Ballmer Suggests Linux Distros Will Soon Have to Pay Up

An anonymous reader writes "Via Groklaw comes comments from Microsoft's Steve Ballmer at a UK event, in which the company once again threatens Linux distributions that haven't signed up with their program. '"People who use Red Hat, at least with respect to our intellectual property, in a sense have an obligation to compensate us," Ballmer said last week ... Ballmer praised Novell at the UK event for valuing intellectual property, and suggested that open source vendors will be forced to strike similar deals with other patent holders. He predicted that firms like Eolas will soon come after open source vendors or users. Microsoft paid $521m to settle a patent claim by Eolas in August.'"

Comments

Which IPs in particular?

[ubrgeek]

I couldn't tell from the article, but which intellectual property is MS saying open source solutions are infringing on? Or am I misunderstanding the issue?

Re:Which IPs in particular?

[j35ter]

RTFA!!!
It says *Balmer* made the statement. Why do you think there might be any truth in his saying ? :)

Re:Which IPs in particular?

[Dunbal]

I couldn't tell from the article, but which intellectual property is MS saying open source solutions are infringing on?

      Not just from the article. They refuse to say, have been asked to spell it out, and continue to threaten without making any specific claim. After a while you just learn to tune them out.

Re:Which IPs in particular?

[germ!nation]

If SCO has taught us anything it's that you don't have to tell anyone the details, even the judge.

Re:Which IPs in particular?

[Jaxoreth]

which intellectual property is MS saying open source solutions are infringing on?

The ones in the flying pink teapot the size of a refrigerator.

Re:Which IPs in particular?

[Anonymous Coward]

Ahhh, gotcha.

A chair throwing patent.

Re:Which IPs in particular?

[Jerry]

They refuse to say, have been asked to spell it out, and continue to threaten without making any specific claim.

Which is exactly why they are, by now, UNENFORCEABLE.

The IP laws require that when an IP owner notices an infringement they have an obligation to notify the infringer of the exact nature of the infringement in order to allow them to mitigate the damages by removing the infringement. Failure to do that will render any subsequent claims for damage moot.

Re:Which IPs in particular?

[dpilot]

Amusing thought...

With patent infringement, there's "accidental infringement" and "willful infringement," with treble damages on the latter, because of evil intent.

At the moment, the Linux camp is milling around saying, "Patents, what patents? Show us the patents!" and it can be pretty well "documented" with press releases and blogs. Seems to me that it would be pretty darned hard to show any sort of evil intent.

But there are also laws against frivolous lawsuits, SLAPP, and such. Seems to me that threatening IP action without specifics, without opportunity to mitigate, especially when the threatenee has been asking for those specifics, ought to go a long way to landing the threatener in that "bad lawsuit" camp.

Re:Which IPs in particular?

[hypnotik]

Actually, that would be trademarks.

Re:Which IPs in particular?

[ozmanjusri]

For what seems to be the nine billionth time, no.

Make it 9000,000,001.

The non-presumptive laches defense applies specifically to this circumstance.

Although a presumption of laches arises where the patentee brings suit more than six years after gaining actual or constructive knowledge of defendant's infringing activities, the defense of laches is not defined by any specific period of time. Any period of time may be found to amount to unreasonable delay, depending on the facts present, although shorter delays are less likely to trigger the defense. http://www.converium.com/2103.asp

Because the Open Invention Network and others have repeatedly requested that Microsoft identity the infringing code, the laches defence becomes non-presumptive much earlier.

Re:Which IPs in particular?

[walt-sjc]

Just posing a couple questions here...

Don't these kinds of threats put MS in legal jeopardy? Couldn't Linux companies sue MS claiming that Balmer's statements are harming their business, especially in light of the fact that MS refuses to identify these patents? I would think that this situation could cause more problems with the EU.

The DOJ of course is completely hopeless at this point, but other countries can still offer some relief.

Re:Which IPs in particular?

[arkham6]

This translates to:

We don't have anything specific yet,but we are busy digging through the source looking for infringing content. As soon as we get something even semi legit we will show you. Until then, we will make idle threats.

Re:Which IPs in particular?

[morgan_greywolf]

MOD PARENT UP! If you're not understanding what he's saying, due to all the legalese, it's this:

If Microsoft fails to sue a patent infringer, even though they have demonstrated that they know the infringement exists, then tries to file suit later, the doctrine of laches kicks in -- Microsoft failed to mitigate their own damages by bringing a suit as early as possible in order to get the infringer to stop. What this means is that, with the laches defense, Microsoft would lose standing to sue -- because if they were getting damaged by the 'patent infringers', they should have sued in a timely fashion.

The bottom line is this: Microsoft's claims of patent infringement are spurious, slanderous, and, since they invoked the name of Red Hat, a violation of the Lanham Act.

So here's what I say: after the SCO case gets dismissed, Red Hat, your next target should be Microsoft.

Re:Which IPs in particular?

[rtyhurst]

That's the whole point.

They *aren't* saying, they're just FUD-ing.

From a linked story at vnunet.com:

http://www.vnunet.com/vnunet/news/2200498/oin-calls-microsoft-bluff?vnu_lt=vnu_art_related_articles ...Mark Taylor, president of the Open Source Consortium [...] described Microsoft's tactics in damning terms.

"We say show us the patents," he told vnunet.com. "This has been the strategy against open source all along. It's precisely the same tactics as SCO used: implied threats and mafia techniques. This is just FUD. It's smoke and mirrors. "

Taylor added that Microsoft is sorely mistaken if it hopes that its actions will slow down the spread of open source. ....

M$ has a history of trying to protect and extend its domination over the software market with legal wars and threats of legal wars.

With the failure of VISTA, and IE getting serious competition from Firefox, M$ isn't so much a software company any more so much as a litigation company.

I say they have richly earned the thumping they will receive at the hands of Open Source over the next few years.

Re:Which IPs in particular?

[Linker3000]

Dunno, but I note that at least one M$ product infringes my Patent #911112999:

"A method of arranging for the decimal value 65535, and calculations resulting therein, to be consistently rendered as 100000 so as to confuse the shit out of those persons performing the calculation"

Re:Which IPs in particular?

[TheRaven64]

The UK patent office tends to be pretty good at not allowing software patents. The common work-around is to file for an EU patent in Ireland (which does accept software patents, in spite of their illegality). This is then a valid, but unenforceable, patent in the UK. The purpose of doing this is to allow you to enforce the patent in the UK (and the rest of the EU) if software patents become legal.

The UK government responded to a petition against software patents with a clear statement that they should not be granted. While this is not technically binding, it would go a long way in court to clarifying the spirit and intent of the law, should it be raised.

Re:Which IPs in particular?

[nomadic]

That doesn't matter. MS has much more money that Redhat and is able to sue them to oblivion even without proof.

Red Hat has enough money to protect itself. A good legal team costs a ridiculous amount of money, but at some point the cost will plateau. Throwing more money at them doesn't get you "better" legal representation.

Re:Which IPs in particular?

[pgaffney]

From Yahoo Finance/GOOG:
Market Cap (intraday)6: 192.87B
Enterprise Value (9-Oct-07)3: 177.78B
Trailing P/E (ttm, intraday): 50.15
Forward P/E (fye 31-Dec-08) 1: 31.46

How many Linux servers does Google have?

IBM + GOOG > MSFT

Kill! Kill! Kill!

Re:Which IPs in particular?

[Chemicalscum]

It seems to me that these statements by Ballmer are a clear Lanham Act violation under Section 43(a)(1)(B) which can be used when false or misleading statements are alleged to have hurt a business.

Except since Ballmer was speaking in London it is not clear if US law applies here - maybe thats why he made his statement there. Turn up the FUD escape the legal consequences.

Re:Which IPs in particular?

