[odf-discuss] Novell's Michael Meeks on ODF

[Christian Einfeldt]

hi

Let me explain why I am spending a lot of time discussing this issue with
Novell and freedom.  It's simply because I understand Novell better than
almost any other FOSS company, due to the fact that I talked a lot with
them.  My impression from spending lots and lots of hours filming Jack
Messman, Miguel de Icaza, Nat Friedman, Markus Rex, and several others is
that these folks area really passionate about making a living with Free Open
Source Software.  Jack Messman made very very clear in filmed interview that
Novell has bet the farm on FOSS.

Likewise, I think that all of us who are really passionate supports of
freedom in cyberspace are benefitting from Novell's commercialization of
FOSS, because their efforts are gaining "brand" acceptance for FOSS, and
because they are part of the leading edge of the wedge that is commoditizing
the revenues of one of the meanest, nastiest companies that has ever been
publicly traded (Microsoft).  My basic premise is that none of us will be
able to rest comfortably as long as Microsoft has a monopoly on the
desktop.  Conversely, all it will take is 20% market penetration by FOSS
software, and Microsoft's house of cards collapses, and then we will be in a
position to see what freedom and innovation really looks like.

But this email is really long, and so I apologize for that in advance.

On 9/30/07, Pamela Jones <pj at groklaw.net> wrote:
>
> I suggest you listen to the MP3 you will find here:
>
> http://www.peapodcast.com/msc-oss-sig/index.html#osssig-2007-09-26-18-00-48


Okay, I did listen to this netcast, and it was really interesting.  I can't
help but hear some desperation in the voices of a couple of the Microsoft
people who were on this panel.  The moderator, I believe it was, asked a
couple of the Microsoft people what was in this deal for them.  The
moderator said, obviously, Novell was increasing its revenue through the
deal, but was Microsoft really increasing its revenue.

The Microsoft guy totally choked.

And then he evaded.

And then he hemmed.

And then he hawwed.

But he never really answered the question in a straightforward way.  He did
say something to the effect that this deal increased the use of enterprise
technology, but the implication, of course, is that those data centers would
have happened without Microsoft's involvement.

My impression from listening to this very informative netcast is that
Microsoft was dragged into this deal kicking and screaming.  They hate GNU
Linux.  Hate it.  It is eroding their profits.  They are in rear-guard
mode.  For Microsoft, this deal is about trying to squeak into an industry
where they are hated.  And they know it.

The other interesting question that was asked in this seminar is how
Microsoft plans to make money from open source software !!  And they had no
answer.  No answer!  He said, well this industry is still in its infancy,
blah blah blah.

Harvard Business Professor Clayton Christensen has a name for the strategy
in which Microsoft is engaging:  cramming.  Microsoft is trying to cram a
disruptive business model into a sustaining business model, and Christensen
believes that such strategies usually fail.

Microsoft did this deal because they had no choice.  They saw that some of
their best customers are moving to GNU Linux, and they wanted to find a way
minimize the bleeding.  Customers were demanding interoperability, and the
clear implication was that if they did not get the interoperability, they
were going to leave Microsoft.

Perhaps the most interesting thing about this netcast was the clear level of
animosity that still exists between Microsoft and Novell.  They both were
very clear on the fact that both Microsoft and Novell sales teams were
engaged in pitched battles to persuade the customers to use ONLY their
respective products.  It is only when the customer is insistent on having
mixed environments that the respective sales teams were given the permission
to talk about interoperability, especially on the Microsoft side.

In fact, the Microsoft team made it very clear that they have divided their
sales force into groups that are permitted to talk about interoperating, and
those that are not.  The team that is prohibited from talking about
interoperability always goes in first and talks about the Windows-only
solutions.  Only when that team fails do they bring in the second team.

It will illuminate you as to motives, namely it's about competing with
> Red Hat and making gobs of money.  Novell was desperate and Microsoft
> looks for desperate companies and then waves money in front of them.
>

Yes, Novell did talk about competing with Red Hat, but it seemed very clear
to me that the nicey-nicey talk with Microsoft was secondary to the sales
battles that happen in which Novell first tries to talk the customer into
walking away from Microsoft completely.

> The voucher thing was definitely not something Novell snookered
> Microsoft with.  Please do not use my name on any such thought.


k, thanks for the clarification!  When the Groklaw news about the coupons
hit /. , I thought that you were quoted as saying something to the effect
that these coupons could have the effect of stripping certain patent claims
against the FOSS community away from Microsoft.  So my apologies if I
misunderstood that.  I will have to dig into this issue more to understand
it more clearly.  So as to make sure that I understand your position,
Pamela, on the coupons, is your position amenable to a brief two-sentence
summary?  Or is the issue not amenable to that sort of brief encapsulation
due to its complexity?

GPLv3 was not in place at that point, when the deal happened, and Eben
> worked to turn the thing around.  Novell deserves zero credit. I mean
> zero.


