Here's the background. On Sunday, 13 May 2007, Fortune magazine on-line released a story dated for Monday, 14 May 2007, to the effect that Free Open Source Software (FOSS) supposedly infringes 235 patents. (The Slashdot discussion is here). I doubted this claim, and I noticed that the reactions by FOSS community members in public fora such as
Hello, and welcome to our Microsoft lawsuit invitational. This page is intended to be a place where people would like to join together to invite a Microsoft patent infringement lawsuit. If you would like to invite a visit by Brad Smith, Microsoft's head litigator, please feel free to add your name here. We are asking that people include their name, email address, version of GNU Linux disto(s) being used, and a short statement explaining why you are using that distro.
Not legal advice
Is this risky business? Probably not. I am a lawyer, and I am not impressed by Microsoft's patent infringement allegations against GNU Linux users. However, I can't offer anyone any legal advice, because I don't practice IP law, and lawyers are not supposed to offer blanket legal advice on websites. So this is not legal advice, nor even a legal opinion. This page is just my personal opinion as to why I am not scared that Microsoft is going to sue me personally. I also don't really see them suing anyone else, frankly, but again, that is not a legal opinion, just common sense.
Assessing the (non) threat
Microsoft's patent threat is another example of the truth of Franklin Delano Roosevelt's saying that the only thing to fear is fear itself. Here's why: First, Microsoft has succeeded as a company because they have mostly refined the innovations that other companies pioneered. So Microsoft has some major problems with "prior art" and "obviousness" defenses to its patent claims. Second, the creators of GNU and Linux were inspired by Unix, not Windows, and Unix is much older than Windows. Again, prior art and obviousness defenses. Third, Microsoft once actually sold Unix licenses, called Xenix (which they licensed from SCO), but Microsoft later abandoned Xenix in favor of Windows NT, which would indicate (to me, at least) that the ideas for Microsoft's Windows-related patents are probably quite different technology from Xenix. Fourth, our beloved friend SCO actually owned Xenix, and you know that if they could have asserted patent claims against GNU Linux they would have done so. Maybe SCO never patented Xenix. We'll have to wait to see how this wiki page gets edited by people more knowledgeable in this area.
Fifth, and perhaps most important, Linus Torvalds emailed InformationWeek's Charlie Babcock claiming that most of the important innovations pertaining to operating system functions lost patent protection long ago, because most of the basic operating system theory was pretty much done by the 1960s. The Slashdot discussion of this last point can be found by clicking here.
Sixth, IT lawyer Andy Updegrove has said that he is not all that impressed with Microsoft's patent claims. The Slashdot discussion for that story can be found by clicking here.
Okay, reason number seven. Eben Moglen, the lawyer who wrote the GPL with Richard Stallman, says that Novell has tricked Microsoft into shooting down its own patent claims against GNU Linux users. Heh. This is really funny if it is true. Here's how it works: remember when Microsoft agreed to distribute those SuSE GNU Linux coupons? Well, those coupons have no expiration date, so if even one person uses one of those coupons to get SuSE GNU Linux distros after the GPL 3 goes into effect in July, BINGO, Microsoft is covered by the GPL 3, and its patent claims against any user of GNU Linux are dead. Pamela Jones and her Groklaw team has picked up this coupon story, as has Slashdot and Digg.
Number eight: Speaking of Eben Moglen also believes that Microsoft will not sue because suing is expensive and commits Microsoft to a course of action that is unpredictable. And so, Eben says, it is much easier to continually issue vague patent threats in the media. But those threats have strength only so long as they remain unchallenged. The light of an actual patent trial will clear away the shadows of doubt.
Number nine: Because I knew that someone like Steve O'Connor of Adelaide, Australia, would come up with a really funny reason for himself / herself to be sued. Please do scroll down to the belly laughs section to see what I mean. Why Microsoft is stepping up its threats now
Some people have asserted that Microsoft is making these threats now because Windows Vista is not selling well. Others are saying that Free Open Source Software is growing too fast and becoming too much of a threat. I personally think that Microsoft has a history of being aggressive with its customers early in the revenue cycle of its Windows operating systems' life-cycles, because rapid adoption is the key to standardizing on Windows. I'm not sure if Microsoft has offered a public explanation as to why it is rattling the chain more now. Maybe someone else can edit this wiki to offer that explanation.
Why I am offering to be sued
I believe that Microsoft is hurting competition on the desktop, which affects me directly as a consumer of desktop software. I believe it is for the good of society for Microsoft's patent claims to be tested in a court of law. If Microsoft wins, then so be it. If Microsoft loses, then the rest of us can get on with creating innovative business models for desktop software. I am not challenging Microsoft this way because I hate Microsoft. I don't admire their software, nor do I admire their business models, but I am not challenging them because I want to sink their ship or damage their business or harm their reputation. I am really only interested in seeing whether their claims have any merit, which I think is probably not the case.
The other reason that I am offering to be sued and encouraging others to offer to be sued is that we will have the chance to show the world how many people really use Free Open Source Software directly on the desktop. Of course, all of us use Free Open Source Software when we use Google or YouTube or Wikipedia or Yahoo or the Internet Archive, because all of these companies use Free Open Source Software as an important part of delivering their services. And if Microsoft's threat just hangs like a dark cloud over all that innovation, we will all be the worse off for it. But I am talking about us uniting on one list to show the world how many institutions and individuals use Free Open Source Software.
Maybe this list will never go anywhere. On the other hand, it will be fun to try!
So c'mon, Microsoft. If I infringed your patents, show me. After all, I am one of the members of a distributed team of film makers who is trying to document the real world digital tipping point that is probably pushing you to rattle the litigation saber anyway, and I am attempting to use all Free Open Source Software tools to do so. If you can shut me up, all the better for you!
For Free Open Source Software users outside the US
Please feel free to add your name to the list, even if you are outside the US. One of the points of this list is that the world is bigger than the US patent laws that Microsoft is misusing to slow innovation in desktop software. If we get lots of people outside the US signing up, that will encourage people inside the US to sign up, and maybe it will also encourage more people who are on the fence about using Free Open Source Software. If people are unsure about whether Microsoft is right about Free Open Source Software violating its patents,, maybe they will not use Free Open Source Software. That is obviously what Microsoft is trying to do. There is strength in numbers, and one goal for our list is to just show the world how many people are using Free Open Source Software. Maybe this exercise will flop, or maybe someone else has a better list somewhere else. I don't care if the DTP list is the biggest list in the world. This is just one little step forward to stop Microsoft's misuse of US law.
And now for the belly laughs section
There are a number of really funny entries on the "Sue me first" list. But to me, the funniest of them all (so far, and we are at 153) is Steve O'Connor of Adelaide, Australia. Here, straightaway from number 148, is his post:
Steve O'Connor (Adelaide, Australia) BAD ME - I am using a pirated copy of Gentoo Linux that I illegally downloaded off the internet, and have installed on a whole rack of servers that I use to make money by providing information services to the Australian Defence Forces. I skipped out on paying any licence fees by doing it this way, and I have (illegal ?) access to all the source code, so I can hack my application around however I see fit. I have also ripped off a copy of PCLinuxOS from the internet (Which is like a HaXoRed version of Vista), without giving out my credit card, and used that same single copy to install on dozens of other computers. The recipients of these PCLinuxOS machines are way happy too
My warmest regards to Steve O'Connor for making it all so very worthwhile!
The Sue me first names list
And so, without further ado, we now offer the Sue me first Microsoft list of people who are willing to challenge Microsoft's questionable patent claims.