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Why Microsoft Won't List Claimed Patent Violations
BlueOni0n writes "Earlier today, Microsoft announced it will begin actively seeking reparations for claimed patent infringement by Linux and the open source community in general. One opinion on why Microsoft won't reveal these 235 alleged IP infringements to the public is that they're afraid of having the claims debunked or challenged — so instead they're waiting until the OS community comes to the bargaining table. But a more optimistic thought is that Microsoft may be afraid to list these supposed violations because it knows the patents can be worked around by the open source community, leaving Microsoft high and dry without any leverage at all."
Didn't they claim (after they signed the agreement) that Linux did not have any patent issues with Microsoft?
Where is their press release regarding this?
You get the feel there's some sort of end-game being played out here, but it all started well before it became clear Vista was going to be a dog.
The thing is, if Microsoft divulges what the FOSS patent breaches actually are, the community will respond promptly, and that particular bullet will have been fired. Until Microsoft's list is actually available, we don't know how much harm they'll be able to do, but there's not much chance they'll be able to inflict fatal damage to FOSS.
This patent grab is essentially a one-shot hit, and until now, was always more valuable as a FUD threat than an actual tool of coercion. Micah hacks the computer system so Nathan can win. Peter controls the radiation power, and the ending is a cliffhanger into the next and final episode. That Microsoft is choosing to use it now is indicative that they believe it's value as FUD has waned, and I suspect that has more to do with the outcome of their their patent proxy SCO's efforts than with Vista's failure.
I know this is Slashdot and everything, but at what point do the Microsoft stories become redundant?
Yesterday there was a link to a story on this issue, followed by lots of discussion as to why Microsoft is doing what they are doing. Today there is an opinion piece regarding the original story, in which someone lays out unsubstantiated brainstorms, all of which were covered yesterday.
I understand that Microsoft stories are huge traffic and comment generators on this website (any MS story is a guaranteed 300+ comments), but often times it seems as though the editors like to fuel the fire.
I don't know. Just thinking out loud...
- Scott
Where is the C&D from the FSF?
If someone is making a dubious claim, slap them with a c&d, and force this thing into court.
... hi bingo
IANAL, but I have some small knowledge of the law in this area...
If MS has knowledge that their patents are being violated, yet refuses to tell the violators exactly what patents they are violating and how, aren't the patent claims automatically nullified, since they made no good faith attempt to resolve the situation? If Linus or the OSDL contacts Microsoft and are rebuffed when they formally requests details of the patents in question and how they are being infringed, I would expect they would be laughed out of the courtroom in the best case. At worst, this might be viewed as a thinly diguised extortion attempt.
This is sort of like delivering a copyright infringement notice to a website without telling them what the infringing material is, and demanding the entire site be shut down or pay the claimants whatever they see fit.
My rights don't need management.
SCO failed Microsoft... so, as the old saying goes, if you want something done right, you gotta do it yourself.
Pamela Jones has an interesting take on this story: now that Dell has bought some of the SLES coupons that Microsoft bought from Novell, Microsoft has effectively distributed a GPLed Linux distribution, thereby granting an implied license to any patents it may infringe.
Damn, I just spent my last mod point, or I would mod you up, this is exactly what I was thinking. How the hell can the management be so dumb as to forget their OWN companies history with Apple? MS really sucks IMO. I wish the US govt. had some spine and had split the company to an OS division and a software division during the anti-trust thing. I guess MS knew what greedy politicians to bribe with money. Oh, but it is PC to call those bribes "campaign contributions".
General, you are listening to a machine! Do the world a favor and don't act like one.
While that may be true, it's also true (or alleged to be true) that Senator McCarthy held up a blank sheet of paper when he first claimed he had names of Communist conspirators/spies.
Furthermore, many of the people who were publicly humiliated and accused of being Communists were in fact nothing of the sort. Unfortunately, the problem with defamation is that once the slander/libel is out there, it's really hard to retract. Especially if the party making the outrageous claims is a respected Senator who gets to mobilize government resources to harass people. McCarthy's abuse of the system was his way to attack political opponents, not get rid of real Communist spies.
While it's quite probable that there are some real patent violations in the Linux kernel and in the source code of various GNU tools, that's about all you can say. Whether these infringed patents are even valid is another matter -- and you can certainly bet that FOSS authors are going to go after at least some of Microsoft's patent claims on the grounds that the patents are invalid. For each patent that gets invalidated, Microsoft's patent portfolio becomes just a little bit less valuable...
