Back in February, Microsoft inked a deal with Novell to support their version of Linux, and they also made an agreement not to sue each other, or each others' customers, for patent infringement. I did a post back then about Microsoft's possible intentions. Many people were critical of Novell, warning that Microsoft would use the deal to claim ownership of Linux code. So what we are seeing today really isn't surprising. It's actually the continuation of a battle that's been going on for a long time.
Steven Vaughan-Nichols at DesktopLinux.com sums it up nicely. Some excerpts:
Microsoft's reignites its war on Linux
Analysis -- Microsoft CEO Steve Ballmer on May 14 claimed that "Linux violates over 228 patents. Someday, for all countries that are entering WTO [the World Trade Organization], somebody will come and look for money to pay for the patent rights for that intellectual property."
With that comment, Microsoft declared war against Linux and open source yesterday... Oh wait. My mistake, Ballmer made that attack in November 2004.
What Microsoft did yesterday, in an interview with Fortune, was to have Brad Smith, Microsoft's general counsel, reiterate and elaborate those tired old claims. This time around, Microsoft claims that the Linux kernel violates 42 of its patents, while the Linux graphical user interfaces break another 65. In addition, the Open Office suite of programs infringes 45 more, an assortment of email programs violate 15 others, and an assortment of free and open-source programs allegedly transgress 68 more patents.
[...]
How are these programs violating the patents? Heck, which patents are being violated? We don't know. Microsoft isn't saying.
Gosh, vague threatening IP (intellectual property) claims without any facts.
Where have we heard that before? Could it be from early days of the long discredited claims against Linux by SCO? Claims that have fallen from grandiose heights to 326 unimportant lines of code?
If we look closer at Microsoft's claims, we see that we don't need a court to dismiss them. [...]
(bold emphasis mine) The story of SCO is interesting. I believe it goes thus:
Microsoft bought large shares of stock in SCO, a struggling Linux company. SCO then began to make copyright infringement claims against other Linux vendors, demanding royalty payments. When it finally came to trial, SCO did not succeed. But the threats and the trial dragged on for years, and helped Microsoft's campaign to create FUD (Fear, Uncertainty and Doubt) about Linux, thereby slowing it's progress.
SCO was a small company. I think it was a practice shot for Microsoft; many people claim they used SCO as a proxy, to see how much damage they could do, and what to expect. No doubt they learned things from that, and now Microsoft itself is making infringement claims.
Since Microsoft is a much bigger company, with much greater legal resources, the threat is a lot more significant. Even if they don't succeed in destroying the legality of Open Source Software, the FUD this generates can slow or stop the progress of Linux, which has been steadily cutting into Microsoft's profit margins in many markets.
The article has more details and many good embedded links; it's not long, and it's a good introduction to the ongoing battle.
Could Microsoft's strategy backfire? From a legal standpoint, some advocates of Open Source Software believe Microsoft could be on shaky ground.
More on the legal perspective from Roger Parloff at CNNmoney.com. An excerpt:
Microsoft takes on the free world
[...] The free world appears to be uncowed by Microsoft's claims. Its master legal strategist is Eben Moglen, longtime counsel to the Free Software Foundation and the head of the Software Freedom Law Center, which counsels FOSS projects on how to protect themselves from patent aggression. (He's also a professor on leave from Columbia Law School, where he teaches cyberlaw and the history of political economy.)
Moglen contends that software is a mathematical algorithm and, as such, not patentable. (The Supreme Court has never expressly ruled on the question.) In any case, the fact that Microsoft might possess many relevant patents doesn't impress him. "Numbers aren't where the action is," he says. "The action is in very tight qualitative analysis of individual situations." Patents can be invalidated in court on numerous grounds, he observes. Others can easily be "invented around." Still others might be valid, yet not infringed under the particular circumstances.
Moglen's hand got stronger just last month when the Supreme Court stated in a unanimous opinion that patents have been issued too readily for the past two decades, and lots are probably invalid. For a variety of technical reasons, many dispassionate observers suspect that software patents are especially vulnerable to court challenge.
Furthermore, FOSS has powerful corporate patrons and allies. In 2005, six of them - IBM (Charts, Fortune 500), Sony, Philips, Novell, Red Hat (Charts) and NEC - set up the Open Invention Network to acquire a portfolio of patents that might pose problems for companies like Microsoft, which are known to pose a patent threat to Linux.
So if Microsoft ever sued Linux distributor Red Hat for patent infringement, for instance, OIN might sue Microsoft in retaliation, trying to enjoin distribution of Windows. It's a cold war, and what keeps the peace is the threat of mutually assured destruction: patent Armageddon - an unending series of suits and countersuits that would hobble the industry and its customers.
"It's a tinderbox," Moglen says. "As the commercial confrontation between [free software] and software-that's-a-product becomes more fierce, patent law's going to be the terrain on which a big piece of the war's going to be fought. Waterloo is here somewhere." [...]
(bold emphasis mine) I like the comparison to a cold-war. In this situation, Microsoft reminds me of North Korea, threatening to heat the war up unless people agree to pay them extortion money (or in Microsoft's case, royalties on code that's not proven to be theirs).
This article IS quite long. I personally find it interesting. I used to work for a large group of attorney's, and the largest firm specialized in patents and intellectual property. If you are at all interested, it's a good in depth look at the legal/business aspects involved.
Related Links:
Microsoft, Linux, and our software choices
showusthecode.com
No comments:
Post a Comment