Novell also announced it has entered into a definitive agreement for the concurrent sale of certain intellectual property assets to CPTN Holdings LLC, a consortium of technology companies organized by Microsoft Corporation, for $450 million in cash, which cash payment is reflected in the merger consideration to be paid by Attachmate Corporation.

… almost precisely as Your Humble Host predicted back in May, Microsoft has organized a thin front organization to pick up whatever pieces they think will be useful against Linux. Novell, as has been standard practice for them since at least 2006, has once again chosen to do whatever is best for Microsoft.

In this case, it is selling some 882 patents for $450 million in cash, according to the SEC filing:

Also on November 21, 2010, Novell entered into a Patent Purchase Agreement (the “Patent Purchase Agreement”) with CPTN Holdings LLC, a Delaware limited liability company and consortium of technology companies organized by Microsoft Corporation (“CPTN”). The Patent Purchase Agreement provides that, upon the terms and subject to the conditions set forth in the Patent Purchase Agreement, Novell will sell to CPTN all of Novell’s right, title and interest in 882 patents (the “Assigned Patents”) for $450 million in cash (the “Patent Sale”).

The Patent Purchase Agreement contains representations and warranties of the parties, including with respect to Novell’s title to the Assigned Patents, existing licenses and rights with respect to the Assigned Patents, restrictions on rights to the Assigned Patents, the validity and enforceability of the Assigned Patents and the equity commitments of the members of CPTN to fund CPTN in an aggregate amount equal to or exceeding $450 million.

Business Insider has already captured the deal’s essence in a piece entitled “Today’s Novell Deal Helps Microsoft Continue Linux Fight“:

The deal helps Microsoft in its decade-long fight against open-source operating system Linux in two ways.

First, it keeps a Microsoft competitor from buying Novell’s SUSE Linux implementation. VMWare was looking at buying SUSE so it could sell a top-to-bottom software stack that would compete directly against Microsoft’s Windows Server and its built-in virtualization technology. This was a major fear in Microsoft’s server group, according to my sources there.

Second, although the companies didn’t say exactly what patents were included, it seems likely that some of them are related to SUSE Linux. If so, these patents will give Microsoft further ammunition to sign cross-licensing deals with companies that sell other products based on Linux. And those licensing deals will continue to raise questions in the mind of potential Linux customers.

Please note Business Insider is not some “freetard” blog. This is rational, business-oriented analysis. Remember that as Team Apologista winds up the spin and attempts to downplay the traitorous nature of this odious deal: the Patent Purchase Agreement portion of this deal is 100% beneficial to Microsoft in its fight against Linux. It strengthens Microsoft’s claims that it owns so-called “Intellectual Property” that entitles Microsoft  to demand licensing fees or other tribute in order for someone to run Linux.

Also note there are almost certainly other technologies and/or markets that Microsoft hopes to gain leverage in with these patents – but the essence is how much it bolsters Microsoft’s war chest against Linux. Don’t be distracted by claims that Microsoft has its eye on some other technology (ala Platespin). True as a side benefit, perhaps, but the real importance to Microsoft is – and has always been: to kill Linux, and, failing that, to hinder adoption of Linux, and, failing that, to require payment for the privilege of running Linux.

Questions that need answering

Which 882 Patents, exactly? Knowing which patents are in play here would go part of the way to predicting (and therefore defending) against future Microsoft claims against Linux.

What happens to any OIN patents? My impression is that the OIN “owns” the patents, so I don’t expect any change in those patents, but it would be re-assuring to confirm that.

What are the other companies in CPTN Holdings, LLC? I don’t doubt for a moment that this is 99.9999% Microsoft and .00001% Microsoft cronies assembled solely for this deal, but I’d still like to know more about the organization’s composition, history and activity.

Are there any anti-trust or other legal obstacles to the patent sale? In a logical world, Microsoft would not be able to both hold Linux up as a competitor (so as to deflect anti-trust criticism) and simultaneously attempt to extract licensing fees from use of their “competition”. However, what is legal and what is logical rarely meet, so let’s see if the regulators give this a once over and what they say. I don’t expect anything to come from this front.

