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Author of Linux Patent Study Contradicts Ballmer
An anonymous reader sends us this EWeek story, following-up on the recent Linux patent scare. The author of the patent study is contacted, and says, "Open source faces no more, if not less, legal risk than proprietary software. The market needs to understand that the study Microsoft is citing actually proves the opposite of what they claim it does."
From the article: "Consider this--not a single open-source software program has ever been sued for patent infringement, much less been found to infringe. On the contrary, proprietary software, like Windows, is sued and found guilty of patent infringement quite frequently."
While I am glad that OSS hasn't been suded yet, I think it's a bit immature to use this as a defence. First of all, you don't need to actually do anything wrong to be sued, and usually you're sued because you're making enough money that the plantiff might take a bite of it, or you have conflict of interest with the plantiff.
Wasn't it not long ago we read about SCO/MS Connection? It's pretty obvious now that the litigation is baseless, but this doesn't not stop corporates from taking it to the court.
Another example is FireFox, many claimed it's flawless, but the realistic others know that no software is bugless, but its OPEN status allows things to be fixed relatively quickly. So it would be unwise to claim that FireFox has fewer bugs and more secure because it hasn't been exploited yet.
So a better argument might be OSS, given it's open, any potential patent infringement will be digged out before it goes far.
However, this brings another question, can we safely assume that nothing incriminating is in the source? Patent itself is illusive enough, and how easy it is to find out about a particular patent, and then relate it to a certain class in the source?
Rock that crushes, Paper & Scissors that don't matter.
I've this question. If I implement a piece of software that is already patented and put it in the public domain, can I be sued for this?
I mean in many CG books they describe algorithms that are patented, yet nobody sues the authors of the books. Can someone write a free implementation of a patented idea just for the sake of other people doing research on the idea (e.g timing and comparing certain patented algorithms, etc.)? This doesn't seem different from publication of said idea/algorithm.
It is my understanding that if somebody uses it for commercial purposes or if I try to sell it, then I/they 'd be liable. But can source code be considered as a publication in certain cases?
They don't have to... twisting information in their favour has been enough for a good while. For the common investor, what Ballmer says is much more interesting than some guy's studies.
Except that if Microsoft violates 100 patents, they can just license or buy the company out that owns it.
If one patent is broken by an OSS Project, its much more of a burden.
MS distributes B across the globe, everyone repeats. End of story.
this reminds me of the whole "total cost of ownership" campaign ms ran a few months ago, whereby ms claimed that the tco of microsoft server solution was cheaper, overall, than the linux equivalent.
well, i downloaded the pdf of the study and read the whole damn thing. the bottom line: the ms solution was cheaper... if you factored in the "retraining costs" required to move your "existing i.t. staff" to use linux.
the devil, of course, was in the unspoken assumption that you are already running an ms shop. more correctly stated: the tco of your current system is cheaper than moving to a new system over the short or, potentially, medium term.
now, since ms still has the lion's share of the desktop and workstation installs and a healthy chunk of the server space they maybe could be forgiven for glossing over this crucial fact. but, still, it just boils down to making a simple unstated assumption that changes the whole outcome of the data.
2 1337 4 u!
Touche.
The real irony of this story: Ballmer quotes a study done by the OSRM - a group that puts out studies about and then offers indemnification open source IP risk - and says that there is risk associated with Open Source that there isn't with Microsoft. Then the author - from the OSRM - refutes what Ballmer says, ignoring the fact that the very existence of his company hinges upon managing the very risk Ballmer was talking about.
Vaughan-Nichols is once again playing the voice of open source propaganda. And Slashdot loves him for it.
Of this I am fairly certain. Per my blog, regarding this article.
There is no lack of buzz around patents. This article garnered opinions from some big names in the patent world, like Free Software Foundation counsel Dan Ravicher, law firms Phillips Fox and Baker & McKenzie.
