So why is this in the Linux forum? Only because of a single line in a [link|http://www.novell.com/linux/microsoft/faq.html|Novell FAQ] about the deal they cut with Microsoft. I haven't seen anybody else remark on this, but I find it somewhat remarkable.

Q. Does this covenant apply to original equipment manufacturers (OEMs) that buy SUSE Linux Enterprise and preload or resell it?

The covenant applies to end customers of Novell products.

So what's remarkable about this line? First, it sits in the middle of a serious of long-winded answers to self-written softball questions, both of which (the questions and the answers) are a mix of wishful thinking and plain old spin. But this one answers a direct question of fact -- and an important one, in terms of applicability of the contract terms -- with what seems to be a straightforward, factual answer.

But is it? Think about Microsoft's position on software refunds: If the end-user tries to get a refund from the OEM, the OEM says the user's contract is with Microsoft. They (the OEM) have no contract with the user, but isntead a stated policy of no returns on opened software. So the user goes to Micorosft, who says that the user has to go to the OEM, as the OEM is really Microsoft's customer.

We've all seen the catch-22 discussed a million times. And as long as both Microsoft and their OEMs maintain their positions, it's a Mexican standoff with lawyers. And no end-user can play that game.

But now we come (finally!) to the Novell deal. The answer above says that the "covenant applies to end customers of Novell products". So who are the end customers?

1. End users. By taking the position that patent indemnification applies between Microsoft and an end-user, Microsoft weakens their position that the OEM is the customer.
2. Novell. This means that the indemnification is worthless to end users.

I wouldn't be surprised to see them actually raise this issue themselves if it ever looks like someone is doing something they don't approve of. Wait for a major customer to get close to a SUSE deal, then Microsoft points out that, gosh, it looks like maybe they only promised not to sue Novell. Well sure, that's not how it was played when the deal was signed, but looking at the wording, we find that we really can't in good conscience to our shareholders enforce terms on ourslves that aren't really in the contract.

When talking about refunds, their customers are OEMs. For the purposes of this indemnification, they'd like you to read that as their customers are the end users. If there were any justice in truth-in-advertising or consumer protection law, this would be enough to hang them on all the refunds they've never given.