[fork_daemon]

Don't these kinds of threats put MS in legal jeopardy? Couldn't Linux companies sue MS claiming that Balmer's statements are harming their business, especially in light of the fact that MS refuses to identify these patents? I would think that this situation could cause more problems with the EU.

The DOJ of course is completely hopeless at this point, but other countries can still offer some relief. In my opinion, Companies like RedHat, IBM and the members of the OIN should counter sue MS for trying to threaten their customers without giving any proof to their claims. Everyone has been saying this from ever. If Linux infringes the patents, tell us which one. We'll redesign our code accordingly. If they do not tell what patents are being infringed, then there is nothing we can do to find out that. Windows code is not open. Linux is. Everyone is free to look at the code. It is more likely, MS infringed on GPL and other opensources Licenses by copying code from Linux to be used by them. Their code is binary. No source to check. How are we to know what they got in there?

Re:Which IPs in particular?

[arkhan_jg]

The patents are a meaningless threat in the EU at this time, as software patents are currently not legal or enforceable across the EU. Given that, the EU antitrust court is unlikely to do anything with regards such threats that are pretty much only relevent within the US. Fraid you're stuck with needing the DOJ to instigate antitrust proceedings. I share your lack of belief that the DOJ will actually do anything.

Re:Which IPs in particular?

[initialE]

I for one see a problem with this line of defense. If Microsoft fails to mention which patents are allegedly infringed, then when they do eventually show their hand, they can claim that it was a patent that was not initially in the scope of their claim, but one that was only recently discovered by their legal department. And who could blame them, having to wade through an ocean of their own IP. A judge could be easily persuaded to believe this.

Re:Which IPs in particular?

[Billly Gates]

However Linus has stated publicaly and in emails to developers that they should not seek out patent filings due to tripple damages of willful infringement. THis can be used to show Linus had willful intent to steal the ideas of Microsoft and of course their lawyers will say the fact that he said this after SCO sued for patent infringement showed foreseeable harm since they were all aware they could be sued again. sigh

It will not be good for Linus in court.

Also free developers can not afford attorneys and an injuction to halt linux development could also be a real possibility. THe good news is IBM and Redhat could file a friend of the court and let linus continue on the kernel tree on of their serves since they have the resources to fight MS.

However many corporations have anti gnu and linux policies in their IT deparments. Several banks already ban it thanks to SCO and something like this from MS will scare many CIO's to steer clear of it to avoid getting fired in case they open their employers to liability. "Just pick windows, its the safe bet!"

What shocks me is that this is legal.

Re:Which IPs in particular?

[z0M6]

For those who are wondering what the lanham act is:

http://en.wikipedia.org/wiki/Lanham_Act gives some explanation without too much legalese.

Re:Which IPs in particular?

[russ1337]

they can claim that it was a patent that was not initially in the scope of their claim

True, they could... but somewhere in the deepest darkest depths of Redmond there is a safe which contains the list of 135 Patents they think have been infringed. If that list was ever discovered after they changed their mind, then they'd be in some serious trouble..... i.e lying to that Judge.

Re:Which IPs in particular?

[XenoPhage]

What shocks me is that this is legal. Why should this shock you? If there's no law against it, it's usually because no one has taken the issue to court. We're talking about a multi-billion dollar corporation, known for using strong-arm tactics, threatening what amounts to a bunch of independent developers who probably have enough trouble ensuring that there's food on the table and a roof over their head.

Think of it this way, the big corporation has money to burn on this issue and can easily wait out the small developer. It's extremely likely that the small developer, who can't afford a high powered lawyer, will run out of legal funds very rapidly and have to give up on the case. Microsoft isn't after money, at least not directly. They're much more interested in halting the development of an OS that, over time, has the potential to crush their business.

The sad part is that they can halt Linux growth just as quickly, and just as effectively, by never actually taking this to court. They're already off to an amazing start with the "IP deals" they've made with various vendors. The fact that some vendors are making deals with Microsoft is enough for all the PHBs throughout the world to sit up and take notice. While Linux may be the better alternative in many cases, PHBs will definitely err on the side of caution and try to "protect" the business by staying out of the murky waters. Better to deploy Windows and have receipts and licenses to prove it, than to deploy Linux and get sued later.

Regardless, I find it in bad taste. Instead of working to make a better OS, Microsoft is resorting to FUD. It's like the bully at school. He's big and mean looking, and you don't know if he can kick your ass or not. You're smarter, dress better, and will go farther in life, but he still scares you. Do you really want to stand up to him and hope you can deal with him? Or do you just hand over your lunch money and hope he goes away?

Re:Which IPs in particular?

[Courageous]

Don't these kinds of threats put MS in legal jeopardy? Couldn't Linux companies sue MS claiming that Balmer's statements are harming their business,...

It would seem to me to be a variation of Slander of Title, but whether or not a "variation" counts here I do not know.

C//

Re:Which IPs in particular?

[nomadic]

Couldn't Linux companies sue MS claiming that Balmer's statements are harming their business, especially in light of the fact that MS refuses to identify these patents?

In a lot of jurisdictions there's a civil claim for "tortious interference with business relationships", which I think this may fall under.

Re:Which IPs in particular?

[bzipitidoo]

The thing I find most troubling about all this is the general climate that allows such fud to have an effect. Ideally, Ballmer shouldn't even think of saying such things because they should sound incredibly stupid and pointless, and if he did have a brain lapse and said it anyway, he'd be laughed at, by everyone. And everyone could be sure that if he did try to bring some case to court, it'd be thrown out.

As it is, no one can be too certain how the courts will see an intellectual property issue. People can't be assured that even if the patent bullies and trolls lose any such hypothetical case, the targets won't get hurt anyway because defending against such a case costs money and distracts a business from their business. Recovering damages inflicted by frivolous lawsuits is far harder and less certain than winning frivolous lawsuits. Even if the lawsuit is never even brought (because it is certain to lose), it can still have an effect. The ones who shouldn't have to worry about any of this are the customers, yet the system is so crazy that even customers of businesses that might be in violation of patents (pretty much all businesses) have to worry. Until such time as the legal system is clarified and the economic system tweaked so there is no profit to be had by such behavior, people will be threatened with this stuff, and will have to evaluate the dangers.

Until there's good supervision of this playground, bullies will run amok. Ballmer might be smart, but he sure isn't wise, playing this fool high stakes "king of the hill" game. Instead of trying to make the playground more civilized, he's trying to be the biggest bully.

Re:Which IPs in particular?

[russ1337]

Oh, my mistake, they've actually said 235 patents,.

see here
and here
and here


But I do apologize for saying 135 instead of 235....

Re:Which IPs in particular?

[david_thornley]

There's also the fact that Microsoft is a publicly held company, and is required to seek profits. No matter how much cash they have on hand, they aren't supposed to use it frivolously. Not that this stopped SCO, but SCO wasn't much of a going concern.

Further, there's no guarantee that Microsoft will have a friend in the White House come January 20, 2009, and starting lawsuits to suppress competition could backfire in the next few years.

Finally, software patents are of dubious legality in the US. So far, nobody's gone to the Supreme Court claiming that they're invalid, and so the Supreme Court hasn't ruled. (One of the interesting notes on one of the recent patent cases the Supremes heard was one justice asking another if they'd ever held that software patents were legal, and being told "no".) All of the parties to patent cases going to the Supreme Court have had a desire to preserve legal software patents, and have been arguing over things like obviousness.

If a company actually likes software patents, it would be very dangerous to sue a company like Red Hat over patent infringement. Red Hat has enough money for good representation, and can afford to ask the Supreme Court if software is patentable. Microsoft very definitely doesn't want to risk that.

Therefore, Microsoft is just going to continue to blow FUD over this. It's by far their best strategy if they want to use patents for anything.

