Joint or Separate - The Content Matters

re: Joint or Separate - The Content Matters

Wesley Parish — Tue, 14 Nov 2006 04:37:44 GMT

Software patents. In the Gold Rush days there was this crime unique to the goldfields - claim jumping. Someone would set up a claim, and someone would take advantage of their work and take it over.

It seems to be a perfectly valid description of the way too many companies work these days, with patent trolls taking the place of the claim jumpers.

See my comments in my blog, on a patent applied for by Microsoft that manages to claim-jump in both language textbooks and creating and managing spreadsheet workbooks.

Ingenious, but I do think the innovation shown by such a process could be better used elsewhere.

re: Joint or Separate - The Content Matters

jasonmatusow — Sun, 12 Nov 2006 01:29:15 GMT

Dennis - thanks for the recommenation to the website. I purposely did not change it as I wanted the text in both places to be the same. The reason the MS website was orginally titled as a letter from Novell is because that is how I read the text after we were done working on it together in the frantic time leading up to the announcement. For now - I'm leaving it alone because making changes to the text itself will probably cause more comment than not.

Louis - I can appreciate the disquite you feel due to the nature of Steve's comments. There are so many layers to this, and unfortunately there are many things I can't share due to confidentiality agreements with other organizations as well as future deals we are working on. I would recommend though that you keep in mind the way in which businesses deal with patents in general. The fact that the software industry is new to patents (only since 1992 was it possible to have a software patent), that there are standard patterns and practices within that context that may seem draconian but are not considered such by those close to the world of patent deal negotiations etc.

As for the other comments I am seeing on the personal covenant. I am working hard on getting that piece to be updated so that the individual OSS devs out there are able to do what they want to do...write code...free of concerns about patents, and leave the world of patent considerations to the commercial players which is where they really matter to begin with.

I need to get another blog posting up rather than keep commenting. :-) Thanks all for the discussion.

Jason

re: Joint or Separate - The Content Matters

orcmid — Sat, 11 Nov 2006 22:10:09 GMT

Thanks for the retitling of the joint statement. The second paragraph/bullet under Office Open XML now needs a little work. There are some uses of "we" that probably should be changed to "Novell."

re: Joint or Separate - The Content Matters

Louis — Sat, 11 Nov 2006 21:08:42 GMT

Jason,

I didn't say that "talking about IP is racketeering tactics." Here is an excerpt from the Eweek article:

*******

The distributors of other versions of Linux cannot assure their customers that Microsoft won't sue for patent infringement. "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," Ballmer said.

"I suspect that [customers] will take that issue up with their distributor," Ballmer said. Or if customers are considering doing a direct download of a non-SUSE Linux version, "they'll think twice about that," he said.

*******

Now that's not much different than me walking into a local store and saying, "I just made a deal with the store across the street to make sure they are protected. It sure would be a shame if something bad happened over here, but I'm open to offering you the same protection...for a price, of course."

That, my good friend, is running a racket. Mob tactics. Surely you can see why a statement like that would make people angry. Hey, MS is clearly moving forward, with the recently improved open standards stuff, but for every little step forward, remarks like that send them three steps back.

re: Joint or Separate - The Content Matters

Nick Mailer — Sat, 11 Nov 2006 20:09:57 GMT

Dear Mr Matusow,

Thank you for taking the time to respond individually to the comments posted. This is more than many in your position have done (or would have done) and shows that at least this is a blog, and not merely another press-release conduit.

Anyway, I hope you realise that people's suspicion of Microsoft and its motives are not blind paranoia, but are founded on a rational extrapolation from a very recent past. To continue the metaphors that have been abroad recently: when a fox claims to have become a vegetarian, one must excuse the chickens for staying well clear of his prowl until there's substantial and sustained evidence of carrot-munching! To this end, I really must repeat that Mr Ballmer's comments after the "agreement" were utterly divisive. To continue the analogy, the fox agreed that it would leave alone its favourite hen, so long as it continued to provide eggs, but muttered that all the other chickens had better watch out! Is this the sort of thing over which you expect the community to become effusive?

In summary, the intentional generalities and ambiguities in this agreement are suspicious, as are the argeement's time-limitations and its restrictive delineation (to hobbyists who keep their code locked up in their bedrooms, basically!); most importantly, the lack of any other evidence that Microsoft has changed one iota is a circumstantial clincher. This would all be bad enough; when Mr Ballmer, once again, reveals himself to be a man both very clever and yet utterly unintelligent, and blows the gaff on this deal in his muttered threats, your struggle to paint this deal in benign shades becomes almost impossible.

re: Joint or Separate - The Content Matters

jasonmatusow — Sat, 11 Nov 2006 10:07:35 GMT

To Jamie an Louis - I am sorry that you see this deal as a veiled threat. It is not, nor was it intended to be. We have stuck our head in the oven more than a few times in a couple of ways. But in this case, I think we are being very clear about what is going on.

First, the "cancer" comment. Why stop there? Billg used "pacman" and another one was "un-american" from Jimall. Ok - bad comments, not constructive, and years ago! I have lived the process at Microsoft of looking at FLOSS and applying it to our business. I'll blog, again, about the things we are doing - but actions speak louder than words (according to the old adage).

