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Microsoft and Novell Still Fight Against Freedom of Software, But Is Horacio Gutierrez Lying?

Posted in Deception, Free/Libre Software, FUD, GNU/Linux, GPL, Law, Microsoft, Novell, OSI, Patents, Red Hat at 11:48 am by Dr. Roy Schestowitz


“Microsoft executives had previously told Computer Business Review that the company had not carried out a detailed patent assessment before reaching its patent covenant agreement with Novell.

“We did not do a drains-up inventory,” said Microsoft’s UK server director, Bruce Lynn in February..”


Horacio Gutierrez

Picture contributed by a reader

“Horacio Gutierrez, Microsoft vice president of intellectual property and licensing, said that although Microsoft won’t discuss specific patents publicly, it has discussed them in private with companies like Novell Inc.”


Liar liar, hat’s on fire!

Horacio Gutierrez in hell

Picture contributed by a reader

Following Microsoft's latest threats, as implicitly issued against Red Hat, Matt Asay tries to embellish things by pretending there is zero danger. He is already being refuted in LinuxToday, but more importantly, being careless and pathetic does not necessarily make one safe(r). In his new posts, “The dying embers of Microsoft’s IP claims against open source,” he tries to turn the table.

Indeed, I’d argue that one primary reason for shacking up with Novell wasn’t Microsoft’s patent portfolio, but rather Novell’s: Novell had key IP that goes to the heart of Microsoft’s Office business. The Linux patent covenant was a way for Microsoft to clean up its own patent violations. Funny, that. When I was at Novell my team in the CTO’s office never worried about a patent lawsuit from Microsoft.

But that’s just the way the modern software world works: it’s such a thicket of conflicting IP claims that the only rational (and workable) solution is to overlook competing claims.

Novell’s impressive patent portfolio was mentioned as a possibility before, but it resolves no issues for companies other than Novell, so the deal remains selfish and malicious (exploiting loopholes in GPLv2). Having searched the Web for a while, Asay also nets this old finding and stresses the danger by reiterating what his former employer, Novell, is trying to achieve together with Microsoft:

This is the same Microsoft that aggressively went after Red Hat in 2006 through a patent agreement with Novell, and subsequently dumped over $350 million into Novell in 2007 to fuel its attempt to kill Red Hat.

Yes, it is an anti-Red Hat deal, “Red Hat” being representative of virtually any large distributor that has not signed a software patents deal. Red Hat possesses more wealth and installed base than most, so it makes it more of a target.

There is a new article over at Silicon.com and it discusses the Novell/Microsoft deal in the context of GPLv3. One part of it reads:

The 2006 agreement between Microsoft and Novell was struck ostensibly to make Linux and Windows work better together. But it also created an uneasy truce; indeed, commentators argue that Microsoft has recently started telling people it will not sue open source software users for patent infringement provided the users purchased software from a vendor that is paying Microsoft for the privilege of using its patented technology.

We increasingly find Microsoft trying to pressure other companies into treasonous patent deals. The press, including IDC, is helping Microsoft and Novell. We warned about IDG’s Paul Krill before [1, 2, 3, 4], saying that he was too close or sympathetic towards the convicted monopolist. Well, here he is giving the podium to one of Microsoft’s worst sources of FUD: Horacio Gutierrez. Below is the opening part which, as usual, puts forth Novell as Microsoft’s ‘ammunition’:

Microsoft has been making moves on the licensing front and accommodations with open source, such as its controversial 2006 agreement with Novell pertaining to Suse Linux. Looking to elaborate on Microsoft’s activities, Horacio Gutierrez, Microsoft vice president and deputy general counsel for Intellectual Property and Licensing, met last week with InfoWorld Editor at Large Paul Krill at InfoWorld offices in San Francisco.

This is the second Gutierrez ‘public appearance’ in less than one week. Who is pursuing whom for publicity? It’s almost like a new Microsoft campaign to intimidate and to turn the heat up on GNU/Linux competitors. Those editors let Microsoft spew out lots more FUD in the press, almost unchallenged.

