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Question: what is the basic disagreement with the November 2006 Novell/Microsoft agreement?

The agreement capitalised on a loophole identified in the GNU GPL version 2, to divide GNU/Linux players and impose limits on code sharing, particularly by means of selective patent coverage. It all happened throughout months of Microsoft/Novell negotiations, which were originally initiated by Novell.

The disdain for the spirit of the GPL underpins the many outcomes of the deal, including financial incentives, preference or support for Microsoft formats and so forth. It harms Free software by design.

Novell compromised vital interests of the Free software community for hundreds of million of dollars that it received from Microsoft. Novell and Microsoft put their interests ahead the Free software community that makes the software everyone uses.

The deal also legitimised Microsoft's doubtful and undisclosed patent claims, which stigmatised every other distribution as open to lawsuits and disruption. Novell continues to advertise this.

Q: What are the impacts of the Novell/Microsoft deal on Free and/or open source software?

First of all, GPL version 3 closed the loopholes and important projects migrated to it.

There are many noteworthy impacts however. To list several principal ones:

1. If Novell and Microsoft get their way, then metaphorically speaking, GNU/Linux will increasingly be pressured into a corner of the datacentre, essentially being marketed as a guest machine (running under Windows), as opposed to a host running with or without Windows virtualised. The virtual machine can be exploited as a sort of 'gateway', much like OEM bundling or even interference with boot sequences.



2. Microsoft formats and protocols, some of which are encumbered by software patents, receive priority, precedence, prevalence and promotion at Novell.



3. Microsoft creates revenue streams at the expense of those who build, maintain, support and distribute Free software. This not only deters developers but it also makes Free software a less appealing choice, based on cost. It impedes adoption of Microsoft's number one competitor (according to Microsoft's CEO).



4. It divides Linux into two classes; on the one hand we have 'legal' GNU/Linux (only a perceived notion fueled by threats of lawsuits) and 'illegal' GNU/Linux, which is "not licensed". This raises tensions and it is not healthy to the ecosystem which is supposed to thrive in sharing of code. A recent announcement of a predatory strategy against Red Hat is a timely example of that.

Q: What are the specific detriments that have occurred in the two years since that agreement?

Novell lost the community's trust and their market share arguably fell relative to competitors that did not make a similar deal.

Here are a few key detriments that affected Novell's competitors (there are many more):

1. Patent allegations came from Microsoft in the middle of May 2007. At times, these allegations were explicitly backed by the deal that had been signed with Novell. This was not the first such incident and it was not the latest either (last one spotted a month ago).



2. The deal with Novell may have led to a chain of at least 7 more patent deals that cover Linux and accompanying parts. Novell's deal served as precedence for 'marketing' such deals, as ourselves as others anticipated from the very beginning. The harms of these newer deals are similar to the harms of the deal with Novell, which was by far the most comprehensive (involving the most strategic collaboration and having the most negative impact).



3. As noted above, exclusion came from hypervisors, particularly in Hyper-V, using patent-protected hypercalls.
   
   Many servers these days are turned to virtual servers, most commonly using VMware.
   
   VMware is now headed by a former Microsoft employee, Paul Maritz, who has done some vicious anti-competitive things 10 years ago (he later retired). EMC, which owns the majority of VMware, also ousted VMware's founders a few months ago.
   
   Having studied this for years, it seems safe to be certain that Microsoft hopes to make virtualisation more prevalent under its own rules, in order to suit its own commercial conveniences.
   
   Microsoft has begun an aggressive marketing push to promote its hypervisor, which is called Hyper-V. In order for Hyper-V to perform a lot better, special forms of function calls (for 'privileged' access) need to be made, but only Novell is 'licensed' -- surely a term to be loathed -- to make use of this.
   
   There is a variety of ways in which Microsoft tries to enrich SUSE (SLED/SLES), making it the platform of choice. The platform promotes Microsoft's interests (e.g. using Mono, OOXML) and Microsoft is also paid for its use. It is a form of "GNU/Linux tax" that threatens the Freedom of the software by elevating cost and limiting redistribution.