In 2001 we got in trouble for saying that we didn't like the GPL. To this day it is not a license we choose to use. Our Ms-CL is a reciprocal license though based on the Mozilla model and used by us today. We got in trouble for introducing the concept of "Shared Source" - a dubious honor I have of coining the phrase at MS. But to me it was far more honest than many of the other players who have claimed to be "open source companies" but who at best are pursuing hybrid efforts. And now, once again, we are being incredibly straight forward. We believe IP is very important. We think software patents are a good thing (but the system needs some serious reform). We invest more than $6B annually in R&D and would like to recoup that investment. Also, as I mentioned in my comment just above this, we are 10x in the red on IP licensing compared to what we take in.

I think saying that we value out IP, and find it to be positive when another company does as well, is not disingenuous. I completely reject the idea that talking about IP is "racketeering tactics." I know we won't agree on this, but it is simply not the case.

At the end of the day, we are working with Novell to make Linux and Windows work better in the enterprise. We are brining our development skills and sales/marketing resources to bear in a very competitive market. That is good for customers as it drives up quality, features, performance, and applies the type of pressures they like on their vendors to compete for their business.

re: Joint or Separate - The Content Matters

jasonmatusow — Sat, 11 Nov 2006 09:51:09 GMT

Thanks all for the comments - let me start with the issue of IBM and their suit. You are reading into my comments that I am holding it up as a "see, they are evil and we are good" kind of arguemnt. That is not the case - and if I was not clear in my writing I apologize. IBM has been the best friend that the commercial OSS community has...period. When they stated that they were going to invest $1B in Linux - that one statement put Linux on the credibility map for enterprise customers. They then backed it up with significant, sustained development investment and community interaction.

I should make my point more clear about why I brought up the Amazon suit. It is a very big deal that the issue of IP was addressed between us and Linux distributor without litigation being an issue. The IBM case puts a very fine point on how important software patents are to all parties invovled in a given situation. NTP is now making noise about Palm. Microsoft has only recently gone through its first ever proactive patent litigation cycle with Belkin. We have also indemnified customers, partners, and competitors alike in various litigation scenarios because it was the right thing to do for our products.

Any product that is being brought to market commercially has to deal with IP clearance, that is the system in which we live. It may not be a popular idea, but nonetheless it is true. We pay out 10x what we take in for IP to bring our products to market while respecting others' IP. The fact that commercial Linux providers have not done this in the past does not mean that it is not an issue to be addressed. The thing that is so positive about the deal with Novell and Microsoft is that solutions were found that do nothing to slow or inhibit, rather it creates a framework for collaboration and mutual gain.

re: Joint or Separate - The Content Matters

Jamie Katz — Sat, 11 Nov 2006 01:28:04 GMT

There is a veiled threat in the crux of your agreement with Novell: Novell is paying MS money for undisclosed reasons relating to their distribution of Free Software, and MS is promising not to sue Novell's customers. This CLEARLY implies that MS is claiming ownership of some Free Software code or or patented software.

To claim this is not the case is disingenuous.

More good reading: http://www.groklaw.net/article.php?story=20061107194320461

re: Joint or Separate - The Content Matters

Louis — Fri, 10 Nov 2006 19:11:45 GMT

Jason, I wonder why you did not address the point that Ballmer is making underhanded threats to users of other brands of Linux. Yes, competition is good, and there is healthy competition within the free software community without the threat of litigation. So defend, if you can, the need to use racketeering tactics, and how those tactics fit into your "reasonable methods" line.

re: Joint or Separate - The Content Matters

Stuart Ballard — Fri, 10 Nov 2006 18:54:18 GMT

Ooh a couple more small points.

First, you may think there's an inconsistency in my characterization of what "naysayers" think - in my first comment I implied that naysayers think the idea is to tilt the playing field in favor of Novell, in my second I implied they think it's to *hurt* Novell. That's not in fact inconsistent: first off there are a variety of naysayers with different points, but secondly I think the most common position I've heard is that Microsoft's intention is really to hurt Linux *as a whole* by dividing and conquering. So hurting Novell's competitors in one way (FUD) and hurting Novell a different way (by associating them with the people *doing* the FUD) would be consistent with that.

The second point is I just noticed that your own comment showed a little of the same attitude: "this isn't bad because, look, your buddy IBM's doing something far worse!". It's important to realize that at least *some* of us in the open source community recognize that any person or organization is going to do some things you like and some you don't. IBM, Microsoft, Sun, Novell, ... - all do some things we don't like and some we do. Just because IBM does some things I like doesn't make them immune to criticism, and just because Microsoft does some things I really *don't* like doesn't prevent me from expressing my approval of the things I do. (There are some people, even some that I otherwise respect, like Groklaw's PJ, who have a blind spot to the idea that MS might ever do anything good. Not all of us are like that. And besides, catering to that prejudice isn't helpful ;) )

So it comes down to the same point - win me, and the community, over, by talking UP the GOOD bits, not talking down the competition. Even when justified (and IBM's patent lawsuit is definitely very evil), it doesn't make you look good.