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Microsoft Patents Software Linux

So What If Linux Infringes On Microsoft IP? 394

Posted by Zonk
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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So What If Linux Infringes On Microsoft IP?

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  • I live in EU (Score:5, Insightful)

    by imbaczek (690596) <imbaczek&poczta,fm> on Saturday November 25, 2006 @06:28AM (#16983040) Journal
    so I don't care.

    For now, at least.
    • Re: (Score:2, Insightful)

      by muuh-gnu (894733)
      You maybe do not care, but also have to bear the consequences, i.e. if some important functionality is removed from the code due to US patent infringement, it will then most probably not exist in an separate european version because of the amount of work for the developers which would be needed to maintain two versions.
      • Re:I live in EU (Score:5, Insightful)

        by ComaVN (325750) on Saturday November 25, 2006 @06:46AM (#16983128)
        A lot of Linux distros are not US-based. Why would they remove code?
        • Re: (Score:3, Insightful)

          by kjart (941720)

          A lot of Linux distros are not US-based. Why would they remove code?

          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)

            by Movi (1005625) on Saturday November 25, 2006 @09:58AM (#16984052)
            Umm, i already asked Shuttleworth fir this, and I'm gonna repeat the question here: Why is ALWAYS that the rest of the world should suffer for the poor laws made in the US ? Why dpes Debian ask me if I want to install a piece that may infringe on some US patent laws, instead of just installing it and saying that if I'm in the US i should uninstall this piece of software because i have crappy laws? Seriously, it's NOT all about you Americans.
            • Re: (Score:3, Interesting)

              by Fred_A (10934)
              Seconded : if a piece of code causes problem in one country, it would make more sense to make that country a special case instead of the other way round (arguments of said country's overpaid lawyers notwithstanding).
              • by Who235 (959706) <secretagentx9 AT cia DOT com> on Saturday November 25, 2006 @02:25PM (#16985644)
                Yeah, good point.

                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.
          • Re: (Score:3, Funny)

            by Darundal (891860)
            Yeah, because nobody using Linux in the US watches DVD's without the proper licenses...
        • Read the license (Score:5, Informative)

          by msobkow (48369) on Saturday November 25, 2006 @09:37AM (#16983934) Homepage Journal

          From GPL v2:

          2.b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

          All direct or derived GPL source is subject to the GPL.

          4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

          If there are licensing problems with the software, you do not have permission to use or distribute it.

          7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

          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.

          • Re:Read the license (Score:4, Informative)

            by Kjella (173770) on Saturday November 25, 2006 @10:32AM (#16984190) Homepage
            If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all.

            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.
      • Re:I live in EU (Score:4, Interesting)

        by Troed (102527) on Saturday November 25, 2006 @06:47AM (#16983130) Homepage Journal
        The USA is not that big a market, compared to the EU, Asia etc. Lots of companies have no problems at all concentrating fully on products even if they cannot be sold in the US.

      • Re: (Score:2, Interesting)

        by Anonymous Coward

        it will then most probably not exist in an separate european version

        It's not necessary. Since source code is just a description of the patent you can walk a fine line: You can add the patented feature and have a switch in the build script that can disable it. It would only be illegal to distribute binaries since only computers with a binary become an "apparatus" doing what the patent describes. That's how the Xvid guys sort of weasel around the problem for example.

        Of course, for binary distros your argum

      • Re:I live in EU (Score:5, Insightful)

        by Tim C (15259) on Saturday November 25, 2006 @07:47AM (#16983412)
        t will then most probably not exist in an separate european version because of the amount of work for the developers which would be needed to maintain two versions.

        I believe we have one or two programmers of our own here in the EU...
        • Re: (Score:3, Interesting)

          by mr_mischief (456295)
          But it's not really Linux if it's not Linus (who's in the U.S.) who releases it. So you have Linux, which doesn't contain the IP, and something not quite Linux, which does. You couldn't really call the non-Linux kernel Linux without Linus's approval, which he may or may not give.

          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)

      by Yvanhoe (564877) on Saturday November 25, 2006 @07:19AM (#16983256) Journal
      First, I think we can reasonably say that the risk is about patent infrigment here, and not source code copying.
      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.
      • by DrSkwid (118965)
        The patents can only be used against Linux once per patent because whagtever is in the way will be coded around.

        So every attempt to sue will result in a smaller useful portfolio.

