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The Sky Isn't Falling Different Ways to React to Microsoft's Patent Push

Originally published August 9, 2007

If you look strictly at the software world as a marketplace, where software competes, then it's clear that Microsoft has no great love for free/open source software (FOSS). On the face of things, it's tough to compete against a competitor that gives their product away. It's a tribute to Microsoft's ingenuity and skill as a software publisher and marketer that they're able to retain their dominant position. The latest move in the software wars occurred on May 13, when Microsoft dropped their apparent bombshell announcement that their patents are infringed, in a big way, by FOSS. Their message: “We invented a lot of the stuff that runs FOSS, and we want to be paid for it.”

Within a few days, a significant portion of the Internet's electrons were diverted simply for the purpose of responding to Microsoft's perfidious attack on FOSS – or to defending their right to get paid for the hard work and resources they've applied over the years to R&D. I thought it would be helpful to take a quick look at just exactly what Microsoft has done, and six different ways FOSS users, advocates, and other interested parties responded, finishing with the viewpoint that makes the most sense.

What Microsoft Said

Basically, what Microsoft's announcement said was that they believe Linux and other FOSS infringe on 235 of Microsoft's patents, and they want to be paid royalties for the use of those patents. In fact, they say, they've begun negotiating with companies – some of whom, when faced with the evidence that Microsoft is laying out, have agreed to pay. Two hundred plus patents are a lot; but Microsoft owns close to 7,000 already.
Microsoft isn't saying which patents infringe or where FOSS infringes on them because doing so would give their competition some recourse. Why might a couple of hundred patents not be enough? Here are some reasons:

Knowing which patents are in play, defenders could challenge the validity of those patents. A recent ruling by the Supreme Court (see Law.com, “Supreme Court Adopts New Standard on Patent Litigation) means it will be harder than ever to validate software patents going forward. The more Microsoft's patents are shown to be invalid, the less leverage they have over potential royalties paying customers.

Even if some patents prove to be valid, FOSS developers can only work around them once they know which ones they are. At that point, again, Microsoft loses their leverage over FOSS users.

Microsoft says they don't want to sue the biggest FOSS customers because they also happen to be their own biggest customers. But going to court, even for the legendarily deep-pocketed Microsoft, would be costly in many ways.

Bringing patent litigation could release a tidal wave of countersuits by other companies that hold significant numbers of software patents whose interest is threatened. For instance, IBM – holder of about 47,000 patents – has incorporated Linux and other FOSS into its own business.

Indignant Linux Fanatic

You don't become a huge success without ruffling feathers and making enemies, and Microsoft is about as huge a success as there can be. They play rough, and they play for keeps. Along with throwing their weight around in the product pipeline, one of their best known tactics is spreading fear, uncertainty and doubt (FUD). So there is an entire segment of the population that ran off to blog about how “It's just more Microsoft FUD. How dare those monopolists abuse the law, again.”

Yes, it is FUD, and yes, Microsoft's tactics in the past have involved manipulating the product channel as well as their business partners. This move could be viewed as another attempt to impose a “Microsoft tax” on every computer in the world. But, come on. You've got to admit that it's not easy to compete against free, and Microsoft is in business to make money. That's how they operate; and if you don't believe FOSS is strong enough to withstand this attack, then maybe you're not fanatical enough.

Risk-Averse Corporate Bean Counter

According to Brad Smith, Microsoft's senior vice president and general counsel, in an interview with Fortune Magazine, Microsoft is making progress convincing big corporations that it's in their interest to pay to protect intellectual property. No specifics, as the companies that paid up were not willing to go public, but the implication is clear: “We'd better pay up or Microsoft will sue us into the ground.”

Whether or not Microsoft will actually take that route is not clear; what is clear is that for now Microsoft retains greater leverage by not suing anyone. Paying off now may be worthwhile for companies that need/want to remain in Microsoft's good graces (for example, companies that rely on Microsoft for specialized mission-critical applications); for others, it may be wiser to wait and see.

