Me: scratching my head at last dino comment! A "secret covenant" not to sue??????? Come on, dino! Microsoft may have made a secret desision not to sue but that isn't the same thing as a covenant, at all, at all. They can go back on that decision and get away with it. A covenant is "between me and thee". meaning it is at least known about by the two parties. So what good is a secret covenant? Glad to see you are re-evaluating it, dino. |
| dinotrac Nov 09, 2006 11:36 AM EDT |
dek - Well, a covenant is between me and somebody. It can benefit "thee" even if it is between me and "he". Which doesn't help me much at all for the moment. Sigh. I used to be so much better at this. |
| theboomboomcars Nov 09, 2006 12:00 PM EDT |
From what I understand there is no IP licensing going on with this contract. Novell and MS exchanged money for a promise not to sue each others customers for IP violations for the next 5 years. I haven't seen anything specifying what customers these would be and the limitations of the covenant are. But if this is the case then it has nothing to do with the GPL, or distribution of any kind. The only time a problem would come is if Novell put some of MS' IP into one of the projects they are working on. It almost seems like a support contract. If I wanted i could go buy SLED with a 1 year support contract and in that contract Novell promises to help when I have problems with their software. Then I could install SLED onto my friends computer. If I do install SLED onto a friends computer he would not be covered by my support contract. If he wanted support from Novell, he would have to buy his own contract. This Novell MS deal has this same feeling, right now. If you buy SLED from Novell then you get a promise to not be sued by MS. But if you don't buy it from Novell then you don't have that promise. If I am just using OpenSUSE and have not actually ever purchased something from Novell, then it seems I would not be covered by this covenant because I am not a Novell customer. I may have misunderstood what I have read, if so please clarify misunderstanding. But what about a corporation that buys a support contract for one computer and then uses a different distrobution for every other computer. The corporation is a Novell customer so if MS finds something in Linux, Mono, OO, etc. that does infringe, MS won't be able to sue them, even though they are using a different distrobution, because they made a covenant not to sue Novell customers. |
| dinotrac Nov 09, 2006 12:14 PM EDT |
boomboom -- I could swear I saw something from Novell to the effect that OpenSuse users and developers were covered, but I can't remember where. As usual, I could be wrong. ;0) |
| jdixon Nov 09, 2006 12:32 PM EDT |
> I could swear I saw something from Novell to the effect that OpenSuse users and developers were covered, but I can't remember where. One of the press releases clearly said somesuch about OpenSUSE developers. I don't think it mentioned users. |
| dek Nov 09, 2006 1:18 PM EDT |
@dino "Well, a covenant is between me and somebody. It can benefit "thee" even if it is between me and "he"." I don't have any problem with that. It's just it sounded like you were saying that M$ had a "secret covenant" known only to themselves but no one else was in on it -- least of alll the FOSS community. THAT caused me some head scratching because that's not my idea of a covenant. That's more of a secret decision which can easily be forgotten. |
| dinotrac Nov 09, 2006 1:23 PM EDT |
dek - That's why I went back to the drawing board. All this thinking is hurting my head. |
| tuxchick Nov 09, 2006 1:34 PM EDT |
dino, it's OK. Anything Microsoft-related induces headaches. |
| devnet Nov 09, 2006 2:15 PM EDT |
If they do mention OpenSuSe developers then it is most likely in Microsoft's best interests that Novell mention said developers. I'd say Microsoft has a vested interest in developers if they want those covered in the 'covenant'. What it is? No one knows...but it smells awfully fishy. |
| herzeleid Nov 09, 2006 4:01 PM EDT |
If Novell is the new sco, then who is the old sco that Novell is battling in court? |
| dinotrac Nov 09, 2006 4:02 PM EDT |
>If Novell is the new sco, then who is the old sco that Novell is battling in court? Is this where the idea for the TV show "The new adventures of the old Christine" came from? |
| dcparris Nov 09, 2006 4:38 PM EDT |
> I don't have any problem with that. It's just it sounded like you were saying that M$ had a "secret covenant" known only to themselves but no one else was in on it -- least of alll the FOSS community. THAT caused me some head scratching because that's not my idea of a covenant. That's more of a secret decision which can easily be forgotten. I thought Dino's point was that MS had promised themselves they wouldn't sue individuals. He was trying to sort of paint the picture using the idea of a covenant. Kind of like if I promise myself that I won't eat that whole platter of barbecue. The barbeque doesn't know it. The other people who might want some of the barbecue don't know it. But I promised myself I wouldn't, and the other people benefit. The benefit for the barbecue is dubious, of course. Hopefully, this helps to confuse you further and add hunger to headaches. ;-) |
| tuxchick Nov 09, 2006 4:43 PM EDT |
See, I told you- typical Microsoft evasions and doubletalk. It is not their way to be straightforward and honest. You're not supposed to understand it. |
| jdixon Nov 09, 2006 5:05 PM EDT |
> Kind of like if I promise myself that I won't eat that whole platter of barbecue. Sure you did. We know all about you and barbecue. Pictures don't lie. |
| dcparris Nov 09, 2006 5:19 PM EDT |
Let me see if I can dig up that shot of me and my legs again for you. ;-) |
| dek Nov 09, 2006 5:38 PM EDT |
'"Let me see if I can dig up that shot of me and my legs again for you." Haven't we suffered enough? ;-D |
| dinotrac Nov 09, 2006 5:41 PM EDT |
>Haven't we suffered enough? ;-D Hey...the shot's not all bad. I seem to remember there being a very attractive plastic pig in the picture. |
| dek Nov 09, 2006 5:51 PM EDT |
a very attractive plastic pig in the picture. True, I'd forgotten about the pig. ;-) |
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