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Well, some people don't listen to Julie Bort's advice. At Microsoft Subnet, she wrote, "At this point in the game, Microsoft should really come clean with a statement that rescinds its Linux/patent/suing threat altogether."

Good idea, but no such luck. This morning's press release haul brings "Microsoft and Novell Expand Successful Interoperability Relationship," which says,

"Microsoft Corp. and Novell Inc. are announcing an incremental investment in their relationship to meet accelerating customer demand for their business model solution, which is designed to build a bridge between open source and proprietary software to deliver interoperability and intellectual property (IP) peace of mind for organizations operating mixed-source IT environments."

Intellectual property peace of mind. Novell has a solid Linux, and punches above its weight in kernel contributions, so why does the marketing strategy so often come down to whining, "buy from us instead of Red Hat, or Microsoft will sue you?"

Meanwhile, Red Hat is talking about a customer win: Sabre Holdings, the company behind Travelocity, is standardizing on Red Hat Enterprise Linux. (Rule of thumb for pigeonholing IT companies based on press releases: startups brag on features, emerging companies brag on big-name reference customers, mature companies brag on new products and market share, and senescent companies bluster about Intellectual Property.)

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?

The podcast is starting to shape up. I'm getting the hang of Audacity (thanks to Tony Steidler-Dennison's "Attack of the Pod Penguins" series) and getting decent audio off the phone. Have a listen: Jeremy Allison, (18:25). Yes, I know Tony uses a hardware compressor/limiter/gate. Yes, I know I live within a short drive of Leo's and should just get the damn compressor, figure out the "gate" knob and smack down that hiss once and for all. But it's still not bad.

Tim Lee on the Novell/Microsoft deal: "In practice, then, Microsoft's position is that no one may sell an operating system without Microsoft's permission (or unless you've amassed enough patents that Microsoft can't risk a patent war with you). Ballmer seems to be implying that, in effect, Red Hat and other Linux distros need to pay Microsoft for the privilege of participating in the operating system market. It's hard to see how giving Microsoft the ability to extort money from their competitors promotes the progress of science and the useful arts."

Ted Ts'o writes that Novell purchased "a pure 100% unadulterated load of bullsh*t."

But the GPL is not a top-down EULA. It's a legal "codification" of a set of cooperation and information-sharing norms, which includes an agreed mutual defense policy on patents. So whether or not the Microsoft/Novell deal is a millimeter below or a millimeter above the letter of the law isn't that big of a deal.

Siobhán O'Mahony wrote (PDF),

"Informal enforcement of license terms draws upon the normative roots of the license and occurs primarily through on-line public forums. The GPL codifies a strong norm of reciprocity that has long been an important part of the programming culture.... In the eyes of both legal scholars and informants, the GPL's strength stems not necessarily from its legality, but from the public collective opinion of community members."

Novell is holding an IRC meeting about the deal (via LWN.net). Novell's "inner circle", which negotiated the separate peace, has to sell the rest of its stakeholders on discarding the cooperation norms under which they had been working in favor of a "weasel words" interpretation of the letter of a license. I don't see how they can pull this off.

I know that there are valid reasons for Novell to sign the deal it did with Microsoft, but there is one angle I'm thinking about -- the affects of the deal on information flowing in and out of Novell. The actual software patent risk to users is down, but the risk is now unevenly spread among Novell customers and others.

"Hey, I'm sure you heard about the deal where Microsoft is going to sue everyone who is running someone else's Linux but you're safe if you're running ours. Can we talk to you about switching? What are you running now?"

"I don't think I should answer that."

The SCO case caused a chilling effect on the Linux buzz, and that was just a tiny company with no relevant patents and a weak case. Now the issue is patents, and who knows which way a patent case will go? For users, best to stay out of the way, shut your proverbial pie hole, and neither confirm nor deny.

I have heard about company policies that forbid any discussion of what IT products the company is using, and it's likely that those policies are going to get a lot more common. Employees who want to discuss or collaborate are going to have to use their own domains.

Novell may have done a good thing in negotiating a software patent shakedown in bulk for all of its customers. I don't know. But I foresee yet another document that IS staffers are going to be signing for work, and it's going to say something like, "for purposes of your employee confidentiality agreement, all IT technology, product, and vendor choices are confidential."
No testimonials, no posting to lists or web boards from your company address, no product or vendor names in job postings.

So, what do we talk about now?