        And there will be no overall winning.
        • Re: (Score:3, Insightful)

          by Artifakt (700173)
          "So every attempt to sue will result in a smaller useful portfolio."
          (emphasis mine)

          You're correct, but what the poster above you wrote emphasized, in effect, that way to many investors aren't looking enough at whether a patent is useful, just whether it exists. In the long run, this triggers a 'correction', which is what government economists call millions of people in breadlines.
          If the market corrected quickly and smoothly there would
      • Re:I live in EU (Score:4, Interesting)

        by Breetai (14095) on Saturday November 25, 2006 @07:58AM (#16983466)
        A recent study confirmed my opinion about patents.

        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.
      • Re:I live in EU (Score:5, Insightful)

        by tambo (310170) on Saturday November 25, 2006 @09:25AM (#16983880)
        I think we can reasonably say that the risk is about patent infrigment here, and not source code copying.

        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.

        ...the author proves that he really doesn't understand patents anyway.

        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

        • Re: (Score:3, Insightful)

          by init100 (915886)

          The solution write itself, people: The Linux community needs to conduct a comprehensive review of Microsoft's patents.

          There are problems with that approach. First, you need people who are versed both in Linux kernel internals and in patent legalese. There are not that many people with such qualifications around, and those that are tend to be expensive to hire. The other problem is that by looking at their patents, if they are later sued for infringement of these patents, the plaintiff can be awarded tre

    • by ajs318 (655362)
      Or forever.

      The thing is, if the EU does ever legalise software patents, any patents that may have been falsely granted (which is all pure-maths patents, which every EU member states' laws explicitly disallow) won't come into force automagically. Every EU nation implements the UN Declaration of Human Rights, one paragraph of which states that a newly-introduced law cannot be used retrospectively against any action which took place before the law was introduced. Making falsely-granted patents enforcible
  • I Must Be Confused (Score:5, Insightful)

    by eldavojohn (898314) * <eldavojohnNO@SPAMgmail.com> on Saturday November 25, 2006 @06:32AM (#16983056) Journal
    I guess I'm not on the same page as this guy. When I read about the Microsoft allegations, they're not against just Linux. They're also against Open Source projects. Either way they a lot of OSS projects rely on Linux as a platform and development environment. One of the potential issues I see if Linux goes down as "Microsoft Intellectual Property" is that these projects will dry up as no one likes to face litigation from Microsoft. Like when the SAMBA team cried out against Novell and I'm sure the Open Office folks wouldn't be too happy about this.

    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.
    • by rolfwind (528248) on Saturday November 25, 2006 @06:42AM (#16983108)
      Because people seem worried, maybe some hyperventilating, and even some panicking.

      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.
      • by Erris (531066) on Saturday November 25, 2006 @11:01AM (#16984364) Homepage Journal

        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.

        • by NineNine (235196)
          This really is Microsoft's last gasp.

          As soon as I read this in a Slashdot post, I automatically assume that the author is a complete and total moron for trying to predict the end of the world's largest and most successful software company.
          • Re: (Score:3, Insightful)

            by killjoe (766577)
            It's clear MS has jumped the shark. It no longer even pretends to compete on features anymore. The CEO of the company had just started to wage a war patents. The war is not over, it's just started but this is their waterloo. MS will implode, they have just started a war they can't possibly win and have de-facto admitted that they are unable to compete on the quality and the desirability of their products.

            It's not their last gasp, that won't come for a while but it's their first step along a path that spells
          • Re: (Score:3, Insightful)

            by kimvette (919543)
            Current success does not guarantee future existence.

            Woolworth
            K-Mart
            Caldor
            Zayer/Ames
            Sears almost went under a decade ago
            Wordperfect
            Commodore
            Atari
            Coleco
            Texas Instruments
            RCA (RCA is just a brand name now)
            Osborne
            Zenith (just a brand name now)
            Kodak (well, it has a faint pulse, but not much of one)
            Polaroid (it's comatose, on life support now)
            Service Merchandise
            AMC
            Packard
            Studebaker
            Tower Records
            Pan-American Airways (just a brand name now)
            Tonka/Kenner
            Child World

            Need I go on?
        • Re: (Score:3, Informative)

          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.

          Do me a favor and read Slashdot posts from 2000 ("Windows 2000 is a complete rewrite! There's no way MS can ship it without huge numbers of bugs. This is the end of Microsoft") and posts from 2002 ("I hate the XP interface! And no one is going to want to pay for a minor upgrades to Win2K. And mandatory registra

    • by toadlife (301863) on Saturday November 25, 2006 @06:50AM (#16983148) Journal
      "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?"
      Wow. You linux guys don't get out much do you?

