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11.21.06

When One Loses, Another One Gains

Posted in Deals, Novell, Red Hat at 7:59 pm by Dr. Roy Schestowitz

Over the course of the day I have been observing a torrent of good news for Red Hat. This company, which is Novell’s main rival, appears to quickly recover from an almost-simultaneous onslaught, courtesy of Novell, Microsoft, and Oracle. This recovery was not made possible owing to the immediate buybacks alone. Red Hat now boasts support from over 2000 independent software vendors (ISV’s), its stock just rose 2.36% and it received an upgrade from an analyst. To quote the relevant bits:

…we believe that there are still enormous returns on investment opportunities associated with the Open Source movement…The recent announcements from Oracle and Microsoft create an interesting dilemma for investors, however we believe that Dell, IBM and HP, etc., will stay the course and continue to support Red Hat, and the recent headlines have provided a unique opportunity to “get involved” in the Linux story.

This proves not only that Ellison’s and Ballmer’s FUD strategy cannot boggle the customer’s perception. It may also come to show that Red Hat will soon acquire customers at Novell’s expense. Not even the world’s largest software companies, as prominent as they these titans may be, can undermine the Linux industry as a whole. It is by all means reassuring.

Sell Your Soul And Investors Will Sell Your Shares

Posted in Deals, Finance, Novell at 7:05 pm by Dr. Roy Schestowitz

The sun no shines over Novell’s head. Ever since the deceptive deal was made, its reputation has been gradually sinking.

Three weeks ago when Novell, Inc. announced a groundbreaking deal to partner with Microsoft to work on interop solutions between its Linux operating system and Microsoft’s, shares jumped 16%. Since then, they have given up more than half of their gains, emphasized yesterday by a note downgrading the stock to “underperform” by Credit Suisse analyst Jason Maynard, who wrote, “We do not believe the 10% appreciation in the stock is sustainable.”

Microsoft’s parallel upgrade from the same analyst seems to highlight who the winner in this partnership is. Meanwhile, an item from bizjournal.com appears to suggest that Novell has just lost another executive. Less impact for Novell equates to diminishing credence in Microsoft’s allegations and FUD.

Red Hat to Stay Mono-free

Posted in Intellectual Monopoly, Mono, Red Hat at 5:06 pm by Dr. Roy Schestowitz

It has already been argued that Novell’s Mono had evolved to become a legal minefield. Unsurprisingly, Red Hat excludes Mono from RHEL 5.

There are a lot of great new programs and innovations expected in Red Hat Enterprise Linux 5. The Novell-led Mono project isn’t one of them.

Mono is an open source implementation of Microsoft’s .NET framework. It recently hit version 1.2 offering the promise of improved Windows-to-Linux .NET portability.

Let Novell Inherit Scorched Earth

Posted in Action, Boycott Novell, GPL, Novell at 2:17 pm by Shane Coyle

Novell has lost their Geek Cred, they sold out, even Credit Suisse knows it. Eben Moglen and the Free Software Foundation are going to specifically design the GPL3 to disallow discriminatory deals such as the one that Novell has entered into with Microsoft.

Under Microsofts Community Commitment terms, the only approved channel for code redistribution is OpenSuSE.org, and then only if it is accepted into a full SuSE product. Essentially, they feel that the compulsion to code is so great that the community will be forced to enhance Novell’s increasingly proprietary and encumbered Linux.

It is time for the OpenSuSE community to speak out, or more specifically – walk out. Let Novell know that they will be responsible for maintaining their own forks (or they can always get help from MS, they write decent code) from here on in.

Participate in the discussion for GPL3, and prepare to implement it. For many projects, this may require an audit to identify code which cannot be relicensed and perhaps replaced, but maybe that is Microsoft’s plan – to slow down OSS development a few years and let Vista catch up. In any event, let us make sure that GPL3 reaffirms our commitment to Freedom.

It is already apparent that Microsoft is succeeding in fragmenting the community, and it is because Novell agreed to this short-sighted, self-serving deal. Because Novell has decided to act in its own best interests, counter to the espoused principles of the very people who write the software the distribute, they must be excommunicated.

He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.
Thomas Paine (1737-1809)

History shows us what happens to those who partner with Microsoft.

Patents Threat Denounced, But What About Trademarks?

Posted in FUD, Intellectual Monopoly, Law, Microsoft, Patent Covenant, Patents, Windows at 7:12 am by Dr. Roy Schestowitz

David Berlind of ZDNet argues that, while Novell denies responsibility for or admission of patent infringements, a door remains open on the trademarks front. This is a long write-up which concludes that Steve Ballmer could go for legal pickles rather than major baseless allegations over IP.

That could be in the case. Especially since Novell, in its watershed deal with Microsoft, has taken great care to reiterate that it still believes that it has not infringed on any Microsoft patents. Why then would Novell pay such a huge sum of money (with a promise of longer-term royalities) if it really believed this? Answer? Microsoft may have presented Novell with compelling evidence that Linux (or something that Novell was distributing) infringes on its copyright. Or maybe a trademark (or a servicemark).

David Kaefer: “Patents are Hard to Understand.”

Posted in FUD, Intellectual Monopoly, Law, Microsoft, Patents, Windows at 3:38 am by Shane Coyle

Computerworld is running a story including a few quotes from David Kaefer, MS GM of IP Licensing (page 2 of the article):

Asked whether Microsoft would consider revealing what parts of Linux allegedly violated the company’s intellectual property so that open-source developers could throw out the offending code, Kaefer demurred, saying it would not be “very productive.”

