Re: Novell-MS Pact: PJ is still struggling to grok the deal

[Alexander Terekhov]

PJ:

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UPDATE: Oct. 8, 8:42 AM - I just realized the full significance. Novell
here is stepping outside the line of fire and agreeing with Microsoft
that *end users* are the ones that you must go after in any patent
infringement dispute. Shades of SCOsource. Thanks for nothing, Novell.
More questions: When were Novell SUSE customers asked if they wished
Novell to negotiate a agreement with Microsoft on their behalf? When
were Novell SUSE customers asked about the terms of said agreement? What
consideration does Microsoft get from Novell's customers? Does
negotiating this agreement on Novell's customers' behalf indicate that
Novell assumed Power of Attorney for their customers in this matter? Did
Novell truly represent the best interest of their customers using Power
of Attorney? Can Novell legally assume Power of Attorney for their
customers without a written grant? Do Novell customers have the ability
to "opt-out" of this agreement? Is this agreement binding on customers?

[And deeper, if parties deliberately conspire to meet the letter of a
license while violating its clear spirit and intent, will the courts
uphold it? Note this interview with Microsoft's Bill Hilf:

    Hilf: We started on the general framework for this three years ago.
The deal with Novell started about six months ago. There was just a lot
of work we needed to do to understand the GPL side of it and not violate
the GPL. We don't actually license patents in this agreement. There is
no patent cross-licensing. We are saying we are providing coverage for
Novell's customers from a Microsoft intellectual property perspective.
That allows us to work with the GPL because the GPL is very specific
about licensing of patents. That took a while to get to that point from
a legal framework....

I read that as saying that there's an intent to have their FOSS cake and
eat it too, i.e., they tried to work *around* the GPL rather than just
follow it. They know the GPL code can't be encumbered with patents, but
they want to do it anyway. I read that as clear intent to sidestep the
spirit of the GPL while embracing a perceived loophole in it, to profit
from the GPL without adopting it. And by they, I mean Novell too. It
agreed to this deal.]

Are they positive Novell's customers wish to enter an anticompetitive,
antiLinux deal that benefits someone other than themselves and limits
rights that they had before the agreement was entered into? If in fact
the promise is worth millions, do the customers get the money? No? All
those millions from Microsoft get paid to Novell? I thought this was a
straight agreement between Microsoft and SUSE customers. How does Novell
pocket the money? $108 million is what Microsoft says it will pay under
the patent agreement. To Novell. Well, then, who is the agreement really
between? And did you ever hear of "royalty payments" to be paid on a
promise? But this is not a license, Your Honor. Nope. Not a bit.

And about those "certain exceptions" -- how will the paying SUSE
customers know when they are at the brink of bumping into one of those?
Surely if the agreement is directly between them and Microsoft, they
have a right to specifics. No? Novell signed the deal for them, and
Novell knows? That is enough? They are the proxy standing in for their
customers? Then in what way is this a direct arrangement between
Microsoft and the Novell customers? 
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Hey dak, care to help PJ and answer the questions?

regards,
alexander.