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Why the Novell / MS Deal Is Very Bad
jamienk writes "PJ from Groklaw has taken the time to really explain the big picture of the Novell/MS deal and how it all fits into the SCO case and the strategy some have employed to attack Free Software. If you thought PJ was becoming too shrill before, or if you haven't understood what the big deal is with Novell's agreement, it's really worth a read." From the article: "This is Groklaw's 2,838th article. We now have 10,545 members, who have worked very hard to disprove SCO's scurrilous claims, and we did. We succeeded, beyond my hopes when we started. But here's the sad part. As victory is in sight, Novell signs a patent agreement with Microsoft..."
Everything I've read by Novell in responce to the criticism from the OS community tells me that this article means nothing. Had this article came out when the deal first happened it would be different but now that Novell has communicated that they didnt' want the IP clauses in it and they actually want to make MS and Linux easier to work together I don't believe this article. It just fuels the fud factories. Novell wanted to get MS to actually allow the Visual Studios and Office on a Linux platform. Stuff like that. This deal is to form a bridge between 2 companies that really should work together instead of figthing. Imagine a world where MS and Linux worked even 25% together than they do now. Here is an open letter to the community by Novell. And other releases.
That which does not kill me only postpones the inevitable.
As I said, I don't have a problem with enthusiasm - others may feel different, because lots of peeps consider the display of emotions or enthusiasm as weakness, and they invest a lot of emotions in pretending to not care or feel something about these issues. But except for this last case, you will hardly find any criticism of groklaw and PJ that tries to address the issues she raises with logical arguments. I haven't followed the happening on groklaw in the past few years to closely, but since hell broke out about the Novell-MS deal, I have been regularly reading groklaw, and I have to say this: the oo.o fork article was not a trend, but an exception. PJ is still the same PJ I have come to know when the SCO case started: exceptionally thorough and logical in providing arguments to prove her point, but also a bit emotional and enthusiastic (which made some of her writings an easy target for those, who failing provide rational arguments concerning the points she made, dismissed her articles on the note of being "biased".)
If they are saying they aren't going to start suing Novell with this deal, doesn't that imply that they could sue everyone anyway? And if so then what is the harm of them saying they won't sue Novell. After all if they can sue Linux vendors anyway what does one agreement with one company change?
... why bother... their stock is toast, so couldn't IBM just buy a controlling interest for $11.2M and wind it down?
Doing so would invite thousands of nuisance suits from people who want to be bought off by being bought out. Suing IBM would become both a neat way to make a few million bucks and an exit strategy for every failing company that could make a vuagely-plausible argument that IBM had something to do with their fall.
So instead IBM has chosen to counter-attack, sucking all the blood out of SCO and leaving a dessicated corpse hanging on a spike for all to see.
It's an object lesson on the pitfalls of trying extortion on Big Blue.
They have had this policy for a while. SCO is just the biggest band of fools-or-crooks to come along in a long time, trying something new with ramifications in one of the biggest-bucks fights in a long time: the war between Microsoft and Open Source. So SCO gets the biggest spotlight.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
My inclination has always been to think of the freedom guys as a little strident, and a little too extreme. The things Linus says about licensing have always made the most sense to me intuitively, and the other guys have always come across as a little controlling, and a little crusading.
The one thing I've taken away from the Novell/MS deal, though, is that this stuff is really complicated, and it's really dangerous. I'll be honest -- I don't understand all of the implications of the deal, or why each of the two parties decided to do it. But I feel like something's going on -- like I'm playing 3 card monte on the street or something.
I don't think that non-specialists (ie., geeks who don't think much about law) are in a good position to know what's best.
Novell, and the guys that came to Novell when they bought Ximian and SUSE, have done an incredible amount of good for our community. We are, to a certain extent, depending on Novell's patents to protect us in this coming fight. I think they're good guys, doing what they feel they have to do in order to survive.
But even if this isn't nefarious, it's made us realize that we'd be open to something similar that was nefarious. Those crazy freedom guys weren't so crazy after all.
So I think we have to trust the people who understand these treacherous waters the best -- I think that's Eban Moglen. He says that GPL3 is necessary to counter this threat, and he says it will be effective, even if the kernel remains under GPL2. The toolchain will be enough to do what we need.
I don't want to demonize Novell, because they've given me a lot of great code, and because there are people there who are real heroes to our community. I think they're mistaken, and I think Linus is mistaken to stick with GPL2. It just ain't viral enough to keep us safe.
But instead of attacking people, or getting hysterical, I think the thing to do is to listen to our best legal minds, and back GPL3. So my feeling is that Linus's honor is beyond question, he's obviously a lot smarter than I am, and he might even be smarter than Eban Moglen. But when it comes to law, I'm going to listen to Moglen.
