Topic: Microsoft takes on the free world

[Nemesis]

Link to full article

In short Microsoft is claiming that Linux distributions violate Microsoft patents.

But now there's a shadow hanging over Linux and other free software, and it's being cast by Microsoft (Charts, Fortune 500). The Redmond behemoth asserts that one reason free software is of such high quality is that it violates more than 200 of Microsoft's patents. And as a mature company facing unfavorable market trends and fearsome competitors like Google (Charts, Fortune 500), Microsoft is pulling no punches: It wants royalties. If the company gets its way, free software won't be free anymore.

Moglen contends that software is a mathematical algorithm and, as such, not patentable.

Gutierrez refuses to identify specific patents or explain how they're being infringed, lest FOSS advocates start filing challenges to them.

This is just like the on going SCO vs IBM lawsuit where SCO claims IBM put SCOs intellectual property in Linux but refused to specify what IP and where in Linux it was put.  Much of the case has been thrown out and more is hanging by a thread awaiting judicial decisions.  Why the reluctance to specify?  Is Microsoft unsure that there patents will stand up in court?  (Like the Microsoft vs Linspire case where Microsoft paid Linspire to settle when it became clear that the Windows trademark might be invalidated).

But he does break down the total number allegedly violated - 235 - into categories. He says that the Linux kernel - the deepest layer of the free operating system, which interacts most directly with the computer hardware - violates 42 Microsoft patents. The Linux graphical user interfaces - essentially, the way design elements like menus and toolbars are set up - run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68.

If push comes to shove, would Microsoft sue its customers for royalties, the way the record industry has?

"That's not a bridge we've crossed," says CEO Ballmer, "and not a bridge I want to cross today on the phone with you."

(See article on Groklaw about this issue)

Reasons why I'm not worried about Microsofts patent claims:

1/ Software patents are not legal in Canada.

2/ Microsoft has many dubious patents.

3/ Recent U.S. Supreme Court Rulings that makes invalidating patents easier.  The test for obviousness was ruled to be too stringent.

4/ Mutual Assured Destruction.  Companies that need Linux will use their patents that Microsoft violates to protect themselves and therefore the software they use.  IBM for example, their intellectual property lawyers have been nicknamed the Nazgul for their effectiveness.

5/ The illegal monopoly conviction at least partially ties Microsofts hands.

6/ The Microsoft deal with Novell effectively makes Microsoft a Linux distributor and therefore makes their patents in Linux protected from claims by Microsoft

7/  (quote is from a poster on Groklaw).  Laches.

The longer Microsoft waits to actually bring a lawsuit against anyone, the more chance Linux producers and users have of invoking the laches doctrine, which states that you can't sit on a known case of patent infringement until it's more advantageous or profitable to sue. If you discover an infringement, you should launch your lawyers at the "infringers" immediately or risk not being
able to sue.

Or in short you can't know I'm breaking the law and wait for me to rack up penalties before infoming me.  By doing so you effectively give me permission.  Ballmer has been rattling the patent sabre for months at least if not years.


If this is successful in the U.S. Microsofts illegal monopoly becomes stronger and the rest of the world is given a darn good economic reason not to allow software patents.

[Electric Eye]

Microsoft is just mad because Vista sucks, and not many peeps are buying into it. I'm all for Linux and I guess I will get a Linux for dummies book as my next P/C will probably have it. 

How much better off the world would have been had Bill Gates family not pulled some strings back when O/S systems were in development and there were many better alternatives than Windows.

[Dash Jones]

MS might be trying to force people to go to Vista, and trying to squeeze those who they don't think will, or stifle competition.

However, I'd like someone to take a good look at some of those claimed "patents" and who ACTTUALLY created the programs...I have a feeling MS in reality is reponsible for NONE of them other than putting in paperwork for a patent from someone else's work who in all probability wasn't even connected to MS...

[Nemesis]

MS might be trying to force people to go to Vista, and trying to squeeze those who they don't think will, or stifle competition.

That has been speculated.  If true what does it say about Vista specifically and Microsoft in general?  Nothing good I'd say.  It would also put the lie to claims by Microsoft defenders who claim Microsoft is not a monopoly as only a monopoly can do things such as force people to buy their software.

However, I'd like someone to take a good look at some of those claimed "patents" and who ACTTUALLY created the programs...I have a feeling MS in reality is reponsible for NONE of them other than putting in paperwork for a patent from someone else's work who in all probability wasn't even connected to MS...

Most of the patents are based on Microsofts own work to some degree at least.  I won't say all as some of the ones I've read of are clearly based on work that has been public for years (or even decades) and therefore should be ruled invalid based on prior art.  They have a patent  on putting smileys in messages.  Clearly too much prior art (going back to the 1970s).  They have a patent on part of the iPod interface.  After 20 years (!) on the market they patented the DOS file system (in theory you can apply for a patent up to ONE year after it is on the market).

They also have a cross licensing program with Sun Microsystems that covers Star Office and should (depending on the wording) cover OpenOffice too, which would remove 45 patent violations right there.  Then they mention 15 patents violated by "E-Mail programs" is that 15 patents or one patent violated by 15 programs?  For that matter which E-Mail programs?

The open source community has clearly been stating specify what patents and we will evaluate them and code around those that are valid so we won't be violating your patents but Microsoft wants to keep it all a behind closed doors secret.  Why not reveal them?  Is it to spread FUD?   Is it out of fear that your patents will be invalidated?  If there is a good reason we would all love to hear it.

