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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."
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
Everyone is infringing on everyone else's patents (if only in the most technical of senses).
The Windows vs Linux battle is a perfect example of mutually assured destruction.
Nobody will win if the lawsuits start flying back and forth. It wouldn't even be good for business.
If MS really thinks there are patent issues, then MS should either try to work out cross licensing deals that benefit or have the offending IP removed. Anything else is just FUD.
[Fuck Beta]
o0t!
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).
Crack - Free with every butt and set of boobs
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 is now so rich that they are trying to get rid of their money by trying (and soon enough failing) to sue linux.
When Linux started throwing chairs around the office like a spoiled child denied, then it crossed the patent line! Balmer is not amused!
-- Prepared at the direction of, or to be sent to Legal Counsel, in anticipation of litigation. Attorney Client Pri
There is a legal doctrine known as "unclean hands". http://en.wikipedia.org/wiki/Unclean_hands 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.
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.
... 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 ...
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
Huh? Don't mind me, I'm just the new guy.
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.
Keep your matches away when he talks.
---- Teach Peace. It's Cheaper Than War.
they list Novell as part of the OIN, but any patents that Novell has filed are now void because they have signed a promise not to sue.
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
No, it is correctly stated as "obviated" as in
To anticipate and dispose of effectively; render unnecessary.
http://dictionary.reference.com/browse/obviated
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?
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?
i would think its more of a burn to ash kind of thing like when Blade runs his sword through a vampire (or any of his other silver weapons)
Any person using FTFY or editing my postings agrees to a US$50.00 charge
In any battle where goliath is predicted to fall, there has to be a point where the goliath tries to fight harder, and dirtier than before. MS has nothing to lose by 'seeming' to be more open and more F/OSS friendly, and they have everything to gain, including hearts and minds.
/. or any blog has a clue what was really said in the boardrooms, on guessing based on historically valid impressions. The end value of any of this posturing is that one side or the other will seem more valid, more honest, more useful for doing business with...
The problem is that when it comes to patents, everyone, including the USPTO is looking at them more skeptically. Look at what the final outcome of this could or should be; MS looks better than before the situation, or MS gains credit with people who pay real money for MS products. MS currently doesn't have too many worries about home users switching to Linux. Its businesses and governments and educational institutions that MS has to keep on board the MS wagon. By acting open, or F/OSS friendly, they get to keep customers that were wavering... that can be billions of dollars per year. By actually pulling this off, they do more than keep money, they harm their competition in terms of market share. Every battle is not won simply on brute force, but often on preventing such force from being brought to bear against you.
The trouble here is that nobody on
Support NYCountryLawyer RIAA vs People
Bill Gates. Oh wait, he was the college drop out...
meh
If you don't intend to sue, or protect your IP, then it's just FUD. And to reiterate - as far as I know, nobody, anywhere, has pointed to a single example of a Microsoft patent being in Linux.
The only difference between Microsoft at this point and SCO is that Microsoft is trying to not have to spend a fortune on lawyers. But I think their claims are just as baseless.
It looks like Microsoft is infringing on their "using bogus lawsuit threats to spread FUD" patent.
Portions of Microsoft's response quoted on groklaw and David Berlind's blog.
I am literally 3000 tokens away from the chaotic crossbow --Stephen
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!
You picked a poor comparison. IBM's foolish actions in the 80's included some epic IP blunders. In fact, those blunders are a large part of the reason Microsoft has its dominant market position today. Further, a lot of IBM's patents are obselete or irrelevant. And there's no action that IBM can undertake that would remove a legal threat from Microsoft in seven days. I'll admit that I don't see any true Microsoft legal action going anywhere, but this sort of train wreck would take more than seven days to go through. Look at the SCO mess which really is Microsoft acting through SCO as a proxy. It's not going anywhere fast despite years of pointless legal maneuvering.
The heat in question was the supposed ire of Microsoft customers (or perhaps rather linux advocates). That's why I mention the "heatsink". Microsoft is fairly immune to that sort of criticism right now.That would require them to sue those competitors, or else the patent would become invalid.
Nope, that only applies to trademarks - defend them or lose them.
Patents and copyrights you can selectively enforce. Patent trolls frequently do this, going after the easily intimidated companies first to build up a warchest before tackling someone who is more likely to fight back. There are some limitations on damages if you can be shown to have known about the infringement for a while before suing, but that in no way invalidates the patent.
-- Alastair
Wouldn't mediocrity be an improvement?
Money is the root of all evil?
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.
If Microsoft had anything substantial and usable, they'd have sued by now, but they probably have figured out that that's pointless. Many of their patents are probably invalid or unenforceable, or even have prior art in open source software.
Furthermore, FOSS developers try hard to avoid infringing on people's patents, and Microsoft's patents are scrutinized, so the number of infringing software packages is likely small. In the few cases where Microsoft might have a valid patent claim against a piece of FOSS and could actually identify someone to sue, it would be hard for them to be able to claim willful infringement or get any real damages, and the infringing code would be removed instantaneously, making the case fall apart.
