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So What If Linux Infringes On Microsoft IP?
Posted by
Zonk
on Sat Nov 25, 2006 06:26 AM
from the yeah-that's-right-wait-what dept.
from the yeah-that's-right-wait-what dept.
Mr Men writes to mention a ZDNet blog entry by Adrian Kingsley-Hughes wondering aloud if maybe, just maybe, Microsoft isn't lying about having patents that are part of Linux. "Come on, no matter how much of a Linux fan you are, you have to admit that there's at least a chance that Linux does indeed infringe on Microsoft's patents. After all, Microsoft does hold a lot of patents and while Linux is open source and we can all take a look at the source code, only Microsoft has access to most of its source code so it isn't all that difficult for it to prove — to itself at any rate — that there are IP infringements contained in Linux. After all, before IBM handed over some 500 patents to the open source community, it's pretty clear that Linux was infringing some of them. Given that, why is it so hard to believe that the same isn't going on with Microsoft?" Even then, he goes on to say, so what if they do? It's not like they're going to go after us with a 'Linux tax.' Kingsley-Hughes imagines that, for the most part, Microsoft is just going to sit on this info and use it to form more and more profitable deals. Better than the alternative, I guess.
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I live in EU (Score:5, Insightful)
For now, at least.
Re:I live in EU (Score:5, Interesting)
I think all Linux and OSS developers know they are living with a Damocles sword above their head : the FOSS community does not apply patents, implement a lot of trivial-but-patented ideas and, for one, I have been wondering why MS didn't attack Linux yet.
I now have an idealistic answer to this question. I think that most big patent holders also live with another Damocles sword. The value of their companies is (partly) related to the number of patent they own. The current system do not care about the individual value of patent, just about their numbers. I think that this system is deeply flawed but that it just keep on working because most shareholders believe in it. Now imagine the Redmond Behemoth clashing with the FOSS insurgency. Both sides are well known, if not of the mainstream public, at least in the IT field, including IT decision makers. Such a debate would very quickly point the flaws of the system and may even be able to disrupt it. Plus, the FOSS is more able to gain public support, considering that even if you can portray them as "IP thiefs", as we use these IP to create products for everybody, we can easily be seen as Robin Hoodesque thiefs.
Would I be in the skin of a Redmon lawyer or decision maker, I would be VERY careful about this issue.
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Re:I live in EU (Score:4, Interesting)
They couldn't find any relationship between innovation and the number of patents a corporation has. It's nice to have some patents to use in a defensive manner. But they don't give you much leverage over the competetion.
If you effectively want to use patents you have to several things. Develop the patent. apply for it and actively defend against any infringement. If you do the later 2, you have less time for development. Which results in loss of your customers, who go over to the competition.
Companies like Google have to invent new stuff in order to stay ahead of the competititon. They don't have the time to wonder about patent infringement.
Most patents nowadays concern many small improvements that are obvious. Patents that the competition has to avoid in order to compete. At the moment patents allow a monopoly for the big guys. The innovative small guys remain screwed and face unfair competition.
No wonder that big American corporations are pushing for software patents in the EU. It sure would help them against the local competition.
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Re:I live in EU (Score:5, Insightful)
And that's exactly the point that the author of the article misses. With statements like this:
Microsoft does hold a lot of patents and while Linux is open source and we can all take a look at the source code, only Microsoft has access to most of its source code so it isn't all that difficult for it to prove - to itself at any rate - that there are IP infringements contained in Linux.
Patent infringement is not determined by comparing the infringer's product against the patentee's product. Rather, the infringer's product is compared against the invention claimed in the patent. The patentee's product is irrelevant to this process.
But let's get down to brass tacks. The problem is that Linux is fighting FUD with FUD. Microsoft is kinda-sorta playing the SCO Card by using veiled threats over its IP. Since Linux (as a whole) hasn't done any kind of research, it has to fall back on its own wholly conclusory claims that everything's A-OK, and stupid veiled threats over GPL v3. (The latter tactic strikes me as the equivalent of "bringing a knife to a gunfight," only it's more like a toothpick.)
This sucks, folks. At the end of the day, FUD is worthless - Linux's as much as Microsoft's. And since that's all anyone has at the moment, we're deadlocked.
But let's look at this another way. Patents are open documents. The Linux community has a ton of free manpower. And the open-source community loudly touts its decentralized-group-organization powers.
The solution write itself, people: The Linux community needs to conduct a comprehensive review of Microsoft's patents.