And I would say that the Ximian guys' honor is beyond question, and that they're a lot smarter than I am as well. But I'm still going to listen to Moglen about the law.
Again, my feeling is that we shouldn't let this break down cooperation, we shouldn't let it affect the civility of our community, and we shouldn't attribute bad motives to anyone. But we should play it safe, and innoculate with GPL3.
The worst case scenario would be Microsoft using their patent portfolio in an attempt to shutdown any open source projects which infringe their IP. Your Ubuntu is based off many many open source projects and the loss of many of those projects could be detrimental to the capability of your favorite distro.
Now obviously its much more complicated than that but you asked for some simple terms and how they would effect you so there ya go.
But I can't read the terms, because it's a secret. And they don't agree in public on what, exactly, the deal was.
Boy, am I relieved!
Help stamp out iliturcy.
That's why Shuttleworth was trying to poach developers. SuSe was funding key projects...many related to Microsoft compatibility... this agreement means that all those projects are now suspect for added code that shouldn't be there. The Samba team in particular was very proud of their implementation being very clean legally... the very soul of the team was sold right out from under them!!!
But again, why not read the article first, and ask questions if something is not clear, or you disagree with the points raised by PJ?
The problem is that Novell's agreement can be seen as legitimizing Microsoft's claims, which can create fear among companies thinking about adopting GNU/Linux.
Fabio Aquotte
now a couple of million dollars on the table says Novell's lawyers think they can (otherwise it's just a bit circlejerk, and hey, that's likely too).
Or maybe Novell just wanted a couple hundred million George Washingtons.
Because one of four things I can think of is going on:
1. Novell just thought that the partnership would be good (remember, something like $300 mil) completely unrelated to IP issues
2. Novell's lawyers think there ARE IP issues with Linux, and they plan on dropping distribution of Linux when it hits the fan
3. Novell's lawyers think there are IP issues with Linux, and they are wagering that either the GPL will be held to be unenforcible, that they won't be exposed to large judgments, or that the Linux developers will be too poor/busy/not care enough to sue
4. Novell's lawyers can't read
Because if it turns out that there ARE IP issues with Linux, Novell can't distribute it either. Which means that they must cease or face a possible lawsuit from everyone who has code in the kernel.
Occam's razor, in my mind, is pretty clear that #1 seems the most probable.
They don't sue Ubuntu because those guys are clearly NOT trying to circumvent the spirit of the license. It's Nvidia and their ilk that are doing that. And as long as they aren't actually distributing code, they can get away with it. Suing Ubuntu wouldn't hurt them directly, and would hurt some good people that are trying to do the right thing, so don't expect to see that happen.
What I do expect will happen, at some point, is someone with standing to sue will initiate a dialogue with them, and they'll remove the drivers. I don't think anyone is in a huge hurry about that, however, for the reasons outlined above.
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In my opinion, this attitude is a perversion of the ideals behind the creation of the GPL. The purpose of the license, as I understand it, wasn't to ensure that an army of paid developers were incessently toiling away to provide you with free software, it was to ensure that when said army disappeared, you had the source code and weren't left with unmaintainable binaries. There appears to be this persistent assumption that GPL == evil multinationals being forced to spend their ill-gotten gains providing free stuff to hobbyists. But maybe I'm wrong and that's exactly what the GPL's meant to do these days.
This sig is false.
So tell me, why would companies care about this deal? Is Red Hat going to stop supporting Linux because Novell and Microsoft promised not to sue eachother? I frankly don't see much FUD from Novell, only the critics of this deal. I usually hold PJ up to a relatively high regard, but this article is mostly FUD not antiFUD as it seems to want to be. I don't know where those quotes come from? What does the proceeding article have to do with Novell?
Noone has given me a single reason why this deal is bad for Linux. They say that it pretends that there is patent troubles with Linux, something with Novell denies. The article claims it made Suse Linux more expensive, which seems hard to believe seeing how Novell made several million dollars out of this deal.
So put away the "this is what will happen" argument and try going for "this is what will happen, and this is why" because I just don't see any why.
Hold on there. Redhat has been nothing but open. In fact, nearly all distros can be traced back to redhat (of course, the floppies => yggdrasil => slackware, which all came before redhat).
Redhat has had only 2 issues that kept them from being the standard. The first and major is that they were and are the leader. You do not beat a leader by being them, unless you are MUCH bigger and can blow a lot of money (Oracle anyone). So nearly all major distros can trace back to taking a redhat and then modifiying it. And the second is that redhat did not want KDE on their distro. They were GNOME.
I prefer the "u" in honour as it seems to be missing these days.
For another fucking inane article on the deal we've all known about for 2 plus weeks!
Regardless of whether this article has any substance or is merely a frothing rant on PJ's part, I think (inadvertently?) she's overestimating the adoption rate of GPLv3.