It’s only to be expected from the likes of Ina Fried [1, 2], Maureen O’Gara [1, 2], and Paul Krill. Further down, inside the actual interview, Microsoft’s Gutierrez says: “Microsoft publishes every patent that Microsoft gets issued and we have had deeper, detailed discussions in the context of private licensing conversations, which by the way is the practice that every technology company follows. So to answer your question, yes, we have divulged them. We have talked about them with a number of companies that have shown interest in having a good faith licensing discussion with Microsoft.

“Horacio Gutierrez is likely to be lying.”Groklaw caught that bit and added: “Note that IIRC Novell claimed it did not get a list. Later in the interview, he also seems to almost, maybe say something about the GPL. I hesitate to characterize it, and I don’t want to overquote either, but do take a look.”

Pamela Jones is right as we spotted this contradiction over a year ago. Horacio Gutierrez is likely to be lying.

Regardless of all this, Microsoft has its own patent trolls to resort to aggressive action. Microsoft created and still funds the world's largest patent troll, which is already expanding to countries where there is resistance to them. Additionally, Acacia, which accommodates former Microsoft seniors [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11], is still busy patent-trolling the whole world.

If a company’s sole business is licensing and litigating patents, plus it’s run by lawyers, what isn’t protected by privilege?

That’s the question being asked in a discovery fight between Diagnostic Systems Corp., which is a subsidiary of patent-holding company Acacia Research Corp., and a multitude of software companies it sued for patent infringement in the Central District of California.

Acacia has already targeted two Linux vendors, but not Free software projects. Microsoft’s FOSS embrace and extend attempts [1, 2], as well as open source scams [1, 2, 3], appear to carry on uninterrupted.

All of these developments are merely things to keep an eye on because Microsoft is gradually falling, and being the vicious company which it is, Groklaw supposes it’ll devolve and become the next SCO Group.

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  1. Ian said,

    October 21, 2008 at 12:33 pm


    All of these developments are merely things to keep an eye on because Microsoft is gradually falling, and being the vicious company which it is, Groklaw supposes it’ll devolve and become the next SCO Group.

    I don’t buy that opinion. Someday Microsoft might turn litigious, but in the meantime and unlike SCO, they hold a dominant position in many market segments. SCO has never been able to make that claim. The company was merely a bus stop for a dead product(unixware). Sco had absolutely nothing else besides that dead product line and short sighted executives who, given the outcome of the past 4 years of SCO threats, were seemingly incompetent in the courts and the court of public opinion.

  2. Jose_X said,

    October 21, 2008 at 12:56 pm


    When their brand becomes tarnished on a more widespread basis (ie, when more people hear, see, and feel the correct Linux story) and the gang at the top has sold out of most shares, Microsoft will dissolve. This will lead to large losses for those that were holding shares. I expect though that the “goods” from the company will live on, either as part of a different large parent/buyer company or maybe there will be an informal (or NDA based) federation of companies trying to live out the dreams Microsoft always had [see MS's current distribution of past execs throughout industry players] and trying to hang on to the current assets among themselves (the closed source, the patents, etc). If they effectively break up into little bits, they will compete and fight some over time as goals and approaches diverge. Or maybe they will recombine/merge to be reborn like a phoenix. Or maybe MS will go private so as to be even more secretive. In any case, when their brand takes a real hit, there will be a serious transformation.. assuming the financial condition doesn’t get to them first.

  3. pcole said,

    October 21, 2008 at 1:58 pm


    I don’t buy that SCO “Bus stop for dead unixware” argument. They had more assets to them than unixware, They definitely throught proxies had a large cash infusion from microsoft.

    Now microsoft is headed down the same path; except the only cash infusion is/are the spoils of their anti-competitive and criminal behaviour, the cash cows that are drying up.

    As PJ of Groklaw said, “MS IS THE NEXT SCO”, and if anyone believes differnt they’re lying to themselves; then again if they believe microsoft is ethical, they’re already used to lies.