If Microsoft actually believes they have IP that's being violated, they should stop bluffing and start asserting it in court. That way, they can get what they deserve, and they create certainty for everybody else. Of course, certainty is the last thing they want.
All this talk about M$ intellectual property being used in Linux. I just wonder how many developers, with prior Unix development experience, Microsoft has hired that have used Unix code / derivatives inside M$ products. ;-)
It's time to fight FUD with FUD.
According to the Vista EULA, if you develop code on the Vista platform, MS can claim IP rights to that code.
Is that true?
Dunno... It's just what some lawyer friend told me...
Patent portfilios for the Microsoft/IBM/Oracle/Sun/HP crowd (or Intel/AMD/nVidia/ATI for that matter) have become exactly the same kind of "Mutually Assured Desctruction" scenario.
Actually, that's not all they are: they are also barriers to entry, because small, commercial, closed-source competitors find it hard to enter a market in this situation. That's not what the patent system was supposed to do. And, sooner or later, it may lead to some serious scrutiny by the DOJ.
Nevertheless, it may work to the advantage of open source, since it means that new software companies may find it advantageous to figure out open source models for software that they would otherwise have released under a proprietary license.
i am just wondering but say this situation turns up:
a company holds a patent on an invention. due to the nature of the patent (all encompassing or nearly so) there is no possible clone/alternative etc. meaning that now the company holding the patent is the sole provider of that invention/service/etc
how does that tie in with the antimonopoly laws of the world?
me bad. how does that tie in with the antimonopoly laws of the united states? inventor of the patent
_ In Egypt Networks: Network Solutions with a Twist
As I read this article I wondered WTF? What do Microsoft patent claims have to do with Novell? Does Novell own Linux now or something? Being largely ignorant of the business aspects of the Linux world, I went to Linux.com looking for news and found this reassuring statement:
Who Owns Linux?
Linux is not owned by anyone. One misconception many first-time Linux.com readers have is that this site, Linux.com, is similar to Microsoft.com, which is owned and controlled by the company that produces the Windows operating system.
Not so!
No one company or individual "owns" Linux, which was developed, and is still being improved, by thousands of corporate-supported and volunteer programmers all over the world. Not even Linus Torvalds, who started the Linux ball rolling in 1991, "owns" Linux.
(However, the trademark "Linux" is owned by Linus Torvalds, so if you call something "Linux" it had better be Linux, not something else.)
I still don't understand why Novell and Microsoft are swapping millions of dollars back and forth and how it relates to Ballmer's IP claims, but as long as apt-get doesn't start asking me for license codes I'm happy.
The same query on the published application database returns 8093 hits from 2001 to today.
Searching AN/ibm OR AN/"international business machines" returns 45414 patents and 18454 published applications.
Usage: km/h for speed (kilometers per hour); kph for very slow impulses (kilopond hours).
If you follow the reports at Groklaw (http://www.groklaw.net/), you will find that SCO are good at delaying things but make very little progress in getting anything proven. Also, the court is quite generous in granting their wishes for more time. In contrast, IBM's conterclaims appear a lot more convincing and I'd expect those to be successful.
So SCO is doing a rather prolonged FUD campaign, but with little hope of getting any money out of IBM. At the same time, they might have to pay IBM more damages than they can afford. I'm starting to believe what many people on Groklaw said:
SCO is doing the anti-linux propaganda for M$, not acting in its own best interests as company.
C - the footgun of programming languages
Copies of SuSe and support that Microsoft can sell to it's customers as part of total solutions. Microsoft will also get a proportion of Novells sales of SuSe for the next 5 years. If SuSe sells well it could (but is unlikely to) be profitable for Microsoft.
.NET is a major one at the moment. I'll bet they'd rather Mono be the open source alternative (once embraced it can be extended and extinguished later with ease) than a whole different system controlled by someone else like Sun.
The deal is supposed to be about interoperability. Microsoft has a couple of standards that they would like to see adopted wider.
Microsoft paid Apple to use Internet Explorer and it gave IE important extra marketshare to crush Netscape.
Novell are willing to play ball with Microsoft and it will now be easy for Novell to add some proprietary software packages co-authored by Microsoft which plays nice with Microsoft products like Exchange or even runs IE7 on Linux. This would all be well covered with lots and lots of patents to prevent wider adoption.
End result is Novell have an advantage for companies which mix Windows and Linux which keeps companies tied to core Microsoft technologies long enough for Microsoft to come up with (copy) the next big thing.
the more they over-think the plumbing the easier it is to stop up the pipe
I'm not an attorney but this is not strictly true. The applicable legal doctrine to be invoked is known as laches. A quickly Googled search brought up this discussion, which, while somewhat directed to lawyers, gives a gist of what an accused infringer can do to mitigate damages after having been judged to infringe valid patent claims.
Basically, invoking the laches defense will prevent all infringing activity prior to the filing of the suit from being included in any damages, but will not prevent a possible assessing of damages after the file, not bar the judge from issuing an injunction to stop further infringement. The patent law also provides a time limit of six years prior to the filing date of the suit for assessing damages; this time period has been used by judges in the consideration of the laches question (see second link for the full discussion of how this works).