Re:Which IPs in particular?

[s4m7]

Couldn't Linux companies sue MS claiming that Balmer's statements are harming their business Sure. Show me the Linux company with a warchest that makes it worthwhile to pursue action against Microsoft's legal juggernaut. Even the theoretical maximum damages you could claim aren't worth the substantial risk of losing. If Microsoft has just one patent that's being infringed by just one Linux company, their claims are "valid" and your suit tanks. Meanwhile you've exposed yourself to counterclaims, and risk creating a lot of work and headache for the entire open source community. Nobody really wants to be a target. In addition, nobody is really suffering that much from MS's claims. Most people who know what they are talking about are aware that MS can't go after the *users* of their "patented technology" any more so than to enjoin their usage. Distributors are at least potentially liable for damages.

especially in light of the fact that MS refuses to identify these patents? Well that's their ace in the hole isn't it? As long as they won't identify a specific patent, they aren't limited to a subset of distros that provide, for instance, access to windows shares, ability to read/write ntfs partitions, RDP, or any other MS technologies that *might* be what they're talking about. You can bet that any non-legal personnel at MS will not disclose what patents they refer to outside of a courtroom, because as soon as they do they start limiting themselves.

Re:Which IPs in particular?

[Risen888]

Topic drift alert...

The sad part is that they can halt Linux growth just as quickly, and just as effectively, by never actually taking this to court. They're already off to an amazing start with the "IP deals" they've made with various vendors. ... PHBs will definitely err on the side of caution and try to "protect" the business by staying out of the murky waters. Better to deploy Windows and have receipts and licenses to prove it, than to deploy Linux and get sued later.

While I agree with your analysis, I don't think it proves your point (about halting Linux growth). FTR, I'm talking about the desktop here. Linux owns the server space, MSFT's hardly even a relevant player, that's not going to change. Money talks, and while MSFT's got a lot of it, so does IBM. So does Sun. So do lots of other very large and well-regarded companies. Shit, I'm drifting away from my already drifted point! Which is this:

The great big boulder that will be desktop Linux will never start rolling with business. Regardless of lawsuits, IP deals, FUD, or counter-FUD. Not gonna happen. There will always be an excuse somewhere up the corporate ladder to "play it safe" and stay with Windows. Whenever someone tries a "from the top down" push for Linux, MSFT buys them off or scares business away from them, and that's not going to change anytime soon either. Linux on the desktop, therefore, must come from the ground up. Which is good, and inevitable. That's how Free Software works. That's how Free Software has always worked, and it works well, and even though it's slow, it's a steady growth. The Linux userbase grows every year, while MSFT has nowhere else to go. It'll happen. Not only will it happen, basic economics dictates that it must happen.

Patience, grasshopper.

Re:Which IPs in particular?

[JWW]

There is only one company out there that champions Linux that could withstand this onslaught.

IBM

They also happen to be one of the few companies in the world that could effectively retaliate.

Look for it to go down something like this....

1) Microsoft threatens a Linux company, lets say.... Red Hat.
2) IBM buys controlling interest in Red Hat.

now it then becomes either.

Microsoft backs off this patent bullshit.

or

Global Thermonuclear Patent War.

Also, the amount of ill will generated by Microsoft should they choose to go after users directly instead of Linux companies. If they ever came after me looking for money because I downloaded Ubuntu. I would go from reluctant use of MS products to incredibly vocal sworn enemy of absolutely everything Microsoft really quickly.

Re:Which IPs in particular?

[mabhatter654]

Most engineering firms don't seek out patents for the same reason... it's better to work 100% independently without looking at other code or patents. Then if you do run across a patent, you have the lawyers tell you how to deal with it one claim at a time. You may only need to change 1 thing to not infringe and you can show a clean trail of independant research leading to different results. IF you make a policy of searching the patent database, then people may claim you were "trying" to get around their patents and the work wasn't your own. They may claim you willfully ignored THEIR patent amid all the others if you happen to infringe.. if you start a program to read them you have to read ALL of them, even the submarines and such you may not know about!!! It's wasted effort to still get sued.

Re:Which IPs in particular?

[JambisJubilee]

You can only break the laws of a sovereign nation whilst you are within the jurisdiction of that nation. That is part of the definition of sovereignty. If you are outside the USA, you can't by definition break US law.

Well that's a relief. I guess I don't have to hide my visit to Cuba. Oh, wait...

Re:Which IPs in particular?

[Pelekophori]

You can only break the laws of a sovereign nation whilst you are within the jurisdiction of that nation.

Not true. Lots of countries have extraterritorial legislation. For example the UK authorities can prosecute for sexual offences committed overseas against children under 16 by British citizens or residents. Several countries (eg Belgium and Spain) have laws which allow them to prosecute "crimes against humanity" in whatever country they occur. Thus Spain once tried to extradite General Pinochet from the UK to face trial for actions he committed entirely within Argentina.

But you do of course have to be within the grasp of the prosecuting authorities for them to enforce the outcome of any prosecution.

Re:Which IPs in particular?

[Paradigm_Complex]

(Interesting aside: A US aircraft is considered US territory while on the ground anywhere in the world. So does that mean a car with an NL sticker on it is considered Dutch territory while it is on the road anywhere in the world?) Does the Dutch government own every car with an NL sticker on it? I can tell you this much: Any Dutch embassy, in any country, is considered Dutch territory.

Re:Which IPs in particular?

[HermMunster]

Yes, at least in part. They are claiming the disclosure would have very Linux hack challenging each patent thus overwhelming the company.

What people should be doing is issuing certified letters to Microsoft requesting full disclosure with the notice that if they don't respond with the IP in question then all users are indemnified of all patents. Give them a time frame in which to proceed. Specifically state that the IP and Patents must explicitly be stated or the indemnification is automatic and global.

Re:Which IPs in particular?

[Grishnakh]

You can only break the laws of a sovereign nation whilst you are within the jurisdiction of that nation. That is part of the definition of sovereignty. If you are outside the USA, you can't by definition break US law. Whatever you did has to be illegal in both places.

Wrong (unfortunately).

US citizens get in legal trouble all the time because of things they did outside the US: visiting Cuba will earn you a big fine, for instance, if the US government finds out (and they do sometimes). US citizens who went to Thailand and had sex with minors have come back and faced criminal charges. Also, Dmitry Sklyarov was in jail for a while because he wrote a program that violated the DMCA, while he was living in his home country of Russia!

Anyone that steps onto USA soil, citizen or not, is absolutely subject to our (oftentimes stupid) laws for things they did outside this country in the past. Yes, it seems pretty ridiculous, but your assertion is clearly incorrect for anyone living in or even visiting the USA. I don't know how it is for other countries, but if you think about it, any country's government can arrest you and prosecute you for anything they want once you're inside their borders, laws be damned. So far, the USA is the only prominent country that seems to make a habit of it.

Re:Which IPs in particular?

[AnalogDiehard]

You can only break the laws of a sovereign nation whilst you are within the jurisdiction of that nation. That is part of the definition of sovereignty. If you are outside the USA, you can't by definition break US law.

That's like saying Al Qeada is not liable for the 9/11 attacks because they are based outside the US.

The Lanham Act is designed to protect US companies from bullying tactics. Ballmer bullied a US company. He's liable whether or not he made such threats on US soil.

Re:Which IPs in particular?

[smittyoneeach]

Aw, c'mon; they'll let you have IE7 on pirated Windows,
there's Vista,
Office2007's improved interfeces, and, of course,
OOXML!

What of Redmond's products couldn't possibly overcome all the ill will in the universe?

Re:Which IPs in particular?

