The Morning After

Pink and Red

Novell and Microsoft. Well, well. I'm sure in a few days some folk will wake up in Utah wondering what happened to them. The word on the street is that Novell had some deep patent dirt on Microsoft and went proudly to demand their bounty. Negotiations proceeded over several months, and the result (hurriedly rescheduled to respond to Oracle) was today's shindig in San Francisco.

So how was it that at the end of the day they ended up affirming software patents (something Microsoft wants and Free software people hate), set a precedent that open source distributors owe Microsoft money, slandered GNU/Linux as derivative and encumbered, and much more? Novell is now safe in the shade of a patent exchange and gets to talk about interoperability, a few private developers have a protection they hadn't been worrying about much and everyone else is left wondering if this means they are next for the visit from the Redmond enforcement department (AKA "BSA"). What happened? Drugs in the soda?

I'm not alone wondering. Pamela's summary is Novell sold out (and points out that much of the OSDL board was in attendance either physically or in the press release to witness the event). Eben Moglen even says it may be unlawful. I'm not up to those sorts of judgments. I just think it's remarkable.

It's a remarkable reversal of opportunity, all the more remarkable that the Novell participants smiled the whole way through what had clearly become a Microsoft event. They went in seeking a huge payout, and emerged with the payout, yes - but also with a commitment to pay it back in royalties on open source software they sell. This is not at all surprising; indeed, I've heard others say this is Microsoft's modus operandi, a ju-jitsu move that takes the weight of an attack and turns it back both on the attacker and the folks around them, usually without them even noticing (at least not to start with). I'd not want to say how closely I've observed it before...

Choosing Winners

There are some winners. The folks working on Mono have a shelter from attack at last (at least as long as they work for Novell or are unemployed - anyone else is still twisting in the wind). Likewise Novell's staff working on things like GNOME and Samba. Novell and Microsoft customers get cute indemnity vouchers they can trade for calls to the help desk. Unemployed developers can be sure Microsoft won't sue them. And the optics of the thing are as good as they could be made given they only had a week's notice to turn months of negotiation into an event. But I'm not a fan of a worldview that says for one to win, everyone else must lose. Moroni on grey

Still, it will be tough for anyone to deny that operating systems still matter. It also points out the big problem lots of vendors have, where they need to choose between protecting the open source community, while exposing customers to IP risk; or isolating customers via proprietary software or IP arrangements, while cutting off the open source community. I've no idea whose business is going to be impacted next but we've seen two huge changes in the last week or so that shout out the problem, and all those companies that had a Damascene conversion to open source in 2000 are showing their true colours. To think Hovsepian once preached about "true open source" as well.

From now on you know if you become a Novell customer you risk litigation from Microsoft if you ever try to choose a different supplier - Steve Ballmer said as much in the Q & A. That's the most extreme lock-in I have seen in ages. At least you can be sure with OpenSolaris and with the Java platform that your freedom to leave is preserved, so it's safe to stay. Maybe it was worth us having that laser focus on where the code came from after all? My plan is to make things better for everyone, not just for Sun. Watch this space.


I remember M$ talking about being able to run LINUX binaries from inside the Windoze OS. Maybe this is the enabler so that they can use the Suse source to implement this feature. Just trying to keep up with the Jones (Solaris). Of course legally they should release the rest of the Windoze source under the GPL. Let's not hold our breath waiting for that to happen though.

Posted by Lee Hepler on November 02, 2006 at 01:57 PM PST #

scary stuff

Posted by Shawn on November 02, 2006 at 06:20 PM PST #

There is nothing so tricky in Microsoft move. They have to do something to make sure they still will be in business after Intel and AMD put virtualization in they chips. Microsoft wish it or not - people will run Windows and Linux and even Solaris side-by side on one PC. So - they did smart move - settle with Novell on all patents Microsoft "stole" from them, make company that produce MONO (opensource .NET competitor) their partner (this mean project will be dead in some future - just like all Microsoft partners projects did), monetary support company directly competing with RedHat (i.e. Novell can try hard to get RedHat out of business - even if this mean Novell will be losing a lot of money in this war) and probably last - make money from each Linux sale (think OEM - they had to pay dollars for each PC sold with Windows or without in in the past - now Microsoft can return this old deal - pay us money - and use either Novell Linux or Microsoft Windows - we don't care - we care about money only). All those talk about interoperability is BS. Microsoft was obligated to disclose all protocols and all APIs needed to make third-party software works well per DOJ agreement. Those executives even forgot to give a word on press conference to customers on stage.

Posted by TAG on November 02, 2006 at 10:32 PM PST #

Lee Hepler, Since February 2, 2004 Cooperative Linux is the first working free and open source method for optimally running Linux on Microsoft Windows natively. It allows one to freely run Linux on Windows 2000/XP, without using a commercial PC virtualization software.

Posted by openbsd on November 03, 2006 at 05:47 AM PST #

[Trackback] The seemingly startling nature of the Microsoft Novell Linux alliance deal announced on Thursday was bound to produce a variety of reactions. Below is a selection of those I found most relevant. Readers will recall my own assessment that the deal basi...

