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?

[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?

[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?

[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?

[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?

[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?

[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?

[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?

[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?

[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?

[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?

[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.

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.

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?

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

[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...

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.

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.

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?

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: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: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.

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: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.

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.

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?

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.

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!

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.

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