Microsoft, Sue Me First

corigo writes "Supporters of free and open source solutions have thrown down the gauntlet at Microsoft's feet. Christian Einfeldt of Digital Tipping Point says 'Sue Me First,' and he's not alone. More and more people are signing up and challenging Microsoft to put their lawyers where their mouth is. The open source community is far from running scared. Will Microsoft step up to the plate, or are they just continuing a scare campaign with no real ability to leverage the patents they claim open source is infringing?"

Comments

Re:Does this "challenge" have any legal significan

[Slow Smurf]

Trademark != Patent != Copyright.

Re:Does this "challenge" have any legal significan

[DragonWriter]

I remember stories about McDonalds and Disney taking aggressive action to defend their exclusive rights even against small-time infringers with the justification that refraining to sue could have been construed as abandoning their trademark. So, if microsoft does not sue these people, would it be tantamount to abandoning their right to sue later, or is it all just a bunch of meaningless hot air?

IANAL, and you shouldn't rely on this as legal advice, YMMV, etc.:

It might affect their ability to sue the particular people for reasons unrelated to abandonment (statutes of limitations, laches, and various estoppel theories), especially if it can be shown that Microsoft knew about the particular facts that it would allege are violations by the particular users early on and didn't act.

It probably won't affect their ability to sue other people, though.

But trademarks are very different from copyrights, and there is nothing in copyright similar to abandoning a trademark. Trademarks are protected based largely on use, copyrights are not.

Re:Can you force someone to sue you?

[DragonWriter]

Is there actually a legal way to tell them to "put up or shut up"?

Sort of: someone who would be guilty of infringement if the patent claims Microsoft is asserting were true and has reasonable apprehension of a lawsuit could themselves bring suit for declaratory judgement.

It also may be possible that a suit could be brought for defamation by someone adversely affected by the claims; that would be a harder case to advance, but carries the possibility of actual damages.

Declaratory relief action

[christian.einfeldt]

hi,

I am a lawyer with a very small civil practice in San Francisco. IMHO, t would be possible to file a declaratory relief action. Almost anyone who has been encumbered by a Microsoft patent threat would have standing to do so. I would be willing to participate in such a lawsuit, obviously, since my name is the first on the TFA "Sue me" list.

In order for a declaratory relief lawsuit to work, we would need to have coordinated action by some of the other large stakeholders whose businesses would be impacted by Microsoft's questionable PR patent campaign against FOSS. That takes time, planning, and money, though.

In the meantime, I wanted to take some action now to see if we could at least get a show of hands of people who doubt Microsoft's questionable PR patent campaign. I believe that few in the FOSS community really believe that Microsoft's purported patent claims have merit. So we probably need to shout really loud, so that the rest of the world can see and hear us. We don't want people to believe that a) We in the FOSS community are doing anything that is illegal, because we're not; or b) that we have doubts about whether or not Microsoft's questionable PR patent claims have merit (they don't, IMHO).

IMHO, we really can't allow Microsoft to dominate the airwaves with its questionable patent claims against us.

Christian Einfeldt,
Producer, The Digital Tipping Point