Microsoft: Novell is toast and the patent Juggernaut rolls on

The end of 2010 has been interesting. Mass defections from Oracle's OpenOffice team and the software is ported as LibreOffice. Then Mark Shuttleworth announces that Wayland is in, Xorg is out and Unity will be the next Ubuntu desktop. I was just getting my head around all that when the newswires started humming again with the news that Novell had been sold. I experienced a strong sense of deja vu and began to wonder if this was going to be a reprise of Sun's sale to Oracle and the forking of OpenOffice, one of the crown jewels of GNU/Linux. The premise of this article, to paraphrase an American general, is that old software never dies, it just gets forked. The question therefore is: is OpenSUSE safe and what is Microsoft up to?

Lots of questions. Any answers?

First, I have to admit that I last used SUSE at version 9.3. Once Novell made their grubby little patent deal with Microsoft in 2006 I jumped ship. I wasn't the only one. You may sup with the Devil but even with the precaution of using a very long spoon, contamination is inevitable. In fairness to Novell, they developed a symbiotic relationship with OpenSUSE in a manner similar to Red Hat's relationship to Fedora (Core). They were mutually beneficial relationships but Red Hat has never done an Oracle or a Novell. So, four questions:

  • Why did Novell sell?
  • Were Microsoft involved?
  • What does it mean for OpenSUSE?
  • What's happening to 882 patent licenses?

Well, I say sell but merger is the proper term. (In fact, apparently, it's properly a "reverse triangular merger"). That may sound like opaque legalize but it's actually rather important because it means Attachmate will be an empty shell company and that will have implications for Microsoft's capacity to collect royalties. They've merged with the Attachmate Corporation. Who? No, I'd never heard of them either. Time to fire up Google. Looking at their website I didn't feel much wiser. It seems to have a finger in various and disparate pies including file transfer, emulators (compatible with Windows 7) and storage and broadly seems to be in the business of legacy systems. It is owned by an investment group composed of Francisco Partners, Golden Gate Capital and Thoma Bravo. What is particularly interesting is that they intend to operate the business as two entities: Novell and SUSE. There is a link to their announcement of the deal but I couldn't see any reference to OpenSUSE. I'll come back to that shortly. However, everybody's Microsoft FUD antenna was twitching with incoming signals.

the suspicion must be that Novell is probably out of the GNU/Linux business

You see, the deal is worth 2.2 Billion Dollars and it has been stated that $450 million of it has come from a Microsoft consortium called CPTN Holdings LLC and since Attachmate will be treating Novell and SUSE as two separate units, the suspicion must be that Novell is probably out of the GNU/Linux business. It does nothing to dispel the fears that Microsoft's patent deal with Novell gave them the leverage to claim ownership of Unix but in a sense it may not really matter. In 1994 a ruling was given that all Unix code up to that time was in the public domain and furthermore all Novell code contributed to GNU/Linux was contributed under the GPL. So, how can Attachmate restrict it? The answer is that they can't.

The Devil's in the detail

The really important issue is that CPTN now have their mitts on eight hundred and eighty two patent--and who knows what they are? According to Novell's 8-K filing with the Securities and Exchange commission (SEC), CPTN Holdings/Microsoft has right, title and interest in those patents held by Novell but it is not clear from this what those patents are, how many Attachmate might sell and what percentage they represent of Novell's patent holdings. Will they, via Microsoft, take up where SCO left off and start suing? Does anyone actually know which intellectual property assets will be going to Attachmate and which to Microsoft? As the song says, there are more questions than answers--at least at this stage.

Where does OpenSUSE stand in all this? The first thing to remember is that SUSE existed long before Novell took it over but to their credit Novell, like Red Hat, cultivated a community and from it came OpenSUSE, whose board consisted of both Novell employees and community members and eventually incorporated a license which (unlike the SUSE distrbution) was sans EULA and provided users the right to redistribute and or modify. I said earlier that there were parallels between Red Hat/Fedora and OpenSUSE/Novell but increasingly OpenSUSE has diverged somewhat from Novell and has attempted to assert its own identity more. For example, in addition to the Board, OpenSUSE developers have sought to create an OpenSUSE Foundation. Such bodies can create layers of administration and accountability but in the light of Novell's sale such a foundation may come into its own, especially in attracting other contributors and financial support.

Is the OpenSUSE board being naive?

Two examples of the kind of independence such a strategy can deliver were the decision to adopt KDE as the default desktop for OpenSUSE and more recently the availability of the Factory Portal. It may well be that the sale of Novell could be a good thing for the future of OpenSUSE which has always laboured under the lash of the first Microsoft deal in 2006. Guilt by association, and invitations by Mark Shuttleworth to jump ship to Ubuntu followed. The latter went down like the proverbial lead balloon. If the foundation is set up in 2011, free of all Novell input, it may attract support and finances from people who wouldn't touch it when it was connected to Novell. As for the OpenSUSE board themselves, speaking on planet OpenSUSE:

What makes us proud is that Attachmate wants to further and strengthen the SUSE brand, which is based also on products and technology built by the openSUSE Project. Furthermore we are more than willing and looking forward to teaching another corporation about the principles, values and strengths of the Free and Open Source software development model. If you are reading this as an Attachmate employee, we would like to encourage you to just swing by and talk to us about the opportunities we can offer you to participate in this project!