      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.
    • Re: (Score:3, Interesting)

      by Mr. Hankey (95668)
      It seems that they're mostly against GPLed projects which they cannot turn into a closed source product. This in itself is not much of a surprise, but it's also why the software will not dry up even if Linux somehow went down as being MS IP. GPLed software has been around longer than Linux, and Linux is not intended to be the end all, be all of the GNU system. It is a convenient platform however.

      Also note that this claim involves patents, and not copyright. Just for the sake of argument, if Linux were to so
      • Patent Holders Onus (Score:2, Interesting)

        by Finn61 (893421)

        I have no idea if patents are treated similar to copyright law but in my limited understanding, intellectual property owners have a responsibility to defend their rights when they know of infringing activity. If they neglect to defend their rights then they may end up forfeiting those rights.

        For example this would prevent the scenario of someone deliberately holding off action so that the infringing activity increased before going to town with law suits.

        In other words, you use them or lose them. And MS se

    • by PopeRatzo (965947) on Saturday November 25, 2006 @07:08AM (#16983226) Homepage Journal
      I think you may be underestimating the public relations nightmare Microsoft would endure if they were to kill Linux as a viable enterprise platform or even (god forbid) seriously damage OSS. Not to mention that the Feds may just revisit Antitrust cases against the evil empire.

      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.
      • by rm69990 (885744)
        "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."

        You know someone takes their anti-Microsoft tirade a bit too far when they're willing to buy a competing product without even checking whether or not it suits their needs :-P
    • KDE, Gnome, and many of the other "Linus applications" will work just fine under other OSSs, including BSD and Solaris.
  • no solution (Score:5, Insightful)

    by d_strand (674412) on Saturday November 25, 2006 @06:36AM (#16983076)
    Software patents are a cancer on modern society and economics and need to die a horrible death. I personaly find software patents immoral and thus I ignore them. I understand it's not as easy for companies like RedHat et al, but I can not see any solution since big companies has more bribe money. Sad.
    • Re:no solution (Score:5, Insightful)

      by rolfwind (528248) on Saturday November 25, 2006 @06:49AM (#16983144)
      Companies back patents because it allows them to kill various small start-up. They are immune from each other for the most part because of patent portfolios they exchange (Mutual Assured Destruction) though there are exceptions (Amazon/IBM). Small companies can benefit from genuine patents, but not against the big guys who can outspend them at the litigation game.

      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.
      • "Companies back patents because it allows them to kill various small start-up. They are immune from each other for the most part because of patent portfolios they exchange (Mutual Assured Destruction)" (emphasis mine)

        While somewhat similar, software patents aren't quite 'Mutual Assured Destruction'. Unlike classic MAD, where no shots are actually fired (til Armageddon day), with patents there are always lots of minor 'conflicts' taking place. Most don't reach the papers, because a licensing deal is done
    • Exactly (Score:5, Insightful)

      by Concern (819622) * on Saturday November 25, 2006 @07:26AM (#16983290) Journal
      You got it. I've been saying this over and over and I'm absolutely stunned that there are some people who still don't get it.

      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.
      • #include int main() { std::cout
      • Re:Exactly (Score:4, Insightful)

        by hritcu (871613) on Saturday November 25, 2006 @08:42AM (#16983648) Homepage
        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.
        While I do agree with the parent, I have to mention that Europe is not yet safe from software patents. Sure, we won some fights against them, but the influence US companies can have on the bureaucratic decision structures of the European Union is not to be underestimated. And there might come a day when corrupt politicians and bureaucrats will make the terrible mistake US companies are lobbying them into. The opinion of Europeans might just not matter in the corruptible decision process of the EU, and this happens too often here.
        • Re: (Score:3, Funny)

          by Fred_A (10934)

          I have to mention that Europe is not yet safe from software patents. Sure, we won some fights against them, but the influence US companies can have on the bureaucratic decision structures of the European Union is not to be underestimated.

          Summary of the history of software patents in the EU

          US : "Hey, won't you have software patents ?"
          EU : "No"
          US : "I had an idea last night, why don't you have software patents"
          EU : "No"
          US : "BTW, we've got this thing you might like, software patents, heard of them ?"
          EU : "

  • 'atleast a chance' ? (Score:5, Interesting)

    by arun_s (877518) on Saturday November 25, 2006 @06:39AM (#16983098) Homepage Journal
    I thought it was pretty much obvious there'd be infringing patents. From Bruce Peren's open letter to Novell [techp.org] (also covered here at /.):
    Let's be truthful about software patents: there can be no non-trivial computer program, either proprietary or Free, that does not use methods that are claimed in software patents currently in force and unlicensed for use in that program. There are simply enough patents, on enough fundamental principles, to make this so. If all software patents were enforced fully, the software industry would grind to a halt.
  • confusing article (Score:5, Insightful)

    by rsmith (90057) on Saturday November 25, 2006 @06:45AM (#16983124) Homepage
    The author points to MS's secret codebase. This has nothing to do with patents.