Linus has clearly stated that he intends to keep the kernel under v2, and most of the larger projects have yet to make any meaningful statement about it.
Never mind the scores of smaller projects that don't have the resources or prowess to make an informed descision about which GPL version to use; most of them will stick with v2. I wouldn't be surprised if most projects simply followed Linus' example.
As I understand it:
In the early days of the SCO-IBM (and other SCO litigation), Novell invoked a clause in the APA that said that if SCO did something Novell decided was inappropriate with regards to licensing of SVRX, Novell could stop SCO from doing what they were doing.
When SCO opened the case with IBM and threatened to pull IBM's license to distribute Unix, Novell said "no, you can't do that". SCO refused to follow Novell's instructions, and Novell said "if you won't do it, then under this part of the agreement, we'll do it for you" and did. SCO continued to litigate. Novell now appears to be asserting that SCO is in violation of that section of the APA because Novell invoked part of the agreement and SCO refused to comply, which puts them in breach of contract.
It seems that Novell is now asking the court to enforce their rights under the APA. Something they should have done a long time ago, but probably was held up because the mediation clause of the United Linux agreement was invoked.
Unfortunately, it wouldn't be a simple case to prosecute.
You see, Nvidia distributes two works they present as separate. A binary blob, and a 'shim' under the GPL, whose only purpose is to load their blob and link it into the kernel.
Also, Nvidia doesn't distribute the kernel.
So, while it's clearly illegal to distribute a working system using this two-part driver as part of the linux kernel, it's not quite clearly illegal to distribute just those two parts without the kernel, which is what Nvidia does.
They're exploiting a loophole in the GPL, and unfortunately, while I believe a court would probably rule against them in the end, once the entire situation was clearly explained, this would be an incredibly expensive proposition.
Suing distro makers that bundle the kernel, shim, and blob together in a usable form would be much easier, but you know what? No one really wants to sue a distro maker for trying to make their customers lives easier. That's a last resort, only if and when it becomes clear that simply talking to them won't do the trick. And that's how it should be. We're a community, and we don't and shouldn't jump to sue each other unless and until everything else has been tried and failed.
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Friends don't let friends enable ecmascript.
Whether you believe it or not, the future quality of Linux is related to -- although not completely dependent upon -- its popularity.
All data is speech. All speech is Free.
Novell, IBM et al. are not Linux aficianados because they give a damn about the community, they are doing it because they make money from Linux, and because it indirectly hurts their main competitor, Microsoft. So any notion that these companies are good guys beyond their own self interest is misplaced. It just so happens that their interests and the interests of the community, at present, more or less concur. But the Novell/MS deal shows how fragile that consensus is.
Microsoft and Windows aren't going to go away overnight. And, ironically, the more Linux is adopted by companies who currently use MS, the greater the need for interoperability. My guess is that Novell thought it was gaining an edge in that market. They thought increased interoperability would lower the threshold for companies adopting Linux, because they wouln't have to replace all MS systems overnight, as long as Linux and MS systems could work together. And with Suse having unique access to interoperability API's, they would be the Distro of choice when it came to heterogenous solutions. The problem is Novell didn't anticipate the fallout from the deal. They didn't anticipate Ballmer's post-coital comments. They should have.
... patents. We need to get ride of those stupid laws.
wtf.n0x.org
Do I understand this properly?
MS signs patent agreement with Novel.
Novel introduce MS patent based technologies (WMV, DRM, interoperability stuff, etc) into their variant of Linux (while also keeping up to date with the kernel release, etc, done by the community).
People deciding which Linux to use have a choice between the souped-up version from Novel which will do lots of Windows stuff or regular Linux.
Regular Linux can't take the MS stuff into itself because it's patented. The MS Linux can take all the regular Linux stuff because it's GPL.
Result? MS start to get significant leverage over Linux by proxy, by trying to dominate the Linux variant market with "their" (e.g. Novell's) variant. MS would do this itself I think, without going through Novell, if they had the linux know-how.
MS then start putting seriously nice stuff into MS Linux, more and more people start to use it, become dependent on it, MS start making it easy to migrate from MS Linux to Windows, etc, etc - all sorts of strategies are available at that point.
I can see why a modified GPL is needed now, to exclude patented material from the kernel; this is to protect Linux from MS's embrace/extend/exterminate policy.
The last distribution that made a shady deal with MS to attack Linux was Caldera. Would you deploy Caldera today?
Where is that guy who'd die defending what I had to say when I need him?
If you have no community, it might be hard to keep ahold of your customers for very long.
If you have no customers but do have a large community, then it might be easy to quickly gain lots of customers.
Oh, you knocked that straw man down nicely, sir.
