Violent revolution by Microsoft, CIA style
Summary: A recollection of very dirty tactics from Microsoft, which uses money to oppress, overthrow, and even hijack its opposition
Paul E. Singer (aka “Elliott“, a misnomer for a bunch predatory investors) can be accused of letting Microsoft grab Novell’s patent portfolio through CPTN. More recently we saw this vulture preying on another company and now we see it destroying BMC for personal gain. The Microsoft booster (only occasional) at the Financial Times says: ‘The deal marks a success for Elliott Management, the activist investor that accumulated 9.6 per cent of BMC shares and won two seats on the company’s board.”
That’s entryism. Pamela Jones wrote about it that “Elliott Management forced the Novell deal too. Since Microsoft was involved in all that, what is the real purpose of all this?”
Novell is no longer a focus of ours. We mostly ignore articles about SUSE, taking a passive approach. But Novell’s patents and the tactics of entryism cannot be ignored. Microsoft is now doing to Nokia what it did to Novell and at the end of the day we are left dealing with just another SCO. Here is some more coverage about Novell and SCO, courtesy of Jones:
Our own Justin Ellis attended today’s hearing at the 10th Circuit Court of Appeals on Novell’s appeal in Novell v. Microsoft. This is the antitrust litigation Novell brought over WordPerfect. He has a report for us. He begins with his general impressions, and then provides his notes on the arguments.
What we have learned from those two cases is that Microsoft can turn opponents (like Nokia) into allies using entryism, essentially an infiltration and/or bribe. Microsoft funnelled hundreds of millions of dollars for Novell to change teams after Novell had become a fierce antitrust opponent of Microsoft and Microsoft paid tens of millions of dollars to SCO when it attacked Linux with empty copyright claims. More recently Microsoft also bribed Barnes & Noble to defect from legal action against Microsoft to a Microsoft alliance or even a sale to Microsoft (see [1, 2, 3] for background). Not too long ago Barnes & Noble complained about the patent system and shortly thereafter Microsoft tried to abduct and silence the company for good. Regarding the news that “Microsoft Mulling Nook Media LLC Purchase For $1 Billion” Pamela Jones wrote: “And so Microsoft kills off another Linux-based offering in the market, just as its deal with Nokia killed off another. Anti-trust regulators, are you noticing the subtle strategy?” Regarding the news that Microsoft claims to be making billions from Android ‘licensing’ (extortion), Pamela Jones wrote: “To regulators: please notice that it is Microsoft and Apple who are claiming that Motorola is asking for unconscionable amounts of money. But Microsoft is making much, much more per device. Remember that they claim if they had to pay Motorola less than this per device, somewhere between $3.50 and $4.00 per unit, they couldn’t stay in business. So, the question before you has to be, is Microsoft using patents to destroy its chief competition? And NO ONE has tested these patents to determine if they are even valid. It’s all done by bullying. Barnes & Noble revealed that the patents shown to them by Microsoft were junk, that they didn’t want them, use them or need them. Please look into this. Thank you.”
What Microsoft does is almost certainly illegal, but since it takes a lot of lawyers and lobbyists to enforce the law against criminal corporations, it is unlikely that anything other than a large corporations can successful press charges against Microsoft executives, leading to a jail term (e.g. for racketeering, bribery, and so on). We see this quite frequently in the energy and banking sectors. The law is not being practised (or practised only in one direction), hence it’s just relish. █
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Lock-in, not security
Summary: News and analysis of UEFI ‘secure boot’ (lockdown), including the new role played by the Microsoft-funded SUSE
The UEFI Forum contacted me yesterday, seeking to arrange an interview with UEFI executives. I clarified that my intent is to focus on the impact UEFI has on freedom and choice. It’s not just a Microsoft problem, but Microsoft uses a ‘feature’ in UEFI to impede adoption of GNU/Linux.
Novell, which is close to Microsoft not just due to CPTN (Novell was funded by Microsoft and so is SUSE), has had its former developers help spread UEFI [1, 2], much to Microsoft’s chagrin. They did this inside the Linux Foundation. OBS, another Novell project that got into the Linux Foundation, is helping UEFI restricted boot even further. To quote Mr. Larabel: “OBS, the Open Build Service developed largely by openSUSE, has reached version 2.4. With Open Build Service 2.4 comes support for a new package format, Secure Boot signing, and other features.”