So it's not in Microsoft's interests to divulge just which patents they feel have been infringed. Worst case scenario, they could lose a good chunk of their portfolio and still have nothing to show for it because the remaining patents that withstood scrutiny might be found to not apply; those patents that do apply could be easily worked around with a modest investment of engineering effort.
What makes me wonder is why Microsoft is bothering to take a page from SCO's playbook. It hasn't worked too well for SCO, so why does Microsoft think they'll fare better with the same strategy?
To tie this back to the McCarthy analogy: even if Microsoft is right that there are infringed patents (which is statistically likely), there's no guarantee that Microsoft has done the due dilligence to ascertain which specific patents have been infringed and leave no margin for doubt. Microsoft has broken down the numbers by OS component (kernel, "GUI," etc.) to tell us how many patents they believe have been violated by each component, but again, we only have their word for that. For all we know, Microsoft is trolling and pulled these numbers out of thin air. Kind of like McCarthy's list.
This seems like a pretty obvious fishing expedition. You know, the kind that involves big nets that scrape the sea floor and damage coral reefs, to use yet another tortured metaphor.
then they ridicule you,
then they fight you,
then you win." -
-- Mahatma Gandhi
Seriously, Microsoft is getting ready to pull off their kid gloves, now. They are really, truly, in a rather scary position.
1) Their flagship product, Microsoft Windows, is selling very softly. Word on the street is "don't buy until Service Pack 1, at least". (Told to me by our local computer store, I might add) Dell has reverted to Windows XP. Lots of public institutions are making very public noises about switching to alternatives, such as Ubuntu. What's worse is that some are actually doing it, and it's working. Apple OSX is ballooning. People are sick of viruses and dumb security alerts. The cost of supporting Windows clients has been rising almost exponentially as the number of band-aids required to keep a Windows system running has exploded. Anti-virus, Anti-spyware, Firewall, Malicious Software Removal kit, r00tkit detectors, frequent software updates, it's just getting to be too much for any reasonable non-technie to manage.
2) Their next big product, Microsoft Office, is similarly under heavy assault. The Massachussetts ODF debacle brought to the forefront the basis of Microsoft's lock-in, and jurisdictions are switching rapidly to ODF, PDF, and other open formats. Just today, we saw Norway joining the fray.
3) Their big ace in the hole is the Windows API. But they're losing that on several fronts:
3A) The Windows API is the cause of many security problems, since it's a buggy, insecure, festering pile.
3B) Even so, it's being emulated, warts and all with increasing effectiveness with the WINE codebase.
3C) Lastly, it's just not as relevant anymore. New apps today are commonly web-based, partly to avoid the problems inherent in client-side software.
Case in point: I had a school contact me JUST TODAY and ask if our product (normally Windows/Mac) would work with WINE. (No need for WINE - it's GTK-based)
4) They've almost completely failed to diversify their product line despite trying for over 10 years to do so. They have other, profitable products, but the amount earned by MSN and Xbox is a pittance compared to what Windows and Office earn for them.
So why wouldn't they fight back with whatever they have? They're SCARED SILLY. They have BILLIONS of dollars in their war chest, and their revenue stream might be flat, but there's still an INSANE amount of cash available. They won't take this lying down, folks.
Get ready for the fight of your lives - this will make SCO look like yesterday's donuts.
I have no problem with your religion until you decide it's reason to deprive others of the truth.
If MS really had this big patent portfolio on which Linux was infringing, then Novell would have been in a very weak bargaining position.
Both parties are in awkward positions, if pro-Free-software legal experts are correct in their interpretation of the MS-Novell agreement and the GPL.
Increasingly it looks like the agreement will be in conflict with GPL3, and as software included in SLES migrates towards using GPL3 Novell will either have to freeze SLES at the last version of code relesed under GPL2 or somehow find their way out of the agreement to stay current.
MS is in an awkward position because in their end of the deal they are obligated to sell SLES certificates. Technically they are now a Linux distributor. To sell a distribution you MUST abide by the GPL--even under GPL2 when you distribute GPL software you MUST make the source code available without restriction. It does not matter if the code implements a patented invention, MS could not charge a royalty/licensing fee to restrict use of the application or its source code without violating GPL. If MS is serious about trying to enforce its patents it must immediately terminate its agreement with Novell. GPL3 would not make the above situation any different for these existing patents from what I understand--what GPL3 does is keep authors of GPLed code from creating NEW patents based on the functionality of that GPLed code (could a lawyer out there tell me if that is a valid interpretation?).