4. In a gruesome display of manipulation and misconduct, Microsoft managed to force OOXML through ISO's gates. Novell helped this happen in a variety of well-documented ways. This type of help was part of the deal -- the binding contract Novell had signed.



5. Concessions from regulators, who are being 'sold' the story that Microsoft collaborates with GNU/Linux (but only Novell's).
   
   In at least two continents (Europe and America... United States to be precise) Microsoft was pressured to conform with standards and play nice with competitors. Microsoft chose a route other than standards. It proudly calls it "interoperability", which is sometimes accompanies by dubious patent deals. Those who don't sign it get neglected.
   
   When Microsoft is scrutinised for anti-competitive behavior, it routinely points to its relationship with Novell and claims collaboration with Free software. Needless to say, it's a bogus gesture. Microsoft has Novell play by its own set of rules, which incorporate patents and demotion of GNU/Linux on servers (assignment as a "slave" machine, or guest, as opposed to master/host).
   
   The EU insisted that Microsoft should allow Free software such as Samba to operate properly, royalty-free. Miss Neelie Kroes, the fair competition commissioner, dined with Steve Ballmer and may have gotten bamboozled because her advisors were not nearby. She permitted some sort of arrangement where royalties should be "reasonable" (as in RAND) but not free of patent encumbrances. We published an article about this.



6. The deal enabled Microsoft to 'sell' the impression that it intended to do well with the Free software community and thereby enter Linux and FOSS conferences as early as the deal was signed, sheltered by Novell's presence or implicit invitation.

To name just one among the many minor points that are omitted, Bruce Perens believes that the departure of Stuart Cohen from OSDL (and subsequently its end) was partly due to his support of the Microsoft-Novell deal, which led to friction among other OSDL members. Red Hat was not happy, either.

Q: Why is it important to boycott Novell?

Novell was asked politely to retract the deal shortly after its inception. Novell employees insisted that the deal was irrevocable and denied the requests, some of which came from inside the company.

It therefore seems clear that, in order to get the message across, people need to speak with their wallets. Establishment of trust is the glue which makes the Free software ecosystem stick and without resistance to betrayal there will be higher likelihood that such treasonous acts will recur.

Companies that rejected these deals deserve more business.

Q: Do the authors of this site use any Novell or Microsoft software?

Parts of the GNU/Linux distributions that we use incorporate patches that comes from Novell employees, but Free software has no owners. Because Novell employees contribute to popular Free software, almost everyone uses Novell-generated software. We do not use any non-Free Novell software. We do not use any Microsoft software, either.

We often try to distinguish between Novell managers and Novell engineers, who were hardly involved in making the decision to sign the deal, so the boycott, where possible, targets the managerial types.

Q: Microsoft has charged that Linux and open source violate 235 Microsoft patents but these patents have never been disclosed in public. Which patents Microsoft is talking about?

We doubt they know and they are unwilling to say, citing paper overhead as a reason. Their figure is from an Open Source report about the problems with software patents. The author of that report repudiated its use by Steve Ballmer.

Microsoft has a lot of patents, but the bar for acceptance in the USPTO is exceptionally low and therefore many patents, including Microsoft's, are very poor. They are too broad in terms of scope and therefore they intersect with many other programs, including ones which predate patent applications from other companies with lust for patenting.

A 'collision' of ideas, as opposed to implementation (which copyrights cover), is more likely to exist where the ideas are obvious and there is prior art. Our personal belief is that Microsoft's number is either made up, pulled off the sleeve (as suggested and shown above), or refers to some of the poorest of patents, which are easy to have re-examined and invalided based on grounds of obviousness/prior art. That would explain Microsoft's fear of disclosure.

To give an example of some Microsoft patents, one must consider the fact that the company claims ownership of keystrokes for paging (PgUp and PgDn), the double-click, and even tabbed browsing, which it was notoriously slow to adopt and implement.