“By refusing to bootstrap a compromised system UEFI would offer neither cure nor prevention.”Therein lies the issue with Microsoft influence. Even Torvalds appears to have complained about this influence.
Microsoft did not need restricted boot for security. It is nonsense. Days ago Microsoft announced 33 more security holes in its software (the real numbers are higher, but Microsoft keeps some holes hidden for vanity purposes). Well, that’s where the real security threat exists, not in boot time. Microsoft essentially calls for setting up an alarm system in premises that have neither walls nor fences. Microsoft is also spying on people in the name of 'security' (Skype), leading to this reminder that software freedom matters (“Skype is following your links – that’s proprietary for you”).
By refusing to bootstrap a compromised system UEFI would offer neither cure nor prevention. All it does is prevent people from having choices, █
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The openwashing strategy advances
Summary: How Microsoft is characterising as “Open Source” code which is actually an addendum to proprietary systems
Our many articles about Xamarin explained just how close this firm really is to Microsoft. It is simple to show this by following public data on money and employment.
Michael Larabel writes about what is effectively rebranding of MonoDevelop so as to more closely resemble Microsoft (Xamarin is enhancing and openwashing Visual Studio now, whilst also promoting .NET, C#, and so on).
Supporting Linux though isn’t a primary goal by Xamarin developers but will continue to be supported. “MonoDevelop will also keep working on Linux. There may be some rough edges with MonoDevelop 4.0 on Linux, since for this release we put our focus on Mac and Windows, since that’s what Xamarin’s customers use.”
Again, GNU and Linux do not matter to the Mono guys. It is the Novell mentality. Proprietary platforms are favoured. Speaking of Novell, its gift for Microsoft, the Hyper-V Trojan inside Linux, advances a bit, allowing Microsoft to better control Linux as a ‘slave’ in hypervisors.
The bottom line is, a lot of stuff which Microsoft calls “Open Source” is just promotion of proprietary software such as Office, Windows, SQL Server, etc. Ignore misleading Microsoft whitewash such as this piece from Wired which says:
Microsoft is on a mission to make nice with open source software. That’s no secret.
No, Microsoft just wants to make open source software a component of proprietary lock-in. There is a PR campaign related to this and we oughtn’t be fooled by it. █
“I would love to see all open source innovation happen on top of Windows.”
–Steve Ballmer, Microsoft CEO
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Novell’s site (front page) looks like this today:
Summary: Even though Novell was sold, the brand continues to have some output under certain circumstances
Novell, the company that we first targeted in this Web site (way back in 2006), is still pursuing justice in the WordPerfect case. This is perhaps Novell’s last legacy. Pamela Jones has this update on the case:
Novell has now filed its reply brief [PDF] with the US Court of Appeals for the 10th District. Here’s Microsoft’s brief and Novell’s opening brief in its appeal in the WordPerfect antitrust case against Microsoft.
Novell’s arguments are clear and powerful. “A reasonable jury could find that Microsoft’s conduct was anticompetitive because it harmed Novell, was not competition on the merits, and was reasonably capable of contributing significantly to maintaining Microsoft’s monopoly power in the operating systems market,” Novell writes. Nowhere, it says, does Microsoft defend Microsoft’s conduct as competition on the merits. And Microsoft’s brief neglected to mention to the appeals court, or respond to, the District Court’s conclusion that a jury could have found Microsoft’s justifications for its conduct “to be pretextual.” Worse, Microsoft is asking the appeals court to confer immunity on it “for deception of competitors regardless of the effect on competition.”
By withdrawing its support for namespace extension APIs, Microsoft destroyed Novell’s economic viability, and it did it on purpose to harm a competitor. The Bill Gates email [PDF] proves it, they believe. The whole point of documenting APIs and releasing betas is to induce reliance, so Microsoft can’t credibly argue that it didn’t know this change on its part would impact Novell negatively.
