Novell: The company that 'sold' Linux?

So earlier this month, Novell and Microsoft "agreed" on a Linux pact that was first seen as attempt to root Red Hat out of its game. There are now reports that there is a lot of disagreement in this agreement.

Novell continues to deny that they never 'sold' Linux and never told Microsoft that they have a claim on Linux. The company published the following opening letter:

Open Letter to the Community from Novell
November 20, 2006

On November 2, Novell and Microsoft announced a significant, multi-part agreement to work together to improve the interoperability between Linux and Windows and for Microsoft to redistribute more than 350,000 subscriptions for SUSE Linux Enterprise to the Windows customer base over a five-year period. This agreement is at the heart of what IT users demand – to deploy both Linux and Windows, and to have them work well together – and many companies have spoken out in support of this new cooperation.

Customers told us that they wanted Linux and Windows to work together in their data centers, nd so we agreed to develop new technologies and standards in server management, virtualization and document file format compatibility. CIOs want to focus on their business, and they want their suppliers to focus on improving operating system interoperability. The Linux community will benefit from the creation and release of the open source code toimprove Linux's interoperability with Windows that will result from this agreement.

Our interest in signing this agreement was to secure interoperability and joint sales agreements, but Microsoft asked that we cooperate on patents as well, and so a patent cooperation agreement was included as a part of the deal. In this agreement, Novell and Microsoft each promise not to sue the other's customers for patent infringement. The intended effect of this agreement was to give our joint customers peace of mind that they have the full support of the other company for their IT activities. Novell has a significant patent portfolio, and in reflection of this fact, the agreement we signed shows the overwhelming balance of payments being from Microsoft to Novell.

Since our announcement, some parties have spoken about this patent agreement in a damaging way, and with a perspective that we do not share. We strongly challenge those statements here.

We disagree with the recent statements made by Microsoft on the topic of Linux and patents. Importantly, our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property. When we entered the patent cooperation agreement with Microsoft, Novell did not agree or admit that Linux or any other Novell offering violates Microsoft patents.

Our stance on software patents is unchanged by the agreement with Microsoft. We want to remind the community of Novell's commitment to, and prior actions in support of, furthering the interests of Linux and open source, and creating an environment of free and open innovation. We have a strong patent portfolio and we have leveraged that portfolio for the benefit of the open source community.

Specifically, we have taken the following actions:

● We have stated our commitment to use our own software patents to protect opensource technologies. (www.novell.com/company/policies/patent/).
● We have spoken out against EU legislation that would liberalize the standards for
granting software patents (www.novell.com/company/policies/patent/european.html).
● We offer indemnification to our Linux customers accused of intellectual property
infringement (http://www.novell.com/licensing/indemnity/).
● We have teamed with the United States Patent and Trademark Office and other
industry leaders to reduce the issuance of “bad patents” in the software area (See
www.eweek.com/article2/0,1895,1911979,00.asp).
● In 2005, we co-founded Open Invention Network (“OIN”), "an intellectual property company that was formed to promote Linux by using patents to create a collaborative environment." (See www.openinventionnetwork.com). Novell's substantial contributions to OIN were made to benefit not only ourselves, but also other Linux vendors, distributors and developers, and anyone else willing to commit not to assert their patents against Linux.

In closing, we wish to be extremely clear that Novell is committed to protecting, preserving and promoting freedom for free and open source software. We recognize that the community if open source developers is essential to all our activities in Linux, and we welcome dialog with the community as to how we can continue to work together toward these common goals.

Ron Hovsepian
Chief Executive Officer
Novell, Inc.

Here's how Microsoft responded

Microsoft and Novell have agreed to disagree on whether certain open source offerings infringe Microsoft patents and whether certain Microsoft offerings infringe Novell patents. The agreement between our two companies puts in place a workable solution for customers for these issues, without requiring an agreement between our two companies on infringement.

Both of our companies are fully committed to moving forward with all of the important work under these agreements. The agreements will advance interoperability between Windows and Linux and put in place a new intellectual property bridge between proprietary and open source software. Customers and participants throughout our industry will clearly benefit from these results.

We at Microsoft respect Novell's point of view on the patent issue, even while we respectfully take a different view. Novell is absolutely right in stating that it did not admit or acknowledge any patent problems as part of entering into the patent collaboration agreement. At Microsoft we undertook our own analysis of our patent portfolio and concluded that it was necessary and important to create a patent covenant for customers of these products. We are gratified that such a solution is now in place.