[Javora]

Nothing surprising really, Microsoft made a deal with one of the Linux distributors about a year ago (can't remember which one off the top of my head).  Back then the suspicion was that Microsoft was going to pull something like this.  But then look at the way Microsoft deals with other companies, first they embrace then they destroy.  Part of me wonders if Microsoft is thinking that a Democrat will hold the White House after the next election so they are pulling as much crap as they can while Bush is still in office.

IMHO Microsoft is going to get slapped down hard, it's just a matter of when...

[Nemesis]

Nothing surprising really, Microsoft made a deal with one of the Linux distributors about a year ago (can't remember which one off the top of my head).

Novell.

They did an endrun around V2.0 of the GPL.  Instead of licensing their (unspecified) patents to Novell and agreeing not to sue each other they licensed to each others customers.  The GPL requires you to extend patent rights that you have to any GPL software you distribute.  The rights extend to the software distributed not to the person or company you distribute to which allows the software to continue to be distributed to others who are not your customers while retaining the patent rights.  Strictly they stuck by the letter of the license but not its spirit.  The Microsoft Novell deal extends to the customers not to the software and not to OpenSUSE only the commercial versions of SUSE.

Back then the suspicion was that Microsoft was going to pull something like this.

This has been suspected for several years and hinted at for some time by Microsoft executives, specifically Ballmer.

But then look at the way Microsoft deals with other companies, first they embrace then they destroy.  Part of me wonders if Microsoft is thinking that a Democrat will hold the White House after the next election so they are pulling as much crap as they can while Bush is still in office.

IMHO Microsoft is going to get slapped down hard, it's just a matter of when...

Embrace, Extend, Destroy.  Look at Netscape.  Microsoft (embrace) gave away IE freely just to crush them.  They extended IE in non standard ways (ActiveX for example) (extend).  Once Netscape was bought out and effectively dead (though reborn as Mozilla) they step by step dropped (extinguish) the non Windows versions of IE. 

Now is the embrace with the patent deals.  The Novell deal is for 5 years but can be cancelled. 

Look at the office format war going on right now.  The ODF (Open Document Format) was developed by an orginization called Oasis and is now an ISO standard.  Microsoft is part of Oasis and knew all about ODF but ignored it.  Then Mass. started looking at adopting an open format and settled on ODF.  Other states and nations are doing the same.  Now Microsoft is trying to push their format for Office 2007 (OOXML - Office Open XML) though ISO and some questionable things are happening.  The normal routine to fast track OOXML was failed then a high level ISO official put it through anyhow claiming a technicality.  Fastracking a 6,000+ page specification seems the wrong way to do things to me.

The next Presidential election only means that if things do get done Microsoft will stall until they get a President they like.  I place more hope in the U.S. Supreme Court invalidating software patents (which were allowed by a court ruling not specifically by law) and the EU.  The EU does look like they are serious about restoring competition and software patents have repeatedly been stopped from being EU wide though some member states do allow them.

[Nemesis]

A quote from Steve Ballmer that I think tells a lot about him.

Do you have an iPod?

No, I do not. Nor do my children. My children--in many dimensions they're as poorly behaved as many other children, but at least on this dimension I've got my kids brainwashed: You don't use Google, and you don't use an iPod.

[Nemesis]

Microsoft and The Hitchhikers Guide to the Galaxy

Sirius Cybernetics = Microsoft

"Genuine people personalities" = Microsoft wizards (Elevators that
sulk in the basement instead of working)

Zaphod Beeblebrox = Richard Stallman (author of the GPL and founder of the Free Software Foundation)

Gag Halfrunt = William Gates III

Vogon Commander = Steve Ballmer (CEO of Microsoft)

Agrajag = The SCO Group

Arthur Dent = Tux

Ford Prefect = Steve Jobs

Trillian = P.J. (founder of Groklaw)

Marvin = Clippy

Mr. Prosser = Darl McBride (CEO of The SCO Group and cheerleader of the SCO vs IBM lawsuit)

B Ark Captain = BS&F (The lawyers for SCO in the SCO vs IBM lawsuit and others)

Something I wrote a while back on Groklaw it tells what Microsoft fears:

Open Source users are not guerrillas or terrorists. They are settlers going where the explorers (OSS Programmers) have scouted the way and building new
homes and nations there. In time the new lands built by the explorers and settlers may dominate the lands which they left behind.

[jayvt3]

so let me get this straight.  macroshaft says that they own the concepts of software and free software? 

great ceasar's ghost!  what's next?  a patent on the thought process?

well untill someone else comes along i guess we have the system we deserve.

[Nemesis]

Link to full comment by Linus Torvalds

"Basic operating system theory was pretty much done by the end of the 1960s. IBM probably owned thousands of really 'fundamental' patents," Torvalds said in a response to questions submitted by InformationWeek. But he doesn't like any form of patent saber rattling. "The fundamental stuff was done about half a century ago and has long, long since lost any patent protection," he wrote.

"So the whole, 'We have a list and we're not telling you,' itself should tell you something," Torvalds said of Microsoft's stance in the Fortune story. And for good measure, he added: "Don't you think that if Microsoft actually had some really foolproof patent, they'd just tell us and go, 'nyaah, nyaah, nyaah!'"

I should look up Ballmers exact "I have a list" comment and compare it to that of Senator McCarthy.  They do resemble one another quite closely.

It looks like this is an issue that Groklaw will be following closely for those who are interested.