    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.
  • by Colin Smith (2679) on Saturday November 25, 2006 @06:47AM (#16983132)
    It's not like they're going to go after us with a 'Linux tax'.
    WTF? That's exactly what they're trying to do. The only question they have is can they get away with it without getting hammered by a shitload of patents which other people hold.

    It's exactly the same game theory which makes mutually assured destruction work. My advice with the current US patent system? Patent everything.

     
    • by AWhistler (597388)
      But, but, but...there ALREADY is a Windows Tax.

      Just try to buy a PC without Windows installed on it. If you are even able to do it, you won't pay any less for the PC than if Windows were installed on it. That's the Windows Tax. Calling it the Linux tax is just being redundant.
      • Just try to buy a PC without Windows installed on it. If you are even able to do it, you won't pay any less for the PC than if Windows were installed on it. That's the Windows Tax. Calling it the Linux tax is just being redundant.

        It's easy to get a PC without Windows installed on it, and is it also possible to pay less.

        Instead of buying from Dell (or HP or whoever), buy from your local PC shop. They usually will let you choose your components, and will support your hardware. Think locally, not globally.

        • I used to work for a place like this. Buyer beware. Not all of these places are legit, have good support, or know what the hell they are doing. I quit my job at a local computer shop because of some unethical and technically stupid things they were doing. I'd say to build yourself before using a place like that.
  • by nagora (177841) on Saturday November 25, 2006 @06:48AM (#16983140)
    1. American directors have a legal responsibility to defend shareholders' interests.
    2. Ballmer says that Linux is infringing and therefore damaging shareholders' interests.
    3. Linux/OS programmers have access to their code only.
    4. Linux/OS programmers have said they will remove infringing code.
    5. Ballmer can see both the Linux/OS programmers' code and Microsoft's.
    6. Ballmer is therefore the only party able to give the infringers what they need to know to stop damaging shareholders' interests.
    7. Ballmer will not/has not said which code is infringing.
    8. Ballmer is the party damaging (note: imperfect tense) Microsoft shareholders' interests.
    9. Ballmer is therefore, by his own admission, in breach of American corporate law.
    10. Someone call the police.
    • by thue (121682)
      5. Ballmer can see both the Linux/OS programmers' code and Microsoft's.
      6. Ballmer is therefore the only party able to give the infringers what they need to know to stop damaging shareholders' interests.

      This is patents we are talking about, not copyrights. Part of the patent application process is that the patents are made public. The patent applications which details what the patents are covering are public domain, and therefore perfectly available to open source programmers.
      • The patent applications which details what the patents are covering are public domain, and therefore perfectly available to open source programmers.

        Yes and no.

        Patents that were filed by Microsoft itself should be able to be found on the USPTO Web site by searching for their name. You might even find some patents by searching for the names of well-known Microsoft employees (e.g., Bill Gates), if they were filed under their names and not Microsoft. However, patents that were assigned to Microsoft -- by em

    • Re: (Score:2, Insightful)

      by daffmeister (602502)
      Not quite:

      1. American directors have a legal responsibility to defend their shareholders' interests.
      2. Ballmer says that Linux is infringing and therefore damaging other shareholders' interests.

      Ballmer has no obligation to defend the interests of any shareholders other than Microsoft's.

    • by canuck57 (662392)

      Your forgot 1a and 1b.

      1a. Ballmer gets M$ developer to borrow some new feature out of FOSS

      1b. Ballmer gets a patent

  • so what if they do? It's not like they're going to go after us with a 'Linux tax'.

    They could. It's all in the patent laws and regulations.

  • Come on! (Score:2, Insightful)

    by kan0r (805166)
    Since when is slashdot involved in the distribution of microsoft's latest FUD? This story *here* is exactly the kind of thing they want to see happen. Where there no real news to post today?
  • define "infringe" (Score:5, Insightful)

    by oohshiny (998054) on Saturday November 25, 2006 @07:02AM (#16983200)
    Of course, Linux (both the kernel and the user space) "infringes" on many Microsoft's patents, as does just about every piece of software in existence, commercial or open source. How could it not? Microsoft has, after all, obtained patents on things that were published in open source software before Microsoft even filed the patent.

