Microsoft takes on the free world (CNN)

Posted May 14, 2007 1:58 UTC (Mon) by dskoll (subscriber, #1630) [Link]

As alluded to in the article, if Microsoft were to actually try to obtain roylaties for alleged patent infringements, the war would begin.

Stopping FOSS dead in its tracks would be so damaging, so expensive, and so apocalyptic that Microsoft must know in no uncertain terms that it will be destroyed if it tries to destroy free software. That means IBM, Sun, et. al. need to make it plain that they will get injunctions against Microsoft selling Windows, Office, etc. if it tries to do that to FOSS.

Unless/until the patent mess is sorted out, every player needs to know that detente is the only possible way, and that anyone who violates detente will be destroyed.

Posted May 14, 2007 2:51 UTC (Mon) by kwink81 (guest, #33926) [Link]

This article is actually much more fair and informed then most on this subject. It sure doesn't make me any more happy, though.

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

Sigh... This is annoying. Microsoft can't actually try to assault FOSS in court, that would let the FOSS community show that the alleged "intellectual property" is complete BS. That was the mistake SCO made. So they are simply going to stand up at every podium they can find and shout "Hundreds of patents!" it hope that less-educated CEOs get scared.

Maybe the best solution would be to bring to fight to them. The Software Freedom Law Center could sue Microsoft for slander. MS, in self defense, would have to reveal their patents to the world. That would give us the chance to either challenge them or work around them. Of course, the SFLC would need umteen million in cash sitting around in order to substain that kind of legal action, so that may be wishful thinking.

Posted May 14, 2007 4:23 UTC (Mon) by pr1268 (subscriber, #24648) [Link]

"...[Microsoft] asserts that one reason free software is of such high quality is that it violates more than 200 of Microsoft's patents."

Somebody surely has a high opinion of themselves. What a load of mule hock! Some day (hopefully sooner) people (including Microsoft) will realize that FLOSS owes its high quality to the very open nature in which it is developed, not because it copies Microsoft.

Seriously, though, Microsoft running around noisily claiming that the Linux kernel and related user space programs violate Microsoft patents without specifying exactly which ones reminds me of similar behavior by Joseph McCarthy in the U.S. Senate in 1950, running around claiming that the American State Department was infiltrated with Communists. Just my perception.

Posted May 14, 2007 5:47 UTC (Mon) by wilreichert (subscriber, #17680) [Link]

FUD from a rat backed into a corner. Guess they didn't learn anything from SCO.

Posted May 14, 2007 6:19 UTC (Mon) by tavis (guest, #14187) [Link]

Now that Microsoft has a cross-licensing deal with Novell that has customers AND has made these comments, doesn't that show that their actions have caused harm to their competitors (e.g., RedHat, Canonical, etc.)? In which case, the allegations either should be substantiated or they amount to false advertising/slander of title/etc. So can't someone threaten MS that they need to substantiate the allegations and explain which 235 patents are being violated by what programs?

Posted May 14, 2007 8:19 UTC (Mon) by jmorris42 (subscriber, #2203) [Link]

I'd say that it is officially 'on' as of now. Microsoft has to know that mere saber rattling won't work. All it will do is provoke a response, a cry for them to 'bring it' as is already happening. They had to know what sort of reaction to expect, there ARE some smart people working there.

No, SCO was a delaying tactic to buy time for them to come up with a strategy, something other than what is about to happen I suspect. But this is all they have, all out patent war. They know the risks, it could escalate into a real horror, it could even force Congress and the courts to reform the patent system.

They know all about network effects and just how fast a seemingly invincible marketshare can change. After all they only have to look upon the corpses they have left behind them. Lotus, Wordperfect, Netscape. There were times when suggesting any of them would be overthrown would have received only laughter. They are afraid that if they simply do nothing that the point of no return will pass them. Especially when they are paranoid enough when they are crushing their enemies. The thought of a foe they can't beat with their usual tactics has em spooked.

So since they really don't have another choice, they seduced Novell to the dark side to sow discord in our camp and offer a way for short sighted mega corps to opt out of the fight, weakening our ability to recruit allies and now they will attack. Without the Novell deal every fortune 500 corporation would be looking at a major open ended liability problem with no obvious way to throw money at it to get rid of it, thus they might be scared enough to call their pet Congressman.

Interesting times ahead!

Posted May 14, 2007 9:20 UTC (Mon) by dark (subscriber, #8483) [Link]

I assumed that all this time, they were waiting for software patents to be ratified in the EU before launching their attack. If this fight starts in earnest, it will be a powerful argument for the people opposing software patents in the EU.

This might mean that they now expect the process in the EU to be irreversible, though. We'd best be on our guard. Do they have something planned?