Why do they deserve no credit?  Even if Novell didn't intend to mess with
Microsoft's patent arsenal, the coupons seem to have set the stage for Eben
to make Ballmer through a few more chairs.  So that seems like a decent
contribution, IMHO.

Read the programmers' promise that Novell signed.  It leaves Linus
> vulnerable to litigation from Microsoft,


This is the point where I often disagree with many people whom I deeply
admire and respect.  And in this case, I see that you and Daniel Carrera
have both raised a similar point, which means that the point must have a
great deal of appeal, and yet I can't seem to make sense of it.  So let me
begin with a story from my own law practice, because maybe an analogy would
be useful.

It is sometimes true in the practice of personal injury law that I and my
colleagues will target one defendant to go to trial against.  Sometimes that
defendant did something particularly bad; sometimes that defendant is an
entity that will be strongly disliked by a probably jury; sometimes that
entity has an ineffective attorney.  Sometimes that defendant is chosen for
venue or jurisdiction purposes.  But in any event, if we decide to sue or
not sue an individual, it does not mean that we have changed the liability
against an un-named defendant one whit, unless there are issues of res
judicata or collateral estoppel which would shelter that defendant from a
later suit.  (Res judicata and collateral estoppel are two different
concepts that I sometimes explain to my lay clients as "the do-it-once"
rule.  If you *can* sue someone, sometimes you *must* include them in a
civil lawsuit against someone else, or that first someone gets away scott
free forever).

If a defendant is sued, but others are either released from liability or not
sued (and therefore get the protection of res judicata or collateral
estoppel), the defendant who is sued almost always complains about it to the
court or to the jury.  Sometimes the person who is sued files a related
claim in the same case against the person who is not sued.

But in no case does the failure to bring a claim against one party
*increase* that party's legal exposure!!!!  So if Novell protects its
customers, but not anyone else, I don't see how the shield for Novell's OOo
users increases the liability for non-Novell OOo users!!!  In the event that
those non-shielded users are sued, they can still go to the community to
request indemnity and / or defense!!!!  It seems that the only thing that
has changed is that certain of Novell's patents are not available as a
*sword* against Microsoft, although those patents might still be available
as a *shield*.

Daniel has made a good point that the MS-Novell deal amounts to a pay-off of
an extortionist, but AFAIK, in no event did Novell admit that it was paying
any money at all to Microsoft for Microsoft's bogus patent claims!

Daniel made a good point that he was concerned that Novell's deal with
Microsoft would establish a "precedent", but there was no legal precedent
established by that deal.  Maybe Daniel meant there was a business tradition
that was established, but a legal precedent doesn't arise until a party is
sued, and an appellate court rules on the matter, thereby forever binding
lower courts IN ITS JURISDICTION.

With a deal like that Linux could never have happened. Yet Novell signed
> it.  I spoke with the guys there at the time it happened, and they all
> to a man told me that they'd complained to Microsoft about it and that
> it would be changed. It is not changed, one year later.


I will take a look at the links you have provided, thanks!  But as it stands
right now, it seems as if every member of the community still has the same
right and opportunity to get defense and / or indemnity from the community.
It seems to me that has not changed.  Maybe I am wrong, though.

http://www.groklaw.net/staticpages/index.php?page=20061218045851480
> That is Groklaw's Novell-MS deal page, where you can find the documents.
>
> The worst thing about the deal of course is that it got cute with the
> GPL,


This is actually the point that I thought was kinda clever about the
MS-Novell deal.  As far as I can tell, Novell sold Microsoft a pig in a
poke, just like like they sold a pig in a poke to SCO, and we can now see
badly SCO was damaged by that foolishness.

Now Novell has agreed that end users are the ones that are
> vulnerable, another feather in the antiGPL force's cap.


No, IMHO, it seems as if Novell has sold Microsoft a pig in a poke.

The entire deal stinks. Listen to the MP3, please.


I will, and maybe it will change my mind.  Thanks for sending me that link.
- Show quoted text -

Then ask yourself, "If I can make a lot of money by damaging the GPL and
> the FOSS community, then is it OK?"
>
> Because that is exactly what happened.  And if Eben hadn't fixed it
> some, it would have been worse.


Eben certainly was a genius, but I am not currently convinced that the FOSS
community has been damaged by this deal.  I think that many FOSS community
members have been  outraged by the deal, and I certainly was disappointed
that Novell's sales were so weak that it had to do business with such a
nasty company as Microsoft.  But IMHO, in order to compete with a company,
you have to get close to them.

The thing that worries me is that Microsoft will buy Novell and Yahoo.  If
Microsoft buys Novell, I am going to be forced to stop using openSUSE,
unless it is forked.  Leaving openSUSE and going only with Kubuntu and
PClinuxOS (my other two main distros) would be really inconvenient for me.
There are some things that I really like about openSUSE.
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