Mr. Ballmer, Show Us the Code

DigDuality writes "A new campaign, Showusthecode.com, requests every leader in the Linux world, and companies invested in Linux, to stand up and demand that Steve Ballmer show the world where Linux violates Microsoft's intellectual property. He has been making these claims since the Novell-Microsoft deal. If Microsoft answers this challenge — by May 1st — then Linux developers will be able to modify the code so that it remains 'free' software. If such infringing code doesn't exist, we will have called Microsoft's bluff. And if the campaign garners enough attention and if Steve Ballmer maintains silence, then the community and companies behind Linux can take the silence for the admission that it is."

Comments

OK, here's an example

[Anonymous Coward]

Patent #5845280, "Method and apparatus for transmitting a file in a network using a single transmit request from a user-mode process to a kernel-mode process". Compare this with the Linux (and BSD) SendFile() API.

Yep, that's a patent violation.

Re:OK, here's an example

[adrianmonk]

Patent #5845280, "Method and apparatus for transmitting a file in a network using a single transmit request from a user-mode process to a kernel-mode process". Compare this with the Linux (and BSD) SendFile() API.

I'm not sure I buy that sendfile() (not SendFile(), by the way) is really a violation of that patent. In particular, the patent abstract says this:

the requested file is retrieved from the secondary data storage device and placed in kernel-mode accessed memory (e.g., cache memory). After the requested file information is stored in the kernel-mode accessed memory, a kernel-mode data transmission procedure transmits the requested file information directly

The way I read that, this patented mechanism always loads the entire file into RAM before starting the transmission. Does sendfile() really operate in this manner? The way I understand it, in effect it just pushes the read()/write() loop into the kernel. But the virtual memory subsystem will typically fault in data from the filesystem (secondary storage) in a lazy manner. There may be some read-ahead caused by the disk driver or the filesystem, but if you open() a 500 MB file and then call sendfile() on it, the kernel is not going to read the entire 500 MB of data into RAM first.

I realize that's picky, but I'm assuming patent interpretation is inherently picky. Also, another technical point: sendfile() doesn't necessarily read from disk and write to the network. It just takes two file descriptors, so I don't see any reason why it couldn't be used to copy from one network connection to another (e.g. for a proxy server), or from disk to disk, or from /proc to /dev/tty, for all I care. Therefore, it seems to me that sendfile() by itself cannot be an infringement. You would have to write code that opens a disk file and a network connection and then calls sendfile() on the two in order to have infringement. (Not that there isn't code out there that does this; I think that's why sendfile() exists in the first place, after all...)

Re:Why do they even need the code?

[iPaul]

I would be stunned if Linux doesn't "infringe" on some patent that Microsoft holds. There have been so many patents issued for so many crap ideas that it may be impossible to build anything without infringing on someone's patent. (And in some cases two people hold different patents covering the same thing). The patent in question could be as *stupid* and possibly *indefensible* as "method of communicating with a computer using a keyboard." But they won't fire a shot. Get used to phrases such as "Our attourneys are examining the matter and we don't want to comment on possible litigation." Also get used to Microsoft trying to decide how to pursue the matter, and there are so many ways. It will scare off business users, who might be considering 10,000 desktop roll-outs, to pass on Linux to avoid lawsuits. If they actually go to court they could loose (and it would cost s lot of money). IANAL, but I would imagine they would start building a case by threatening vendors into a Novel style deal, if they actually do anything at all.

Naive

[Quarters]

"if Steve Ballmer maintains silence, then the community and companies behind Linux can take the silence for for the admission that it is."

No, they can't. Silence does not equal tacit admission or approval. The patent holder can keep their mouth shut about everything until the patent has all but expired and then go crazy sue-happy to their heart's content. Unlike trademarks patents don't have to be defended to remain valid.