Posted May 14, 2007 9:20 UTC (Mon) by NigelK (guest, #42083) [Link]

This is just Microsoft FUD, but also double-edged FUD that can seriously damage Microsoft later:

235 patents in total:

42 in the kernel
65 in the GUI
45 in OOo
15 in email clients
68 in others

The first question to be asked in any court is: given that the Linux-related source code is written separately mostly by people with no relation to Microsoft, how can these patents be valid non-obvious ones if independent coders can invent them themselves? And the follow-up question: just what proportion of your patent portfolio is as weak as these patents?

But we all know that these patents will never see the inside of a court room - MS is just interested in FUD, not actual enforcement.

Posted May 14, 2007 10:50 UTC (Mon) by gouyou (subscriber, #30290) [Link]

One thing that is still and will be for a long time in the picture is the anti-trust legislation. Microsoft Corp has to take care of not going in a frontal way against competitor. Europe is still waving structural remedies against the company, and going after Linux could bring them back on the radar of a couple of prosecutors. They have to be extra careful: Microsoft worst enemy might be Microsoft itself ...

Posted May 14, 2007 17:43 UTC (Mon) by stock (subscriber, #5849) [Link]

Its seems the role of "The SCO Group" as Microsoft's intermediary to take on Open Source, linux and its backers, like IBM, has come to an end. Darl McBride has lost and the grapes are not only sour, they are almost vanished, as today's SCO has no remsemblance with the SCO of the 1980's and 90's [1]. Microsoft knows it, and has to do something to get the Patent FUD/fear game going again. It's astonishing to see that Microsoft now will do the dirty work themselves.

[1] SCO's financial results are in

Seems 'the SCO Group' is on its way down. "Well done Darl McBride!" Here's an old email i sent to someone in August 2003, when asked what i knew of this new company called 'The SCO group' :

   
Hi,       
      
Last year, in September 2002 I met Darl McBride in real life by sheer      
coincidence. Actually i spoke with him for an half a hour. It was a      
joined Caldera/HP symposium called GeoFORUM on 25 September 2002 at the      
Holiday Inn Hotel, Haagse Schouwweg 10, Leiden. It was the announcement      
in Holland of Caldera's new company name : "The SCO Group Inc."       
      
Although Darl McBride was not listed on the GeoFORUM announcement letter,      
he did show up to give an unannounced speech as the new CEO or their      
renamed company (formerly Caldera Inc.) The SCO Group Inc. Now that I      
think of it, why would McBride not announce himself before the conference      
started that he would give a speech?       
      
Anyway, I talked to McBride about the role of Linux, and how the Linux      
thing should be incorporated into UNIX business. I told him, that Linux      
and other OSS stuff are ready for download, like wood in the forest. It      
only takes experienced carpenters to make it to use. The problem is      
however McBride is a experienced business man only. and he fired his own      
squad of experienced SCO UNIX carpenters.       
      
McBride said the following. He was there to tell that Caldera was      
surprised to see that SCO UNIXWARE and SCO OpenServer license card and      
media sales were the largest income at Caldera's. That's why the decided      
to a company name change into "The SCO Group Inc."       
      
McBride asked the audience why people kept purchasing SCO OpenServer. The      
answer was, "Because it just works, all your software runs, and it      
doesn't come with unneeded bloated features". Then he asked why Linux      
like water was free to drink. I told him that when you drink water from a      
unknown source you might get ill. If you buy your water from a reliable      
source your fine. So labeling and branding the Linux water was a way to      
earn a decent income from Linux.       
      
So it all comes down to, as a business being liable for the products you      
sell. And if you screw up your company's product, you will have to      
suffer. McBride turned almost white :) So this dude is phony IMHO.       
      
cheers,       
      
Robert      
--      
Robert M. Stockmann - RHCE      
Network Engineer - UNIX/Linux Specialist      
crashrecovery.org stock@stokkie.net      

Well McBride did listen allright. SCO OpenServer 6 has become a bloated and rare used version of UNIX on x86. Caldera Linux has become extinct, and its twin brother Novell's SuSE Linux, adopted from SuSE G.m.b.H from Bavaria, has never before had so much funded criticism from within its user/customer community, where the reliability of its Desktop is questioned.

Like with Windows, the reliability of the Novell SuSE Linux desktop is today harmed by 3rd party software in binary form, like the latest Flash gear.

Posted May 15, 2007 5:58 UTC (Tue) by lewis (guest, #45263) [Link]

If M$ has been filing patent applications at the rate of over 3,000
per year since 2004 as asserted they must have well over 10,000 by now
and by Ballmers best FUD only 235 are infringed by FOSS?
This is only 2 percent!
Since a RedHat distro plus Open Office tools are more than sufficient to
run a perfectly good business. This implies that 98 percent of M$ patents
cover bells and whistles in their own OS and tools that are essentially
completely irrelevant.

Posted May 28, 2007 3:06 UTC (Mon) by KenWPeek (guest, #45462) [Link]

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PLEASE STOP ALL OF THIS NONSENSE!

Patent Law, is *NOT* the same as Copyright Law.