At this moment, Microsoft owns 5,844 patents [uspto.gov]. It wouldn't be all that impossible for the Linux community to divvy up the work, and have three people look at each patent to see how it impacts Linux. A coherent review of every such document would have pretty strong power - some power for legal purposes, and much more power for business and social purposes.
- David Stein
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Re: (Score:3, Interesting)
Windows was not inferior. Now I *might* grant you that it was technically inferior, but when the whole system is considered, buying your hardware from any number of competing, standardized vendors, and buying your OS from a pure software company with no vested interest in which hardware you bought was a compelling combination.
As far as the technic
Re:I live in EU (Score:5, Insightful)
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Re: (Score:3, Insightful)
So that people in the US could use their distro without issue? I guess if they wanted to deliberately ignore the US market it wouldn't be an issue.
Re:I live in EU (Score:5, Insightful)
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Re: (Score:3, Interesting)
Re:I live in EU (Score:4, Funny)
Especially if that one country has a population roughly half the size of your entire continent.
Screw 'em, we don't need their business or support.
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Re:I live in EU (Score:4, Informative)
Top 5 Online Populations by Country, Among Visitors Age 15+
March 2006
Total Worldwide - All Locations
Source: comScore World Metrix
Worldwide Total 694,260
United States 152,046
China 74,727
Japan 52,100
Germany 31,813
United Kingdom 30,190
When 4% of the world's population represents over 20% of the world's online presence, it's safe to assume they are an extremely important market for software.
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Windows Infringes Patents (Score:4, Insightful)
This is a battle Microsoft doesn't want to fight. That's why it uses SCO as a small fall guy. If it directly chases Linux, it will get burned so badly in court. A court case against Linux would be such a major legal event that it would bring the software patent system into question, and closed-source companies don't want that either. Because there are so many examples of negative consequences of the patent process in the US that it risks complete destruction of the system.
Legal experts for linux should prepare themselves for an all-out war on Microsoft that will kill them. And like others are pointing out, they can't kill Linux. Not internationally, and probably not domestically in the US.
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Re:Windows Infringes Patents (Score:4, Informative)
As long as Microsoft puts something like "Some portions © Regents of the University of California" on a splash page somewhere, they've done everything they need to "rip off" BSD code. Winsock was just the Windows implementation of Berkeley sockets, and is the prime example of their use of BSD licensed code.
BSD license means they can do whatever the hell they want with it as long as they keep the copyright attached to the code or binary, this is why Apple can build on top of BSD and link into it without releasing their UI code. The benefit of BSD is that different private companies can build on top of the same software infrastructure without giving up their improvements, while the reference implementation remains in public and still owned by the writer, who may elect to change the license in the future (BSD is not public domain). BSD is not for me, except for example programs in articles, maybe, but if you're one of those permissive types that wants developer to be "free" to use your code, then it's there for you.
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Re:Windows Infringes Patents (Score:5, Insightful)
There is another reason for Microsoft to fight clean, it is the same reason they are careful not to be too unpleasant to Samba - the Industry would take a dim view of Microsoft attempts to torpedo something essential. Linux is essential, as is Windows / Unix interoperability.
Finally, if Microsoft did pull some patent attack, there is a good chance someone would be able to rewrite the code held to be in violation.
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Read the license (Score:5, Informative)
From GPL v2:
All direct or derived GPL source is subject to the GPL.
If there are licensing problems with the software, you do not have permission to use or distribute it.
If there are problems with IP conflicts, the GPL explicitly does not apply to the source code in question. That means NO ONE has the right to distribute that software except the AUTHOR/OWNER, and they must use a license other than the GPL to do so.
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Re:Read the license (Score:4, Informative)
Except noone has interpreted that to mean that a legal action anywhere will ban global distribution. For example, say Thailand's wacko new IT minister bans open source software (he was featured on slashdot). Does that mean Redhat, Suse etc. can all close up shop because they can't distribute it to thailenders, and hence not to everyone? Of course not, it would only apply in Thailand. So the US can have their stupid software patents, the rest of the world will go happily along. And if the EU joins them, there will be mirrors outside either. Unless I remember wrong, debian has had a "non-us" repository for quite some time because of crypto export restrictions, among other things. All common users need would be a "no-patents" mirror located somewhere else. It would suck for officially distributed software, but already there are unofficial side projects like Automatix and EasyUbuntu to "fix" crippled distros.
