Microsoft Taking Heat For Patent Stance

Yesterday Novell released a statement disavowing Steve Ballmer's claim that Linux infringes Microsoft's IP. Linux-watch.com reports that Microsoft quickly responded with a statement of its own that softened, but did not entirely back away from, Ballmer's claim (but the article offers no link to such a statement). xtaski writes, "Everyone took notice when Ballmer spewed forth FUD about Microsoft and Linux IP. Now CIOs are asking just what did Ballmer think he was doing? They are not fooled — but rather, a little angry. ComputerWorld covers the news including one CIO who says 'There were some applications I had been thinking about moving to a Microsoft platform, but this has now totally alienated me from Microsoft.'" And an anonymous reader points us to the statement by the Open Invention Network — whose investors include IBM, Novell, Sony, Red Hat, Philips and NEC — on the Microsoft-Novell agreement. From the statement: "OIN continues to support the Linux community's ability to collaborate and innovate. Through the accumulation of patents that may be used to shield the Linux environment, including users of Linux software, OIN has obviated the need for offers of protection from others."

Are they feeling pressure?

[filenavigator]

It is interesting to see that they are starting to posture themselves in this way now. For all these years they really have not gone after anyone for patent violations - maybe that was because the going was good. Now that they have implemented all of their fancy piracy protection they need to keep others from providing alternative solutions that really are easier for a paying customer to use.

Kinda reminds me of communist Russia and their fences and guns keeping their people from leaving the country.


http://www.windows-admin-tools.com [windows-admin-tools.com]

Backing away from the agreement?

[Salvance]

I wonder if this is one of the first moves that Microsoft is making to back away from the agreement, or rather ... to back away from their original intentions (whatever they may have been).

possible goals here

[kevintron]

These vague claims of "infringement" have certainly led to heavy discussion of Microsoft's deal with Novell. Ballmer has always been good at generating free publicity for Microsoft, and has never been too worried about whether Linux users liked him or not.

But that's just one possible goal here. It's also possible the resulting discussions will be closely watched by Redmond's intellectual property lawyers. Perhaps they hope to learn of new potential legal vulnerabilities they hadn't previously considered.

Microsoft has a problem enforcing their patents.

[Anonymous Coward]

There is a legal doctrine known as "unclean hands". http://en.wikipedia.org/wiki/Unclean_hands [wikipedia.org] It means that a plaintiff who behaves in a certain way can not get certain legal remedies. The most they can expect is actual damages. What actual damage (other than loss of a sale) does it do to Microsoft if my use of Linux violates one of their patents? Almost none.

Any plaintiff has a duty to mitigate damages. A plaintiff who does not mitigate damages is coming to the court with unclean hands. Microsoft also has the problem that it is convicted on antitrust charges.

If Microsoft wanted to sue someone for violating one of its patents by using Linux, it should have done so a long time ago. All it has now is the weapon of every bully; intimidation.

On a side note, every time I have heard a company talk about monetizing its IP, it has nothing left. SCO is the classic case of that.

Emotionalism

[DoofusOfDeath]

one CIO who says 'There were some applications I had been thinking about moving to a Microsoft platform, but this has now totally alienated me from Microsoft.'"

Should someone who makes technology decisions based on his emotional reaction to Steve Balmer's FUD really be a CIO?

CIO's response is logical

[Josh Lindenmuth]

Many CIO's probably did not realize the theoretical risks of using Linux prior to Ballmer's statement. I know I didn't. Unfortunately Ballmer was right to a degree ... and while CIO's and other tech professionals can deny the validity of his statement, it will be a matter for the courts to decide at some point.

Since most companies that use Linux typically have at least some Windows machines, Microsoft's perceived threat to either sue or enforce licenses for all Linux users was highly alienating and rather disrespectful of their customer base. 'What was he thinking' is right. A smart company woudn't form a half Billion dollar agreement then tell the target client base of the agreement that they're gonna be sued ... but then again, that's Microsoft's M.O. A monopoly in today's global regulatory environment takes an immensely powerful, and often ruthless, legal team. This is just Microsoft rattling that (hopefully unusable) saber ...

To hell with them both.

[Anonymous Coward]

At the company I work for, we've been using a mix of SuSE Linux (pre-Novell SuSE), FreeBSD, and Windows 2000 for years now. There's been some interest in upgrading some of the systems. It was suggested that the SuSE systems be upgraded to SUSE Linux Enterprise 10, and that the Windows 2000 systems be moved to Windows Server 2003.

Several days ago I had to submit a report to management regarding these proposed transitions. Put simply, I had to recommend against the use of the offerings from Novell and Microsoft. I don't feel that these companies are worth dealing with. Instead of putting money towards the development and improvement of their products, they've gotten themselves involved in this stupid deal. I'm sure a number of contract lawyers made quite a bit off of this arrangement. And for us, we don't need the uncertainty this deal brings.

I had to recommend that we migrate much of our corporate network to FreeBSD, with Solaris or Debian Linux being my second choices. Thankfully, we write most of our Windows software in-house using wxWidgets for the GUI and PostgreSQL as the relational database of choice, so the transition should go fairly well.

Re:There's no doubt that Linux violates patents

[Gorshkov]

There's no doubt that Linux violates patents that are in Microsoft's portfolio

Actually, I think there's a shitload and a half of doubt. Especially that nobody's ever seen or given evidence of a *single* microsoft violation - and precious few violations of any sort. I can't think of any off the top of my head, but I'm not willing to SAY that there's never been one. Because as soon as I do, somebody's gonna post links pointing to them :-)

Re:Obviated

[XaXXon]

No, it is correctly stated as "obviated" as in

To anticipate and dispose of effectively; render unnecessary.

http://dictionary.reference.com/browse/obviated [reference.com]

They're saying that the companies supporting Linux have enough of a patent library that should MS try to go after Linux, Microsoft will find itself in hot water.

