Payback time for Novell

The Novell/Microsoft pact might just be a plea bargain to avoid Novell's wrath over SCO

SCO group is going down. Microsoft, Sun, and the greedy investors that abetted SCO in its campaign to loot Unix and Linux vendors and their customers have abandoned ship. Microsoft’s public endorsement of SCO’s legal action against, effectively, Microsoft’s enterprise competitors and their customers, gave SCO the leverage to mug said vendors’ customers for license fees when vendors refused to drop their wallets in court. Sun and Microsoft animated SCO as the prototypical litigious IP boogeyman in order to terrorize competitors’ customers into switching to Windows or Solaris to avoid being hauled to court. That’s how I laid it out in 2003, and I stand by it now.

Today, I’m overjoyed that with Microsoft, Sun, and greedy investors bailing out of bailing duty, SCO’s ship is sinking fast from the holes it punched in its own hull. IBM’s role as anchor is finally proving effective, but the torpedo boat is captained by Novell’s frighteningly accomplished legal team, ably assisted by the SCO litigation squad, F Troop.

Novell has exhibited the patience and cunning of a trap door spider. It waited for SCO to taunt from too short a distance. Then Novell would spring, feed a little (saving plenty for later), inject some stupidity serum, and let SCO stride off still cocksure enough to make another run at the nest. That cycle is bleeding SCO, which was the last to notice its own terminal anemia.

When it became clear that SCO wouldn’t prevail, Microsoft expected only to face close partner IBM. Microsoft did not brace for Novell, an adversary with a decades-long score to settle with Redmond. Through discovery, Microsoft’s correspondence with SCO is, or soon will be in, Novell’s hands, and it’s a safe bet that it will contain more than demand for a license fee and a copy of a certified check. .

When I consider Novell to be the party of advantage in the Microsoft partnership deal, the tone of the agreement changes. Microsoft is handing 70,000 copies of a primary competitor’s operating system to existing Windows customers, introducing Windows-only shops to the advantages of the heterogeneous enterprise. Microsoft will be bringing Novell along on sales calls, which is somewhat like a punished teenager agreeing to bring her dad with her on future dates. The word “indemnity” that Microsoft wielded so freely has turned on it, with Novell demanding indemnity against future Microsoft IP action. A final touch of irony is Microsoft’s issuance of a press release on a deal that would ordinarily be made on the QT. That harkens back to Microsoft’s self-congratulatory capitulation to SCO, no?

I allow that there are at least two facts that weigh against this theory. Red Hat stated that Microsoft offered it the same deal, and the Microsoft/Novell partnership announcement makes mention of a payment by Novell. To counter the first argument, Red Hat lacks Novell’s storehouse of Microsoft IP and intelligence that would make indemnification profitable. As for the payment made by Novell, it validates the arrangement as a business contract by setting up an exchange of consideration. I’m not a lawyer, but I believe that if Microsoft just handed a bouquet over to Novell to prevent Novell v. Microsoft, Microsoft could later welsh on the deal by contesting the alleged misdeeds that Novell used as leverage. This is all conjecture, of course, but two absolute truths remain: Payback is, indeed, a bitch, and Microsoft is entitled to a share. And at present, it sucks to be Steve Ballmer.

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