The Corpus Callosum


From CNN Money:


href="http://money.cnn.com/magazines/fortune/fortune_archive/2007/05/28/100033867/">Microsoft
takes on the free world

Microsoft claims that free software like Linux, which runs a
big chunk of corporate America, violates 235 of its patents. It wants
royalties from distributors and users. Users like you, maybe.


Fortune’s Roger Parloff reports.
FORTUNE Magazine
By Roger Parloff, Fortune senior editor
May 13 2007: 1:06 PM EDT

Free
software is great, and corporate America loves it. It’s often
high-quality stuff that can be downloaded free off the Internet and
then copied at will. It’s versatile – it can be customized to perform
almost any large-scale computing task – and it’s blessedly
crash-resistant.

A broad community of developers, from individuals to large companies
like IBM, is constantly working to improve it and introduce new
features. No wonder the business world has embraced it so
enthusiastically: More than half the companies in the Fortune 500 are
thought to be using the free operating system Linux in their data
centers.

But now there’s a shadow hanging over Linux and other free software,
and it’s being cast by Microsoft (Charts, Fortune 500). The Redmond
behemoth asserts that one reason free software is of such high quality
is that it violates more than 200 of Microsoft’s patents. And as a
mature company facing unfavorable market trends and fearsome
competitors like Google (Charts, Fortune 500), Microsoft is pulling no
punches: It wants royalties. If the company gets its way, free software
won’t be free anymore….


The Free and Open-Source Software Community (Fosscom) has known for
years this is coming, and is prepared.  Microsoft thinks there
are going for big-time href="http://en.wikipedia.org/wiki/Fear%2C_uncertainty_and_doubt">FUD,
but it’ll be a big-time dud.
 


For
one, the Linux kernel itself is truly open-source.  Not only
that, but it is documented where each of the millions of lines of code
came from: who wrote it, and when.  Nothing was copied
directly.

Furthermore, there are very few things in Linux that can be attacked.
 Right now, I am writing this post using entirely open-source
software.  The software I am using consists of the kernel,
plus about 1,921 other packages.  The kernel itself is safe.
 Even if Microsoft can claim that another one, or even 235, or
283, of the other packages violates a patent, in the vast majority of
cases it would be simple to swap one out and put another in its place.
 OpenOffice?  That was released to the Fosscom by
Sun.  Firefox, Thunderbird and NVu, they were released by
Netscape (actually the original source code was released, and has been
refined extensively since then).  The GIMP?
 Completely home-grown.  Those applications are the
ones I use most.  Some others, like KFlickr, are just not
important enough for anyone to care.  

src="http://upload.wikimedia.org/wikipedia/en/thumb/0/09/EnterpriseDvsBorg.jpg/180px-EnterpriseDvsBorg.jpg"
align="left" height="139" width="180">Linux is
highly flexible.  Take out any one part, and it’ll only be a
matter of days or weeks before someone comes up with a replacement; or
more likely, two replacements.  It’s like href="http://en.wikipedia.org/wiki/Borg_%28Star_Trek%29">the
Borg.  Fighting it in court would be an endless
series of pointless challenges.  For every one victory, you
would create two adversaries.  It’ll be good for the legal
community, but bad for everyone else.  Lawyers will make a ton
off of this, most people won’t care.  A few companies will be
inconvenienced.  Some may choose to go the “safe” route for a
while.  But the safe route might not turn out to be so safe,
if it turns out that many of Microsoft’s patents are not validated by
the courts.

Some cases might end up before the Supreme Court.  Unless
there are a few more vacancies, and people like href="http://en.wikipedia.org/wiki/Patrick_Volkerding">Patrick
Volkerding get appointed (which would not be a bad idea)
it’ll take years for anything to get settled.  

According to ZDNet,

face="Helvetica, Arial, sans-serif">Microsoft finally has
thrown down the gauntlet and is claiming publicly that free and
open-source software (FOSS) violates 235 Microsoft patents.