[gstoddart]

However Linus has stated publicaly and in emails to developers that they should not seek out patent filings due to tripple damages of willful infringement. THis can be used to show Linus had willful intent to steal the ideas of Microsoft and of course their lawyers will say the fact that he said this after SCO sued for patent infringement showed foreseeable harm since they were all aware they could be sued again.

It can also be used to show that Linus made it a point of implementing the ideas that a skilled practitioner of the art could have reasonably come up with on his own.

See, if you do something which is fairly obvious, and you really had no idea someone had patented something that most anyone else could have thought of, then, you're not "willfully" infringing.

It's a stance which is actually designed to give you more legal protection. If I never look to see what is patented, I won't know until some wanker of a lawyer comes along and says I violated a patent. At which point, you might have a chance to have the patent overturned on grounds of 'obvious'.

If you knew you were violating a patent, then you've willfully violated, which gets your triple damages.

When I write code at work, I don't sit around wondering if someone patented it. That's so NMPF it's not funny. If I wrote it from scratch or based on publicly available documentation, I assume I'm fairly safe from being accused of infringing a patent.

Of course, the very idea of stealing the ideas of Microsoft is laughable. I don't think I'm aware of a single idea in computing that Microsoft invented in house. Everything has been taking what other people are doing, change it a little, and then claim to have innovated. Microsoft has bought, borrowed, or stolen every idea and technology they have ever produced. They've certainly only ever really put out stuff that is an evolution of prior art.

Cheers

Re:Which IPs in particular?

[eneville]

Maybe Ballmer was speaking in generalities, and wasn't speaking of any specific IP.

This may well be a foreboding statement, hinting to Microsoft's infamous strategy to embrace, extend, and extinguish. Getting their proverbial foot in the door, implanting MS IP in some distro here or there as a gesture of "good will" or some sort of perverted philanthropy, as a sort of time bomb detonating at the point at which MS decides to attempt to extinguish Linux-based OSes as competition.

Mod me as FUD if you wish... but I'm not claiming these statements are anything more than pure speculation. Thankfully conciousness distros like Debian will not allow work into the base unless it's fully GNU/Apache, whatever, licensed for free use. By doing this they ensure that this timebomb can never go off. Take a look at the cdrecord package which is now replaced with wodim. Unless MS were to release something (and for the life of me the only thing I can think that *might* get in is some document converter for Word), then it would have to be correctly licensed, in which case, we're not going to give a hoot.

Re:Which IPs in particular?

[Anarke_Incarnate]

No need. Red Hat, Novell, IBM, Sony, et al are in the Open Initiative Network. They use their patents as a shield and a sword, should ANYBODY try to start this type of war.

Re:Which IPs in particular?

[BillyBlaze]

I think Global Thermonuclear Patent War would be a good thing. We only tolerate patents because the actual harm the cause is so much less than the harm they could cause in such a situation. And we need something to spark a revolution. (Non-physical of course.)

Re:Which IPs in particular?

[Skrapion]

He was probably talking about patents. That's been in the news lately.

The problem is that nobody knows what these 235 patents cover. They could be invalid. They could be simple enough to easily find a workaround for. Or they could be something like the TrueType hinting patent, which took quite a while for the FreeType project to find an adequate alternative for. For all we know, they have patents that make it impossible to correctly render a Word doc without infringing on their patent.

But Microsoft won't say what the patents actually are. They're probably hoping to try to sue for all the patents they can in one fell swoop, in hopes that nobody will be able to come up with a solution in time. Because of this, Debian is the most likely to be hurt, because once Microsoft releases the details, Debian can't just let their non-free software slide until a proper alternative can be found; they'll have to pull the software. The problem isn't that Linux projects are purposefully infringing on Microsoft IP; it's that they don't even know what the Microsoft IP is.

Of course, the Open Innovation Network (IBM, NEC, Novell, Philips, Red Hat and Sony) has a substantial patent portfolio that they use to protect open source projects, and Microsoft is sure to have infringed on some of them, so there's a good possibility that Microsoft will never use these patents for anything but FUD campaigns.

But it does suggest an interesting option for patent reform. Perhaps patents should have to be actively protected, like trademarks, and if a company lets another company use their patent for too long uncontested it becomes public domain.

Re:Which IPs in particular?

[Courageous]

The issue is that if you force Microsoft to show their patents, they will. And they will have some, believe me on this. Some may be cheesy, but I have no doubt that they have extensive patent holdings, and some of them will hold up in court, even if you do disagree with the idea of software/process patents (as I do).

So suing is not really the "we, the community's" best interest. Our best interest is to laugh at Microsoft and ignore their FUD. We cannot be said to be culpable by inaction in this regard, because it is THEIR inaction in failing to disclose their patents that is the problem here. In fact, the longer they fail to disclose, while being aware of the violations, the better the case the community has against them.

C//

Re:Which IPs in particular?

[h4rm0ny]

Because of this, Debian is the most likely to be hurt, because once Microsoft releases the details, Debian can't just let their non-free software slide until a proper alternative can be found; they'll have to pull the software.

And this comment is exactly what Microsoft wish to achieve by making cryptic threats about their patents. I'm not blaming you (the poster) for posting this. I'm just observing that this is a classic example of FUD in action. "Debian is most likely to be hurt so play safe with someone who's signed the pact with Microsoft."

I don't know that a distribution that hasn't signed a deal with Microsoft isn't more at risk. Very possibly the patents are trivial or unsupportable else Microsoft might well have acted sooner before Linux became such a massive threat to them. Or maybe Microsoft hoped to let Linux become something profitable and then try to take it over through their proxy Novell. So I don't know if being cautious and siding with a non-pact signing distribution will gain you any benefit or not, but I do know that caution is not without price. Accepting the Microsoft FUD has a demonstrable negative effect on the free software community and Linux specifically. When forced to choose between a possible negative (which at worst is changing distributions) and a proven negative, I am inclined to the former. Especially when I perceive the likelihood of Microsoft successfully hamstringing Debian to be low in the first place and even more especially when I feel that an organisation is trying to make me act a certain way through threats.

I also know that Europe has preserved its own, more rational, patent law despite immense pressure from US corporations (who would benefit vastly more than European ones from such a shift). The international nature of Linux would be a headache for Microsoft in a number of ways.

If the patents are trivial (and if they exist), then Microsoft's only real use of them is to spread FUD as you have illustrated. Ultimately that will evaporate and Microsoft will look the worse for having tried it. If (and it's a very big 'if' let's keep in mind) there are some serious patents in there, then I would have thought there is reasonable grounds for counter-suing Microsoft for deliberately concealing such information whilst allowing a business built on infringement to develop for the purpose of cashing in later on.

If (if, if, if) Microsoft try to sue Linux distributions for patent infringement in the US, I expect the legal process to take some time. And I do know that engineers always move faster than lawyers. If there's a way round the patents (if they exist, and if they're non-trivial), then we'll be finished implementing it by the time the injunction comes down.

Re:Which IPs in particular?

[s4m7]

From your link:

But laches may be excused from ignorance of the party's rights; from the obscurity of the transaction; by the pendency of a suit, and; where the party labors under a legal disability, as insanity, infancy and the like. (Emphasis mine)

Seriously though, patent prosecution laches only became viable fairly recently, in Symbol v. Lemelson, and it was a pretty extreme case. something like 35 years elapsed. Laches doesn't apply as well to Patent law though because all patents are documented with the USPTO. It is the responsibility of an inventor to make sure that he's not stealing someone else's invention. The same does not hold true for trademark or copyright however.

Microsoft is a toddler

[mikesd81]

It seems that Microsoft is becoming more and more like a little kid every day. I just don't understand how in any normal world they can stay in business. All they do is spit out the same FUD every chance they get. It's like the boy who called wolf.

Pay you for what?

[FredDC]

I use Linux, in part because I didn't want to give you any money anymore, so could you please explain to me why you think I owe you money?