  4. Roy Schestowitz said,

    October 21, 2008 at 2:19 pm


    Ian, Microsoft has Vista, which it has just called the top of its success. Even infringes reject Microsoft’s latest software, which has it stepping back.

  5. Ian said,

    October 21, 2008 at 3:00 pm


    @Jose – I agree that Microsoft will never stay the way it is now. It’s an impossibility that any one company can stay stagnated in one form forever. Things have to change whether from external or internal forces. IBM is a perfect example. I suspect they’re not shipping too many type writers these days.

    @pcole – What real assets are we talking about? 25 million dollars doesn’t mean much of anything if it doesn’t help you make more money(which is hasn’t). Unixware, or specifically the copyrights SCO thought they owned, was the only thing of real sustainable value.

    As far as ethics go, I don’t think I mentioned anything about ethics. I would, however, go as far to say that Microsoft’s posturing is dictated by their market position and corporate culture. I do not think that absolves them from public speculation or wrong doing, but I also do not think that they are the only software company capable of this type of activity. So when I see one company held up as a beacon of freedom, I balance that with their market position and what behooves them to act in a certain way.

    @Roy – I won’t be trying to roll out Vista at work any time soon. We’re sticking with XP for the foreseeable future ourselves. However, I don’t see how that is relevant to the conversation.

  6. Roy Schestowitz said,

    October 21, 2008 at 3:25 pm


    You insinuated that their products are perhaps decent because of market dominance, but the above shows that their crown jewels — some of their few /profitable/ products — are backfiring.

  7. Ian said,

    October 21, 2008 at 3:46 pm


    @Roy – I didn’t insinuate that. Calling a product decent is a matter of personal opinion. Although, even if I did make the argument you’re thinking I made, you shouldn’t really point to Vista seeing as Microsoft’s main competitor to Vista isn’t Mac/Linux/BSD but rather XP itself. I know the uptake of Vista has been slow(I’m one myself who won’t advocate a migration at work), but I didn’t know whether or not the Windows market share(for lack of a better term) been impacted with the release of Vista? For better or worse, it seems to be mostly a Vista or XP debate rather than a Vista or anything else debate.

    I insinuated that SCO had nothing to hang its hat on besides the waning install base of UnixWare/Open Series. Microsoft, however, has more than just the one mostly irrelevant product SCO can lean on.

  8. Roy Schestowitz said,

    October 21, 2008 at 3:48 pm


    I agree that there are huge differences in terms of scale. We shall live and see. ;-)

  9. Gentoo User said,

    October 21, 2008 at 5:46 pm


    I don’t know what you people are smoking, considering Microsoft can survive the next 5 years selling XP SP4 Advanced (or whatever else they can come up with on a pinch), and Office 2007 has been selling as well as 2003 did when it was released.

    But then I don’t expect much from someone who creates these ridiculous photoshopped images. 4chan is also famous for that, if it means anything to you.

    Note: comment arrived from a witch hunter that does not even use GNU/Linux.

  10. Roy Schestowitz said,

    October 22, 2008 at 4:11 am


    Who’s using Photoshop? The reader who sent me these images uses Inkscape/GIMP.

  11. stevetheFLY said,

    October 22, 2008 at 6:08 am


    Regardless what was used, the images’ contents show what’s your ‘crowd’. I think Gentoo User quite correctly identified it as 4chan. This blog exhibits about the same qualities as 4chan.

    Note: comment has been flagged for arriving from an incarnation of a known (eet), pseudonymous, forever-nymshifting, abusive Internet troll that posts from open proxies and relays around the world.

  12. landofbind said,

    October 23, 2008 at 12:41 am


    Hey! There’s no need to insult the 4chan community.

    Note: comment has been flagged for arriving from an incarnation of a known (eet), pseudonymous, forever-nymshifting, abusive Internet troll that posts from open proxies and relays around the world.

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