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A Deal Made In Hell

Date: 01 January, 2007

By: Chief

Imageovember 2nd of 2006 was really interesting, in a very un-good sort of way, for those people who use free software.

Microsoft, M$ for short, and Novell announced a joint patent swap along with royalty payments, purportedly going in both directions, and M$'s "covenant" not to sue users of Novell's GNU/Linux distribution — Suse and OpenSuse.

While the various suits of both companies were publicly touting the agreement as really the best thing to come along since burritos in a bag in actuality the exact opposite is true.

According to a CNN story:

" 'This is a big day for Microsoft customers', said Stuart Cohen, chief executive officer of the Open Source Development Labs, a Beaverton, Ore., group trying to expand corporate America's reliance on Linux. 'They are being told by Microsoft that they can use Linux and not worry about it. That's a big statement'.

"Microsoft's patent waiver only applies to users of the Suse Linux platform."

Did you get that last part? The part that said "Microsoft's patent waiver only applies to users of the Suse Linux platform." That means, to me anyway, that if you use Novell's flavor of GNU/Linux M$ has basically promised not to beat you with a legal stick. If you use any other distribution such as RedHat, Debian, Ubuntu, CentOS or whatever, then you, as in the customer, are allegedly violating some deep dark M$ patent or two or three and M$ can sue your butt off.

Eweek reported on this same story and here is a part of what Steve Ballmer of M$ had to say:

"The distributors of other versions of Linux cannot assure their customers that Microsoft won't sue for patent infringement. 'If a customer says, ' 'Look, do we have liability for the use of your patented work' '? Essentially, If you're using non-SUSE Linux, then I'd say the answer is yes', Ballmer said.

" 'I suspect that [customers] will take that issue up with their distributor', Ballmer said. Or if customers are considering doing a direct download of a non-SUSE Linux version, 'they'll think twice about that', he said."

It really sounds to me like two things have happened:

M$, as usual, has not made public what, if any, patents have actually or factually been infringed upon by free software. Hence, we who use free software are left wondering if we are legal. The same holds true with free software developers. Is M$ going to go after them with a legal stick? Oh, you develop free software on your own time and are not paid for developing free software? Well then according to M$ you are safe. Quoting Microsoft:

"Microsoft hereby covenants not to assert Microsoft Patents against each Individual Contributor (also referred to as "You") for Your distribution of Your personally authored original work ("Original Work") directly to openSUSE.org, but only if, and to the extent, (i) Your Original Work becomes part of SUSE Linux, SUSE Linux Enterprise Desktop or SUSE Linux Enterprise Server, and (ii) You ensure that as a result of Your contribution, openSUSE.org, and all further recipients of Your Original Work, do not receive any licenses, covenants or any other rights under any Microsoft intellectual property. This pledge is personal to You and does not apply to any use or distribution of Your Original Work by others."

As you have just read the covenant does not apply to:

Additionally you, the non-compensated developer, cannot license your own work.

It also tells me that M$ is basically saying 'we know your code infringes on our patents'. I'll tell you this, just because M$ says some piece of free software violates one or more of their patents does not make it so.

Okay M$, slimebags that you all are, show me the patents. Specifically what, if any, patents are being infringed by free software. Provide the:

In other words MicroScum, it is time to put up or shut up.

M$ has not, as of the time this story was written, bothered to provide such mundane details. Steve Ballmer, President and CEO of M$, did a great job flinging fear, uncertainty and doubt (FUD) all over the place but that is about it. Show me the beef Steve. Where's the beef? For until M$ does show the beef all they are doing is talking crap and closely resembling the south end of a north bound horse — which is something Ballmer and company do exceedingly well.

One thing which will be very interesting about this deal is the GNU General Public License. The GPL. Suse and OpenSuse are released under the GPL. Although I am not a lawyer in anyway I can read and to me Section 7 of the GPL may, not necessarily will - but may, throw a monkey wrench into the gears of M$ and Novell — they both have it coming in spades. Quoting Section 7 of the GPL:

"If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

"If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances.

"It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims; this section has the sole purpose of protecting the integrity of the free software distribution system, which is implemented by public license practices. Many people have made generous contributions to the wide range of software distributed through that system in reliance on consistent application of that system; it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice."

It sure seems to me that it seems to be that M$'s allegations of patent infringement, royalty payments from Novell to M$'s bank account and the M$/Novell agreement just put the kibosh on any further distributing of Suse or OpenSuse. If nothing else it surely appears that the M$/Novell deal violates the spirit and intent of the GPL. Thus Novell may have just shot themselves in both feet. I truly do hope so.

As for Novell - well, they sold out. Period. They made a deal with the devil. As such Novell and their brand of GNU/Linux should be buried — quickly — before the stench becomes intolerable for the rest of us.

Me? I shall continue to use free software and nothing else. Debian is my distribution of choice though I am told that CentOS is also quite good. And for those of you who want to quickly roll your own try gNewSense. Long live GNU.

Don't be afraid of free software folks, jump on in, the water's fine.

As for M$ and Novell — they can both kiss my butt.

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