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Wednesday, November 22, 2006

On Novell's open letter

I've just posted this to the SCLUG list:

On Tue, 2006-11-21 at 23:05 +0000, ed wrote:

> personally i'm in mixed minds about novell now. i cannot decide if their
> intentions are good or evil.
> from the above they want to make it appear that their ideas are good and
> pure.

Novell is not in a position where it can admit "it is our intention to
co-operate with Microsoft in destroying its only serious platform
competitor, thereby helping Microsoft to re-establish its effective (and
unlawful) monopoly". Consequently, no useful information about Novell's
actual intentions can be gleaned from Novell's stated intentions.

> am i right in thinking that the gpl now prevents Novell from
> distributing gpl'd code, since they have an alliance with a company now
> that is taking/trying to take action against gpl'd code distributors...
> all seems like a big mess now.


Note in particular clause 7. If Microsoft is maneuvered into actually
suing someone for patent infringement over use of non-Novell Linux, and
wins (so it becomes established in law that running Linux does require
licenses on Microsoft patents), then Novell will have to abort (or at
least suspend) its Linux business overnight:

GPLv2> For example, if a patent
GPLv2> license would not permit royalty-free redistribution
GPLv2> of the Program by all those who receive copies
GPLv2> directly or indirectly through you, then the only way
GPLv2> you could satisfy both it and this License would be to
GPLv2> refrain entirely from distribution of the Program.

Note that this is a constraint on Novell's activities, not a constraint
on its licensees' activities; consequently Novell can't escape this
particular constraint by indemnifying its licensees (customers). This is
different to a prohibition arising from co-operation with an attacker
that you suggest; such measures are being discussed for protection
against DRM and patents in GPLv3.

It is conceivable that Microsoft is planning to do this to Novell, but I
suspect that it's more likely that Microsoft is aiming to repeat the FUD
campaign that it has already waged under the SCO banner (which requires
that the game be played for an extended period; the FUD being more
valuable than victories in court). It will, no doubt, successfully FUD
at least some customers into choosing Windows over Linux.

Note also that it may in fact be pure FUD, that Microsoft may have no
patents that a court will uphold against Linux distributers.

Some thoughts on the open letter:

Novell> Our interest in signing this agreement was to
Novell> secure interoperability and joint sales agreements,
Novell> but Microsoft asked that we cooperate on patents as
Novell> well, and so a patent cooperation agreement was
Novell> included as a part of the deal.

This is a non-sequiter. To see why, imagine that it had said "but
Microsoft asked that we cooperate on large-scale armed robbery as well,
and so the hiring of a few hundred mercenaries was included as a part of
the deal". It is not enough to state that a term was included at the
other party's request; by virtue of acceding to this request (and
signing the deal) Novell has itself implicitly asserted that this is a
reasonable term, despite any spin that it's now trying to put on it.

Novell> We disagree with the recent statements made by
Novell> Microsoft on the topic of Linux and patents

Oh dear, how astonishing. Perhaps Novell's lawyers are so inept that
they neglected to even form an opinion on, and/or discuss with
Microsoft, the possibility of patent infringement in distributing Linux.

- Raz