Worthwhile patents should be counted in terms of quality, not raw numbers. Moreover, after the re Bilski ruling, many software patents are in jeopardy, even in the United States. Over in Europe, the EPO has just taken important steps to remove harmful ambiguities, as well. There is a legislative domino effect that even affects the UK-IPO now.

Software patents are business method patents and should be abolished. The Bilski decision is a good reference.

It is worthwhile to add that Microsoft has a substantially well documented history of using IPR against Linux, just as it intended to do and as shown rather clearly in the leaked (now proven authentic) Halloween Documents.

Microsoft probably tried false allegations through SCO, pushing the copyrights card before patents. We would like to reference old quotes of interest:

"On the same day that CA blasted SCO, Open Source evangelist Eric Raymond revealed a leaked email from SCO's strategic consultant Mike Anderer to their management. The email details how, surprise surprise, Microsoft has arranged virtually all of SCO's financing, hiding behind intermediaries like Baystar Capital." -- Bruce Perens

"Microsoft hardly needs an SCO source license. Its license payment to SCO is simply a good-looking way to pass along a bribe..." --Bruce Perens

Larry Goldfarb of Baystar was a large investor in SCO. Under oath he confessed that: "Microsoft wished to promote SCO and its pending lawsuit against IBM and the Linux operating system. But Microsoft did not want to be seen as attacking IBM or Linux." Further, he said that Microsoft's "Mr. Emerson and I discussed a variety of investment structures wherein Microsoft would 'backstop,' or guarantee in some way, BayStar's investment.... Microsoft assured me that it would in some way guarantee BayStar's investment in SCO."

Lastly, bear in mind that Microsoft threatened Asian governments several years ago when they wanted to move to GNU/Linux. Microsoft's chiefs were using the software patents card to hint at litigation.

Q: Microsoft has made public presentations about its embrace of open source and the open software movement. Should one think the company is sincere or is this just "can't beat 'em, join 'em" posturing?

We have compiled a lot of information that reveals true intentions. With the exception of small events, almost every event that goes under the heading "Linux" (as in GNU/Linux) or F/OSS (they mix it with Open Source) has Microsoft as a sponsor and attendant.

If Microsoft wanted to cooperate with the Free software community, it would start by liberating its own code and adopting patent- and royalty-free formats. And yet, this never happens.

There are many reasons for Microsoft to either pretend or genuinely demonstrate participation of the kind it offers, but none of them serves freedom or anything but the financial interests of Microsoft shareholders. The company has very many reasons to do this, some of which are:

1. Starve GNU/Linux as the underlying platform for popular Free/open source applications like Apache.
   
   
2. Elevate protocols that are platform-specific, DRM-ready, patent-encumbered and susceptible to disruptive (sometimes undocumented) changes by a vendor with shady history and strategy in this particular area.
   
   
3. Embellishment of public image and blurring of difference in philosophies, which leads to confusion and brand dilution (e.g. how "Open Source" is a program that only resides in a proprietary cocoon?).

To give an example which is very current, Microsoft became a sponsor of Apache and delivered a keynote speech at ApacheCon. Microsoft's aim is to make Apache work technically better under Windows. This strategy applies to many other projects like Apache and this was revealed using a slide from Microsoft itself. The company strives to encapsulate (imprison) Free software under Windows, much like cygwin. It also contributes patches to such projects in order to promote use of its proprietary stack (SQL Server, ASP .NET, IIS, etc).

ApacheCon US 2008 has just ended, but ApacheCon Europe 2009 will take place between the 23rd and the 27th of March in Amsterdam. Microsoft typically pays the bills in exchange for presence, influence, patches for its proprietary stack and so forth. It is not easy to scrutinise them politely. Even Bruce Perens received some backlash for saying the truth about Microsoft's intentions.

