Microsoft Stoking the IP Fire

gokulpod writes to tell us the Financial Express is reporting that Microsoft is heating up the IP battle once again with warnings about IP indemnifications issues. From the article: "Analysts believe that the core issue at stake is whether open source software increases litigation risks. Open source advocates are quick to point out the IP litigation faced by Microsoft itself. Ubuntu founder and leader Mark Shuttleworth says, 'Linux is growing fast and whenever there is a new way of doing things, people will raise all kind of issues.'"

Comments

If you distribute, why wouldn't you be liable?

[BadAnalogyGuy]

When you license software normally, i.e. not Open Source, you don't run the risk of infringement because you are only the user of the software and have no rights to distribute it. On the other hand, if you somehow become a distributor of some software through the GPL or other Open Source license, then wouldn't you be liable? Though you aren't the creator of the work, you are essentially distributing it to others as your own work (in fact, it is your derivative work which you are distributing).

What if it were Microsoft incorporating Linux code into Windows? Wouldn't you want them to be held accountable? Aside from the obvious double standard, why would you think that OSS projects and distributors not be held liable as well?

It's a little disingenuous for Microsoft to claim that as a benefit, though. It's only because they don't grant you any rights that you have that protection.

IP Battle?

[HaydnH]

At least I can safely say I own 127.0.0.1! Oh wait...

Read the fine print. Microsoft is screwing you.

[NZheretic]

Microsoft are ONLY offering patent protection under very limited conditions.

Microsoft provide protection only for code they write. If the code in patented is part of what you provide or from a third party, even down to the enterprise glue code, Microsoft is not liable, even if it is based on calling Microsoft's API ( see the Timeline case ). You have to agree to let Microsoft take over your legal defence and if Microsoft prejudge that you are at all at fault then you have to agree to pay ALL damages and costs.

Great features you don't see anywhere else

[Jivha]

From the article:
Microsoft claims to provide "uncapped protection for legal costs associated with a patent, copyright, trademark or trade secret claim alleging infringement by their product". Open source majors like Red Hat also provide assurance programmes to protect their customers.

What has the world of patents and copyrights come to? We have product manufacturers offering to protect their customers from being sued for using their products!!! This is a feature?

Imagine Honda offering "uncapped protection" for their car users against being sued for driving them? Or Adidas offering the same for their shoes(they were recently sued by Nike for violating some "Air" patents)

I think I miss the vapourware days. Even if the features were imaginary, they at least sounded useful.

Microsoft Users not protected from patent claims.

[tpgp]

It should be noted here that if you believe that you're protected from IP lawsuits by using Microsoft software then you're incorrect.

For example - if you use functioanlity covered by the excel patent case microsoft lost recently, then your business will suffer.

Gartner recommends the following:

* Test all Office-based applications to ensure that they work with the new code, because newly purchased, repaired or reimaged PCs are affected. Pay particular attention to Access applications that interface with Excel.
* Consider deploying Office without Access to users with no specific need for its database functionality, as a quick and viable alternative to installing the new code.
* Recognize that installing the patches on new implementations without testing may be a quick alternative that minimizes legal risk, but risks breaking applications.
* Request that Microsoft issue a patch for Office 2003 SP1, as it has for Office XP SP3, so that an entire service pack does not need to be tested and deployed for Office 2003.
* If you anticipate significant difficulties in complying with the letter, try to get Microsoft to offer consulting assistance at little or no cost. Microsoft says that account managers will make arrangements to help organizations that have major problems complying.
* If you feel you cannot comply with the order, work with legal counsel to understand your risk and exposure.

So... MS loses a patent case, you're liable to clean up the mess.

Furthermore, if the functionality is essential to you, and you avoid installing the service pack, you could be sued

MS is no different to Open Source.

First the vendor is sued, if the litigation is successful, they remove or work around the patent-protected functionality, then if the user continues using the disputed code, the user is liable.

Risk to USERS of open source from patent claims?

[NZheretic]

1) Any patent lawsuit against a user of a software component used by major vendors will automatically result in those vendors lending legal support to reduce the chance that their own customers will also end up being sued.
2) Any patent lawsuit costs the suing party at least several hundred thousand dollars.
3) Any patent put before the courts is at very great risk of being destroyed by prior art.
4) Any payout awarded from a single end user has to be in proportion to value of the patented technology. The value of a single instance will could only be measured in hundreds of dollars, not coming close to covering the costs of suing
5) Patent lawsuits take six years to over a decade to work it's way though appeals.
6) Developers will release new software using a method that circumvents the patent in question within two months. This will be quickly adopted and by the time the first patent case is resolved there will be no further customers for the patent holder to sue.
7) The outrage generated in taking out a case against any open source will result in Groklaw and other groups putting the suing party and their lawyers under the closest scrutiny. You will not believe the level of bad publicity, let alone the the amount of prior art, dirty business practices, and legal suspect practices and even violation of statutes that will be uncovered.

Lastly to quote Pulp Fiction, and then "we are going to get medieval on your ass."

Any IP case against users of open source pute the attacker at a far greater risk.