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?

[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?

[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?

[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?

[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?

[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.

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...

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?

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

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.

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

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.

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)