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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?"
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?
Is there actually a legal way to tell them to "put up or shut up"?
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Wouldn't it have been pointed out in the Lindows case? I mean if Lindows is stealing patents AND your trademark, wouldn't it be an open and shut case?
The open source community should call Microsoft's bluff and file a pre-emptive class action lawsuit. The lawsuit would basically challenge the court to decide whether or not Linux and other open source projects violate Microsoft's patents. This has been done before when a company is under threat of lawsuit, they preemptively ask the court to decide if what they are doing is legal. This removes the cloud of a potential lawsuit so that the threatened company can conduct business. Of course you would want to file the lawsuit in Federal court in San Francisco.
from digg.. Much has been written about Microsoft's allegation of patent infringements in Linux (by which I'm sure they mean GNU/Linux ;-) ). I don't think Microsoft is the real threat, and in fact, I think Microsoft and the Linux community will actually end up fighting on the same side of this issue. ....
And I'm pretty certain that, within a few years, Microsoft themselves will be strong advocates against software patents. Why? Because Microsoft is irrevocably committed to shipping new software every year, and software patents represent landmines in their roadmap which they are going to step on, like it or not, with increasing regularity. They can't sit on the sidelines of the software game - they actually have to ship new products. And every time they do that, they risk stepping on a patent landmine.
They are a perfect target - they have deep pockets, and they have no option but to negotiate a settlement, or go to court, when confronted with a patent suit...
Read the rest here.
http://www.markshuttleworth.com/archives/118
"Whether or not they would be upheld in court is a different matter, but it would be enough to prevent a small group of programmers from threatening their cash flow."
Apparently not because the small developers are daring MS to sue them.
I see this going the way of lindows. Ms sues Lindows. Lindows challenges Ms trademark. Ms knows they are going to lose. Ms pays lindows a bunch of money to withdraw their suit.
The way I see it Ms will sue and then pay the people they are suing in exchange for dropping their challenge to Ms patents.
This could be a good money making scheme and I think Ms is stupid enough to actually take these people up on their dare.
evil is as evil does
If these people actually send letters to MS asking for a lawsuit or precise disclosure of the infringements, then MS has three choices:
1) actually must sue them
2) disclose what specific code infringes
3) lose the ability to enforce their patent rights against people who requested one of 1 or 2.
4) Profit!
Now, I know that patents normally don't act this way, but in this case they do. MS has been publicly stating that the software infringes. If somebody asks MS directly what specific code is infringing, and MS is not forthcoming, that will prevent them from winning a later suit against that person. Microsoft must make an effort to resolve the situation, or their later suits will be dismissed according to the doctrine of laches.
So if you are confident that your software doesn't infringe on any valid patents, go ahead and send MS a registered letter asking for the details of the infringement.