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Ballmer Suggests Linux Distros Will Soon Have to Pay Up
Posted by
Zonk
on Tue Oct 09, 2007 07:31 AM
from the oh-good-more-smack-talk dept.
from the oh-good-more-smack-talk dept.
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.'"
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[+]
Your Rights Online: Eolas vs. Microsoft Lawsuit Settled and Sealed 45 comments
theodp writes "The Seattle P-I's Todd Bishop reports that Microsoft has settled its 8-year-old web browser plug-in patent dispute with Eolas. The spat begat the click-to-activate Web after Microsoft was slapped with a $500+ million patent infringement judgement. Neither Eolas nor Microsoft will be disclosing terms of the deal, although Eolas told investors to expect a dividend (PDF). Microsoft didn't say whether or how the settlement would affect its approach to the underlying technology in IE or other programs. Just last month, the USPTO issued a non-final rejection of the patent's claims, citing the work of Pei-Yuan Wei as prior art."
Submission: Microsoft furthers open source patent threats by Anonymous Coward
[+]
Red Hat Vows To Stand Up To Patent Intimidation 168 comments
mrcgran writes "Eweek is reporting on Red Hat's assurances that can continue to deploy Linux without fear of legal retribution from Microsoft. This, despite the increasingly vocal threats emanating from Redmond. 'In a scathing response to Ballmer's remarks, Red Hat's IP team said the reality is that the community development approach of free and open-source code represents a healthy development paradigm, which, when viewed from the perspective of pending lawsuits related to intellectual property, is at least as safe as proprietary software. "We are also aware of no patent lawsuit against Linux. Ever. Anywhere," the team said in a blog posting.'"
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Which IPs in particular? (Score:5, Funny)
Re:Which IPs in particular? (Score:5, Informative)
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.
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Re:Which IPs in particular? (Score:5, Informative)
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.
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Re:Which IPs in particular? (Score:5, Insightful)
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.
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Re:Which IPs in particular? (Score:5, Insightful)
Don't these kinds of threats put MS in legal jeopardy? Couldn't Linux companies sue MS claiming that Balmer's statements are harming their business, especially in light of the fact that MS refuses to identify these patents? I would think that this situation could cause more problems with the EU.
The DOJ of course is completely hopeless at this point, but other countries can still offer some relief.
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Re:Which IPs in particular? (Score:4, Interesting)
The DOJ of course is completely hopeless at this point, but other countries can still offer some relief.
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Re:Which IPs in particular? (Score:4, Interesting)
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A patent atorney walks into a room of Linux admins (Score:5, Interesting)
Interesting discussion anyway, even though I find the mix of lack of morality and the excess of $ deeply disturbing. Call me an idealist and cry me a river.
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Re:Which IPs in particular? (Score:5, Funny)
IBM
They also happen to be one of the few companies in the world that could effectively retaliate.
Look for it to go down something like this....
1) Microsoft threatens a Linux company, lets say.... Red Hat.
2) IBM buys controlling interest in Red Hat.
now it then becomes either.
Microsoft backs off this patent bullshit.
or
Global Thermonuclear Patent War.
Also, the amount of ill will generated by Microsoft should they choose to go after users directly instead of Linux companies. If they ever came after me looking for money because I downloaded Ubuntu. I would go from reluctant use of MS products to incredibly vocal sworn enemy of absolutely everything Microsoft really quickly.
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Re:Which IPs in particular? (Score:5, Insightful)
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.
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Slander? (Score:5, Informative)
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)
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SCO all over again? (Score:5, Informative)
This just reminds me of the whole SCO case (which was meant to be a front for Microsoft anyhow). We will threaten you without any evidence and hope that you are too scared to stand on your own. Does this not sound like Mafia tactics? Shouldn't this be illegal, if it isn't already?
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Re:Which IPs in particular? (Score:4, Informative)
It will not be good for Linus in court.
Also free developers can not afford attorneys and an injuction to halt linux development could also be a real possibility. THe good news is IBM and Redhat could file a friend of the court and let linus continue on the kernel tree on of their serves since they have the resources to fight MS.