Because I generally don't give money to someone, simply because they tell me I should. I know, it's insane, but I need a reason...

Re:Pay you for what?

[Dunbal]

I use Linux, in part because I didn't want to give you any money anymore, so could you please explain to me why you think I owe you money?

Microsoft: Well, you own a computer, don't you?

Re:Pay you for what?

[mysticgoat]

I use Linux, in part because I didn't want to give you any money anymore, so could you please explain to me why you think I owe you money?

This quote from Ballmer that is posted on Groklaw under the section "[Update 2]", appears to be the Microsoft explanation:

Because our battle is not sort of business model to business model. Our battle is product to product, Windows versus Linux, Office versus OpenOffice.

But he doesn't stop there. He immediately continues by directly contradicting himself, and talking about the differences in the FOSS and Microsoft business models:

The only other thing I would say that is probably germane is, we spend a lot of money, the rest of the commercial industry spends a lot of money on R & D. We've spent a lot of money licensing patents, when people come to us and say, "Hey, this commercial piece of software violates our patent, our intellectual propery, we'll either get a court judgment or we'll pay a big check. And we are going to -- I think it is important that the Open Source products also have an obligation to participate in the same way in the intellectual property regime.

In other words, FOSS should be required to use the same wastefully expensive business model that Microsoft uses.

I don't think he gets FOSS. I am beginning to wonder if his commitment to the traditional corporate culture of 1982 is so great that he truly cannot see that FOSS is based on an entirely different cultural platform. FOSS is a kind of gift economy where those involved are saying "Hey, since it doesn't cost me to share what I'm doing, I'll gladly share it with everyone, and I expect others to give something back to all of us, too." Where traditional capitalist cultures like Ballmer's see product improvement as a way of getting a bigger slice of the pie, FOSS focuses on making the entire pie bigger so everyone gets a larger slice.

To those who are less culturally advanced, the clear successes of FOSS must seem to be magic. Apache, Blender, Firefox, and the others must all seem to have been created out of empty aether, and to be without any solid foundations. Clark's observation about advanced technology seemingly also applies to business models: if they are significantly advanced, their mechanisms of operation will seem to be magic to the businessmen of twenty-five years ago who haven't bothered to keep up.

Yeah, but..

[QuantumG]

Eolas actually told them what patent they were supposedly infringing.

Anyway, let it be said *again*. If you pay Microsoft, or anyone, for a license to "unspecified patents" then you are an *idiot* and I hope you get sued by your share holders.

Re:Yeah, but..

[Bert64]

Microsoft are infringing upon my unspecified patents too, you have an obligation to compensate me...

Mr Ballmer, if your listening, i would like $504,000,000 as-well please, you do have to respect unspecified intellectual property remember.

hmmm...

[Enoxice]

The real life equivalent of the AI meeting with the player every turn to say "we demand tribute for our patience" and demanding gold and technology. Too bad I can't have my usual response: a full-out attack, leaving their names to the annals of history! muahaha!

I don't play too much CivII, do I?

Re:hmmm...

[Jaxoreth]

The real life equivalent of the AI meeting with the player every turn to say "we demand tribute for our patience" and demanding gold and technology.

So would this be the standard AI, or the neurotic one?

Suddenly, I like Ballmer a little less

[G3ckoG33k]

Suddenly, I like Ballmer a little less. Possibly, the Linux foundation's www.patentscommon.org will harness those feelings; it is after all supported by HP, Ericsson, Nokia, Novell, IBM, RedHat, and ... Microsoft... WTF?!

They must love FUD

[Anarke_Incarnate]

They keep throwing Novell's name around. Novell has publicly denounced MS' claims about this. http://en.opensuse.org/FAQ:Novell-MS

Re:They must love FUD

[Jerry]

Novell has publicly denounced MS' claims about this.

Hovsepian lies.

It's NOT what they SAY that counts, it's what they DO.

And what Novell does is to continue to PAY MICROSOFT A ROYALTY for each copy of SLES that it sells. Ballmer called that payment the "IP Bridge":
http://www.novell.com/linux/microsoft/press-conference_transcript.html
And you'll see, as well, an economic commitment from Novell to Microsoft that involves a running royalty, a percentage of revenue on open source software shipped under the agreement. .... and we're going to make clear that IP, the patent bridge, the IP bridge is an important thing.

That royalty payment says that NOVELL "BELIEVES" that Linux contains MS IP, even though there has been no proof of such a claim.

Why did Novell do this? Hovsepain claims he couldn't sell SUSE against Windows, which is probably a true statement about his sales ability, but I believe he had $308M other reasons, and a hope that Microsoft's legal pressure on other distros would force FOSS users to move to SLES and pay for it.

Re:They must love FUD

[TheRaven64]

Microsoft paid Novell a lump sum of about $300m at the start of the agreement. I'd very much doubt if the royalty turns out to be large enough to make this a net loss of money for Novell.

That royalty payment says that NOVELL "BELIEVES" that Linux contains MS IP, even though there has been no proof of such a claim. No, the royalty payment says that Novell believes that being given a huge heap of money and some free publicity is worth a small fraction of their profits.

Re:They must love FUD

[OrangeCowHide]

You know, sometimes the courts don't work. Sometimes they favor the entity with larger funds. For example, a woman who clearly never even possessed the software Kazaa was sued by Capitol records recently and lost a $222,000 judgment even though the only evidence they had was a screenshot of files she was serving through Kazaa. Some people would rather be a little poorer and covered rather than be right and bankrupt.

Microsoft does have a large patent portfolio. If you want to know which patents they will claim Linux infringes on, find a changelog from RedHat. For every new thing that shows up, add 2 - 3 months to the date, and look for Microsoft patents filed then. Yes, that screams prior art, but do you really think it would be hard for Microsoft to stuff a jury with people who don't understand prior art?

I mean, you did know that A method for allowing a software vendor to notify a user of a software update is disclosed is a Microsoft patent filed in 1998?

Microsoft didn't just make the SOAP specification, they filed a patent on it. Any SOAP using system (like Perl, PHP, Python, etc) would infringe on this patent.

I sure hope network transactions aren't optimized by offloading the work to the NIC in Linux or else they would run afoul of a MS patent.

Even Sun RPC isn't immune (and filed only 10 years late, according to RFC 1057).

Microsoft's patents are wrong, and immoral, and frequently violating prior art, but they do exist. So it does make sense from a business perspective for Novell sign an agreement with Microsoft to avoid a lawsuit which they may not win in spite of the law.

That said, I stopped using SuSE myself. I tend toward Fedora and Ubuntu these days.

He could be right...

[Jennifer York]

Ballmer may be right in that some Open Source Software infringes on their patents. I'd be surprised if it were otherwise; they are giving out patents on single click purchasing, and even the simple check box

Microsoft is unlikely to enforce it's patents, but what should scare us are the other Patent Houses where their business model is based on litigation. They are the dangerous ones...

Re:He could be right...

[yuna49]

The various posters here who say "show us the patents, we'll code around them," obviously don't understand the situation as well as you do.

Let's take a hypothetical (and false) case as an example. Suppose the original coders of the NCSA Mosaic browser (the predecessor of Netscape and essentially all graphical web browsers) decided to patent the back and forward navigation arrows as a "device to permit navigation of network-delivered content" or some such patentese. The only way to avoid infringing this patent is not to use navigation arrows, not to write a different block of code to implement navigation arrows. It's like the trash can issue mentioned in another posting in this thread. Patents don't cover the code itself but the process the code implements. Even if Microsoft showed us the patents, it could be quite difficult to avoid infringing some of these.

