Nobody reads this stuff.

A little background here: If you refer to the Novell/Microsoft not-quite-license as "eating a bug for money" (as I did in a conversation with Jeremy Allison) you get a call from Novell. Not surprising, I guess. I really want to understand this patent thing from Novell's point of view, so I talked with Carlos Montero-Luque, Justin Steinman, and Kevan Barney. Pretty high ratio of questions asked to questions answered, but I'm starting to get the point.

From Novell's point of view, the deal is supposed to be about giving customers some peace of mind over being sued for patent infringement. But the document that is supposed to explain this to customers is missing some information, and the documents that are actually supposed to contain the missing information are secret.

I don't think this is some big conspiracy, just the result of rushing something through without reading it very carefully. Novell and Microsoft are too big to pull off a conspiracy, but they're both bureaucratic enough to do paperwork that ends up being full enough of dumb mistakes to be pretty much meaningless.

Simple things first. If you still believe people read this stuff, try reading it. Covenant to Customers has two obvious mistakes: Novell spelled "Novel" and the awkward "on account of a such Customers' use of specific copies", which looks like the result of someone starting a singular-to-plural edit and not finishing. The page has been up since November 2 of last year. Not a big deal, but like I said, nobody reads this stuff.

Now go back and read "Covenant to Customers" again. You get a bunch of Capitalized Words, some of which show up in the definitions section, and some of which don't. One of the terms is "Clone Product". You don't get sued for running a Covered Product, but Covered Product doesn't include Clone Product, and Clone Product isn't defined. So which of the products included in the SUSE distribution are Clone Products? I asked, but that list is not available.

Justin Steinman: "Two examples of what might be considered a clone product might be OpenOffice.org and Samba, to be specific. Both of those are open source technologies that mimic technology offered by Microsoft."

But no, you don't get a list of what is and isn't a clone product, and Steinman says, "All the end customer really cares about is if they are using anything that is part of the SUSE Linux Enterprise platform they have a covenant not to sue from Microsoft."

You have a Covenant, so you're all squared away, right? But the Covenant says it covers Covered Products, and Covered Products doesn't include Clone Products, and you don't get a copy of the definition of Clone Products. Covered or not? You're just as mystified about the answer to "Will Microsoft sue me?" as you were before.

Another good one: "Microsoft reserves the right to update (including discontinue) the foregoing covenant pursuant to the terms of the Patent Cooperation Agreement..." Yes, the Patent Cooperation Agreement that you don't get to see.

Put it all together, and you get, "We promise not to sue you for running some but not necessarily all of the software you get from Novell, unless we stop promising not to sue you, and we won't tell you which software you get from Novell we might sue you for now, or under what circumstances we'll stop promising not to sue you for the rest."

If you were doing a EULA parody site with a voting system, people would reject this kind of thing as too over the top. "By opening the box you agree to the EULA inside the box" is one thing, but this is a little extreme. But nobody reads this stuff.

So, as a Linux customer, Novell user or not, it looks like you have the same protection from a Microsoft lawsuit after this deal as you did before. Linus Torvalds told BusinessWeek, "I'm not that concerned about the threat of Microsoft enforcing patents against Linux. I think their mode of operation isn't through the legal system. I think they hate lawyers more than most companies. They've been on the receiving end. [CEO Steve] Ballmer and [Chairman Bill] Gates have pride in the fact that their competition may have tried to crush them with legal wars, but they overcame. I think they would have a hard time using legal tactics. They would be ashamed."

That sense of wanting to win by product, not by litigation, is what protects you in the short term. What protects you long term is that the IT industry is just a series of recruiting contests. A company wins recruiting contests by serving good fajitas and letting an employee get a $70 laptop power supply without spending $200 in time on getting approval to buy it. A company loses recruiting contests when it's seen as succeeding through legal attack, not great product. Who wants to work on a product that customers have to be sued to buy? If a company's litigiousness makes it miss a round of recruiting, it misses the round of product that those recruits would have built, and game over.

Anyway, the check is cashed, the bug is eaten, Microsoft seems equally likely to sue you for running Linux no matter where you get it -- not very -- and if all goes well, a lot of that money will go to the many helpful, hard-working developers at Novell who are doing useful work. I guess what I learned here is that the patent deal doesn't really give Novell customers any special assurances. The combination of Covenant and secret agreements means that Novell customers are in the same boat as other Linux users, and isn't "hanging together" on patents the whole point?