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long: Re: [News] NYT on the Broken Novell/Microsoft Relationship

begin  oe_protect.scr 
Roy Schestowitz <newsgroups@xxxxxxxxxxxxxxx> espoused:
> Microsoft-Novell Pact Already in Dispute
> 
> ,----[ Quote ]
>| Less than three weeks after they reached an accord hailed as proof that
>| rival software companies could work together, the chief executives of
>| Novell and Microsoft are engaged in an unusual public dispute.
> `----
> 
> http://www.nytimes.com/2006/11/22/technology/22soft.html?_r=2&ref=business&oref=slogin&oref=slogin
> 
> More here:
> 
> http://boycottnovell.com/2006/11/22/open-letter-to-novell/

Presumably this really goes back to Novell's roots.  Their heritage is
entirely that of a proprietary software vendor, who've been competing
with Microsoft for at least a couple of decades, and mostly losing.

As things got really bad for Novell, the board was very aware that the
only growth area which was not dominated by Microsoft was in free
software, so they looked around to see what they could do.  The most
promising of all the distributions at that time was Suse, based in
Germany (important - not in the US), had good traction in Europe and was
well respected globally.

Like most of the early distributors, Suse was doing financially okay,
but no more than that, and was desperate for cash to fund their
continued expansion;  working in a commodity environment means working
with very very narrow margins,  having significant investment can make
that much less painful.

So, it looks like a match made in heaven.  Novell, the well respected
US-based networking company, investing in, indeed buying, one of the big
four Linux distributors.  Everyone in both the stock-markets and the
open-source world applauded the move;  Novell had a new lease of life in
the server arena, their traditional market place, /and/ got to push Suse
for the desktop too.  Until Ubuntu came along, Suse was considered by
many to be the most mature business desktop offering.

Unfortunately for all concerned, although the match was reasonably
successful, and Novell have enjoyed a steadily increasing penetration
into the desktop and server markets previously dominated by Microsoft
and Unix vendors, the rate wasn't all that high, and was damaged by the
SCO activity, something Novell found itself on the wrong side of, but
was acutely aware it was in the spotlight.

At about the same time, the FSF and Prof Moglen began work on GPL3.
GPL3 is intended to prevent the last great legal threat possibility
against linux and free software, that of patent fud.  When the GPL was
first created, this wasn't much of an issue, because nobody had been
granting patents for trivial software, but, the USPTO was made a profit
centre, and its managers realised very quickly that in order to make
their profit, so that they could get their bonusses, they must grant as
many patents as they possibly can;  which is what they did.  Patents
have been granted for such triviata as an "icon on a screen" to such
obvious developments with prior art, such as moving email on a
packet-radio link (RIM suffered from that one, even though it's been
going on for decades).

So, as the SCO debacle reached its peak, the FSF people were considering
how to counter this new threat against freedom, albeit a threat
resulting from a series of blunders by the US Government, including
starting to offer software patents, and then making money from granting
them.  Thus, GPL3 is born.

The evironment in which GPL3 came to pass should be considered
carefully, and compared with GPL2.  For GPL2, most developers were
freelancing in some way or other, perhaps paid by some employer, but
their work wasn't germane to the company, perhaps students or academics,
or enthusiasts working at night in their cellars.  Thus, GPL2 addressed
their fears very well - their work could not be taken by anyone else,
improved and sold-on, without the improvements being returned to the
code base.  A reasonable proposition, although even then, major
companies such as Microsoft were already calling it a Cancer, precisely
because they were not able to take the work and pass it off as their
own.

By the time GPL3 is being written, though, free software has become
something of a victim of its own success.  Many, if not most,
developers are now working for commercial organisations, or, if not, at
least they're working for "not for profits".  Thus the whole attitude to
patents is affected, if not dominated, by the legal departments of their
employers.  The concepts of "RAND" - reasonable and non-discriminatory,
are preferred licensing methods by many companies, based on the sage
advice of their senior legal people.  Why?  Because they still do not
understand how software is developed, or why free software has been so
successful.  There is still the view that free software can be
"de-commoditised" in some way, although any economist worth his salt
will tell you that this is exceptionally difficult to achieve (but not
impossible).