As a real example, take the case of the patent Microsoft holds on a procedure to update Powerpoint shows online. (I read this a while ago and don't want to spend the time to look it up at the USPTO again.) The patent covers a procedure whereby an application checks online to see whether there's a newer version of the file it is about to open. If so, it automatically downloads the update and opens it instead. Obviously this was targeted at people making presentations so that the staff back in the home office could make last-minute corrections, and the presenter would never need to download the updated file herself. The patents for processes like these often contain sweeping declarations of what's covered in the patent, so even updating systems that don't precisely match the specific one described might be deemed infringing. Suppose, for instance, that Azureus checked to see if a new Java version were available when launched and downloaded and installed the new version automatically. Infringement?

the reason microsoft won't show their patents

[SkunkPussy]

My guess is that any of Microsoft's patents could be coded-around trivially - therefore their patents, once revealed, have no value. Their only value is as a bargaining tool (cudgel).

Stage three

[Dexter77]

"First they ignore you,
then they laugh at you,
then they fight you,
then you win." - Mahatma Gandhi

I see we're on stage three now.

Re:Stage three

[Aladrin]

We are fighting. Sit down and enjoy the show.

Seriously, what do you think we're doing? It may appear that we are sitting on our asses typing, but that's HOW you fight this. You can't make a bunch of signs and stand in front of some random government building and get -anything- done about this. You can't blow shit up. You can't even call Microsoft and get anything done. They'll just ignore you. (Yeah, that's back to step 1.)

You can:
Show your boss, fellow employees, family and friends that you understand the situation and explain how it is FUD.
Write in your blog and on Slashod that you understand, etc, etc.
Set up dedicated websites to showing what FUD this is, or contribute to ones that exist.

Notice how all of that is 'fighting' without lifting a fist or even a lawyer? We -can- win this one Gandhi-style... In fact, it's probably the only way we can win it.

Re:Stage three

[wrook]

By "then they fight you and then you win" Gandhi was referring to masses of people getting the shit kicked out of them for going down to the beach to make salt. Or people being gunned down in the hundreds for peacefully sitting around in a temple. Whatever you think of the applicability of his methods in other areas he successfully understood the political forces at work and realized that getting the snot kicked out of him in front of the media would win the fight.

To sum up he said "they fight you", not "you fight them". He allowed people to be attacked in order to win the war. In his own words, the people of India were soldiers and sometimes soldiers die. Peacefully walking into to gunfire and dieing was part of the strategy.

Personally, I think this is the best way to go about it in the Free software world too. If Microsoft attacks you, don't attack back. Just publicize it. If Microsoft attacks forcefully enough to do anything significant, the bloodshed will be obvious. In any case, keep walking to the beach to make salt.

Keep writing and using free software. Keep helping others. Don't fight.

Re:Stage three

[Pecisk]

In fact, SCO case looks like exact page from Gandhi book. Yes, IBM took legal challenge, but they actually sat it out, peacefully calling claims false, providing evidence SCO required, answering sometimes to even ridiculously stupid requests, letting SCO slowly become a laughing stock in the eyes of geeks, then business and in the end - their former suporters. I think calmness of IBM was _major_ force which helped them and rest of community. And of course PJ too. I don't always agree with her, but hers analysing attitude to this actually helped community a lot - we are more insightful about law, how it works, how it should work, we have seen what means to sit out difficult case until actual end, when you win.

My two euro cents as usual.

Well not software patents in the UK

[Chrisq]

Well not software patents in the UK.... they are supposed to be non enforcible.

IANAL...

[nimid]

...so would it be possible for Microsoft to settle/lose a non-novel and obvious patent case just so that it would set precedent? (One that would hurt them a little but OSS a LOT)

If this could be done, wouldn't it validate the patent and allow the plaintiff to then go after Open Source Software? It would be a bit like the whole SCO fiasco again but only with the power of the courts behind them.

Thank goodness that in this enlightened age, no-one would collude and pull off something like that.

Let's force him to put up.

[bogaboga]

Isn't there a law to force Ballmer to put up or shut up? Is it possible to go to court to have him clear the air instead of damaging Linux's progress? lawyers please clarify.

Fud fud fud

[Fenice]

Hooo, ~scary~ So what? Eolas is coming for linux users? Weren't we already waiting for Microsoft? What next? Santa Claus maybe? Or a wing of flying chairs? The two only things he is sucessfully discrediting is Microsoft and the distros wich ranked with him (I feel like sorry for Suse to be associated with this man).

Linux's Retaliation

[Zombie Ryushu]

Is there any way we can really sock Microsoft in the Jaw on this? Like, can an organization or Alliance of some kind pre-emptively sue MS to say "You cannot repeatedly make threats that we infringe on your whatever simply because you want to scare people?

Re:Linux's Retaliation

[Yvanhoe]

That's called defamation suits and if Red Hat was really mentioned, they could sue Ballmer. I'm sure the EFF would be willing to help. The thing is, Red Hat isn't really a litigatous bastard and I believe they are right. Just ignore these crackpot claims, continue to make business decisions based on facts. Businessmen may not be less technically-savvy than IT engineers but I bet that they are more able to recognize a racket/scam when they see one. And this one is pretty obvious.

I'll pay up!

[Anonymous Coward]

As soon as Microsoft pay's up to Xerox for windows. BSD for the Tcp/IP stack. Berkley for nslookup.exe.

and so on and so on. MOST of microsofts products are based on others Intellectual property and violates at least 60-80 patents somewhere.

Hey microsoft. as soo as you are clean I'll come clean. No, I dont consider clean your legal wiggling bullcrap. 100% legit.

as soon as they pay up

Re:Details of the IP in question

[Technician]

but which intellectual property is MS saying open source solutions are infringing on?

Let's make it simple.. Take a lot of code and patent a few ideas. Someone else does the same. In review as your code gets complicated, you may very well have used someone else's IP in your implimentation. Often in a patent dispute regarding code, the countersuit results in a cross license agreement. IBM and others have war chests full of patents to protect FOSS against attacks.

MS hints at an attack as part of the FUD campaign. If they launch a real attack, the code of Windows will be put on the operating table for dissection for infringements. See any problems with this? Just to show an easy to see example, Microsoft was sued over the use of a trash can in Windows. That is why they have a recycle bin. Apple owns the trash can.

Now look at a copy of Ubuntu. It has a little box with a recycle logo in view right on the desktop. They call it the Trash. Who can sue? Apple, Microsoft? If Microsoft sues, guess what happens to tabbed browsing in IE7. This is something showing on the surface. Start digging into functionality and the fight could get ugly for Microsoft. The bigger the code, the bigger the possiblilty of infringment of someone else's pattent. The code doesn't get much bigger than Vista for the desktop.

Can you say HUGE BULLSEYE? The noise is just noise. It is intended to slow down the implimentation and keep obvious duplication of features to a minimum by the competition by raising the question of costly litigation. It's just the ongoing FUD campaign.

Prior art and other discoveries in a court battle could be very damaging to many of Microsoft's patents. If they don't name them, they can't be shot down.

Re:Can you blame him?

[Salsaman]

So why don`t they lobby the US government to get rid of software patents ? Why do they lobby in Europe and other places to try and get software patents accepted there ?

The obvious answer is that they benefit more from using their patents to shut down competition than they lose from paying the odd multimillion dollar fine.

Re:Details of the IP in question

[CodeShark]

The problem is that most of the PHB's in the world is that they won't see your comment, and those that have Red Hat Linux on the table for consideration may see the innaccurate statements and accept as real and shift their purchasing $$ to another company, say, Novell's Linux or if Ballmer's wet dreams come true --an MS platform.

What it points out is that for the giant in Redmond, business is business, and the truth doesn't matter. Microsoft also has a nickname (Microsloth) for much of their own IP -- it's been purchased, code pirated (my term for their clone products which have triggered numerous lawsuits most settled out of court against M$ to the tune of hundreds of millions of dollars) -- but a deserved sharklike reputation for FUD.