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Re:I live in EU (Score:4, Interesting)
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Everyone infringes a patent (Score:5, Insightful)
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Re:I live in EU (Score:5, Insightful)
I believe we have one or two programmers of our own here in the EU...
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Re: (Score:3, Interesting)
Would Microsoft care if something not Linux that couldn't be sold in thir main market contained the IP? Sure they would. But they'd still be laughing their asses off that their primary market would be that much less competitive.
Yes,
Re:I live in EU (Score:5, Interesting)
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Re: (Score:3, Funny)
Well, then we'll all get to watch Eben Moglen eat Microsoft's lawyers for lunch since SFU contains some gcc code.
Re:I live in EU (Score:5, Insightful)
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I Must Be Confused (Score:5, Insightful)
So you might be able to argue that Linux will still remain free to us somehow but I think it would be severely detrimental if not fatal to the applications that run on top of it.
I'm not a lawyer but I think that if the Linux kernel fell then a lot of the applications that make Linux great would be in immediate danger. I mean, this guy kind of scoffs at Microsoft claiming patent infringement but has he thought what would happen to projects like KDE & Gnome? I wouldn't be afraid of losing Linux but I would be afraid of losing the great applications that either stress interoperability with Windows or mimic functionality of a Windows environment.
Microsoft's FUD must be working (Score:4, Interesting)
Relax everyone, Linux is backed by pretty big companies, like IBM, that in the case Microsoft ever actually tries something, they'll get their ass handed to them and the Windows OS will be seen in the same infringing light.
Microsoft won't actually do anything until Linux starts eating up Desktop Sales, and even then, I don't see it happening unless MS is really going the drain, ala SCO - which won't be for many many years.
Afterall, if Microsoft really wanted the cash that badly, they would have already sued because Linux absolutely dominates in the server space, which is a market that MS wants.
This is all just a ploy to keep CIOs pondering Linux in line with the Microsoft way.
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What Panic? Re:Microsoft's FUD must be working (Score:4, Interesting)
Because people seem worried, maybe some hyperventilating, and even some panicking.
That's the M$ plan, but I don't see any of it. What panic have you actually seen outside the Wintel press? This really is Microsoft's last gasp.
Microsoft won't actually do anything until Linux starts eating up Desktop Sales, and even then, I don't see it happening unless MS is really going the drain, ala SCO - which won't be for many many years.
No, this IS exactly the same thing they did with their SCO sock puppet and it's all they really have: an empty threat. They dumped hundreds of millions of dollars into SCO but they never had the first real infringement. This patent move is more of the same and just as empty. If they really had something, they would have laid it out.
Free software is making desktop inroads and is about to make more. Companies like Lowes have already kicked Microsoft completely out. Vista is going to push more companies in the same direction. People sitting on Windows 2000 are going to see even less of what they want in Vista than they did in XP and migrating to free software will be very attractive for them. The end will come swiftly.
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Re:I Must Be Confused (Score:4, Insightful)
KDE and Gnome, and just about every other "linux app" you can think of run just fine on other operating systems. Ever hear of the *BSDs? Solaris?
Not that it's going to happen, but Linux could disappear tomorrow, and the world would still have several free unix-type OSs to run KDE or Gnome on.
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Re:I Must Be Confused (Score:5, Interesting)
If QT & Qtopia broke any patents they would have been sued long ago but then we would switch to wx perhaps for some other widget set. There's plenty to choose from.
My Unix desktop is a straight port of plan9's rio. No patent trouble there and if there was AT&T/Lucent would have been in trouble long long ago when they had any money.
When you have a long memory in this industry, you've heard many of the battles already played out and can pick a path of least risk.
BSD went through this phase already. That litigation was one of the reasons Linux was adopted in many places.
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Re: (Score:3, Interesting)
Also note that this claim involves patents, and not copyright. Just for the sake of argument, if Linux were to so
Shooting themselves in the foot (Score:4, Funny)
I get the feeling that the world may just be ripe for a new commercial desktop platform that will run on PCs and be an actual serious competitor to Windows without requiring special hardware to run (ala OSX). I mean, how long has it been since OS/2 went down? I think it's about time. If I could go to Comp-u-City and buy a different commercial (I stress commercial, not open source but new from the ground up) operating system off the shelf for $150, I'd do it today instead of golfing.