And apart from all that it’s business as usual and we are continuing to work on, rather than predicting, the future of this project and have a lot of fun!

The only thing we can say is that anything which has the sweaty fingerprints of Microsoft on it has to be treated with deep suspicion

Does this mean business as usual with the OpenSUSE comprising the same balance of Novell/Attachmate and community board members? If it does and Attachmate is just a corporate asset stripper there may not be much fun to be had. The truth is that it is probably too early to make any kind of judgement about the implications of this deal for the future of OpenSUSE. The only thing we can say is that anything which has the sweaty fingerprints of Microsoft on it has to be treated with suspicion. Meanwhile, Attachmate must have had their ears to the ground and perhaps heard the jungle drums. They put out a statement seeming to assure people that nothing had changed:

The openSUSE project is an important part of the SUSE business as noted in the agreement announced today, Attachmate plans to operate SUSE as a stand-alone business unit after the transaction closes. If this transaction closes, then after closing, Attachmate Corporation anticipates no change to the relationship between the SUSE business and the openSUSE project as a result of this transaction.

This was followed a few days later by a supporting parallel statement from Novell itself which must clearly have been a response to concerns about the deal, stating that Novell will continue to own the Unix copyrights.

Well, they would say that, wouldn't they? (just as the Irish Prime Minister assured the world that the Republic of Ireland neither wanted or sought a bailout for that bankrupt country and was then publicly humiliated into being forced to accept one). But then they have to, commercial dissembling aside, because OpenSUSE is protected by the GPLv3 which excludes "discriminatory patent licenses" like those issued by Microsoft. Section 11 on patents of the GPLv3 contained that relevant clause when it was inserted and released in June 2007 following Microsoft's 2006 patent deal with Novell. The third draft makes it explicit that section 11's insertion was a direct result of the Microsoft/Novell deal.

Do no evil, or prevent it even happening?

2.2 billion is a lot of money. Attachmate is in a niche market (terminal emulation) with declining revenue and as I my late father would have said, that's a lot of spondulicks. Did Microsoft fund this purchase? They have big pockets, pockets big enough to pay the fines imposed in anti-trust cases (although it perhaps should be added that some of the money may be coming from Elliot Associates LP, a hedge fund and major shareholder in Novell). If Microsoft is the financial backer though in this deal it would make sense not to make a direct purchase but to use Attachmate as a proxy to disguise the fact--issues about intellectual property notwithstanding. I wonder if that is the reason companies like Red Hat and Google didn't step in to buy Novell, especially Google. 2.2 billion is a lot of money but to Google that's the kind of small change that gets lost down the back of their office sofa and isn't even worth looking for.

Speaking of Google and their mantra of "do no evil", is that merely a passive aspiration or should it include or be extended to an imperative "prevent evil from happening"? In other words, should Google have stepped in as a spoil tactic to thwart Microsoft, if only to block them in the same way that a large retail chain will buy up land, not to develop it itself but to prevent their rivals from getting it?

Despite the deal and Attachmate's statement that OpenSUSE is safe and that it is effectively business as usual, there has already been two legal responses: one by the Law Office of Abe Shainberg (New York) and the other by the Brisco Law Firm (Dallas, Houston and Austin) challenging the deal on the basis that there may have a breach of fiducary duty and other violations of State law by Novell's Board of Directors. I've no doubt to that the deal with be under the microscope of the FSF and legal eagles like Eben Moglen.

this is just another one in the seemingly endless battle with patent licenses and necrotic proprietary behemoths like Microsoft

The free software community has been through this sort of stuff before and eventually saw off SCO and its ilk, so I'm not too concerned at this deal. Yet, you don't have to be paranoid to be unsettled by any deal that smells of Microsoft. Their track record does not inspire confidence. Don't listen to what they say. Look at what they do and remind yourself that Microsoft is a money machine and little less. It fits perfectly the description someone made of Goldman Sachs (you know, the ones who helped to bring you the sub-prime crisis):

A great vampire squid wrapped around the face of humanity, relentlessly jamming its blood funnel into anything that smells like money

In the light of previous legal fracas, FOSS has developed resources to deal with many eventualities and this is just another one in the seemingly endless battle with patent licenses and necrotic, proprietary behemoths like Microsoft. Still, we'll all be watching events unfold with a wary eye.


Just as I was about to wrap up this article and put it to bed, other wary legal eyes have been poring over the fine detail of the deal. The most important point to emerge from a legal analysis by Andrew Updegrove is that it involves cross licensing all the patents and patent applications--not just the 882 and if the the Attachmate deal fails but the CPTN one goes through this apparently would mean that Novell could only continue in business if it licensed all of its licenses to CPTN. That might not lead to a rerun of the SCO farce but it gives Microsoft royalties leverage.

Thanks to Stephen J. Vaughan-Nicholas's article I learned that Amazon actually paid royalties to Microsoft for using GNU/Linux (one of six hundred licensing deals they've made since 2003). As with the Novell sale, non-disclosure was the order of the day. So, after Novell, who's next to bloat the coffers of Microsoft's patent licensing war chest?


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