Note to the pointy haired bosses: Ignore the bald man in the M$ suit from Redmond -- chances are that if his lips are moving, he's being shifty with the truth to try and get your money. Cover your wallet and walk away quickly.

Re:What IP?

[tgatliff]

Its just FUD because M$ is afraid of the EU slipping from its grips... An example of this would be the Vista adoption rate in the EU... IP is an arms race. Yes, Eolas could definitely try something, but if M$ tried it then IBM would smear then against the wall like a bug with their "IP". What I find interesting is that the OSS world does not give enough credit for what IBM does for OSS... It is my opinion that without the help of IBM to Linux, M$ would have done considerable damage...

Interesting

[JeremyGNJ]

It will be interesting to see their next step.

Phase 1 was "state the fact about patent infringement".
Phase 2 is now "explain that since the VENDOR wont pay for patents, then the customers will be on the line" Phase 3 ???

Microsoft will eventually HAVE to file a suit or someone will file a suit against them for scare tactics of some sort. I'm sure the Microsoft lawyers understand this, which means they must have a phase 3 in mind. Who will be the first target? And in which court?

Sometimes I think Microsoft can't lose this battle. If their first suit really tests patent law and then win...well then they start the major money collection, and Linux suffers a hit for it's users having legitimate concerns of legality. However if the patent claims are denied...the Microsoft basically has the green light to use the patents owned by countless others. Because of their size and bankroll, they can implement such technologies much quicker than most companies, and they will pull ahead on many fronts.

What for ?

[Joebert]

He predicted that firms like Eolas will soon come after open source vendors or users.

Why would they do that ? They went after Microsoft because Microsoft could actually afford to pay.

Maybe MS is lining up the next SCO

[JoeCommodore]

He predicted that firms like Eolas will soon come after open source vendors or users. Microsoft paid $521m to settle a patent claim by Eolas in August.

Sounds like maybe MS lawyers are whispering in Eolas' ear to goad them into being the next SCO...

Why sue your competition and waste money on legal fees when you can con others to do it for you.

MS is scared shitless

[SmallFurryCreature]

No, not because of linux on the desktop, not even of linux on the server. What it is scared of that with 95% of the desktop it still does NOT control the market. Oh it controls consumers but consumers are fickle. Consumers will buy whatever is cool at the moment. iPhone? Not MS software. iPod not MS software. Mobile phones not MS software. Media centers not MS software. Cars not MS software. Biggest selling console not MS software.

MS has had very little success getting its software onto something else then the PC despite the fact that many would claim that to Joe Public computing IS microsoft. Just how then do you explain that so few choose their phone to have a windows version? Why does the Zune not sell?

And all the while that pesky opensource remains there, undefeated, unwilling to adopt, making small gains perhaps but never just giving up like it is supposed too.

No linux on the desktop ain't going to happen anytime soon, but that is not what MS is really afraid off, it doesn't fear that it is going to loose 95% of the desktop market, but that that market itself will stop growing or even shrink.

Is that likely? Don't matter, what matters is what MS thinks. They been pushing the end of the desktop of ages (and then claiming it will outlive everything) so they worry when they don't see themselves being the software supplier of choice in this new market.

Take google, is google ran its servers on windows as it should (in MS view) do you really think Ballmer would be throwing any chairs? No, it is the realisation that MS one way or another is NOT making a penny out of google (well a few thousand desktop sales perhaps but who cares about that).

None of the mobile phone companies have yet properly chosen Windows as the one and only OS and just keep on insisting on experimenting with software that does not make MS any money.

Nintendo? Do you really think MS was pleased when they included opera as the browser? Do you realize just what this means? Several MILLION people will see for the first time in their live a NEW browser. MS does not like this, it does not survive well when people have a choice, especially when this choice is the default and just works out of the box. That ain't how MS works.

It gets worse, not just are individual consumers learning there are choices and not choosing MS as their software supplier, companies like IBM, HP, Dell are showing that they are far from the loyal lapdogs MS thought they were. Oh the revolution ain't there yet, it may never happen, but if you are a despot and you hear a voice shouting OFF WITH HIS HEAD and you see your "loyal" guards knod in agreement, it is time to worry.

If you think a company like IBM would not relish a change to see MS humbled, you do not understand human nature.

Then their are countries, China is a huge unexplored market, it should buy MS software NOT mess around with linux even if it is just sales tactics. That is not how MS works, it doesn't compete, it dominates. The old example of Munich must be mentioned, for the first time in decades MS was faced with a counter proposal and they reacted instantly by not just lowering the price but by the way of free training and more effectly making MS pay munich to deploy windows. Still no takers. You know you are in trouble when you can't PAY people to use your software.

No, the revolution won't come in 2007 or 2008. Most likely it will never come, it is already here. When was the last time you came across an IE only website? How many years have you been able to file your taxes from Linux/Mac? (Holland several years now) Java programs are finally getting traction, just look at P2P.

AMD opens it graphics cards to opensource, a thing many said was impossible, Intel already heavily supports opensource drivers for its hardware. Are there any giant PC makers left that do not sell Linux no matter how obscurely? Lots of hardware makers now mention linux in their support list.

Oh, it is all small stuff, but it is there and MS is scared

Re:Intellectual Property

[dpilot]

Trademarks? I think not, pretty easily dis/proven.
Copyright? Also pretty easy, but how can you copy software you can't get the source for? Even when "leaks" have occurred, the OSS folks have been careful not to look at it.
Patents? They're all that's left.

I still say that Intellectual Property is a legal fiction, and when I get time need to write a proper refutation to this: http://slashdot.org/comments.pl?sid=318461&cid=20867087
Not that the legal fiction is all bad. Clearly when it has taken some investment to create art or inventions, the artist/inventor needs remuneration, so that he/she will keep on doing that, instead of waiting tables or other non-artistic/non-inventive means of earning a living. The current problems are in finding the right balance, and in really rewarding the creators rather than the mostly the distributors.

Re:How?

[Salsaman]

Because you can patent an idea. Nothing to do with copying code (that would be copyrights). You can infringe a software patent without copying code, and without even realising it.

That`s what makes software patents so dangerous.

Re:Intellectual Property

[TheRaven64]

BTW: Software patents are not enforcable in the EU. As of the latest EU patent directive, the enforceability of software patents is an issue to be decided by each member state. They are not enforceable in the UK, but they soon will be in some other countries (the new French President, for example, has spoken in favour of software patents).

The obvious solution

[Synn]

For Ubuntu and Debian, I'd recommend they just give Microsoft 5% of all the profit they make off selling Linux to customers.

OOXML

[jafoc]

I'm not authorized by Ballmer to speak about what he may have had in mind, if anything, but Microsoft claims that their OOXML file format which they're (despite the initial failure) still trying to get approved as an international standard can be used "on Linux" (this claim was made in the standardization committe on this matter in Switzerland, of which I am a member) and they are offering (unacceptable) terms and conditions for using their patents on this "standard".

Microsoft hasn't honored my numerous requests to provide a list of the patent numbers is question even though I demonstrated that the ISO/IEC directives say clearly that patents should be disclosed.

Re:OOXML

[Billly Gates]

Don't forget mono either and of course patents for true type fonts. If gnome becomes a liability because Miguel thought .NET was so cool I will be quite pissed and switch to KDE. I have had a feeling mono and the upcoming silvermoon is just a way to trojan horse all the linux distros with ms IP and Miguel might be in on it.

Restraining order

[Falstius]

If someone followed me around saying untrue things about me, I'd get a restraining order. I wonder if Redhat can do the same. Treat Ballmer like the drunken ex-husband he resembles.

Obligation to compensate?

