A five year deal with Microsoft to dump Novell/SUSE

by Nicholas Petreley

Wake up little SUSE, Wake up. No, that's not good enough. Wake up SUSE customers, wake up. Novell is jeopardizing the future of Linux for its own short-term rewards. If you want to see Linux flourish, let alone survive after Novell's five year deal with Microsoft expires, I suggest we make an alternative five year deal with Microsoft. In this case, our part of the deal is to spend the next five minutes, months, or years migrating away from every shred of Novell/SUSE software in our home, office, or enterprise.

The controversial agreement between Microsoft and Novell stinks to high heaven. Look, for example, at the contradictory statements.

Take this quote from the Novell FAQ on the agreement:

Novell makes no admission that its Linux and open source offerings infringe on any other parties' patents.

How does that jibe with the following quote from Microsoft General Counsel Brad Smith?

"We addressed the proprietary issues through the net up-front payment. The open-source we addressed through the percentage of revenue."

The "percentage of revenue" to which Brad Smith is referring is Novell's payment to Microsoft so that Microsoft will not sue SUSE customers for patent infringement.

Wait. Didn't we just read that no such infringements exist? If Novell is paying Microsoft a percentage of its revenue from sales of SUSE Linux as part of a covenant from Microsoft not to sue SUSE customers for patent infringement in open source code, then is this not a tacit admission that Novell's Linux and open source offerings infringe on other parties' patents, particularly Microsoft's patents? How can one interpret this any other way? Why would Novell pay Microsoft not to sue its customers over patent infrigements Novell says do not exist?

I see only two explanations for this apparent contradiction, neither of them good.

1. There are no Microsoft patent infringements in Linux and/or SUSE open source products. Novell is simply attempting to spread Fear, Uncertainty and Doubt (FUD) about other distributions. It doesn't matter if there is no possibility Microsoft can sue Red Hat customers or any other Linux customers. Novell can say they have an exclusive deal that protects its customers from a Microsoft lawsuit, which gives it the pyschological upper hand. The implication is that if you buy a non-SUSE distribution, you could get sued. Perception has always mattered more than facts.

2. There are Microsoft patent infringements in Linux and/or SUSE open source products. Novell is simply refusing to admit it in the quote from the FAQ above.

The deal and the GPL

Furthermore, if Novell is obliged to pay Microsoft a percentage of its revenue from Linux in order to prevent Microsoft from suing its customers based on patent infringements, how does this fail to break section 7 of the GPL?

From 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.

Or, as stated by Eben Moglen, the attourney for the FSF:

"If you make an agreement which requires you to pay a royalty to anybody for the right to distribute GPL software, you may not distribute it under the GPL."

Obviously, the GPL is the reason why Novell must go on record with the assertion that neither Linux nor its other open source offerings infringe upon any Microsoft patents. To say otherwise would be to admit Novell is violating the GPL.

However, if its assertions were true, there would be no reason to pay Microsoft royalties on the sales of Linux and open source products in order to protect its customers from patent infringment lawsuits. Here, Novell's actions speak much louder than its empty words. No, Brad Smith's words speak even louder, because his statement is pretty clear that Novell is paying royalties to Microsoft in order to prevent Microsoft from suing its customers. Once again, we must conclude that one of the two explanations above must be true. Only in this case, either Novell is paying Microsoft FUD money, or Novell is violating the GPL.

Five year deal in a six year plan

For five full years, Microsoft says it will promote SUSE. For five years, Novell will guarantee its customers immunity to patent lawsuits by Microsoft.

What happens after the five years pass? I seem to recall Microsoft made five year (or similar length) deals with Sybase, Symantec, Corel, Borland, Citrix, and other companies that thrived before the deals only to be reduced to insignificant gnats afterward. All of these deals involved giving the company a bundle of money and promising them they'd prosper. All of these companys were promptly discarded as partners once Microsoft gained what it needed to eliminate them as serious competition.

