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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."
Prof. Eben Moglen says that GPLv3 will prevent a user's loss of freedom in light of the details of the Novell-Microsoft deal. He also takes the open source movement's lack of focus on user's freedom to task by ignoring "the politics" of the situation, leaving it ripe for being moved closer to what proprietors want.
Digital Citizen
if some corporate whistle blower were to come forward, and show that Microsoft has used even one small piece of GPL'ed code in it's Windows product, the entire product would then be bound by the GPL
False. This is actually a little bit of M$ FUD which you have somehow bought into. If Microsoft was found to have infringing GPL code in Windows, one option would be to GPL all of Windows. The other, more likely option, would be to simply remove the offending code. The exact same think any open source project would do if it was found to have infringing code found in it.
The idea that companies need to be afraid of having their closed source application forced open because some GPL code slipped in is one of the FUD meme's the Microsoft throws around to try and limit open source adoption. The reality is that the only companies that get screwed by the GPL are the ones who insist on trying to distribute GPL binaries without source knowingly even after they've been asked not to.
Other way around, I'd say.
That's the common view, and it's wrong
However, if your software uses some patented algorithm (yes, I know, that's a hideous turn of phrase) then odds are you'd never risk releasing the source, so you could probably infringe forever and nobody would ever know.
If the algorithm is important and difficult to work around, then the patent holder will know even if you ship just binaries, and they can and will compel you to produce source code. In addition, your behavior will likely be interpreted as willful infringement, exposing you to extra damages.
That is really the greatest threat to open source software from software patents: the fact that it is substantially easier to determine if an open source package is infringing. In a litigious environment, it's easy to say, "why take the risk?"
That's pure FUD (do you work for Microsoft?). Open source has been around for several decades, and I'm not aware of any serious consequences for end users from patent infringement by FOSS. First of all, for the very reasons you mention--people know they are being scrutinized--patent infringement by FOSS is rare, and when it does, people simply remove the offending code.
You're far more at risk with closed source software--infringement seems to be far more frequent, lawsuits happen often and with serious consequences, and whether you as the customer are directly liable for infringement or not, you will often still face substantial costs if your vendor is found guilty.
So far as DOJ scrutiny is concerned, does anyone know if the DOJ has ever charged a large corporation with an antitrust violation for using a patent portfolio to suppress competition, given that that is the intended function of patents?
There is ample precedent for the government interfering in how companies license patents. 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.