The *ONLY* thing the US government grants to the patent holder is: "The exclusive right to market the invention...". In this sentence, "market" is a verb. Let's look up the meaning of "to market" in Black's Law dictionary (use the older dictionary that was available at the time the law was written.) The verb "to market" means: "to sell, or offer for sale, or license the sale of". Also, when a patent is issued, the US Government is automatically granted a perpetual non-exclusive license to the technology for FREE.

If no money changes hands for a product, then the product was *NOT* "sold".

*ALL* distributors of free software that I know of GIVE AWAY FOR FREE the software-- though some of them charge a fee for the media and/or service of burning the FREE software onto a disk.

*NO* "end user" of a patented technology can be sued for "patent infringement", because they are *NOT* selling a product incorporating the patented technology.

Microsoft's assertions of "patent infringement" DO NOT APPLY TO END USERS, PERIOD. AND THAT MEANS CORPORATIONS TOO (which are just "paper persons".)

Microsoft's assertions of patent infringement DO NOT APPLY TO DISTRIBUTORS OF FREE PRODUCTS OF ANY KIND.

The only exception to this is for the non-GPL-type licenses (BSD, MIT, etc.), where the distributor of the software chooses to charge money for the software. Then, and only then may Microsoft's assertions of "patent infringement" apply, and then only if the patents are found to be valid, and only if the software sold uses the patented technology.

As a veteran of patent infringement lawsuits, allow me to explain how this all works.

In order to keep it's patent rights, a patent holder (Microsoft in this case) *MUST* begin proceedings against the alleged "patent infringer". This is called "due diligence", and there is a time limit set forth in case law for this. The clock begins as soon as the patent holder realizes that a patented technology is (possibly) being infringed. If you inform the alleged infringer within six months, you are on solid ground, and longer than that is "questionable" (you better have a good reason!) The proceedings begin by sending a "Cease and Desist" letter to the alleged patent infringer. The letter *MUST* state the specific patent number, and *MUST* state specifically how the person or company is infringing (or is "about to" infringe by offering a product for sale). For software products, this would at least show the product that the alleged infringer is offering for sale, and *HOW* that product allegedly infringes on the patent holder's technology. If this information is not provided, case law holds that the alleged infringer has *NOT* been "noticed" (given sufficient notice) of the infringement, and the process has not yet begun. The patent holder may *NOT* wait until sufficient damages have accrued before beginning to exercise "due diligence", because the court is likely to declare that the alleged patent infringer has been given permission (by "default") due to insufficient notice in a timely manner, and this *CAN* cause the patent to end up in the public domain.

So, let's assume that sufficient notice begins. The two parties may engage in a dialog to further define the alleged infringement, and if the alleged infringer then agrees that they are infringing, they can either decide to stop infringing immediately, or to work out a licensing deal with the patent holder. (The latter is the usual course taken.)

If the alleged infringer does *NOT* agree that infringement is taking place (for various reasons, like: 1) they are not selling anything or offering anything for sale, or 2) they think the patent is not valid due to one or more reasons, or 3) or they believe that their product uses a different technology than what the patent holder is claiming that they are using, etc.) The two parties will now begin court proceedings. This usually begins by the patent holder filing a lawsuit against the alleged infringer, who then in turn usually motions the court for a "show cause" hearing (which is almost always granted.) In this "show cause" hearing, the patent holder *MUST* show proof of the exact product that the alleged infringer *SOLD* (or offers for sale if no sale has yet occurred), and the exact manner and method that the alleged infringement is occurring. If insufficient evidence is provided that shows that clearly shows that infringement is taking place, the judge will dismiss the case, and that is the end of it. If the judge believes that there is sufficient evidence that infringement occurred, then a trial date will be set, and at this time the patent holder usually motions the court for injunctive relief (to stop the alleged infringer from selling the products in question until the matter is resolved in court.) In these kinds of cases, the motion for injunctive relief is usually denied, but the judge will order the alleged infringer to keep accurate record of all sales (in case they lose the case, the infringer will have to surrender all proceeds of any sales.)

So, as you can see from the above, Microsoft would never make it past the "show cause" hearing stage, because no products are being sold, and no there is no intention to sell any products. (Indeed, the GPL forbids the sale of the GPL'd software for any amount of money.)

END-OF-LAWSUIT. GAME OVER.

So (for example) if you download a FREE ISO image of "Ubuntu Linux" from a server in South Africa, burn the ISO image onto a CD, and install the software, Microsoft has no "standing" in court, because: 1) You are an end-user of the product, and you are not selling the product or offering it for sale, and 2) South Africa (wisely) does not recognize "software patents", and so no lawsuit can be filed in that country. In this case, Microsoft is simply left out in the cold, and can do *NOTHING* (without being counter-sued for a "frivolous lawsuit", and THEY would LOSE.)

So, unless you *KNOW* what you are talking about, please quit with all of the "worry talk". It is just scaring everyone, and is only *helping* Microsoft with their "Fear, Uncertainty, and Doubt" [FUD] campaign.
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