However many corporations have anti gnu and linux policies in their IT deparments. Several banks already ban it thanks to SCO and something like this from MS will scare many CIO's to steer clear of it to avoid getting fired in case they open their employers to liability. "Just pick windows, its the safe bet!"
What shocks me is that this is legal.
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Re:Which IPs in particular? (Score:5, Interesting)
While I agree with your analysis, I don't think it proves your point (about halting Linux growth). FTR, I'm talking about the desktop here. Linux owns the server space, MSFT's hardly even a relevant player, that's not going to change. Money talks, and while MSFT's got a lot of it, so does IBM. So does Sun. So do lots of other very large and well-regarded companies. Shit, I'm drifting away from my already drifted point! Which is this:
The great big boulder that will be desktop Linux will never start rolling with business. Regardless of lawsuits, IP deals, FUD, or counter-FUD. Not gonna happen. There will always be an excuse somewhere up the corporate ladder to "play it safe" and stay with Windows. Whenever someone tries a "from the top down" push for Linux, MSFT buys them off or scares business away from them, and that's not going to change anytime soon either. Linux on the desktop, therefore, must come from the ground up. Which is good, and inevitable. That's how Free Software works. That's how Free Software has always worked, and it works well, and even though it's slow, it's a steady growth. The Linux userbase grows every year, while MSFT has nowhere else to go. It'll happen. Not only will it happen, basic economics dictates that it must happen.
Patience, grasshopper.
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Re:Which IPs in particular? (Score:5, Informative)
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Re:Which IPs in particular? (Score:5, Informative)
Make it 9000,000,001.
The non-presumptive laches defense applies specifically to this circumstance.
Because the Open Invention Network and others have repeatedly requested that Microsoft identity the infringing code, the laches defence becomes non-presumptive much earlier.
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Re:Which IPs in particular? (Score:5, Informative)
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.
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Re:Which IPs in particular? (Score:4, Interesting)
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Re:Which IPs in particular? (Score:5, Insightful)
Red Hat has enough money to protect itself. A good legal team costs a ridiculous amount of money, but at some point the cost will plateau. Throwing more money at them doesn't get you "better" legal representation.
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Re:Which IPs in particular? (Score:5, Insightful)
We don't have anything specific yet,but we are busy digging through the source looking for infringing content. As soon as we get something even semi legit we will show you. Until then, we will make idle threats.
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Re:Which IPs in particular? (Score:4, Funny)
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Re:Which IPs in particular? (Score:5, Funny)
"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"
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OOXML (Score:5, Interesting)
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.
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Re:Which IPs in particular? (Score:4, Insightful)
The UK patent office tends to be pretty good at not allowing software patents. The common work-around is to file for an EU patent in Ireland (which does accept software patents, in spite of their illegality). This is then a valid, but unenforceable, patent in the UK. The purpose of doing this is to allow you to enforce the patent in the UK (and the rest of the EU) if software patents become legal.
The UK government responded to a petition against software patents with a clear statement that they should not be granted. While this is not technically binding, it would go a long way in court to clarifying the spirit and intent of the law, should it be raised.
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Re:Which IPs in particular? (Score:5, Insightful)
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.
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Microsoft is a toddler (Score:5, Informative)
MS is scared shitless (Score:5, Insightful)
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
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Pay you for what? (Score:5, Insightful)
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...
Re:Pay you for what? (Score:5, Funny)
Microsoft: Well, you own a computer, don't you?
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Re:Pay you for what? (Score:5, Insightful)
This quote from Ballmer [groklaw.net] that is posted on Groklaw under the section "[Update 2]", appears to be the Microsoft explanation:
But he doesn't stop there. He immediately continues by directly contradicting himself, and talking about the differences in the FOSS and Microsoft business models:
In other words, FOSS should be required to use the same wastefully expensive business model that Microsoft uses.