To Apache, Windows vs. GNU is less important than Apache vs. IIS and they could use the money (sponsorships). Microsoft also worked with Zend on PHP, optimising it so that it runs better on Windows. To quote Bruce Perens on the subject:

Microsoft has lots of money to hire key Apache developers, if they actually plan to use the code and want good service from its developers on a 24/7 basis. So, this $100,000 contribution and the partial patent grant aren't about interoperability. It's for publicity, and to convince government regulators, not the most technical people in the world, that Microsoft has joined open source and is now a well-behaved company, no anti-trust issues at all. The bad part for open source is that Microsoft is increasingly in a position to speak to European legislators as an insider in the open source community while requesting increases in software patenting that would block open source. That patent matter is expected to come before European officials, again, by this winter.

What the Open Sourcers Will Do

One strategy that open sourcers will follow was created by Richard Stallman about 25 years ago. Stallman, a Macarthur "genius grant" recipient, realized that it wasn't sufficient to just give away source code: the largest companies would still be able to use their market advantages to dominate. There had to be something to keep the software free as a sort of public good while it evolved, a global form of sharing rather than a no-strings gift.

Stallman created the GPL, turning copyright law on its head to enforce sharing rather than prohibit it. GPL has the unique power of being able to enforce upon companies the size of Microsoft a fair and equal partnership with other developers, be they other companies, schools, or individuals. Obviously, Microsoft hated the GPL.

Last year, GPL went through a major revision, with the participation of dozens of attorneys from the world's largest companies, along with academics and individuals. That caught it up with the elaboration of copyright and patent law over the past quarter century. A second version, the AGPL, has evolved to deal with the business model of Google, software as a service instead of on the user's PC. That's fortunate, as GPL is going to be even more important now.

Q: What else can we do about it?

To repeat an earlier observation, when Microsoft is scrutinised for anti-competitive behavior, it routinely points to its relationship with Novell and claims collaboration with Free software. Needless to say, it's a bogus gesture.

When they do this, we have to respond. Microsoft does a lot of this in the press. For instance, in India it describes itself as a key player in open source (it never says "Free software") because it has OSI-approved licences and also a pact with Novell (it cites particular technical collaborations with Novell). It uses these as arguments which are defensible to many. It also uses OOXML ('Open' XML) to sell the impression that it is opening up its formats and protocols.

Another thing Microsoft does is it markets new technologies such as Silverlight (replacement of HTML with XAML, which is a great danger to the Web... greater than Flash) as cross platform because Novell works on a Mono-dependent imitation of Silverlight. Regulators who watch over Novell's shoulder are therefore unable to do much about this. 2 years ago, a large group of companies that include big names like IBM formally complained to the EU/EC about Silverlight, saying Microsoft was hijacking the Web. A probe was launched. The States raised similar concerns about Silverlight and these were soon tied to the antitrust status of Microsoft, but Microsoft's involvement in Free software and engagement with Novell impede this. Rather than work with the entire community, Microsoft limits its collaboration to those who pay it for patents.

Glyn Moody, who follows the doctrine of Free software (not open source), wrote the following a year ago:

Is Microsoft Hijacking Open Source?

Like many, I was pretty shocked by the recent Microsoft-EU deal to settle the long-running investigation into interoperability issues. This was not so much because of the way Microsoft has used every kind of delaying tactic it could before eventually agreeing (for the nth time) to try harder in the future. My real dismay was provoked by the gap between appearance and reality – a chasm that I think bodes ill for the future of open source.

[...]

What really worries me is what looks like an emerging pattern in Microsoft's behaviour. The EU agreement is perhaps the first fruit of this, but I predict it will not be the last. What is happening is that Microsoft is effectively being allowed to define the meaning of “open source” as it wishes, not as everyone else understands the term. For example, in the pledge quoted above, an open source project is “not commercially distributed by its participants” - and this is a distinction also made by Kroes and her FAQ.

In this context, the recent approval of two Microsoft licences as officially “open source” is only going to make things worse. Although I felt this was the right decision – to have ad hoc rules just because it's Microsoft would damage the open source process - I also believe it's going to prove a problem. After all, it means that Microsoft can rightfully point to its OSI-approved licences as proof that open source and Microsoft no longer stand in opposition to each other. This alone is likely to perplex people who thought they understood what open source meant.

Any more questions? Join us in the IRC channel and ask. The site is here to help inform.

Last edited in November 2008