Instead of a stupid mainfesto-rant web page the "community" (and boy do I hate that term being used in place of "users" or "developers" all to often) should instead be reading through Microsoft's patent portfolio and using that to determine if Linux is infringing. That's the point of patents....the patent holder is given an exclusive lock on the technology, but only if they share their idea with the world.

Re:Naive

[Anonymous Coward]

LACHES, DOCTRINE OF - Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; Neglect to assert a right or claim that, together with lapse of time and other circumstances, prejudices an adverse party. Neglecting to do what should or could, have been done to assert a claim or right for an unreasonable and unjustified time causing disadvantage to another.

If it can be shown that "Linux" attempted many times to insure they were non-infringing, yet MS continually denied Linux the ability to know, *refused* to identify the infringement and mitigate damages, a court could deny them the ability to enforce their patent(s). And just saying "Linux infringes" isn't enough. MS has copies of Linux. They know. They are not just neglecting to assert a claim, they are intentionally refusing to assert a claim for the purpose of using the unreasonable and unjustified time to promote FUD and cause disadvantage to Linux.

That the "Open Source Community" is proactively demanding to be told of the infringement goes far and beyond the Laches Doctrine (IMHO, IANAL), since it could demonstrate that MS is intentionally and maliciously, not just simply neglecting, procrastinating to enforce their rights.

Re:Cease And Desist

[k7net]

It's still viewable here http://mirrordot.org/stories/ba5d61395d9835048d6fe ecddc7f4e24/index.html

Re:Brave!

[mgiuca]

I think the point is that is MS actually does sue Linux users, there will be a huge retaliation. (And there always has been this threat). So they won't.

Before you say "won't that nullify the point of this site, since it won't prove anything about whether MS has patents or not", I'll point out that if "we can't sue or you'll retaliate by suing us" is MS's response (or excuse for not doing anything at all), then it proves that they can't do anything about it and we can get on without all this FUD.

It would also serve to show that they are equally, if not more, in violation of the open source community's patents than we are of them.

I was also interested to read that the original study (the "283 patents" which Ballmer refers to) was actually a finding that Linux contained 283 potential patents in total. It estimated that 1/3 of the patents were owned by the OS community companies themselves (eg. IBM). And Microsoft owned just 10% of them - which if my calculations are correct is just over 28 patents, not over 200 as Ballmer claims.

These guys have totally lost the plot

[suckmysav]

Ballmer is carrying on about "Intellectual Property" (ie patents), not copyright infringments.

In patent cases there is no "code" to be shown because theer is no allegation that any code was in fact stolen.

MS and their lawyers will be laughing themselves silly over the amateur hour antics of these dingbats.

Re:These guys have totally lost the plot

[Anonymous Coward]

//Ummm.

No.

All they have to say is "Linux performs task X and task X is covered by our patents P1, P2 and P3.//

Ummmm.

No.

A patent covers a method or concept of achieving a task.

What Microsoft have to do is show "Linux performs task X using the exact same method as covered by our patents P1, P2 and P3."

To show that Linux uses the same methods as described in a valid Microsoft patent, then (1) the patent would have to fully describe the method, and (2) Microsoft would have to identify the Linux code that implemented the same method.

This is all very unlikely, because Microsoft likes to keep "interoperability" methods secret (and therefore not patented), and Linux (demonstrably) evolves its own methods, and Linux in the first place is based on POSIX methods, not Windows methods (or even VMS methods, which Windows is based on).

In the unlikely event there is a real patent issue, then to resolve that issue, Linux would then either have to (1) remove the code for task X, or (2) replace the existing code for task X with new code that used an entirely different method of achieving task X, or (3) show another published piece of code that implemented the same method before Microsoft patented it, or (4) pay Microsoft a license fee per user to get permission to use Microsoft's method of implementing task X.

Of the four possible remedies for patent issues, only number (4) is not really viable for Linux.

Re:Good Odds.