So, whilst the previous generation of academics, cellar-dwellers, students
and part-time coders were happy to have their own work protected by GPL2,
the current generation are having to look over their shoulder at their
legal team for GPL3, but their legal teams do not necessarily understand
why GPL2 exists;  they might understand what it means, but they don't
understand why its there.  Thus, GPL3 is getting a rough ride indeed
from many people.  An additional argument has been that GPL3 is not the
right route to resolving the software patent problem, indeed, it's just
possible that this is true, however, pragmatically, it's likely to be
the only one which will work, unless someone seriously believes that the
free software community can take on and beat the US government on
patents granting - something I doubt very much.

Microsoft have learnt a lot from their funding of SCO to claim copyright on
Linux. These lessons include that the approach was, in fact,
surprisingly successful.  There's always a pundit or analyst who can
make money from selling the FUD on in companies, and as most companies,
and lawyers, are naturally very conservative and cautious, merely making
a public accusation can be enough to stop customers from moving to
linux.  However, the second lesson has been that whilst the wrath of the
free software community doesn't scare them one bit, the steady loss of
customers to the free software world scares them greatly.  They have no
fear of the FSF, of Linus T, of ESR or of RMS, but they are terrified of
linux distributions which prove that free software is good enough for
most uses, and they're terrified of the GPL, which protects them.

So, they've gone for a second round of legal attack.  This is nothing
new for Microsoft, indeed, the SCO case was nothing new.  From the
beginning, Microsoft have been about manipulating the legal system to
their own ends, and marketing heavily to persuade an unknowledgeable
public of their wholesome aims.  The agreement with Novell is just one
more step from Bill Gate's original letter regarding the copying of
basic, sent just scant months after he'd stolen printouts himself in
order to write the basic, Microsoft have never played this game with
anything less than four Aces up each sleeve.

Microsoft saw GPL3 coming along like a high-speed train, and they were
struggling to get over the level-crossing.  They knew that they had just
a few weeks, months at most, to get a patent attack in, before the free
software world began to recognise the huge danger this poses, so, they
did one of the things they're best at.  They charmed the board of a
company - in this case, a competing company, but one which they knew was
still cash-strapped, was not growing at the rate it wanted to, and was
still painfully aware of how close it had come to litigation in the SCO
case.  Whilst IBM might have protected Novell, it might not have done,
and where would that leave the boys from Utah?  So Microsoft found very
fertile territory in the Novell board.  People whose real background was
proprietary code, networking and unix;  people who understood lock-in
and licences, and people who were desperate for both more cash and for
peace of mind that they would not be under attack from Microsoft.  But,
most of all, they were a company board who were desperate to do better
than the market leader in their space, Red Hat, and also do better than
the very well funded upstart, Ubuntu.

Microsoft played, as always, several Aces from each sleeve.  They agreed
to provide a seal of approval for Novell Linux; they agreed to stop
fuding it in public.  They wouldn't actually stop, of course - they'd
keep those Aces for later, and let Novell's lawyers argue it out for as
long as they could afford to,  Microsoft never needs to keep any
promises it makes, it's rich enough to avoid that, another Ace up its
sleeve.  But more importantly, they agreed to *not* attack Novell's
customers legally, whilst agreeing not to reach a similar agreement with
any other linux distributor.

Well, after a few hearty meals, glasses of beer, wine and spirits, how
could an offer like that look anything other than gold-plated?  What
more could a CEO want than to protect both his company, and his
customers, from Microsoft's attacks?  It would be /bound/ to improve his
company's standing in the Linux world, and on the stock-markets.  At
least, that's what a CEO, fresh out of the proprietary world would
think.  A CEO with experience of the free software world would've seen
all the landmines, pitfalls and caltrops scattered along this road, and
would also have been far more aware of GPL3 and why it was being written
- to protect his company and his customers from precisely this problem.

I suspect that the real winner from this debacle with be GPL3, as it
will highlight the persistent danger which Microsoft poses to the free
software world.  Microsoft have certainly lost the server battle and the
mobility battle and are in the process of losing the embedded battle and
the console battles;  they look like they will also lose the desktop
battle, although it might take longer, *but* they are very very
cash-rich, very powerful, and have far from abandoned the war.  

I strongly recommend that anyone who's written off GPL3 as unecessary
reconsiders their position in the light of the Novell/Microsoft deal.

-- 
| Mark Kent   --   mark at ellandroad dot demon dot co dot uk  |
What will you do if all your problems aren't solved by the time you die?

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