That tally comes from a newly published article in Fortune. In that
article, Microsoft licensing chief Horacio Gutierrez wouldn’t talk
specifics. He declined to specify which Microsoft patents are being
violated or how “lest FOSS advocates start filing challenges to them,”
according to the Fortune article…

…I can’t help but wonder why Microsoft decided to go public with
these claims and figures now. If the Novell-Microsoft technology
partnership was really as solid as Microsoft keeps claiming, why does
Microsoft need to raise questions about open-source software’s
legality?…


I doubt that the reason Microsoft won’t give specifics has anything to
do with what Gutierrez said.  If they were to list the alleged
violations, the alleged violations would be examined by the Fosscom,
and any questionable packages would be altered to either make the
challenge moot, or eliminate it altogether.

Comments

  1. #1 Ted
    May 14, 2007

    Microsoft is emboldened by the IP culture in the US regardless of left-right politics. It finds a very favorable climate for government protectionism through enforcement of IP — on one hand the US government supports free-trade, on the other it practices protectionism relative to large corporate clients.

    The focus of this type of FUD is not on the consumer (who is generally disinterested), but on the corporate purchaser and on software supportability roadmaps.

  2. #2 Corkscrew
    May 14, 2007

    For one, the Linux kernel itself is truly open-source. Not only that, but it is documented where each of the millions of lines of code came from: who wrote it, and when. Nothing was copied directly.

    I think that would be copyright, rather than patents. For copyright to apply, it’s necessary that the work in question be derived from someone else’s work. For example, The SCO Group’s claims against Linux originally talked about copyright. This issue was adequately dealt with by the mechanisms you cite, with the result of SCO getting absolutely murdered in court.

    Patents are an entirely different beastie. If I file for a ludicrous patent on Monday at 9:00, and you (completely independently) produce something that falls under that patent’s remit at 9:01, and the patent is granted, you’re screwed.

    And, given the recklessness of the USPTO in recent years, the chances are that anything as big as the Linux kernel probably does have patents on it. Microsoft probably does have legal rights to some of the content of Linux and, given how insanely broad and basic many patents are, it may not be possible to work round those issues.

    However, this is exactly the same position that proprietary software has been in for some time. It’s impossible to produce a decent piece of software without unknowingly treading on turf that someone has already staked out. So why is it that most patent lawsuits come not from software companies but from patent trolls and the like?

    Mostly, it’s because patent litigation is a war of mutually-assured destruction. If someone infringes a load of your patents, it’s quite likely that you infringe some of theirs (unless you’re a patent troll). If Microsoft assaults Linux, they will immediately be buried under lawsuits from a million and one FOSS-using companies, including big guns like IBM. They’d get slaughtered.

    So yeah, no risk, just not quite for the reason you suggested.

    Disclaimer: IANAL, I just read lots of articles at groklaw.net.

  3. #3 Ted
    May 14, 2007

    The SCO Group’s claims against Linux originally talked about copyright. This issue was adequately dealt with by the mechanisms you cite, with the result of SCO getting absolutely murdered in court.

    The stupidity of SCO is legion.

    As far back as 1995 I was receiving faxes from SCO telling me not to use Linux because of all the risks with the same faxes going to my bosses. I was a client of SCO products and used both Linux and SCO and had told their salesperson as much.

    First they tried going over my head. When that didn’t work, they tried the “use of Linux is irresponsible” etc by jamming the fax. Man, do I wish I kept those faxes.

    From my perspective it was a piece of trash marketed and sold under deceptive practices — i.e. they wouldn’t sell you all the components the first time through to keep the price low, and then would nickel and dime you to death, i.e they’d know there was a serious bug in something like the TCP stack, but wouldn’t lead with the resolution, instead waiting for someone to open a ticket for days on end with associated downtime, only to respond, “Oh, yeah we have a patch for that bug”. The patch would be dated two years previous.

    Absolute crap on toast.

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