I'm not convinced MS will get very far with this latest cage-rattling. I suspect many of the involved patents are pretty dubious in nature--and some may be very old and could be close to expiration by the time litigation has finally reached a conclusion (another reason why they wouldn't pull a SCO and head into an embarrassing, protracted legal battle over IP). I also suspect that the Linux kernel itself violates few if any patents at all given how architecturally different it is from the Windows kernel. Microsoft would most likely go after the more outer layers of the OS onion--those involving interoperability with Windows. That is, after all, the stated focus of the MS-Novell deal.
I think we'd first see action against Samba for example. Mono would've been a target as well, but the Novell agreement took care of that. Frontpage interoperability with Apache is another likely Free software target (I realise not all of their targets are GPL, though that is their prime concern). ODBC drivers that let Linux talk to Microsoft databases might be in the crosshairs. This strategy could be part of the "if you can't beat them, join them" plan: If Vista and the corresponding to-be-released server OS prove to be disappointments over the long term the Windows platform as it exists today may be allowed to wither and die on the vine, to be replaced with something more Linux-like (or perhaps BSD-like).
If it does indeed "pull an Apple" and underpin its OS with such Free content it'll need a differentiator--and they intend that to be backwards compatibility with what will be "legacy Windows", which will also allow them to maintain their vendor lock-in. That key piece of the puzzle cannot be Free under the MSFT business model so the goal of more aggressively enforcing patents is likely to explore the feasibility of taking the "MSFT/Linux" or "BSD Windows" route whilst maintaining the leverage they enjoy as a monopoly.
Their investment in "open source research" as of late has provided them with some ammunition, however I think they are still too clumsy with the gun and will only be able to shoot themselves in the foot with such a clumsy strategy. MS is resilient though, so I hope defenders of Free software can keep them off balance before they recover.
There are plenty of reasons why MS wouldn't be able to stall as long as SCO, and I'm sure MS knows that. That's why they've been using SCO so far, instead of doing it all directly.
Think about it. If MS were to actually start suing Linux users, it would make the front page of most newspapers in the US. The last time Microsoft was that involved in legal disputes in the US, it took a presidential impeachment to distract the public and the press. Microsoft would be under far more scrutiny than SCO, and the truth about their baseless claims would come out. By the time the dust settled and the judges dotted all the i's and crossed all the t's, precedents would have been established that would destroy Microsoft's core business practices. And because of the importance of the case(s), all the Fortune 500 companies would be demanding a speedy trial so that they could get on with running a business.
The more MS stalls, the more solid the case against them will be. If they come up with an excuse, it will be analyzed and probably debunked quickly, leaving them with fewer options. If they don't dig up every technicality they can think of, then they will lose sooner. The only option they have now to avoid inevitable humiliation in court is to stay out of court. Unfortunately for them, their FUD alone might provide enough grounds for somebody else to sue them, thus setting up the showdown they can't afford to have happen.
One thing is certain: once MS gets into court about these issues, they won't get to decide when they leave (just like SCO cannot drop charges and walk away). That makes it a huge risk for them to ever get near a court with their FUD.
And then, there is always the fact that IBM's Nazgul could beat the shit out of Microsoft with their all-encompassing Patent Portfolio. That might actually be the best delaying tactic: get into long fights with IBM, and make sure the real cases can't proceed until they are settled.
Microsoft mentioned the Linux kernel proper, the "Linux GUI", and OpenOffice.org as the software in violation of Microsoft patents. None of these are owned by the FSF, and only Gnome (if that is what the "Linux GUI" refers to) is the only GNU project among them.
There are two good reasons why no FSF owned code has been challenged:
1) The FSF is a legal entity, and can actually defend itself. The FUD factor is much higher for the project with no/many owners. Who is going to stand up for them?
2) The FSF is very careful about patents, it is quite common on the GCC list to see comments along the line of "the obvious technique for doing this is patented, but I found an alternative way to do it, so let's implement that". The core GCC developers seems to read patents in order to know what to avoid.
The obvious exception seems to be OpenOffice.org which is owned by Sun, but Microsoft has a cross-license agreement with Sun (like most of the large technological companies has with each other), which may make it difficult for Sun to defend OpenOffice.org. After all, thanks to the cross-license agreement, Microsoft is not accusing Sun of any wrongdoing.