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Novell-MS Pact: "We worked hard, were victorious, and now are denied the

From: Alexander Terekhov
Subject: Novell-MS Pact: "We worked hard, were victorious, and now are denied the reward" says PJ-groklaw
Date: Wed, 06 Dec 2006 14:51:35 +0100

(Why the Novell Deal is Bad & SCO's Memo in Support of Motion for SJ: We
Did Not Breach the GPL)

We have read IBM's scathing Memorandum in Opposition to this SCO motion
already, but here's SCO's Memorandum in Support of its Motion for
Summary Judgment on IBM's Sixth, Seventh and Eighth Counterclaims [PDF]
as text. IBM's Memo provides a point by point answer and then some.

Of all the motions in this world, this one is the least deserving to
succeed. SCO is asking the court to kill IBM's copyright infringement
counterclaims, the ones based on the GPL violations, on the grounds that
it never violated the GPL.

SCO was the first to try to get cute with the GPL on a grand scale, and
as you will see, they do it with panache, with cases and arcane
arguments, even some truly silly ones, like their antitrust allegations
which another judge has already laughed out of court in a companion
lawsuit. Sadly, SCO's attempt to wiggle around the GPL turned out not to
be the last. The Novell-Microsoft agreement also, as Richard Stallman
put it, cunningly tries to sidestep GPLv2. So we have an attack from
within. A serious one, because everything SCO and its backers wanted
from this litigation, but failed to achieve, Novell just handed to
Microsoft on a silver platter by signing that patent agreement. Let me
explain why I see it that way.

There's a reason why corporate interests are not enamored of the GPL.
It's also the reason why it it matters: it has proven effective in
forcing the greedy and unscrupulous to play fair with code they didn't
write but would love to get illegitimate money from somehow anyway.
(It's fine to make money from GPL code. IBM and Red Hat and many others
do. But you have to respect the license, which has as its goal freedom
for the code, so you are allowed to use GPL code as long as you let its
authors (and everyone else) freely and without restrictions outside the
four corners of the GPL itself use/study/modify your code that you write
based on that code.)

However, there is a concerted effort, in my opinion, to destroy the
GPLv2, death by a thousand cuts and compromises. I think they'd like to
do to Linux what they did to Unix. The GPL stands in their proprietary
way, so they are doing all they can dream up to overthrow it or get
around it with cleverness. That is one reason we need GPLv3, obviously.

Here is one extreme example, SCO's contribution to the effort. It's
important to remember, as you watch SCO try to persuade the court that
it didn't do what it did, or that the GPL doesn't mean what it says and
what its authors say it means, that this was one of the prime goals of
this litigation:

    1. to try to prove that the GPL is not legally binding and so can be
violated in order to make some money, honey.

    2. Another goal was to cast a legal cloud over Linux, so in the
enterprise, PHBs would be afraid to employ it for fear of legal
consequences of possibly violating SCO's "IP".

    3. And also there was the apparent goal of forcing Linux to cost
something, by adding on top of it the SCOsource license at $699 a pop.

Groklaw has written about all of this and more since mid-May of 2003,
daily, with only two or three days off in all that time. This is
Groklaw's 2,838th article. We now have 10,549 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 that does the following:

    1. Novell agrees to violate the clear intent and spirit of the GPL
in an attempt to comply literally with the words but not with the actual
known purpose of the license to make money off of code Novell didn't
write and doesn't own. So instead of trying to prove the GPL isn't
binding, they just kick it to the curb and step over it and dare the
community to do something about it?

    2. puts a FUD legal cloud over Linux (this time a patent cloud) or
in any case an "IP" cloud, as per Steve Ballmer's vague wording -- and
was Darl McBride's less vague?;

    3. makes Novell's Linux cost more, because it has agreed to pay
Microsoft royalties, whereas SCO asked for money for its license;

What is the cotton pickin' difference? Other than being worse? Novell,
I'd like you to answer that question. From Microsoft's point of view, I
see no difference. What SCO could not win, Novell has handed Microsoft
without a fight. The community didn't fight this hard and this long for
such a result.

So there you have it, as I see it: two companies claiming to be Linux
companies that turned on the GPL and the rest of the community for
money, and the beneficiary is Microsoft. What a coincidence.

Does it matter that one did it maliciously and the other was merely a
dope? I don't know for sure which is which or even if either is properly
described since I can't read hearts, but my answer to the hypothetical
question is: no. The effect is the same. It matters only in that one
makes you mad and the second makes you sad and mad. That's why I call it
SCO2 Deja Vu, with Novell playing the part of EV1. Only this is far
worse than SCO.

And that is precisely what is wrong with what Novell did in signing that
patent agreement, and that may help to explain the deep, deep anger that
the community, which has worked night and day to defend and protect
Linux and the GPL, now feels. I feel it too. We worked hard, were
victorious, and now are denied the reward. And until Novell fixes that
agreement or pulls out, it will never be accepted by the FOSS community
again, in my view. I certainly think I have enough input to form an
educated opinion. So I hope they come to their senses. If not, GPLv3
will deal with it. But if it goes that far, then Novell's reputation
will never be made whole. For that, it must act.


Brent O. Hatch (5715)
Mark F. James (5295)

Stuart H. Singer (admitted pro hac vice)

Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)

Stephen N. Zack (admitted pro hac vice)

Attorneys for The SCO Group, Inc.


Plaintif / Counterclaim-Defendant,



Defendant / Counterclaim-Plaintif


Case No. 2:03CV0294DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C . Wells



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