Who, exactly, is the high school dropout?

Re:CIO's response is logical

[Anonymous Coward]

Think of what a successful MS lawsuit would have done to Linux market penetration, too. Even an unsuccessful, or settled lawsuit that dragged on long enough, would have sent CIOs and execs running scared from Linux... Right into the arms of Windows.

The primary reason that didn't and won't happen is that one of the backers of Linux also happens to be the largest patent holder in the entire software sector (IBM). If Microsoft wants to bring a handful of patents to the war, IBM can roll out the machine guns. I guarantee you Microsoft and most other companies are infringing on one IBM patent or another.

why hasn't anyone just found out for themselves?

[daniel.ronin]

It isn't that hard for someone to write a shell script that, oh say, spidered the USPTO for every patent microsoft has ever filed. I know for a fact that it is very possible, and out of the about 2000 of 5000 patents that I've seen downloaded from the database so far, I've seen some very frightening results. We're not simply talking patents on code, here people. It gets much much worse. Downright fucking scary even.

I'd gladly post the link to the USPTO for you all to see for yourselves, but I've been sworn to secrecy by my friend that wrote it, not to reveal or link the info on his site itself (because he's talking with some serious gurus about what can be done in the meantime)
Before everyone rallies the troops for a war against M$, it might be wise to learn what they have up their sleeve. Otherwise we might be leading the penguins to the slaughter, and that might be exactly what they're counting on. The information IS available to anyone with enough shell scripting know-how. Find out everything you can before you make an uninformed plan of action, because this has huge implications.

I'm not saying anyone's right or wrong so far, I'm advocating knowledge of fact. Take the time and find out for yourselves. Why speculate when you can know?

Re:Why would they?

[Anonymous Coward]

Microsoft really has no 'heat shield' when it comes to IP. Microsoft has been a company since 1975. They have been going after patents since about 1986 or there abouts. IBM has been a company for 118 years. They have been going after about 1000 patents per year since their founding. Many of IBM's patents cover very fundamental computing. Even switches and 'electrical computing'. Microsoft has no place to stand here. If they were to try and follow their threats with actual action, they would be dead inside of a week (I'm not kidding, I mean 7 days).

This is part of Microsoft's DNA

[surfdaddy]

Microsoft has dropped to a new low. What of substance has Microsoft invented anytime lately? Perhaps the XBox. They've been riding their early entry into the PC market for 20 years. Their software is nothing great, and their entire growth M.O. is to shut out competition by virtue of their monopoly on the Windows OS. They are scared shitless that Linux is going to eventually kill much of their business.

Microsoft did this to Netscape. They tried to kill Apple years ago and only let Apple survive to prove that they were not monopolists. They funded SCO through a back door third company in their lawsuit against Linux. Now that that has failed, Microsoft is going directly against Linux. In the meantime, very little innovation has been realized from the massive profits that the company generates. Contrast with Apple. They first popularized the GUI. The 3.5 inch floppy. SCSI. PDA (Newton). Built-in networking. Hyperlinking. MP3 player with integrated software on the computer/synchronization paradigm. And they've translated their entire operating system and hardware line into a new technical architecture in less than half the time Microsoft has needed to upgrade their piss poor OS to a newer resource hogging OS with few significantly newer features.

What is so funny is that Microsoft coming out with the Zune! They see Apple with a big new music market. Microsoft wants a piece of this action! And they are going to fail, because Apple has a huge ecosystem of hardware, software, accessories, and ever car makers putting iPod interfaces in! Did you see that even the airlines are working on iPod interfaces for power, audio, and video in their airplanes?! Hahaha to Microsoft - Apple is doing the same thing to Microsoft that Microsoft has done to them in the PC OS! And I'm glad!

So I'm not usually highly emotional about these things, but Microsoft is scum! Microsoft - up yours!

Re:Are they feeling pressure?

[JPriest]

Yes, but the fact that the SCO thing failed has only reinforced the credibility of Linux. Linux was the best example MS gave in defending the right to keep their monopoly, even if they were to win a court case against "Linux", it would land them back in another anti-trust case and in the crosshairs of the EU. A legal attack on Linux is a lose-lose situation for them, so all they can really do is make empty accusations and hope nobody calls them on it.

Additionally, if these statements could be shown to be damaging to Linux sales and someone calls them on it, they could force MS to support their claims or reimburse them for damages.

Re:Are they feeling pressure?

[nickos]

Time to roll out this classic quote from the man himself:

"If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete stand-still today. The solution ... is patent exchanges ... and patenting as much as we can. ... A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors." -- Bill Gates, 1991

OIN Founding Member-- Novell

[Anonymous Coward]

It appears one of the founding members, Novell, was left off the text when referring to the OIN.

Members [openinventionnetwork.com] of the OIN.

Information [novell.com] about Novell and patents.

Re:anticompetitive, barriers to entry

[zotz]

"But what's at issue here is not the exclusionary nature of patents in general, it's the inequitable way in which it is being used: companies who cross-license the entire portfolio have no costs, while newcomers to the market may not be able to enter at all."

Here is a related question.

Are all of the patents in that Free Software protection pool from companies who have their entire portfolio cross-licensed with MS and others who would harm Free Software? Especially of the copyleft sort...

all the best,

drew