What happens to Microsoft’s “Covenants”? Microsoft and Novell had some exclusive arrangements (which Novell loved to talk out of both sides of its mouth about). The Covenant to Downstream Recipients of Moonlight, for example, is specifically tied to Novell in a dozen places. The “special relationship” Novell enjoyed with Microsoft is mentioned in the SEC document, but nothing about it extending or continuing (or ending for that matter):

Information Regarding Certain Relationships

Novell and Microsoft are parties to a Business Collaboration Agreement, a Technical Collaboration Agreement and a Patent Cooperation Agreement that collectively were designed to build, market and support a series of new solutions to enhance the interoperability of Novell’s products with Microsoft’s products.

What happens to Mono? Miguel de Icaza is already trying to calm the waters, claiming “Mono continues as-is, but our paychecks will come from Attachmate instead of Novell“. I’d argue that changes are inevitable – that’s what happens when you get bought out; the new owners like to change stuff up – but I’m also interested in seeing if Microsoft will strike a no-sue secretive deal with Attachmate, so Team Mono can go on operating with the same cavalier attitude they did when with Novell.

I wouldn’t be surprised, because the Novell-Microsoft deal could not have been more beneficial to Microsoft: after years of dividing the FLOSS community and spawning a herd of “Open Source Advocates That Defend Microsoft” – Novell comes out the other end dead, Microsoft comes away with 880+ patents and a host of people promoting its technology and standards (both real and de facto) in the Open Source community. Why not see if they can continue that winning streak with Attachmate?

I guarantee you Miguel de Icaza and the rest of Team Apologista is up for it.

How will Team Apologista spin this? Mostly for the lulz factor, but I’m interested in seeing the spin. I suspect there will be two major lines of defense:

• Mono/OpenSUSE are Open Source, so they are “bigger” than who owns what. (Like Oracle buying Sun didn’t affect OpenOffice.org and Canonical has only minor influence on Ubuntu, I’m sure.)
• Microsoft is buying patents for defensive purposes. (Like the same patent can’t be used both offensively and defensively).

For additional lulz, one could note the jackholes that expressed such delightful schadenfreude when Oracle bought out Sun, aren’t crowing about Novell dying and selling nearly 900 patents to Microsoft on the way down.

Who is Attachmate? By this I mean we need to know more about Attachmate’s business strategy and philosophy. They say they will continue to support SUSE (and I assume, at this point, OpenSUSE) – so we will see. After checking out their site and searching Google, I don’t see anything that suggests Attachmate is pro-Open Source (or even interested in Open Source), so that is a bit troublesome. Still, I’ll reserve speculation on this point, because I need to know more about the company.

More to come on this, I’m sure…

In his clarification post, this bit caught my attention:

The reason I don’t complain much about Microsoft or Apple or Google is that I pretty much consider them lost causes. They exist to make a buck, and they have cultures that are more or less fundamentally at odds with proper collaborative F/OSS development. Even with Google, Android is pretty much a manual on how not to run a proper F/OSS project, and their ultimate goal appears to be to own every piece of information about everyone in the world, which frankly creeps me the hell out. I don’t expect anything more than minimal legal compliance with open source licenses from Google and Apple and Microsoft, and most other software companies. Whenever we see anything else I get pleasantly surprised. I get passionate about Canonical precisely *because* they’re not as bad as those companies – they’re definitely not a lost cause, they do a lot of good stuff, and they have a great opportunity to do even more really good and constructive work.

Grouping groups

Although I think I agree with much of what Mr. Williamson has to say, I question if Google should be grouped in with Microsoft and Apple as “lost causes”.

On Google

Serious question here: what exactly has Google done that is detrimental to Free Software or Open Source? Google wasn’t even founded as an “Open Source company”, yet it makes a lot of contributions to FLOSS (albeit more so on the Open Source side than the Free Software side).

I’ll confess freely I don’t follow news about Google very closely – one reason being I don’t have Google classified mentally as a “threat”. I don’t really have them classified at the same level as Red Hat, but they are nowhere near Microsoft or Apple (or Novell, for that matter) in terms of offensiveness and harm wreaked on the FLOSS ecosystem.

In the context of corporations “friendly” to FLOSS, I would put Google somewhere between Canonical and IBM, with a slight edge to Google because of GSOC and Google’s clean approach to patents.