Dan Ravicher of the FSF made this point: "patents pose less of a threat to open-source software than they do to proprietary software". He also states: "There are no patents that choose only to be infringed by open source. Any patent that imposes a threat to open-source software is going to impose a threat to proprietary software."
Well, the first point doesn't flow logically from the second point. Open source and proprietary software are in two different categories, from an evidientiary and a monetary point of view.
Access to source code
As a matter of evidence, violating patents in open source software is evident on its face: you can read the source code. Legible code makes a patent infringement case trivial. Proprietary software may require expensive reverse engineering, to devise how it operates and whether that operation violates the patent. There may be some legal questions regarding your capacity to reverse engineer legally, particularly with oppressive legislation such as the DMCA.
Access to software
Also, in this vein, to determine a violation of proprietary software, you must also have access to it. Proprietary software, particularly custom or enterprise software, may not be readily available to examine. Even if the software is available, it may require an onerous license that prohibits reverse engineering. Open source software is, almost by definition, accessible to anyone for examinition. Having a clause to prevent reverse engineering would be contrary to its object.
Licensing capacity
The lucid nature of open source software means that to obtain a mandatory license for a patent would be prohibitively expensive for two reasons. First, open source software does not have deep pockets or the capacity for a cross licensing agreement. Second, even if either were available, the nature of open source software would wholly undermine the purpose of the patent: an open source implementation of the patent would be available for free, unrestricted use.
A proprietary software company, on the other hand, has the economic means and an economic incentive to obtain a license or cross license, and would presumably do so only for the benefit of the company, and would not threaten the other economic interests of the patent.
Compulsory Licensing
Patent legislation provides for compulsory licensing, I understand, if it is in the public interest. However, even though a proprietary company could enforce this licensing by challenging it at the patent office, currently the cost would be prohibitively expensive to many, if not most, open source software developers. As well, compulsory licensing that undermines the patent, by creating an open source unrestricted implementation, would create contentious arguments about the real public interest. Patents protect the patentor, and as a secondary consideration they may have licensing imposed against the will of the patentor, if it is in the public interest. Their rights would likely trump.
For at least these reasons open source software is in a different situation than proprietary software, and as a result I am not entirely convinced of Mr. Ravichers's assertion, as they are quoted in the linked article.
"Your assertion is that Linux violates a set of patents, and therefore as an end user I might be found liable and forced to pay dammages at some future date.* Does using Windows remove this problem for me? Are you willing to either guarantee that Windows does not have any IP property issues or to indemnify me if someone decides that they want $699 for every copy of XP that I use because they think one of their patents is being violated?"
cricket... cricket... Mr. Balmer - are you still there?
* For the sake of argument, I'm going along with Blamers FUD that end users are responsible for paying for IP violations, not the producers of the software.
the ms solution was cheaper... if you factored in the "retraining costs" required to move your "existing i.t. staff" to use linux
That's an angle I haven't thought of before: The "independent" M$ studies demonstrates that once you start to use M$ tech, it becomes costly to switch. The study actually shows the cost of exercising your freedom to switch to an alternate supplier once you have been entangled in M$ lock-in tech.
)9TSS
Technically unrelated to this article, but Fox News did go to court for making a story appear the oppisite of the facts. They lost at first, but won on appeal. Now they are suing journalists who refused to publish the false version of the report for court costs.
Fox News was able to get a court to rule that they have no responsibility to tell the truth because there is no specific law that say they have too. So if a news station can not be required to report on things honestly, then I don't think there is much change of getting a company (especially MS) to do so.
On of Many Links to this story
Past Presidents have taken it to whole new levels though. Hell, you can lie, be proven to be a liar and the public will still vote for you. If you're a politician you don't even need to keep up the pretense of being honest. It's open season!
This post has been moderated all over the place. When I first looked at it, it had -1 Flamebait, no doubt from the MS supporters who troll the forums. Now it has +4 Funny.
But it's a simple statement of fact, it's what Microsoft has indeed done for the past 20 years.
Why not Insightful? Are moderators getting too young these days to remember?