Open Source Tough Guy

Linus Torvalds, creator of the Linux kernel, was widely reported to have said “put up or shut up” in a response to Microsoft's move; the original article in Information Week () doesn't have those exact words, but does give the gist of it: Torvalds wonders why Microsoft wouldn't go public so we can all see just exactly what they're claiming. Of course, the answer is that being straightforward and up front would not serve Microsoft's purposes.

Even more interesting, Torvalds suggests that if Microsoft's code base were open to scrutiny, we would find more infringed patents than Microsoft has found in Linux. Considering how generous the U.S. Patent and Trademark Office (USPTO) has been about granting questionable software licenses over the past generation, it's likely Torvalds is right.

Open Source Legal Advocate

Eben Moglen, Columbia Law School professor and the Founding Director, Software Freedom Law Center, says, in essence: “Don't worry. Their patents haven't been validated. And look, they forgot to dot the i's. We've won!” On the first wave of response to Microsoft's move, Moglen pointed out that, first, Microsoft hasn't actually taken any legal action, so there's nothing to worry about yet. It's a lot of patents, he pointed out, but it's far from clear whether any of them will be upheld in the courts.

Then, there's the issue of whether or not Microsoft is actually distributing Linux and therefore subject to the terms of the GPL license. The Free Software Foundation's take on it is that because Microsoft is handing out coupons for Novell's SUSE Linux, they are distributing Linux and are therefore required to comply with all the terms and conditions of the license – which forbids cross-licensing of patents in a preferential way for customers.

But the most interesting point, to me, was that someone actually looked at the coupon Microsoft is passing out and discovered that there's no expiration date on it. Why is that important? Because under the terms of the soon-to-be released GPL version 3, Microsoft's deal with Novell would be forbidden. All that has to happen is for someone to use one of those coupons to get some software released under GPLv3, and Microsoft's whole game is over.

Open Source Strategist

There's the Open Invention Network (OIN), whose members include Red Hat as well as IBM, Sony, NEC, Philips, and Novell. The FOSS strategist will say, “We've got patents on our side, too. Let 'em sue.” Maybe Microsoft does have a ton of patents, but IBM's got seven times as many, Sony's got close to 25,000, NEC has 23,000 or so, and so on. Sure, a lot of those patents are on hardware and other devices, but the firestorm of litigation that a Microsoft patent lawsuit could release would be impressive – and not necessarily to Microsoft's benefit.

Stockbroker

“Ho hum, business as usual.” Go look at the stock charts to see why investors are not worried about the whole thing. Red Hat shares lost about one-third of their value in the day after Oracle announced it would be repackaging Red Hat Enterprise Linux as Oracle Unbreakable Linux; that was a big deal, and the fact that Red Hat shares have recovered since then is a tribute to how well they've managed to nourish their brand.

On the other hand, Microsoft's FOSS and Linux grandstanding this past year haven't been nearly as influential. What happened after Microsoft announced their deal with Novell? Not much for Microsoft. For Novell, a roughly 20% jump that evaporated over the following month. Business as usual for Red Hat, though.

And what happened to Red Hat shares after Microsoft's patent announcement? Fairly minor fluctuation, consistent with the rest of the market.

What Does it Mean?

Could this be a good thing for FOSS? I'd say absolutely! Linux and FOSS are getting more attention than ever from the mainstream media, and that can only be a good thing. Is Microsoft really trying to kill off FOSS? I hope not, and I don't think they'd want to. Could Microsoft be playing a very deep game and be getting ready to launch their own version of Linux? Maybe – it's surely not the first time someone has speculated about “Microsoft Linux.”

Whatever happens, it'll be plenty interesting!

  • Pete LoshinPete Loshin

    Pete is Founder of Internet-Standard.com, an open source and open standard computing consultancy providing technology assessment, needs analysis and transition planning services for organizations seeking alternatives to commercial software. Pete has written 20 books, including “TCP/IP Clearly Explained” 4th Edition, Morgan Kaufmann, 2003) and “IPv6 : Theory, Protocol, and Practice,” 2nd Edition (Morgan Kaufmann, 2004).

    Pete can be reached at pete@loshin.com or at 781. 859.9175.

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