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no solution (Score:5, Insightful)
Re:no solution (Score:5, Insightful)
The only thing that the large corps haven't figured out in this game rigged in their advantage are the patent trolls designed only to extract money as they don't actually do anything else. Atari is a prominent example.
Patents used to be good, but 17 years is too long a generic period - different industries need different periods - ala the drug industry should have a reasonable period while the software industry is so fluid and rapid flowing patents don't even begin to make sense.
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Exactly (Score:5, Insightful)
You don't even have any choice as to whether or not to ignore software patents. There are hundreds of thousands of them. Then there are several thousand new applications a day. I'll give you a hint. It's impossible.
That's why Microsoft ignores software patents. Even they, the richest company on the planet, have no alternative. And that's also why they're getting hit with a few 9-figure verdicts already. But they still play the game and pretend they're legitimate, because they somehow think they'll benefit, in the end, using them to crush current and potential competition with multi-million legal actions and the threat thereof.
It is mpossible to tell if any piece of code infringes. By the way, have you read many of these things? Almost every line of code does infringe.
Every line written is a ticking patent timebomb. Every player has to ante up and make their own "patent portfolio" which they can then apply against whoever sues them. If that sounds like it excludes everyone but a few rich, dominant corporations... now you're getting the idea. Only minor fly in the ointment: those patent shell companies that actually don't do any work except suing people, therefore can't be hit with a retaliatory claim. Ooops. And yet even after getting whacked by a few, MS is still winking and continuing to play the game. Shows you how much they hate honest competition.
Software Patents are currently ignored by almost everyone. But to the extent they are enforced, they will categorically end the American software industry, and software will continue to be a business in Europe, Asia, and... well basically every other civilized nation, who have soundly rejected this silly game and are by the way laughing their asses off at us.
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Re:Exactly (Score:4, Insightful)
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'atleast a chance' ? (Score:5, Interesting)
confusing article (Score:5, Insightful)
Besides, if MS tries to sue or extort money from someone for use of it's patents, they'd have to specifiy the patents in question, and be sure that these patents would survive being challenged.
I'd say it is cheaper to FUD than to sue.
They do want a Linux tax (Score:4, Insightful)
It's exactly the same game theory which makes mutually assured destruction work. My advice with the current US patent system? Patent everything.
Balmer's suicide note: a 10 point guide (Score:5, Funny)
define "infringe" (Score:5, Insightful)
The real questions are whether Linux infringes on any valid Microsoft patents, and whether Microsoft's threats have any legal significance. That seems pretty unlikely: unlike Microsoft, open source developers tend to be scrupulous about avoiding patent infringement. That means that there is going to be no willful infringement and no patent infringement for any key patents. Or, in different words, Microsoft would have a hard time getting anything more than an apology and a quick code change. How they're going to get any business deals out of that, I fail to see.
So, Microsoft, please let us get this over with and start suing.
Can we please (Score:5, Funny)
More white knights needed (Score:3, Interesting)
If Microsoft does take the nuclear option and attack major users of Linux over patents, who will take up arms against a company with sufficient money in the bank to buy every lawyer in the western world?
Don't use the term IP (Score:5, Insightful)
First and foremost, copyrights and patents are not property, so don't refer to them as such. But it also leads to confusion like this article.
Okay, it's patents we're talking about, right? Patents are published - that's the whole point of them. They aren't secret.
So what? Their source code is of no use when determining patent infringement, only copyright infringement. So is it copyright infringement we are talking about then?
Patent and copyright violation are two totally different things. Copyright violation would involve somebody with access to Microsoft's source code copying it into Linux - a highly unethical and stupid thing to do. I don't think Linux kernel contributors are likely to be highly unethical and stupid. Patent infringement, on the other hand, can be unintentional - but in this case, his remarks about it being impossible to verify don't apply.
This is a case where the term "IP" as a blanket reference to very different rights is confusing the issue. His arguments don't apply to either because he thinks they are the same thing.
I think it's also worth pointing out Stallman's criticism of the term "Intellectual Property" [gnu.org].
Re:Don't use the term IP (Score:4, Insightful)
Yes they are secret. Because in the case of software, what is "actually" published is a bunch of abstract legalese waffle and not actual source code. At least with a physical device, there is a blueprint, technical drawing, etc. Not so with software. This is the very crux of the problem - since the "patent" is more or less abstract, it can be abused in a very broad manner.
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US Only (Score:5, Insightful)
Given that most large OSS projects have copyrights held by developers all over the world, how exactly would it be feasable to stop a project if you couldn't go after all of its developers and codebase?