And again, as in Novell’s opening brief (p. 38, footnote 5), Novell references Microsoft using a “deceptive script” which it says is mentioned in the email thread in which a Microsoft employee reported to his company that WordPerfect appeared to be “OK” with the change. Novell says was used to justify the change and persuade companies like Novell that Microsoft had to make the change. (Cf. this Groklaw article and this email thread [PDF] for context.) I’m sure we’ll hear more about this at oral argument. So if you attend the event, and I know some of you are trying to make arrangements to attend, please watch for this in particular.
And then Novell says Microsoft ignored a great deal of the evidence that favors Novell, and so did the District Court, but the applicable standard for summary judgment under Rule 50 is that the court was required to view the evidence in the light most favorable to Novell, which it failed to do. Microsoft also ignored evidence that its conduct harmed competition in the operating systems market, including evidence from binding Findings of Fact from the US v. Microsoft case, and the testimony and statements of Microsoft executives (cf. Groklaw). And finally, Microsoft disregarded applicable substantive law, Novell argues.
Novell was sold to Attachmate, but the Novell brand lives on. There is this new post about a Novell-branded product which Novell boasts about at
Adding to the existing Novell File Management Suite, Novell File Reporter 2.0 integrates with both eDirectory and Active Directory to simultaneously report on Novell and Microsoft network folder and file data and corresponding file rights.
This product was even announced in Novell’s Web domain. Not too long ago Novell tried telling us that it was not dead. For most purposes, however, it is just a brand owned by Attachmate and it’s the name of the claimant in the case against Microsoft. Novell’s board has been sued for selling the company. █
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Summary: Groklaw’s latest articles about Microsoft’s abuses
APIs are ripe for patent extortion, so Microsoft fights hard to maintain API domination, e.g. with Mono and Moonlight — projects that Microsoft helped fund indirectly. Novell and Microsoft are still arguing over WordPerfect. The latest update comes from Pamela Jones, who writes:
Microsoft has filed its brief [PDF] in the appeal of Novell v. Microsoft, the antitrust litigation Novell brought against Microsoft over WordPerfect. I’ve done it as text for you. The judge in the case handed Microsoft a win on summary judgment after a jury couldn’t reach a verdict. So now it’s before the 10th Circuit Court of Appeals.
Microsoft’s airy arguments go something like this: Yes, we were a monopoly with 95% of the desktop market at the time, and yes, we reversed course after encouraging Novell to use APIs that we then decided not to support, but hey, we don’t owe competitors anything. “A monopolist generally has no duty to cooperate with or assist a competitor whether the decision is ‘intentional’ or otherwise.” We can change our business model any time we want to, as long as we are even-handed and the effect is on everyone, not just Novell. (Novell, however, was the one that Microsoft encouraged to use the APIs, and it was the one Microsoft feared, according to Novell, writing that the decision to drop support for the APIs “involved the intentional inducement of reliance.”)
Microsoft now uses API domination for patent extortion, with leading examples such as FAT. It is like the FRAND trick, which Microsoft likes to use to tax competitors including FOSS. Jones has two new updates regarding the use of FRAND against Android, courtesy of Microsoft in its own biased turf, Seattle. Jones writes:
Tomorrow, Monday, Microsoft and Motorola meet in a courtroom in Seattle at 1:30 PM to argue at a hearing before the Hon. James L. Robart about the meaning of a 2005 Google-MPEG LA patent license agreement and regarding a motion for summary judgment by Microsoft. I have all the documents for you so you can see what it is all about.
Don’t worry if you don’t understand everything when you read them. The parties’ lawyers don’t understand the licenses fully either, not for sure, in that they don’t agree at all on what they mean, and that’s why they are in a court of law.
Here is a report from the courtroom, which is being stuffed with Microsoft boosters acting and entering as 'reporters'.
We had a volunteer in the courtroom for the hearing in Seattle between Microsoft and Motorola, and we have his first report.
The hearing was in two parts. The first part had to do with the validity of Motorola’s patents, which Microsoft is challenging. The second part was on whether Google’s 2005 license agreement with MPEG LA sweeps Motorola’s FRAND patents at issue in this litigation into MPEG LA’s clutches and control. It’s all about how much Microsoft has to pay Motorola, if anything. For background, go here and here for lots more details and context on the license agreement issue.