[Anonymous Coward]

No, its operating revenue for the fiscal year ending June 30, 2004 was $36.8 billion (source). Its operating profit for the fiscal year ending June 30, 2006 was $16.5 billion (source). So basically your statement is wrong, based on a misunderstanding of finance (equating profit with revenue) and out-of-date. The good news though is your conclusion "$1.5 billion is not chump change to Microsoft" is probably accurate. And since, in my opinion, the vast majority of posts on this subject seem to draw the wrong conclusion based on false statements, your post that draws the right conclusion based on false statements deserves to be promoted. So MOD PARENT UP!!!

Re:It proves nothing

[John Hasler]

It isn't just that they own patents that they are not enforcing. It's that they are attempting to use the threat of infringement litigation to harm competitors without giving enough information for the competitors to mitigate the damage and not actually filing suit. The courts don't like that and have developed the concept of a declarative judgement to deal with it.

Re:Of course he's not going to show you the code

[Anonymous Coward]

In order to infringe upon a patent in Linux, it would have to be in the source code. It is not a large onus to ask the accuser to identify the infringing materials. In order to call it infringing they would have to say what it infringes upon.

Re:I like those odds.....

[phantomfive]

So - how easy would it be, for Ballmer to find a chance similarity between linux and vista, and how would you distinguish between this and real similarity? (homoplasy vs. homology for you evolutionary biologists out there).

Impossible to say, really, but I would guess that the SCO unix code would be a lot more similar to linux than windows, and they weren't able to find anything (should I say 'yet?'). So I find it unlikely that they will find anything in the windows source code, which is much different.

Re:I like those odds.....

[reversible physicist]

I think your nuclear war analogy is very apt: if there weren't substantial risks of retaliation, MS would have litigated already.

The hope of entirely avoiding this issue by avoiding all MS patents seems forlorn. Microsoft holds over 6300 issued US patents directly as the assignee (based on a quick search at uspto.gov), and about 10,000 patents worldwide (see this article). Many of them cover obvious ideas that are hard to avoid using. Proving that a patent claim is invalid based on obviousness is not easy. From the US Patent Office point of view, if an idea has clear benefits and was not in use at the time of the invention (i.e., no prior art), then it wasn't obvious. So in practice you're usually reduced to trying to find prior art. And of course you have to prove all relevant claims invalid.

Having said this, it's probably still important to avoid any truly innovative ideas that MS owns. Litigating based on these seems like less of a risk for MS.

Re:I like those odds.....

[morleron]

As a libertarian and long-time Linux user I agree wholeheartedly with your comment. In tact, I think that any libertarians who take the time to study the whole FOSS movement will find themselves drawn to it because of the philosophy of maximizing freedom and lowering the barriers to entry in the computer software marketplace that is the basis of the FOSS movement. I've had several discussions about this with fellow libertarians who were initially anti-FOSS because of its "communistic" heritage and have convinced them that their views were wrong by explaining the FOSS philosophy to them. I think that, if we'll spend the time and effort, we'll find those who favor freedom are among our most powerful potential allies in this struggle against Microsoft's attempt to maintain monopolistic dominance of the PC marketplace. We just have to get past the "free as in beer" vs. "free as in speech" definition problem, though how we'll do that I'm not sure.

Just my $.02,
Ron

Re:I like those odds.....

[twiddlingbits]

German court rulings don't apply anywhere but Germany. And Daniel Wallace failed to state a valid claim so the issue NEVER WENT TO TRIAL. Wallace was dismissed in pre-trial motions. The comments from the court are just that COMMENTS, not rulings. See your own link: May of 2005, Daniel Wallace filed suit against the Free Software Foundation (FSF) in the Southern District of Indiana, contending that the GPL is an illegal attempt to fix prices at zero. The suit was dismissed in March 2006, on the grounds that Wallace had failed to state a valid anti-trust claim; the court noted that "the GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers."[16] Wallace was denied the possibility of further amending his complaint, and was ordered to pay the FSF's legal expenses.