I’m not aware of Google trying to subvert the meaning of “Open Source” or waging a war of FUD, ala Microsoft. I’m not aware of Google trying to absolutely control users and developers, ala Apple. And I’m not aware of Google playing cat’s-paw to such companies, ala Novell.

My Rankings

Again, in the context of corporations, I would rank some commonly mentioned entities as follows:

1. Red Hat
2. Mandriva
3. Canonical
4. Google
5. IBM
6. Oracle
7. Apple  (Below here is active harm)
8. Novell
9. Microsoft

Apple barely escapes being “actively harmful” because they have an “enemy of my enemy” thing going on that incidentally helps open standards a bit, and Open Source a (very) little. I don’t think Apple is intentionally trying to promote any real sort of Open-ness or Freedom, and I wouldn’t argue too hard if someone wanted to move the “active harm” cutoff a little higher.

Your rankings?

I’d be interested in hearing other thoughts on how you view and mentally rank some of these companies (or ones I left out) – and I’d be especially interested in any references to anti-Free Software activity by Google.

Have I really been overlooking a major threat from Google? Or perhaps, is the “Google is the next Microsoft”-meme being messaged by Microsoft apologists?

eLiberatica is an “Open Source and Free Software” conference in Romania, sponsored by Microsoft. A Gentle Reader of this blog, Dan Serban, questioned this relationship and contacted Richard Stallman for his comments on such situations.

Lucy, you’ve got some ‘splaining to do!

eLiberatica Conference Chair Lucian Savluc has offered up “Some clarity about eLiberatica and Microsoft“. Mr. Savluc’s response is a bit odd but seems well-intentioned.

I call the response odd because although Mr. Savluc defends Microsoft’s sponsorship role, he simultaneously confesses that:

• Microsoft is “not right”
• Microsoft’s speakers “lack passion”
• Microsoft “is wrong”
• Microsoft speakers “pretend they love FLOSS”
• Microsoft “will try hard to slow down FLOSS adoption”
• Microsoft “will not change if we talk to them”

Personally, I agree with those points, and so have difficulty resolving why a conference with the goal of developing a “healthy Free Software, Open Source, and Digital Civil Society movement, and to promote Free/Libre/Open-Source Software business models” would allow Microsoft to have a sponsorship role.

Especially because we know based on court documents that Microsoft had a policy of “stacking” panels and conferences!

So, believing that Microsoft is both wrong and trying to retard FLOSS adoption, and knowing Microsoft will intentionally deceive conference organizers and attendees, I wonder exactly how one reconciles that with the expressed goal of promoting Free Software?

I guess part of it is people feel like they need the money that a Microsoft sponsorship brings, and another part is people simply do not want to acknowledge Microsoft’s bad behavior. If you try to do both, to take their money and condemn them, you end up having some awkward blog post that winds up on this site.

RMS Comments

Here is the email from RMS that Gentle Reader Dan Serban was kind enough to provide. Outer quoted material is RMS, inner quoted material is Mr. Serban’s.

Please distribute this in the community.

My question to you: is it appropriate for Microsoft Corporation to be sponsoring free software community events? What is your stance on this topic?

Accepting the money from Microsoft would, in itself, do not harm.  But Microsoft typically demands a price for its sponsorship, a price that implies a change in the nature of the event.

The price might be, let someone from Microsoft give a speech.  The price might be, don’t say that proprietary software is evil.  The price might be, present Microsoft sponsorship in a way that inhibits you from denouncing Microsoft’s software as unethical.

One way or other, Microsoft wants us to stop saying the most important thing to say: “Proprietary software is an injustice and we want to help you escape from it.”

This issue does not arise for OSCON because that is an open source event.  “Open source” is the term used by those who do not wish to take an ethical stand against proprietary software.  OSCON did not need to sell out its principles in order to accept Microsoft’s money because it never had such principles.  I heard that O’Reilly Associates distributes manuals with Digital Restrictions Management. which can only be read using nonfree software.  I don’t know for certain if that is accurate, but it would not conflict with any principles ORA ever stated.

OSCON is the sort of event Microsoft would like our community to have, one that avoids raising the issue of the injustice of proprietary software.  If eLiberatica is to live up to its name, it must not take OSCON as a model.

myself) and mr. Savluc he insists that in order to be able to finance FLOSS community booths and speaking engagements by yourself and other guests from outside Romania, he needs to bring in Microsoft Corporation as a sponsor.