It seems both companies need to work out their differences. Only time will tell the impact of this stupid agreement.

Shoaib Akhtar banned for 2 years

Shoaib Akhtar has been banned for 2 years while Mohammad Asif has been slapped with a one year ban. Both of them will not be able to participate in the Cricket World Cup 2007.

I read the PCB's Anti-Doping Commission's decision to find out why was Shoaib Akhtar banned for two years while Mohammad Asif was only banned for a year, and was quite shocked by the excuse put forward by Shoaib. It seems that Shoaib claimed that the banned substance 19-Norandrosterone which was well above the prescribed limit of 2.00 ng/ml in his sample was produced endogenously in his system. A claim that was obviously denied by medical experts.

The question is that why didn't he come clean instead of telling the Anti-Doping Commission that 19-Norandrosterone was produced naturally as a result of him taking a very high protein diet. Come on Shoaib, did you really think you can get by using that excuse?

To quote from the decision:

27. The case of Shoaib Akhtar may be taken first. He claims that his high protein intake over the years has caused endogenous production of 19-Norandrosterone in his system well above the prescribed limit of 2.00 ng/ml. The medical experts who have appeared before us have stated categorically that levels of this metabolite as high as the level found in Shoaib Akhtar's urine sample viz 14.06 ng/ml are not possible to be produced endogenously. WADA's list of prohibited substances states as under:-

"For 19-Norandrosterone an adverse analytical finding reported by a laboratory is considered to be scientific and valid proof of exogenous origin of the prohibited substance. In such case no further investigation is necessary."

All the medical literature made available to us, as also the very valuable medical input and knowledge of one of our members, confirms the above. We may however state that there is a urine test known as GC-C-IRMS which can determine whether or not the given levels of the metabolite have been produced endogenously or otherwise. We offered this test to Shoaib Akhtar but he declined to take the same.

28. We asked Shoaib Akhtar whether he can specify the vitamins that he had been taking. He replied in the negative. We asked him who had prescribed the herbal medicines that he had been taking. He said that he had been getting them from his friends. During closing arguments, as also earlier, Dr. Nouman Niaz stated on his behalf that he had been taking “kushta' and also various "off the cuff medicines" without specifying which medicines or who had prescribed them.

29. Mr. Shoaib Akhtar confirmed that he had been tested on two previous occasions, once before the 2003 World Cup by the PCB and once in August 2004 by the ICC (both these tests were negative for any banned substance) but claimed that he was neither aware of the list of banned substances or that nandrolone was a steroid and a banned substance. When asked which nutritional supplements he had been taking during the last six months, his answer was T-BOMB II, Promax-50 and Viper and that he had obtained these supplements from Fleximuscle, London and from his friends. He stated that he had never informed the Team Coach or the Team Physiotherapist or the PCB Medical Advisor about the supplements, vitamins and herbal medicines that he had been taking because they have never asked him and none of them were banned items. He claimed that he had never seen the two publications viz 2006 list of prohibited substances published by WADA or WADA's Athlete Guide which, according to the ADCO and the Team Physiotherapist, were given to the players prior to the England tour in August 2006. He stated that he had never been warned or advised by the PCB or any of its staff about the Anti Doping Regulations. When asked whether he had taken the advice of any medical practitioner with regard to the supplements, vitamins and herbal medicines he replied in the negative and said that he had been taking them on the basis of “general wisdom” based on his contacts with friends and others and that he had never consulted even Dr. Nouman Niaz who had accompanied him to the hearing. He said that he had taken all the above because they were good for him.

And like many others, Shoaib hadn't even read the contract:

He claimed however that he had not read the said contract.

One more question, how can Shoaib Akhtar not know that anabolic steroids are bad. His doctor explained

Dr. Nouman Niaz admitted that Shoaib Akhtar had been taking the supplements injudiciously and ill-advisedly because he had absolutely no educational background about their possible adverse effects and also because no PCB doctor was available to advise about these substances. He stated it was case of no fault or negligence on the part of Shoaib Akhtar.

Apparently he forgot about the lecture he attended in 2002:

It is confirmed from Shoaib Akhtar's signatures on the attendance sheet that he was present at a lecture given to all the players about anti doping awareness on 31.10.2002.

And did he really not read the contract? Hard to believe.