MPEG-LA is a cartel and FRAND should be banned as a whole, but the above confrontation began with Microsoft suing. Google has tried to create deterrence against more Android extortion. █
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Summary: Matt Asay writes about SUSE and despite its funding from Microsoft Asay is not too hopeful
A pro-Microsoft ‘news’ site asks, “Does SUSE Linux have a future”? He “cloudwashes” SUSE. This is from Asay of Novell, who had been interviewed for a job at Microsoft as well. Here are some numbers from SUSE and plans for an event. That’s about all we know about SUSE thse days. We hardly ever mention SUSE anymore. It’s dying on its own despite cash infusions from Microsoft, which hopes to use SUSE to tax GNU/Linux use. █
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Summary: Press reports on why Novell’s board is being sued
TThe other day we saw some blogs writing about what used to be Novell. Novell’s board got sued for selling irrationally, based on press reports about it. To quote a report from The Inquirer (UK):
Attachmate’s purchase of Novell included a clause that resulted in CPTN Holdings buying hundreds of patents for $450m. CPTN Holdings is a secretive consortium led by Microsoft, the firm that many Linux watchers believe was behind SCO’s ill-fated war on Linux.
Delaware Court of Chancery Judge John Noble dismissed a request by Novell’s board for an early dismissal of the lawsuit, meaning that the case can now proceed to trial. Novell’s board can now present evidence to defend itself against the claims, although there is still time for the parties to settle.
Here is what Reuters wrote:
Novell Inc directors who approved the information technology company’s 2010 sale for $2.2 billion must defend a lawsuit that alleges they unfairly favored Attachmate Corp over other bidders.
To Novell’s board (with Microsoft influence that we demostrated in previous years), giving approximately 1,000 patents to Microsoft, a Linux arch rival, seemed rational enough. They deserved to be sued for the millions they
stole received in undeserved bonuses as well. Novell was a company withoutn a moral compass, with zero ethics, and a dishonest PR department that felt comfortable insulting critics. █
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Summary: The irrational dealings of Novell bring belated legal wrath
We hardly cover Novell anymore. The company is history. But just as WordPerfect keeps Novell at present, so does the Attachmate sellout, which Pamela Jones says will haul back the perpetrators. Hovsepian left and moved elsewhere, but his sellout might not go unpunished:
If you thought the deal smelled funny back in 2011 when Novell sold itself to Attachmate and its patents to a Microsoft consortium, you are not alone. Some shareholders — the Oklahoma Firefighters Pension and Retirement System, Louisiana Municipal Police Employees’ Retirement System, Operating Engineers Construction Industry and Miscellaneous Pension Fund, and Robert Norman — sued.
The named defendants, Novell’s Board, Attachmate and Elliott Associates, all moved to dismiss on summary judgment. Attachmate and Elliott succeeded and get to waltz away, but Novell’s board is left on the hook will have go to trial on the shareholders’ claim that the board breached its fiduciary duty, acting in bad faith, a Delaware Court of Chancery judge has ruled [PDF]. I have it as text for you.
Specifically, they claim that Novell favored Attachmate over other bidders, especially a “Party C”, and the judge, under Delaware’s reasonable ‘conceivability’ standard, denied summary judment with respect to the board and decided there will need to be a trial.
“Party C, a private equity firm” ended up with Attachmate at the end of negotiations as the two bidders still standing. Party C actually bid a bit higher than Attachmate. But the allegation is that Attachmate was favored with information that Party C was not given, such as a bid by a Microsoft consortium to buy Novell’s patents, and various other maneuvers that ensured the Attachmate deal prevailed. After Microsoft stepped in with an offer to buy the patents, Attachmate’s deal was better than Party C’s. But, the judge points out, if Novell had told Party C about the offer, it logically might have offered more to match or exceed Attachmate’s bid…
Here’s some background:
As 2010 ended, everyone was digesting the news of Novell’s acquisition by Attachmate, valued at more than $2 billion, and would soon digest the news that Microsoft was acquiring many of Novell’s patents. There were many people who noted that all the signs were there that Novell wouldn’t be sustainable as an independent company. Still, as Groklaw confirms, in 2011 a group of shareholders found the deal to “smell funny” and filed suit. And now, after all this time, the Novell board has to go to trial to address the claims.
Don’t forget the monkey business. █
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