Posted by Microsoft News Tracker on November 03, 2006 at 10:34 PM PST #

Simon, As someone who worked with Sun on the EU case, only to see them pull out of it given a 2 billion dollar payoff from Microsoft, this is a little hard to take. I was working with your lawyers on this, and sat in an Indian restaurant in Cupertino, looked them in the eye and said "if you are going to pull out of this for money then it isn't worth the bother, don't do it". Without blinking your lead council said to me, "No, Scott is fully behind this, he understands that this is bigger than just getting a settlement for Sun". Liars. Sun went from being a critic of Microsoft and a full supporter of the anti-trust lawsuit, to a licensee of the MCPP protocol suite, in the length of time it too the cheque to clear :-). I work for Novell, developing Samba. I'm not going to say anything about this deal as I'm still evaluating it myself, and trying to work out what it means. But people in glass houses (Solarii ? :-) really shouldn't throw stones..... Jeremy.

Posted by Jeremy Allison on November 04, 2006 at 08:14 AM PST #

Thanks for the comment, Jeremy. Have you considered the possibility that this, which is my personal opinion, might be coloured by that experience? Or am I only allowed to hold Sun's opinions? Or that I might be a source of reform rather than a sustainer of the status quo? The message in the page footer is not a joke.

Rather than allowing the behaviour of your employers to be masked behind your accusations against me of hypocrisy, perhaps you would like to share your own views (not Novell's) of the fact they have painted a target on a load of co-developers in the communities they formerly embraced?

Posted by Simon Phipps on November 04, 2006 at 08:19 AM PST #

This is why I hate blogs :-). So it's under a sub-domain of, but it's only your personal opinion..... riiiiight !

The day you're reading my opinions under then you can ask me to comment on their behalf. If I'm going to write something about it, I'll do so under my url, not on a Novell site.

At least I write a column for the UK mag LinuxUser and Developer. It's not a blog 'cos people have to pay to read it. I pontificate there, not on blogs :-). (I think it's a good column btw - I don't get paid to write it so I don't feel bad talking about it here :-).

Finally, lose the bloody html formatting. What a pain ! If plain text is good enough for Bill Joy, it's good enough for me :-)

I'm not going to comment about the agreement until I feel I fully understand it. It's very complicated so that might take a while though. I don't think your efforts were as well informed.


Posted by Jeremy Allison on November 04, 2006 at 10:51 AM PST #

Miguel de Icaza had some nice new comments about your blog entry here have to love irony

Posted by nacho on November 04, 2006 at 10:53 PM PST #

@Jeremy: Yes, I'd agree with you about our efforts in 2004. I actually believe Sun did a better deal than Novell, since there were no ongoing royalties and the implied threat against the (many) communities we work with was very limited. For Novell, the scope of implied threat is very wide and the innuendo in which Ballmer was able to indulge against FOSS the very next day was very sad.

The HTML thing is indeed a pain; it's a "feature" of Roller though, so I'm afraid I can't fix it. As to the domain; I understand, but I don't agree that the domain name indicates affiliation. I'm really looking forward to seeing your column on this; perhaps you could forward me a link when it appears as I don't take that publication, despite living in the UK.

@nacho: Yes, I saw. My first reply to Jeremy also applies to Miguel's comments - I would have made them on his blog but he has no comment area. Novell's actions as members of multiple open source communities deserve comment regardless of what Sun may have done in the past, and I believe that experience of Microsoft actually informs me to make comments rather than disqualifying me from doing so. Working for a company does not automatically make you agree with everything they do, as I made clear to people at the conference.

Posted by Simon Phipps on November 05, 2006 at 12:12 AM PST #

since it is your personal opinion then what do YOU think about the agreement sun and microsoft reached back then. Was there any clear benefit for the opensource community after that? any risk? do you think it was worth it?

Posted by nacho on November 05, 2006 at 01:31 AM PST #

@Nacho: That involves a long answer, but my synopsis is that the 2004 settlement was at the time, in practical terms, neutral to both the FOSS community (since Microsoft did not in fact engage in the posturing they are now exhibiting - I agree that for a while we all feared it had painted targets on OO.o like the Novell action has), and neutral to the anti-trust case (since the EU had received our complaint and were acting on it independently of us). The settlement did not put a price on GNU/Linux or OO.o, either.

Longer term, I believe it to have been positive for the FOSS community since settling the lawsuit opened the path to open sourcing the Java platform, which had been barred by legal issues relating to the case that was settled. I hated (and still hate) the optics of the thing however, and I also regret the fears it instilled in the community.

All my personal opinions, as per the footer.

Posted by Simon Phipps on November 05, 2006 at 02:09 AM PST #

[Trackback] This story has received a ton of coverage this past week and I can't help putting my two cents in on the discussion. The rumor behind the deal according to Robert Scoble's blog is that Novell had the goods on...

Posted by Blog: Shawn Rogers on November 05, 2006 at 03:43 AM PST #

fair enough, but don't you think that given the your experience with microsoft and it would be better to give them the benefit of the doubt? And yes, i know i would be contributing to MS every time i buy an SLES licence.

Posted by nacho on November 05, 2006 at 06:04 AM PST #

This development has so many angles! My opinion can be found here. Microsoft is at it again!

Posted by Travis James on November 05, 2006 at 09:12 PM PST #

[Trackback] Seems like a big move in opensource and free software. I don't know what to thin about it yet, so here are some link about it : The Morning After - Simmon Philips Microsoft makes Linux pact with Novell - CNET

Posted by Benoit Chesneau Web on November 07, 2006 at 10:35 PM PST #

Post a Comment:
Comments are closed for this entry.

Thoughts and pointers on digital freedoms and technology markets. With a few photos too.


« April 2014