Wouldn't it just be easier for MS to bluster and threaten, all the while knowing they can't realistically do a damn thing?
Re: (Score:3, Insightful)
Do you have any evidence to back that up? The remainder of your comments seemed to be based on this assumption.
To my knowledge, US software patents are only valid in the US, possibly Japan and some Asian countries [duke.edu].
Without being able to use a patent to prevent use and distribution on projects outside of the US, the threat of patent litigation by US corporations is a fairly empty one. And we haven't even discussed the ver
Flip side (Score:4, Insightful)
There is a method in the computer industry between companies as to how they calculate teh amount of protection money they pass between themselves,
Take the granted patent paper work and stack it up, measure it and compare it to other stacks. The largest stack wins but the other have to pay protection money to the larger stacks. I don't know the specific formula as to how they calculate it, but it does happen.
So, the FSF can stack its owned stuff up but there is alot more that teh FSF does not own.
Perhaps there should be some sort of "count my work in the FOSS stack" method so that we might just see how large our (FOSS) IP stack is (and this would of cource count anti-patent IP prior art).
There are two efforts regarding software patents. "Open source as Prior Art" and a Peer Review project, but both of these are focused and supportive of software patents.
And that is the main problem, as software, by its very nature is provably not patentable. Problem is, neither side of the software rights battle wants to develop the proof of this. Human History has plenty of evidence of the usefulness of denial, but eventually this fact will come out, as facts of the earth revolving around the sun, the hindu arabic decimal system being more powerful then the roman numeral system of mathmatics, etc.
There is a quality and characteristic of being human, a human right. A natural right to apply abstraction physics. http://threeseas.net/abstraction_physics.html [threeseas.net]
Its really rather obvious once you get past whatever idea is keeping you from seeing teh simplicity of it.
The arguement that only a fool would think nothing can have value (re: the zero place holder in teh decimal system)
Nobody can break the four minute mile, untill somone did, and then other followed quickly as their mental block was gone.
But even if you don't see it, consider what it wou;d mean across the software industry, should such simplicity of programming happen.
Article author is clue-free (Score:4, Insightful)
The article author is conflating patents and copyright. Is it too much to ask that someone who (presumably) gets paid to write this stuff would know the difference? From the summary:
Having access to Microsoft's source code would neither help nor hinder anyone in deciding whether Linux infringes any Microsoft patents. The whole point of patents is that they're visible to the public. The US government even maintains a database of them that anyone with a web browser can look at! A patent holder doesn't have to implement the invention that their patent describes before they can sue someone else for infringing it. If they did, patent trolls couldn't exist.
Anyone could drive a stake through the heart of Microsoft's FUD campaign by getting a list of all patents held by Microsoft and proving, for each patent, either (a) Linux does not infringe the patent or (b) the patent is invalid. I suspect this will not happen, for any or all of the following reasons:
Microsoft, of course, could settle the question much more quickly, by just telling us which of their patents (they believe) Linux infringes. That's assuming they have any patents that would survive a court case. They must have, mustn't they? They wouldn't have said it if it wasn't true...
No disclosure (Score:4, Insightful)
Translation: Microsoft has a weak hand in this game. It is easy to prove, yet they haven't tried to. If they had a full hand, they could point out at least one infringement to strengthen their case that there are cases to answer.
This also shows clear ill intent. If the problem was the infringement, the normal thing to do is to tell the infringer first, so that the infringement stops. Microsoft chose not to disclose their concerns. This means that in Microsoft's eyes, infringement won't stop. It follows, that Microsoft wants, what they believe to be infringement, to continue. Therefore, the infringement is not the problem, their grudge against GNU/Linux is. QED.
Source code is irrelevant to patents (Score:3, Insightful)
The fact that MS's source code is closed is irrelevant, because MS's patents are public documents. The problem for Linux (and other free software) is that its own source code is open to scrutiny, making it easier to spot patent violations.
"Patent" is not a synonym for "copyright" (Score:3, Insightful)
> and we can all take a look at the source code, only Microsoft has access to
> most of its source code so it isn't all that difficult for it to prove - to
> itself at any rate - that there are IP infringements contained in Linux.
You are confused. Whether or not a particular Microsoft patent is implemented in one of Microsoft's products is irrelevant to whether or not Linux infringes it. You want to compare Linux code to the published patent disclosures, not to Microsoft's code.