“Patents are hard to understand. You have to have a certain level of expertise to understand the scope. And there are legitimate questions about patent quality,” he said. “The reality is that you’d have to look at thousands of patents and thousands of products. To focus on every single one would be prohibitive.”

“Legitimate questions about patent quality”, what does that mean exactly? And how can the community’s earnest desire to respect MS intellectual property rights not be productive?

Apparently, Patents are indeed very hard to understand, but no more so than this deal. I thought that Novell said this wasn’t about patents to them, they are making no admission of latent violations, and that the deal was indemnifying Novell’s customers and not Novell, and therefore is GPL compliant. Microsoft sees the deal much differently, as we have already learned, and now we see more into MS’ perspective:

“Steve’s comments are a perspective we do have at Microsoft,” said Dave Kaefer, Microsoft’s general manager for intellectual property licensing. He said latent patent violations — and agreements to indemnify each other against them — are common.

“Where we compete with some company with similar technology, it is common for there to be overlap,” Kaefer said. “It’s not because one is a good party and the other is a bad party, it’s because we have both created a lot of value.”

Kaefer confirmed that the two companies shared their respective patent portfolios with each other before signing the deal, though he said that was also a typical business practice. “We said ‘This is what we got.’ Both companies were aware of what each other has,” Kaefer said.

Neither he nor Dragoon would say how extensive the patent review was, nor whether it turned up any possible violations of Microsoft patents in the Linux source code.

So, anyone out there want to spin this as not a cross-license agreement between Novell and MS directly?

Why are we waiting for GPL3?

Posted in Action, Boycott Novell, GPL, Law, Microsoft, Novell at 2:57 am by Shane Coyle

IANAL, AFAIK.

Now, with the preliminary disclaimers out of the way, I applaud Eben Moglen and the FSF’s pledge to construct the GPL3 to specifically include language to outlaw discriminatory patent agreements such as the MS-Novell deal.

“I’m instructed by my client,” Moglen said, referring to the FSF, “that version 3 will contain measures that will prevent any such deal from occurring in the future. We will change the law such that . . . we will reverse the legal consequences of this deal.”

But, I still do not concede that the deal is compliant with the GPL2 in practice. GPL2 will not let you limit the redistribution rights of those who receive GPLed code from you (GPL V2 S6):

6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients’ exercise of the rights granted herein.

Of course their is a technicality, Novell is not placing restrictions on you, their partner Microsoft is. Review the terms of the MS Community Commitment , your options for “legal” redistribution are to submit your changes to OpenSuSE.org. Otherwise, you may only make changes for your own personal use, and may not share them with others.

Microsoft hereby covenants not to assert Microsoft Patents against each Individual Contributor (also referred to as “You”) for Your distribution of Your personally authored original work (“Original Work”) directly to openSUSE.org, but only if, and to the extent, (i) Your Original Work becomes part of SUSE Linux, SUSE Linux Enterprise Desktop or SUSE Linux Enterprise Server, and (ii) You ensure that as a result of Your contribution, openSUSE.org, and all further recipients of Your Original Work, do not receive any licenses, covenants or any other rights under any Microsoft intellectual property. This pledge is personal to You and does not apply to any use or distribution of Your Original Work by others.

Those are the liberal terms for contributors to OpenSuSE.org, if you are not willing to contribute your code improvements back to Novell, you can always just keep them to yourself. Really.

If you are a “Non-Compensated” Hobbyist developer, Microsoft will not allow you to redistribute or share your code improvements without fear of litigation. And just forget it if you are a “corporation, partnership or other legal entity”. This is what MS calls “community”.

By entering into this deal with MS, Novell is in effect limiting recipient’s rights to redistribute GPL’ed code using MS as a proxy. As I have said before, whether or not Novell is violating the letter of the GPL, it is certainly violating its spirit.

Novell must not be supported, Boycott Novell.

Novell and MS ‘Agree to Disagree’ Over IP Accusations

Posted in Deals, Intellectual Monopoly, Microsoft, Novell, Patent Covenant, Patents at 1:04 am by Shane Coyle

Novell has posted an Open Letter to the Community, in which they defend their deal with MS and reaffirm their commitment to Free Software and attempt to clarify their position.

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. 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. Novell has a significant patent portfolio, and in reflection of this fact, the agreement we signed shows the overwhelming balance of payments being from Microsoft to Novell.

Since our announcement, some parties have spoken about this patent agreement in a damaging way, and with a perspective that we do not share. We strongly challenge those statements here.

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.

Then, MS had a response to the Novell letter, as reported by Linux Today and attributed to an ‘MS spokesperson’.

“We at Microsoft respect Novell’s point of view on the patent issue, even while we respectfully take a different view. Novell is absolutely right in stating that it did not admit or acknowledge any patent problems as part of entering into the patent collaboration agreement. At Microsoft we undertook our own analysis of our patent portfolio and concluded that it was necessary and important to create a patent covenant for customers of these products. We are gratified that such a solution is now in place.”

I can’t believe that two parties can negotiate a deal for months and still have diametrically opposed viewpoints as to the significance of the deal. I am inclined to believe the Novell has just learned what the folks at Baystar Capital and the myriad others learned when dealing with MS. Now, more than ever, Novell must pull out of this deal.

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