[mrjb]

Let me get this straight. What Balmer is saying is "People who use [Linux] [...] have an obligation to compensate [Microsoft]". Yes, I deliberately left out the intellectual property bits to show how ridiculous it sounds. It's like saying people who eat at Burger King have an obligation to compensate McDonalds. No, they don't. Just because you think you invented the One and Only Burger and some people made a choice for the competition, that doesn't mean that those people owe you ANYTHING.

SCO all over again?

[Midnight Thunder]

At the moment, the Linux camp is milling around saying, "Patents, what patents? Show us the patents!" and it can be pretty well "documented" with press releases and blogs. Seems to me that it would be pretty darned hard to show any sort of evil intent.

This just reminds me of the whole SCO case (which was meant to be a front for Microsoft anyhow). We will threaten you without any evidence and hope that you are too scared to stand on your own. Does this not sound like Mafia tactics? Shouldn't this be illegal, if it isn't already?

Re:SCO all over again?

[h4rm0ny]

Maybe that's why they paid up to Eolus, so that it had a grounding to go after their competitors who might be less able to stand up to it. I believe that Microsoft were originally keen to fight and then they paid up? And as I recall, the Eolas patent was something pretty stupid.

I guess it's like... if you're a wizard with 1-hp and you're surrounded by goblins with 5hp, it makes sense to drop a fireball that does 6 hp damage on all of you. Yes - you get hurt, but your situation has still improved.

Sue who?

[wytcld]

Consider MS's frustration. It would like to sue someone to set an example and get new revenue sources in line. But who? Red Hat would be an obvious deep pocket. But where is the infringement located in the distro? Unless it's something so fundamental that there's no way to code around it, it will be coded around soon after MS reveals it. If it's a key functionality for some businesses (say, Samba) that MS can get Red Hat to withdraw from the distro, that package will simply move offshore. If MS starts suing large corporate customers for something like Samba that interoperates with MS tech, it will be suing its own customers - so do they solve this by dropping their key servers, or by finally moving their desktops and the Exchange-y stuff they run on Windows over to *nix to avoid the problem?

And if it is something so fundamental to the core of Linux it can't be coded around, the odds are long that MS's patent will be found invalid, since virtually all that stuff was invented for *nix before MS ever existed.

So if MS sues, in most any scenario *nix (both Linux and most probably Sun) wins. This is such a sure thing we should consider doing all we can to provoke MS to sue - except that we'd hate having some of our best minds preoccupied for a few years with the court battles.

Ballmer: suck on this

[blackjackshellac]

I've paid over and over for your crap fucking operating system, I won't be giving you another redhat fscking cent you worthless overblown piece of shit.

Go fuck yourself.

Slander?

[twoshortplanks]

The law of slander in the UK is such that you can sue someone who makes statements that cause harm to you or your company. While truth remains a defense against slander, in the UK the onus of proof is on the person who made the statements.

For example, if I said in a public forum in the UK "Your company conducts illegal acts" I could be sued for loss of reputation (which has a monetary value) unless I could prove what I said was true. The company suing me would not be required to prove that it did not conduct illegal acts - the fact that I couldn't prove it did would be considered damning enough.

Slander (and libel) have 'fair comment' clauses, but a particular allegation such as IP infringement would not exercise them.

(Nope, not a lawyer, but like the rest of the internet, I play one on Slashdot)

Darl? You in there?

[thejuggler]

I missed the press release. When did Darl McBride start working for Microsoft? Maybe he do for Microsoft everything he did for SCO!

Re:Does this really surprise You

[The Cisco Kid]

idol: something your worship, or put on a pedestal (or vote for in a popularity contest on TV)
idle: sitting doing nothing, a car engine 'idling', an 'idle' threat.

And the big thing that scares Microsoft is the idea of not having a the vast majority of control over software that people use. If there were ever fair competition, then they wouldnt be able to break file formats and network protocols at will, they would have to be compatible to continue to hold *any* portion of the market, and they would actually have to compete on reliability, usefulness, etc. And that has never been one of their strong points.

Re:Infringing Code = About Copyright Not Patents

[init100]

You can't work around a patent by implementing the same thing differently

That depends entirely on the patent. Many patents are concept patents, and those would not allow a different implementation. There are also algorithm patents, which would allow an implementation that does not use the patented algorithm.

Back on their word

[nurb432]

Wasn't it about a year or so ago that Microsoft claimed their patents were just for 'defensive reasons' and they promised that they wouldn't on the offensive with them and start suing linux vendors? 'not to worry' they said...

So who here actually believed them anyway?

Time to start hoarding source code people. Phase 2 of the war has started.

Can you say?

[SoccerDad_65]

Steve Ballmer = Troll ;-)

Ballmer is Masturbating to the Excitement

[HermMunster]

Ballmer knows he has no chance in hell of ever getting anything from this. The whole situation has been analyzed and recently the OIN told Ballmer to put up or shut up, so Ballmer is just saying this because he seems to get of sexually over all the attention he gets every time he opens his butthole about Linux.

He knows he's just farting into the wind and he's simply doing it to stink things up and hoping that he isn't standing there when he lets one go and the wind changes.

He's a fruitcake and he has no idea how shitty it makes him look. When the shit hits the fan then we'll seem something more than Ballmer jerking off in front of the fan with his mouth open.

Ballmer tried that before ...

[golodh]

This isn't the first time that Mr. Ballmer makes unsubstantiated allegations on the subject of supposedly infringed Microsoft patents. The last time he shut up after awhile.

Interestingly, and following SCO's proven tactics in the matter, he stubbornly refuses to say *what* patents are allegedly violated.

Of course Mr. Ballmer admits that he doesn't expect to see a huge revenue stream from licensing agreements (he named the Novell agreement), but that isn't the point you see.

The point is that "free as in speech" and "free as in beer" are threatening Microsoft's business model. If only he could somehow get rid of the "free as in beer", and with it the "free as in speech", he would turn Linux into just another commercial offering. And that's something he knows how to compete with. By fair means or foul (just see the recent EU verdict against Microsoft and judge Jackson's findings of fact in the DOJ-Microsoft case a few years ago for what those "foul means" amount to).

It's also important to realise that no solution that consists of Linux simply dropping any code (assuming any Linux code were to be found to infringe on Microsoft's patents) can be acceptable to Mr. Ballmer.

With that in mind it's easy to understand why Mr. Ballmer really *cannot* list the patents he wishes to receive "just compensation" for. It's because he does not want to give Linux any opportunity to remove any offending code (assuming there is any). He does not want any compensation either.

He just wants to make Linux non-free because that's how he can get rid of it.

A patent atorney walks into a room of Linux admins

[dargaud]

Last months I was at a meeting for european Linux admins and a guest speaker was a patent expert. Apparently he must have missed a memo because he started his pitch with "we are looking for experts such as yourself to come work with us on software patents as they are going to happen in Europe soon"... Amusing mayhem ensued. But what striked me most are two things:

• out of 80 admins only 3 were vocal about the issues surrounding software patents. Okay, we were very vocal. But the others didn't seem to have a clue.
• the next day the guy came up to us 3 specifically with a $trong recruiting pitch, saying that since we already knew the subject we had to come and work with him as there would be now way to avoid software patents anyway. I countered by saying that when China will decide that any patent is meaningless, then all bets would be off. But he countered that one by saying that China is the fastest growing market for patents on the planet...

Interesting discussion anyway, even though I find the mix of lack of morality and the excess of $ deeply disturbing. Call me an idealist and cry me a river.

failure to protect patents

[falconwolf]

Perhaps patents should have to be actively protected, like trademarks, and if a company lets another company use their patent for too long uncontested it becomes public domain.

Patents have to be protected as it is. If a patent isn't protected, via Laches, Doctrine Of or Doctrine of Latches a patent owner can loose their patent rights if they don't enforce those rights.

Falcon