According to Microsoft it's a patent deal and according to Novell it's an interoperability enabler and joint sales agreement. Now Novell insists it hasn't acknowledged that Linux treads on Microsoft IP, and says only that "The intended effect of this agreement was to give our joint customers peace of mind." It's been an eventful week...

At the Professional Association for SQL Server (PASS) conference the other day in Seattle, Microsoft CEO Steve Ballmer (pictured) picked up the biggest, fattest, slitheriest worm out of that can of worms he opened up when he cut that deal with Novell and got Novell to squirming and wishing he hadn't.

During a Q&A Ballmer was asked if Microsoft was selling out by collaborating with a Linux distributor.

In answering he came out and said Linux "uses our patented intellectual property."

What IP exactly is still unspoken but it's not just Microsoft's IP. No, sir.

"Anybody who has got Linux in their data center today sort of has an undisclosed balance sheet liability, because it's not just Microsoft patents. Because of the way open source works, there's nobody who's been able to do patent coverage or patent indemnification behind that," he said.

Suppose he meant SCO? - there have long been predictions that Microsoft would rub its IP portfolio in Linux' nose as the SCO v IBM case moved to trial.

Ballmer's certainly taking a page out of SCO's book in threatening to sue Linux users - not all Linux users just some of them - because then he said, "To the degree that people are going to deploy Linux, we want Suse Linux to have the highest percentage share of that, because only a customer who has SUSE Linux actually has paid properly for the use of intellectual property from Microsoft."

Well, that and things like that that Ballmer's been saying to the press post-alliance freaked Novell out.

Ballmer was equally blunt in eWeek where he was reported as saying: "If a customer says, 'Look, do we have liability for the use of your patented work.' Essentially, if you're using non-SUSE Linux, then I'd say the answer is yes."

So Novell CEO Ron Hovsepian hurried to issue an open letter to the Linux community Monday swearing that Novell - which has already had more than a few rotten tomatoes thrown at it by the penguinistas over the deal - hasn't acknowledged that Linux treads on Microsoft IP.

"We disagree with the recent statements made by Microsoft on the topic of Linux and patents," he said. "Importantly, our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property. When we entered the patent cooperation agreement with Microsoft, Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents."

And Hovsepian got Microsoft to back him up. Well, sort of. Microsoft issued a statement that appears on the Novell site at the end of the letter.

It says, "Microsoft and Novell have agreed to disagree on whether certain open source offerings infringe Microsoft patents and whether certain Microsoft offerings infringe Novell patents. The agreement between our two companies puts in place a workable solution for customers for these issues, without requiring an agreement between our two companies on infringement.

Then the words Novell wanted to hear. Words it hopes will get it off the hook with the community:

"We at Microsoft respect Novell's point-of-view on the patent issue, even while we respectfully take a different view. Novell is absolutely right in stating that it did not admit or acknowledge any patent problems as part of entering into the patent collaboration agreement. At Microsoft we undertook our own analysis of our patent portfolio and concluded that it was necessary and important to create a patent covenant for customers of these products. We are gratified that such a solution is now in place."

According to Ballmer Microsoft wouldn't do the interoperability part of the deal - however much users wanted it - without the patent piece:

"We've had an issue, a problem that we've had to confront, which is because of the way the GPL works, and because open source Linux does not come from a company - Linux comes from the community - the fact that that product uses our patented intellectual property is a problem for our shareholders. We spend $7 billion a year on R&D, our shareholders expect us to protect or license or get economic benefit from our patented innovations. So how do we somehow get the appropriate economic return for our patented innovation, and how do we do interoperability. The truth is, because of the licensing around the GPL, we actually didn't want to do one without the other."

So according to Microsoft it's a patent deal and according to Novell it's an interoperability enabler and joint sales agreement that just happens to be wrapped in a little security blanket:

"Microsoft asked that we cooperate on patents as well, and so a patent cooperation agreement was included as a part of the deal," Hovsepian's letter says. "In this agreement, Novell and Microsoft each promise not to sue the other's customers for patent infringement. The intended effect of this agreement was to give our joint customers peace of mind that they have the full support of the other company for their IT activities. Novell has a significant patent portfolio, and in reflection of this fact, the agreement we signed shows the overwhelming balance of payments being from Microsoft to Novell."

The letter ends with a begging "please understand":

"In closing, we wish to be extremely clear that Novell is committed to protecting, preserving and promoting freedom for free and open source software. We recognize that the community of open source developers is essential to all our activities in Linux, and we welcome dialog with the community as to how we can continue to work together toward these common goals."

Meanwhile, FOSS' chief counsel Eben Moglen was off telling Reuters that Red Hat is disadvantaged by the Microsoft-Novell and that the GPL rewrite will close the loophole Microsoft is exploiting by inserting some language that automatically extends any promise not to sue to everybody.

However, it's unclear how any new clause in GPL3 would address the Linux conundrum posed by the Microsoft-Novell axis since Linux is distributed under GPL2 and is likely to remain that way according to the guy who created Linux, Linus Torvalds.

Torvalds has serious disagreements with the GPL rewrite and has said he's perfectly happy with the current GPL2.

Moglen is concerned that worried customers - and ergo falling revenues - could force Red Hat into a deal with Microsoft similar to Novell's and Ballmer keeps baiting the hook by saying he's "willing to do the same deal with Red Hat and other Linux distributors," giving Red Hat's base the ammo it needs.

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