I don't think he gets FOSS. I am beginning to wonder if his commitment to the traditional corporate culture of 1982 is so great that he truly cannot see that FOSS is based on an entirely different cultural platform. FOSS is a kind of gift economy where those involved are saying "Hey, since it doesn't cost me to share what I'm doing, I'll gladly share it with everyone, and I expect others to give something back to all of us, too." Where traditional capitalist cultures like Ballmer's see product improvement as a way of getting a bigger slice of the pie, FOSS focuses on making the entire pie bigger so everyone gets a larger slice.
To those who are less culturally advanced, the clear successes of FOSS must seem to be magic. Apache, Blender, Firefox, and the others must all seem to have been created out of empty aether, and to be without any solid foundations. Clark's observation about advanced technology seemingly also applies to business models: if they are significantly advanced, their mechanisms of operation will seem to be magic to the businessmen of twenty-five years ago who haven't bothered to keep up.
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Yeah, but.. (Score:5, Insightful)
Anyway, let it be said *again*. If you pay Microsoft, or anyone, for a license to "unspecified patents" then you are an *idiot* and I hope you get sued by your share holders.
hmmm... (Score:5, Funny)
I don't play too much CivII, do I?
Suddenly, I like Ballmer a little less (Score:4, Interesting)
Re:Can you blame him? (Score:4, Informative)
The obvious answer is that they benefit more from using their patents to shut down competition than they lose from paying the odd multimillion dollar fine.
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They must love FUD (Score:5, Informative)
Re:They must love FUD (Score:4, Insightful)
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He could be right... (Score:5, Interesting)
Microsoft is unlikely to enforce it's patents, but what should scare us are the other Patent Houses where their business model is based on litigation [google.com]. They are the dangerous ones...
the reason microsoft won't show their patents (Score:5, Interesting)
Stage three (Score:5, Insightful)
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 (Score:5, Insightful)
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.
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Let's force him to put up. (Score:5, Interesting)
Linux's Retaliation (Score:4, Interesting)
I'll pay up! (Score:4, Informative)
and so on and so on. MOST of microsofts products are based on others Intellectual property and violates at least 60-80 patents somewhere.
Hey microsoft. as soo as you are clean I'll come clean. No, I dont consider clean your legal wiggling bullcrap. 100% legit.
as soon as they pay up
The obvious solution (Score:5, Funny)
Obligation to compensate? (Score:4, Insightful)
Sue who? (Score:5, Insightful)
And if it is something so fundamental to the core of Linux it can't be coded around, the odds are long that MS's patent will be found invalid, since virtually all that stuff was invented for *nix before MS ever existed.
So if MS sues, in most any scenario *nix (both Linux and most probably Sun) wins. This is such a sure thing we should consider doing all we can to provoke MS to sue - except that we'd hate having some of our best minds preoccupied for a few years with the court battles.
Darl? You in there? (Score:4, Funny)
Ballmer tried that before ... (Score:5, Informative)
Interestingly, and following SCO's proven tactics in the matter, he stubbornly refuses to say *what* patents are allegedly violated.
Of course Mr. Ballmer admits that he doesn't expect to see a huge revenue stream from licensing agreements (he named the Novell agreement), but that isn't the point you see.
The point is that "free as in speech" and "free as in beer" are threatening Microsoft's business model. If only he could somehow get rid of the "free as in beer", and with it the "free as in speech", he would turn Linux into just another commercial offering. And that's something he knows how to compete with. By fair means or foul (just see the recent EU verdict against Microsoft and judge Jackson's findings of fact in the DOJ-Microsoft case a few years ago for what those "foul means" amount to).
It's also important to realise that no solution that consists of Linux simply dropping any code (assuming any Linux code were to be found to infringe on Microsoft's patents) can be acceptable to Mr. Ballmer.
With that in mind it's easy to understand why Mr. Ballmer really *cannot* list the patents he wishes to receive "just compensation" for. It's because he does not want to give Linux any opportunity to remove any offending code (assuming there is any). He does not want any compensation either.
He just wants to make Linux non-free because that's how he can get rid of it.
Re:What IP? (Score:4, Insightful)
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Re:How? (Score:4, Insightful)
That`s what makes software patents so dangerous.
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