Microsoft has once again suckered a company. It dangled pretty, shiny short-term gains in front of Novell/SUSE while, at worst, planning their long-term extinction, at best, planning to use the success of Novell/SUSE to bleed its customer base. If Novell/SUSE becomes the king of Linux in five years, you can bet Microsoft will send its thugs over to Novell and raise its "no-sue covenant" protection payments through the roof. I've compared Microsoft to Al Capone before. I see no reason to think Microsoft has morphed into a kinder gentler thug.

My five year deal

I propose the following as an alternative five year deal between Linux users and Microsoft.

First Front

Novell/SUSE users and customers should wipe Novell/SUSE off their disks and install virtually any non-Novell/SUSE alternative in its place. Dump all MONO development for any of the many excellent alternatives, and abandon your investment in all Novell-based open or closed source tools. Ditch Evolution for one of the many great alternatives. Deep-six anything that has the smell of Novell/SUSE on it.

Granted, this will take time for some organizations. Don't worry, you've got five years. As long as you refuse to send another penny to Novell while you migrate, the plan will work.

Here's the point. Microsoft is attempting to manipulate (read: control and/or extinquish) Linux. Its plan is to make Novell/SUSE the king of Linux within the next five years. Once that five years is completed and Novell/SUSE Linux is on top, Microsoft will be in a position to do just about anything it wants. It can eradicate Linux, sabotage it, or simply demand outrageous fees from Novell/SUSE for every copy sold. Who do you think will pay those fees? You, if you adopt Novell/SUSE products. And that money will simply funnel right to Microsoft. You might just as well give up on Linux right now and adopt Vista, if that's the road you want to take.

I say, no! Force Microsoft's hand. Subvert Microsoft's plan by refusing to use Novell/SUSE products, and Microsoft will have no other way to manipulate the future of Linux except through patent lawsuits. In a Novell/SUSE-free world, Microsoft will have no other choice.

Microsoft has been preparing for this war for a long time. Why do you think Microsoft bought the patent for OpenGL? Let the war begin, if Microsoft dares. Let IBM whip out its patent portfolio. I don't mind playing a game of "let's you and him fight" while I use Debian, Fedora, or whatever. Neither should you. And don't fear that possibility that Microsoft can threaten your use of a non-Novell/SUSE Linux while they fight it out. I am certain that Microsoft would be restricted from doing so by an injunction until the matter is settled. Any alternative would be to grant Microsoft a risk-free monopoly on the server market.

Second Front

The Free Software Foundation lawyers should stop wasting its time trying to eradicate DRM through licenses that won't get adopted or work, and spend their time enforcing the license that is already in widespread use. Take Novell to court over its violation of section 7 of the GPL. Force Novell to explain why it is paying Microsoft royalties to guarantee that Microsoft won't sue its customers over patent infringements that do not exist.

Indeed, if, as the company claims, Novell/SUSE Linux and its Open Source software does not infringe on any Microsoft patents, then Microsoft should be brought up on charges of racketeering for asking Novell to pay money to prevent Microsoft from suing its customers.

From the Wikipedia on Racket (my comment in []):

Several forms of racket exist. The best-known is the protection racket, in which criminals demand money from businesses in exchange for the service of "protection" against crimes that the racketeers instigate [such as suing SUSE customers under false charges of patent infringements] if unpaid. Or, "pay me so that you won't have a 'mysterious fire' in your warehouse ..."

As I say in one of the comments below, if there are no patent infringements in Novell/SUSE Linux closed and open source products, then Microsoft is simply collecting protection money by threatening to use its deep pockets to tie up Novell/SUSE and/or Novell/SUSE customers with lawsuits over patent violations that don't exist. That is clearly racketeering.

No matter who is guilty of what, I refuse to be a part of it. By the end of this day, SUSE Linux will no longer soil my hard drive. I'm taking a stand. How about you?

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