SFLC describes this cost as a tax, and does its best to make the implications clear:
As the SFLC points out, the real amount of this "tax" is likely to be higher than the estimate. The number of Windows licenses is probably inflated by Microsoft, and there's certain to be patent settlements that the public knows nothing about.
Software patents thus cost quite a bit of money; trying to quantify this "tax" and spread the word is a useful thing to do. Perhaps, if more people understand what the patent system is costing them, there will be more pressure to make real reforms. The SFLC release wanders into slightly more dangerous territory, though, when it says:
There is a significant difference between saying "Linux has never been found guilty of patent infringement" and "Linux does not infringe upon any patents." The SFLC's choice of the former wording was carefully done. The nature of the software patent beast is such that almost any significant piece of software must infringe upon a number of patents. The fact that nobody has, yet, successfully prosecuted a patent case against Linux is not a cause for great comfort.
Language like the above thus risks playing into the hands of those who would claim that the free software world is populated by those who would "steal" the "intellectual property" of others. Might they not say that the absence of software patent payments by Linux users is not an example of freedom, but, instead, an act of tax evasion? If Microsoft were to decide to bring a software patent suit against a developer or user of Linux, it could use this release to great advantage: what better example could there be of how the free software community's refusal to pay patent royalties puts companies like Microsoft at an unfair competitive disadvantage?
Putting the focus on Linux in this discussion seems like the wrong direction to take. While free software developers make diligent attempts to avoid known patents, the same must certainly be true of companies like Microsoft. Our lack of patent infringement judgments is more a matter of luck, lack of sufficiently deep pockets, and, if some sources are to be believed, some users quietly paying patent royalties to avoid ending up in court. We need to get the software patent problem fixed, rather than brag about our avoidance - so far - of public settlements.
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