Bonum Certa Men Certa

OpenSUSE Q&A on IRC

The OpenSUSE folks held a chat/meeting earlier on IRC to discuss the MS/Novell deal, responding to most of the questions were Nat Friedman and Andreas Jaeger. Topics ranged from the level of involvement that the technical staff had in the deal, to Mark Shuttleworth's letter, the apparent brilliance of Microsoft, GPL3 and whether Novell can or will fork every package, and of course the whole Patent Pledge fiasco.
Q: Novell claims to have not acknowledged any patent infringements by Linux. But Novell is now paying a tax to Microsoft on the Linux distributions it ships. What, exactly, is Novell paying for?

Nat Friedman: We're paying for the promise that Microsoft made to our customers not to sue them. Q: Not to sue them for *what*? For problems you don't acknowledge exist?

Nat Friedman: We put together an agreement with Microsoft to make Linux and Windows work better together. Now, as everyone knows, Microsoft has spent the last 10 years saying negative things about Linux, including implying that there are IP issues in Linux. It didn't make sense for us to do a partnersihp with Microsoft on interoperability issues and still have this patent cloud hanging around for our customers, so Microsoft asked us to put together a patent agreement as well. And so we promise Microsoft's customers that we won't sue them and they promise the same thing to our customers. They pay us for our promise and we pay them for their promise. It doesn't matter if the allegations from MSFT are true or not. People can sue each other anyway, and a patent lawsuit is very expensive to defend against. Q: How did you come up with the value for the "promise" that Microsoft made?

Nat Friedman: I have no idea how they did that. In general, when it comes to patent questions, you look at two things: 1. The patents that the patent holder has. 2. The business over the person who wants patent protection or coverage. And the dollar amount is usually a function of these two values. So, for example, you might only hold one patent, but if you sue company X for infringing your one patent, and company X makes $1 billion/year in revenue based on their product that infringes your patent, then even though you only have one patent, you can extract a lot of money from company X.

So I'm guessing the team that put together the deal considered both the Microsoft and the Novell revenue. You notice that the balance of payments is heavily in Novell's favor. Microsoft is giving us much more money than we are giving them.

Novell has a few hundred patents, and Microsoft has thousands. So you can guess that the quality of the patents and the revenue streams of both companies were considered.


Now, let us contrast these statements against those of Microsoft, lets see if we have an agreement yet on the deal structure and signifcance... On the day of the deal, at the press conference with Novell CEO Ron Hovsepian apparently within earshot, Brad Smith, Senior Vice President and General Counsel, Microsoft Corporation, stated the following:
...on the patent side, we dealt with both of these sides of the equation. We dealt with the need for an up-front balancing payment, a balancing payment that runs from Microsoft to Novell, reflecting among other things the large relevant volume of the products that we have shipped. And you’ll see, as well, an economic commitment from Novell to Microsoft that involves a running royalty, a percentage of revenue on open source software shipped under the agreement.
So, Novell is saying they are paying for a promise by Microsoft not to sue its customers for patent infringement, a promise that is tied to revenue derived from the ongoing sale of open source software by Novell, but it's not a patent cross license you see? No, neither do I, as the saying goes, if it walks like a duck...if it quacks like a duck... you can be reasonably sure it's a duck.

Also in the discussion were a few mild potshots, one at the Ubuntu folks which I found uproarious, and another statement about folks who are dividing the community by shunning Novell (who might they be?):
Q: Do you fear openSUSE developers will migrate to other distributions, as proposed by Shuttlesworth? Why/why not?

Adrian L: I do not fear Shuttleworth, because people who fear that openSUSE might violate GPL will not go to a distro which actually is doing it. ;)

Of course there is always a risk that people will switch because of decisions, but there is also always the chance that others switch to because of this reason in the opposite direction.
I would love to keep quoting, but you can head over to see the transcript for yourself, another really interesting remark was by Nat Friedman regarding the apparent ineptitude of big bad Microsoft and their legal department, recalling their Lindows trademark infringement debacle and essentially saying that the community should not fear such a bumbling company. But, the question should also be posed, why partner with such a bumbling company?

Also of note was the previously mentioned request by Jason Matusow at Microsoft for input on amending the Patent Pledges, please let Microsoft know how they can correct the problem. It is as simple as running 's/customers/everyone/' against the document, or as stated by Eben Moglen:
“Microsoft should take back the patent promise to Novell customers or extend the promise of patent safety to everyone, not just Novell customers,” he said.
Until Novell repudiates the deal and corrects their actions, I will continue to shun Novell.

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