Position on the Microsoft/Novell agreement of November 2006

Qualified as “symbolic” by several editors of daily newspapers, the agreement signed by Microsoft and Novell on November 2, 2006 is indeed just such. [1] But it doesn't not make a good news for Free Software. Through buzzwords as “interoperability” or “open standards”, Microsoft managed to divert the journalists' attention from the essence of the agreement: Microsoft only embraces Novell to try to suffocate better Free Software in general.

The first issue with this agreement is that Novell agrees to pay a tithe for the distribution of copies of popular free software containing code which supposedly falls under the purview of Microsoft patents. The Linux kernel and various pieces of software used on computer servers are concerned. In return, Novell obtains the guarantee that Microsoft will not pursue it, nor its customers. Developers contributing to OpenSuse, the community version of Novell's commercial offer (Suse), as well as the voluntary free software developers, would also be authorized to contribute to the free programs listed in the agreement.[2]

Thus, in order not to be afraid of the ire of Microsoft's legal services, the developers of free software should now either work free of charge for Novell, or pay a tithe to Microsoft as Novell does. Via this agreement, Microsoft thus allusively expresses that it holds rights on free software to which it didn't contribute in any way, and that, for example, every distribution of a copy of the Linux kernel by a commercial actor other than Novell infringes its intellectual property. It didn't take long for Steve Ballmer to state exactly that loud and clear a few days ago.

Red Hat, the leading distributor of free operating systems, has not made such a mistake since it declared on its website the day after this agreement that he did not intend to pass such an agreement with Microsoft because “an innovation tax is unthinkable”..[3] The authors of the Samba program, a program covered by the agreement, asked Novell to cancel purely and simply the agreement, pointing out that Novell had no right to determine with Microsoft who can redistribute their software..[4] They added that by signing such an agreement Novell was violating the GNU GPL which protects their software and, consequently, their copyright.

The GNU GPL indeed forbids an actor to redistribute a software that it protects, under conditions other than those of the GNU GPL. By imposing to its own customers the agreement which it signed with Microsoft, Novell does not respect this condition.

The professor of law Eben Moglen, one of the authors of the GNU GPL, which is the most used license in the world of the free software, stated exactly the same argument.[5] Besides, he declared that this agreement is giving Microsoft a “life insurance” and that correct answer to Microsoft is to tell them “Your patents are worthless. Go away”.

The second issue regarding this agreement is the fact that it leads some to believe that Microsoft actively commits itself in the development of interoperability around open standards. Yet nothing is less true since, as Red Hat explains on its website, “open standards allows the development by all of interoperability. They do not require an agreement between companies”.

The objective of the agreement is in fact to prevent the free Open Office suite from benefiting from the network effect that a massive and fast use by the public sector would have caused, thanks to its native format the ODF (Open Document Format). Microsoft which publishes its new version of Office on November 30 wants to put a stop to this tendency on a strategic segment, without being regarded as an opponent of interoperability. This agreement and especially the announcement which accompanies it contribute to this: they commit their authors to nothing but make a lot of noise.

In a comprehensive and informed article, [6] Jean-Marie Gouarné, associated partner of the Ars Aperta company, a specialist of open formats, explains this very well: “The announcement, by its sole existence, obliges the players involved by projects of migrating to the OpenDocument format in public utilities, to freeze the processes to engage themselves on this new track. Committees are going to be constituted, files are going to be opened, debates of experts are going to take place. As long as OpenXML Translator will not have been studied in the magnifying glass, and experimented in representative conditions of an operational working station, it will be more difficult, in America as in Europe, to eliminate the Microsoft suite of a procurement contract for non-compliance with the ISO 26300 standard. It is so much time gained while waiting for the maturity of Office 2007.". Thus, the purpose is not to develop interoperability but indeed to give Microsoft's format enough time to become an ISO standard (a process presently in progress).

Beyond the tactical operations around Open Office, this agreement also aims at distilling a specific vision of interoperability, and this, at the time when the European Commission reaffirms its requirement to see Microsoft communicate without discrimination all the essential information needed by all its competitors for interoperability reasons.[7]

Let us remind that Microsoft was condemned by the European Commission under European anti-trust laws because it refuses to communicate to its competitors all the essential information necessary for interoperability, and not in discriminatory conditions, especially regarding the authors of free software. Microsoft attacked this decision in front of the Court of Justice of the European Communities ["Cour de Justice des Communautés Européennes" (CJCE) ]. [8]

With this agreement, Microsoft also defends that the actual implementation of the interoperability depends on agreements between industrialists who choose each others , and that it cannot be implemented by all, even through opened standards. It is all the difference between legal interoperability, that every new player on the market can implement, and negotiated interoperability, where it is necessary to comply with the conditions of the dominant in order to interoperate.

Finally, it is rather distressing to notice that very few journalists perceived that Microsoft, via this agreement, tries mainly to slow down the craze of companies and administrations for free software by shaking the spectre of patents. Nevertheless, the method is not new. It was already used in the SCO affair. [9] The journalists who presented the agreement with Novell as an opportunity for the Free Software have thus made a mistake. We are closer here to extortion than to “coopetition”. In the same way, it is regrettable that few journalists pointed out the fact that announcements made around interoperability and opened standards arrived in a very particular context, and are more similar to an operation aimed at delaying than anything else. Microsoft is simply trying to cast doubt, in order to spare time and to blur the game. Let us hope that the computing and political decision-makers will not fall into this trap.


[1] - http://www.novell.com/news/press/item.jsp?id=1196

[2] - http://www.linux.com/article.pl?sid=06/11/27/2113210

[3] - http://www.redhat.com/promo/believe/

[4] - http://news.samba.org/announcements/team_to_novell/

[5] - http://www.vnunet.com/vnunet/news/2167966/novell-microsoft-partnership?page=2

[6] - http://www.itrmanager.com/print.php?oid=54721

[7] - http://solutions.journaldunet.com/0611/061127-microsoft-commission-europeenne.shtml

[8] - http://www.ft.com/cms/s/0586d7b0-baa6-11d9-a27b-00000e2511c8.html

[9] - http://www.fsf.org/licensing/sco