Unlike other players Shoaib Akhtar did not sign PCB's Central Contract because he was not prepared to accept the conditions with regard to sponsorship, advertising, etc. It is, therefore, difficult to accept that he did not read the contract signed by him for the year 2004-05 which like the one for 2005-06 specifically obliges the players not to indulge in taking prohibited substances including, amongst others, drugs, intoxicants, anabolic steroids, and records that the cricketer will have to take doping tests whenever asked to do so by either the PCB or the ICC.

Wow Shoaib, you are almost caught red handed. And what about the over the counter vitamins that he had been taking? The anti-doping commission stated that those cannot explain the high level of 19- Norandrosterone in his sasmple.

We have seen the available literature in respect of the nutritional supplements viz T-BOMB II, Promax-50 and Viper admittedly taken by Shoaib Akhtar during the last six months. None of their ingredients can produce or explain the elevated level of 19- Norandrosterone in his adverse test result.

Of course PCB's ill-managed policy can be blamed too:

We are not entirely satisfied with the manner in which PCB has advised and cautioned its players with regard to prohibited substances, the adverse effects of their use and the Anti Doping Regulations. We have found much “passing of the buck” between the various PCB officials who have appeared before us. We are firmly of the view that PCB needs to have a qualified and experienced sports doctor whenever the team is on tour abroad. We are also of the view that periodic guidance should be provided to the players about their diet, nutritional supplements, prohibited substances and the Anti Doping Regulations and there should be clear cut responsibility as to who is to perform these various tasks and when.

And finally, the dreaded two year ban for Shoaib:

Our above observations do not, however, affect our judgment that Shoaib Akhtar has been unable to establish that he did not know or suspect and could not reasonably have known or suspected that he had been using prohibited substances. None of the supplements being used by Shoaib Akhtar were offered to us for getting them analyzed for possible contamination. Shoaib Akhtar was, by his own admission, prone to injury and constantly consulting his own doctors. It is the admitted position that his personal physician Dr. Touseef Razzaq was allowed to go with him on foreign tours. He cannot possibly claim that he exercised utmost caution in this matter. He could and should have consulted his doctors. In fact we find it difficult to believe that he did not do so. In the totality of the circumstances we are not convinced that there was no fault or negligence on the part of Shoaib Akhtar or even no significant fault or negligence. We hold that he has committed a doping offence as defined in clause 4.1 of the PCB Anti Doping Regulations. There are no mitigating circumstances which would justify the imposition of a sanction less than the minimum prescribed namely a ban of two years. Consequently in accordance with clause 7.1 read with clause 8.1 of the PCB Anti Doping Regulations we impose the following bans on Shoaib Akhtar for a period of two years commencing 15th October 2006 viz the date on which he was suspended by the PCB:-

(i) He is banned from selection to represent Pakistan in International competition;

(ii) He is banned from competing in any events and competitions conducted under the jurisdiction or the auspices of the PCB or any unit;

(iii) He is ineligible to receive direct or indirect funding or assistance from the PCB or any affiliated units;

(iv) He is banned from holding (or continuing to hold) any position within the PCB any member (including as an officer or employee);

(v) He shall remain on POA register of athletes for the purpose of out-of-competition testing.

In case of Mohammad Asif, the commission was relatively more lenient:

The case of Mohammad Asif is on a somewhat different footing with regard to the level of his responsibility. Mohammad Asif became a regular member of the Pakistan Team in March 2006. He was not tested previously. It is not shown that he was ever present at any lecture or session with regard to the Anti Doping Regulations or list of prohibited substances. There is some doubt whether he was even handed over the WADA 2006 list of prohibited substances and WADA Athlete Guide prior to the departure of the team for the England tour in August 2006. He was amongst those who gave his sample on the very first date of sample taking viz 25.9.2006 and did not try and delay the sample taking. He said in response to a question put by us that he had been using Promax but had stopped as soon as the Team Physiotherapist told him to do so. Mr. Darryn Lifson the Team Physiotherapist has confirmed before us that Mohammad Asif stopped the use of Promax-50 (purchased by him locally) as soon as he was told to do so. We have ourselves noticed during the hearings that Mohammad Asif's command of English is limited and we are clear that he could not possibly have understood the WADA publications without someone helping him to understand their contents. No such guidance or counseling was provided. He has stated before us that he is unable to explain why his urine sample has tested positive for the nandrolone metabolite.

The ban imposed on Shoaib Akhtar and Mohammad Asif is a great loss for Pakistan and can have significant effect on the next year's world cup. However after reading the Anti-Doping commission's decision, I am satisified.

What do you think? Is the ban too harsh on Shoaib? Do you believe his story? I am all ears.