I would be glad to visit eLiberatica some day, if its message is true to its name.  But don’t weaken the event to get money from Microsoft to bring me.  My speech might do some good, but it could not entirely counteract the weakening effect of the changes that Microsoft would require.

It is better to do without Microsoft’s sponsorship and have a smaller event.

In Summation

I suppose an “Open Source” conference can safely allow a Microsoft sponsorship, if one is speaking of the divorced-from-Free Software modern “Open Source”. As RMS states, there are no principles there to be violated.

However, a conference that attempts to strongly promote “Free and Open Source software” with special emphasis on the “libre”, can not safely allow a Microsoft sponsorship. The compromise in principle is too great.

The harm outweighs any benefit. One must always keep in mind sponsorship is beneficial for Microsoft – they would not sponsor an event if it were not so. Since we know Microsoft opposes Free Software in practice and principle, one must ask what benefit Microsoft sees in sponsoring an event promoting Free Software?

It is, as RMS says, to weaken the event; to decrease or suppress any criticism of proprietary software in general and Microsoft in specific.

In a recent Computerworld UK blog entry, Glyn Moody takes Microsoft’s Jason Matusox to task for conflating “balance” with “open”. I won’t re-hash the points Mr. Moody makes so read his article too!

Basically, Mr. Matusox laments how Open standards are “overbalanced” in favor of standard implementors, and someone is insisting that standards must have “no IP restrictions”.

Notwithstanding the laughable idea of Microsoft pretense to have any interest at all in a fair, open, or “balanced” standard process, there are some interesting points revealed in Mr. Matusox’s article. The Exacting Task of Extracting Signal from Noise is once again assumed by your Humble Host.

I’m going to need more hay for this here strawman!

Mr. Matusox sets up a nice little premise:

I think that things like defensive suspension are really important.

[... A long bit about using one patent in an un-related "aphrodisiac" field ...]

But the “no IP restrictions” concept of “open standards” does away with too much. Out of balance.

Now, I put this to you: who exactly is arguing that “defensive suspension” and “no IP restrictions” are necessary or required for standardization?

Most patent grants have language that the patent grant applies to the implementation of the standard, thus covering Mr. Matusox’s aphrodisiac. Most patent grants also have language that the grant is revoked for those parties that bring patent action against the granter, thus covering Mr. Matusox’s “defensive suspension”. Both together, of course, cover the “no IP restrictions”.

So who is arguing for “no IP restrictions”? Red Hat isn’t. Google isn’t. “No IP restrictions” would mean that all related copyrights, trademarks and patents would have to be released into the public domain. Is someone out there seriously proposing that?

Business as usual

Here’s the thing I really want to draw attention to; in a follow-up post - where he is careful to repeat the “no limitations on IP” canard – Mr. Matusox says he “was writing about “open” issues back in March of 2005.”

Further back then that, actually. Mr. Matusox, and Microsoft in general, have been testing this angle since at least 2001-02. Here is Mr. Matusox back in 2002 defending Craig Mundie from 2001 who was at that time trying desperately to directly equate “Shared Source” with “Open Source”:

As a result of Microsofts statement of position today, many people will attempt to say that Shared Source is Microsofts failed attempt at being an Open Source Company. This could not be a more incorrect statement. Shared Source is Open Source.

The number of people outside of Microsoft that think “Shared Source is Open Source” may be closest thing we have ever observed in nature to a perfect zero, but it shows how clearly did Microsoft tries to conflate “Open” with whatever other term or criteria they felt suited them, and that they continue to do so today.

Just wanted to show they’ve been beating the “this not-Open thing is really Open” for at least 8 years now, right up until today. Handy to keep that sort of thing in mind when the Redmond Astroturfers take the field at the bottom of the inning.

(This is why I need a artist partner. Someone please work up a “Redmond Astroturfers” SVG ala the ’95-99 Houston Astros logo!)

More business as usual

This is not a Microsoft-specific failing: you’ll continually see companies that want all the rewards of Free, of Open, of community, with none of the responsibilities. If they must take on any of the responsibilities, it will be the legal or absolute minimum requirements.

If there is a way to twist the word Open into the meaning Proprietary, you can be sure some company is out there bending away right now.