Since the Samba team disapproves of the deal, we asked Andrew Tridgell, a member of the Samba team, what Microsoft could have done to negotiate a deal with the free software community if the company is serious about a détente with the free software community.
"A good starting place would have been to talk to the Software Freedom Law Center. I am extremely disappointed that Novell spent months negotiating this deal with Microsoft without talking to the SFLC and Eben Moglen."
Tridgell says that the team had talked to Novell privately before issuing the statement, but "we wanted to make sure that both Novell and the wider free software community understood our concerns."
The Samba team has not received a specific response to the statement, according to Tridgell. However, he says that the Samba team has "talked to a number of Novell people about the patent agreement." In addition, Eben Moglen of the SFLC, counsel for the Samba Project, has "talked to them extensively since they announced the deal."
Moglen says that the SFLC has completed its review of the arrangement between Microsoft and Novell and has had "full cooperation" from Novell, and that the SFLC is now working to come to an arrangement with Novell.
"They have showed us what we need to see, they have answered our questions, we had complete and unfettered access to senior executives at Novell.... We are now working by peaceable negotiations to protect our client's legal interest, and we see no likelihood that we're going to adopt steps that involve the use of legal compulsion. If we are unable to work the situation out peacefully, that may change."
What's the problem?
According to Moglen, the patent agreement is of concern because it is discriminatory and poses a threat of dividing the commercial free software community from the non-commercial free software community.
"If the Microsoft corporation, whether it wishes to be part of this ecology in a genuine and sincere sense or not, if it succeeds in getting one distribution to pay royalties for the distribution of free software, other distributions will do so. They will have to. That will then succeed in marching the commercial sector away from the non-commercial sector, and Microsoft then will be able to use its patents to sue to block the development of software in the non-commercial sector without the fear of suing its own customers, which is the force that now constrains them from misbehavior with their patent portfolio."
If there's any doubt that Microsoft is hoping to exploit the deal to divide the Linux community, rather than to make nice with the community and respond to its customers demanding Linux, one need look no farther than comments made yesterday by Steve Ballmer at the Professional Association for SQL Server (PASS) conference in Seattle. As reported by Linuxworld.com.au, Ballmer says that "Novell pays us some money for the right to tell customers that anybody who uses SUSE Linux is appropriately covered.... We believe every Linux customer basically has an undisclosed balance-sheet liability."
The primary point of concern is the patent agreement, but Moglen noted that the Samba team also has concerns with "specific points of this deal" which have not been made public. Moglen declined to specify the other terms that concerned the Samba team, citing a non-disclosure agreement with Novell for access to the full agreement.
We also asked if Moglen or the SFLC was in negotiation with Microsoft about the agreement. Moglen did not confirm or deny that he was talking to Microsoft. "I would not be advancing the course of discussions if I made any statement about who we are talking to here in specific terms. I will only say that it is my experience that Microsoft has never been in any hurry to identify itself as in direct negotiation with the free world.... In general, it is better at this point to say that all lines of communication that I think are necessary in order to resolve this situation peacefully are open, that we have not been unable to reach any parties that we thought it would be prudent or productive to talk to."
Novell was not able to provide a spokesperson for a full interview in time for this article. However, Justin Steinman, director of marketing for Novell, has provided a statement that indicates Novell is not willing to ditch the patent agreement with Microsoft.
"Novell has the utmost respect for the Samba community and their contributions to open source. We are currently working on a public response to the Samba team that addresses their concerns. I can confirm that Novell will not be terminating our agreement with Microsoft, which was the primary request from the Samba team. We'd ask for your patience to give us another couple days to pull together the rest of our response."