For starters, even SCO believes there is hardly any SCO copyrighted code in the Linux kernel (at MOST, we're talking about 326 lines in Linux, here). SCO is suing over IBM copyrighted code in the Linux kernel. Really.
Secondly, I never said anything at all about the relationship between the Microsoft/Novell deal and the SCO/Linux lawsuit. Your initial post seemed to deny ANY link between Microsoft and SCO, and I felt the need to correct you on that howler.
In my opinion, the main relationship between them is that Microsoft has realised that using SCO as a sockpuppet to attack Linux with has run it's course, so it's switched to a completely different tactic, namely some sort of as-yet-unclear patent FUD/threat, and it spotted the opportunity when Novell came knocking at the door and asking for cash.
The whole "making money" thing only addresses the motivation for DESTROYING other companies. It doesn't negate the end result. OSS just happens to fall into the category of "other companies" from the point of view of any corporation like Microsoft. Microsoft wants to destroy Linux collectively just like they would be interested in destroying Boland or Netscape or Oracle.
A Pirate and a Puritan look the same on a balance sheet.
A long time ago, Gates said the most important thing was to control the standard. This has always been msft's focus. And it has worked like all hell.
If ODF caught on, msft might lose control of the document standard. Nearly msft's worst nightmare. Consider msft's aggressive lobbying in MA.
This is not fair use, it's how the copyright law works. In regard to computer code it specifically allows you to produce code that does the exact same thing, as long as you take the "clean start" approach. In simpler words, you have to work for it, not simply copy&paste.
Fair use is another section of the copyright law, which says you can use copyrighted material for free and without requiring permission in certain cases: teaching, news, criticism, review, research etc.
(Just putting things in place. A lot of people confuse fair use with "regular" copyright.)
i ate crayons when i was a kid and now i have two braincells and the blue ones taste nicer
I tend to agree. If they thought they could win, I rather think they'd be doing it, rather than just FUDding about it.
And that's almost certainly a big part of the plan. The trouble is, I don't think Redmond strategists do single objective plans. Consider SCO. That had as a prime objective getting all the rights to Linux in the hands of a single commercial entity who could then be crushed and buried at Microsoft's leisure. But as side bets the scheme held some good opportunities for breaking the GPL, discrediting free software movement, and a poke in the eye for IBM whose Linux ads have to have been seen as a direct attack at Microsoft. And the worst case (which is pretty much what they got) is they get three to five years of FUD to slow Linux adoption.
The danger here lies in assuming that just because that's all that worked in the SCO gambit, that that's all Microsoft are trying to achieve in this one. Their strategists are better than that.
Don't let THEM immanentize the Eschaton!
There is substantial reason to believe that kernel modules are not derived works of the kernel if they use the standard published kernel APIs, just as normal userland programs are not considered derivative works of the standard system header files and libraries, even if the userland program #include's or links against libc.so.
It's also true that the Linux kernel includes a fair amount of BSD-licensed source code, so it's obviously not true that all Linux kernel modules need to be under the GPL to be redistributed. A quick check against the Linux-2.6.0 kernel suggests 274 examples:
% find linux-2.6.0 -print0 | xargs -0 grep -l 'Redistribution and use in source and binary forms, with or without' | wc -l
274
These files start with linux-2.6.0/arch/m68k/mac/iop.c, include the ACPI & scsi/aic7xxx drivers, NFSd (linux-2.6.0/fs/nfs/idmap.c) & SunRPC (linux-2.6.0/net/sunrpc/auth_gss/auth_gss.c), and others.
1. are distributing a derived work
While Eben Moglen may have other opinions, most people on the OSI mailing lists did not consider the nVidia driver to be a derived work of the Linux kernel.
2. is bound by the license on the kernel if they are not distributing the kernel
The answer to this is obviously no.
3. is satisfying the terms of the GPL by distributing partial source code to their driver
The answer to this is obviously no, but the nVidia driver isn't and never has been under the terms of the GPL, because nVidia wrote it themselves.
4. would only be violating copyright if they were distributing binaries with no source code wrapper
The answer to this is "probably no", going by the "published API"s standard I mentioned above for deciding whether source code constitutes a derivative work or not.
5. are guilty of contributory copyright infringement by facilitating others to distribute binaries if 4 were the case
This suggestion comes straight from Eben Moglen, and is unlikely to gain much traction in a court of law. (a) nVidia has done nothing to encourage people to redistribute a Linux kernel plus the proprietary nVidia driver. (b) nVidia releasing a free (as in "no cost to download") driver for someone to use their nVidia video card with Linux would almost certainly qualify as "fair use" and be protected under 17 USC 107.
And if not, just who would you sue? Linux users who want GLX hardware acceleration?
SCO sued it's userbase, and look how far that got them...
"The human race's favorite method for being in control of the facts is to ignore them." -Celia Green