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Re: Novell-MS Pact: SFLC's arrangement with Novell?


From: Alexander Terekhov
Subject: Re: Novell-MS Pact: SFLC's arrangement with Novell?
Date: Mon, 20 Nov 2006 09:47:08 +0100

Eben, Eben...

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By: Joe 'Zonker' Brockmeier

The Novell/Microsoft agreement has upset and offended quite a few
members of the free software community. The Samba team has issued a
statement asking Novell to undo the patent agreement, and the Software
Freedom Law Center (SFLC) is negotiating with Novell on their behalf.

Since the Samba team disapproves of the deal, we asked Andrew Tridgell,
a member of the Samba team, what Microsoft could have done to negotiate
a deal with the free software community if the company is serious about
a d├ętente with the free software community.

"A good starting place would have been to talk to the Software Freedom
Law Center. I am extremely disappointed that Novell spent months
negotiating this deal with Microsoft without talking to the SFLC and
Eben Moglen."

Tridgell says that the team had talked to Novell privately before
issuing the statement, but "we wanted to make sure that both Novell and
the wider free software community understood our concerns."

The Samba team has not received a specific response to the statement,
according to Tridgell. However, he says that the Samba team has "talked
to a number of Novell people about the patent agreement." In addition,
Eben Moglen of the SFLC, counsel for the Samba Project, has "talked to
them extensively since they announced the deal."

Moglen says that the SFLC has completed its review of the arrangement
between Microsoft and Novell and has had "full cooperation" from Novell,
and that the SFLC is now working to come to an arrangement with Novell.

"They have showed us what we need to see, they have answered our
questions, we had complete and unfettered access to senior executives at
Novell.... We are now working by peaceable negotiations to protect our
client's legal interest, and we see no likelihood that we're going to
adopt steps that involve the use of legal compulsion. If we are unable
to work the situation out peacefully, that may change."

What's the problem?

According to Moglen, the patent agreement is of concern because it is
discriminatory and poses a threat of dividing the commercial free
software community from the non-commercial free software community.

"If the Microsoft corporation, whether it wishes to be part of this
ecology in a genuine and sincere sense or not, if it succeeds in getting
one distribution to pay royalties for the distribution of free software,
other distributions will do so. They will have to. That will then
succeed in marching the commercial sector away from the non-commercial
sector, and Microsoft then will be able to use its patents to sue to
block the development of software in the non-commercial sector without
the fear of suing its own customers, which is the force that now
constrains them from misbehavior with their patent portfolio."

If there's any doubt that Microsoft is hoping to exploit the deal to
divide the Linux community, rather than to make nice with the community
and respond to its customers demanding Linux, one need look no farther
than comments made yesterday by Steve Ballmer at the Professional
Association for SQL Server (PASS) conference in Seattle. As reported by
Linuxworld.com.au, Ballmer says that "Novell pays us some money for the
right to tell customers that anybody who uses SUSE Linux is
appropriately covered.... We believe every Linux customer basically has
an undisclosed balance-sheet liability."

The primary point of concern is the patent agreement, but Moglen noted
that the Samba team also has concerns with "specific points of this
deal" which have not been made public. Moglen declined to specify the
other terms that concerned the Samba team, citing a non-disclosure
agreement with Novell for access to the full agreement.

We also asked if Moglen or the SFLC was in negotiation with Microsoft
about the agreement. Moglen did not confirm or deny that he was talking
to Microsoft. "I would not be advancing the course of discussions if I
made any statement about who we are talking to here in specific terms. I
will only say that it is my experience that Microsoft has never been in
any hurry to identify itself as in direct negotiation with the free
world.... In general, it is better at this point to say that all lines
of communication that I think are necessary in order to resolve this
situation peacefully are open, that we have not been unable to reach any
parties that we thought it would be prudent or productive to talk to."

Novell was not able to provide a spokesperson for a full interview in
time for this article. However, Justin Steinman, director of marketing
for Novell, has provided a statement that indicates Novell is not
willing to ditch the patent agreement with Microsoft.

"Novell has the utmost respect for the Samba community and their
contributions to open source. We are currently working on a public
response to the Samba team that addresses their concerns. I can confirm
that Novell will not be terminating our agreement with Microsoft, which
was the primary request from the Samba team. We'd ask for your patience
to give us another couple days to pull together the rest of our
response."
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regards,
alexander.


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