    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.
  • by Timesprout (579035) on Saturday November 25, 2006 @07:12AM (#16983236)
    Stop posting mature consideration of the whole MS Patent issue and get back to hysterical screaming about how MS plans to kill Linux with patents.
  • by geoff lane (93738) on Saturday November 25, 2006 @07:29AM (#16983306)
    IBM has done an excellent job destroying The SCO Groups land grab attempt but we can't expect them to be the open source white knight every time.

    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?

    • by canuck57 (662392)

      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?

      It would move offshore and underground. Just like crypto development did.

      • It would move offshore and underground. Just like crypto development did.

              The more you tighten your grip, Tarkin, the more star systems will slip through your fingers...
  • by Bogtha (906264) on Saturday November 25, 2006 @07:30AM (#16983310)

    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.

    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.

    Okay, it's patents we're talking about, right? Patents are published - that's the whole point of them. They aren't secret.

    only Microsoft has access to most of its source code

    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?

    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?"

    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].

    • Criticism of the term itself is pointless and misdirected. There's nothing wrong with the corpus of Intellectual Property, conceptually speaking. The problem is that most people don't know what it is, and can't navigate the overlapping and downright byzantine nature of the issues and components of IP law. Keep in mind that technology in general has thrown a curve ball the past 20-25 years. The law isn't designed for rapid change--and it can't keep up with modern technology, step for step. The term isn'
    • by Dunbal (464142) on Saturday November 25, 2006 @08:43AM (#16983652)
      Patents are published - that's the whole point of them. They aren't secret.

            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.
  • US Only (Score:5, Insightful)

    by bobintetley (643462) on Saturday November 25, 2006 @07:34AM (#16983326)
    Aren't these ridiculous software patents only valid in the US? How much OSS development is actually done in the US and would that not mean (were this not complete rubbish) that MS could only go after OSS developers in the US only?

    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?
  • Flip side (Score:4, Insightful)

    by 3seas (184403) on Saturday November 25, 2006 @07:37AM (#16983344) Journal
    How much Open Source Intellectual Property is Microsoft Infringing upon? How much are they using that they are not infringing upon due to a given license such as BSD?

    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.
  • How about 'so sue'?

    If ( when ) they think they can get away with it, they will start sending letters to every project on the globe ( where they have jurisdiction that is ) and shut the project down. Including anyone who houses it ( like sourceforge ) or just distributes ( countless number of mirrors ), and perhaps even end users.

    Its not about a 'tax', its about destroying competition.
  • People seem to be thinking that this is either FUD [wikipedia.org] or the claims are true. It's probably both.

    First off, it's blatant and obvious FUD. They're being deliberately vague about what IP is infringed, and by which open source project and/or component of Linux, and talking about being "willing" to cut deals with other Linux distros than SUSE. No question that "willing" means "if we can find a reasonable business to target, you'll be hearing from our lawyers" and that that is meant to feed into people's decis

  • Access to the source is irrelevant, these are patents we're talking about, not copyright. If functional aspect $foo is patented and an application implements it without a licence from the patent holder, it's in violation of the patent, it's that simple. You don't need to see the source to see that - either the widget/process/UI element/whatever is there, or it isn't.
  • by Pembers (250842) on Saturday November 25, 2006 @07:57AM (#16983456) Homepage

    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:

    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.

    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:

    • Nobody who understands both patent law and the internals of Linux will come forward.
    • Nobody will want to spend the time or money to do it.
    • The open-source community as a whole believes the risk of Microsoft actually suing anybody is negligible. As others have pointed out, FUD is much cheaper than lawsuits, and probably much more effective at detering businesses from moving to Linux.
    • The deliberately vague and obfuscated language in which patents are written means that the question of whether something infringes a patent is not black-and-white. Sometimes, the only way to be sure is to put the matter in front of a judge and jury. (I'd really like to see a judge rule a patent to be invalid because a person with ordinary skill in the art wouldn't understand what it describes.)
    • The same makes it hard to determine whether a patent is even valid.
    • The rule about wilful infringement meaning triple damages would make it difficult to publish the results of such a study.

    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...

  • Happens that, IMO, it is unacceptable to do not look to the SW patent extortion^Wportfolios or ignore it, just because "Oh! the free software is so great that the White Knight^W^WIBM will come to protect us and defeat the bastard^W^WMicrosoft". The main problem to the software patents is that corrupts its main objective: to protect innovation, i.e., nowdays the SW patents are used just to erase any little/medium-sized company that "becomes visible" in the market, thus a potential threat.

    I think that the c
  • So, what if it is true. What if that plantation master really does hold the title over that man of color who lives in the north?

    Come on, no matter how much of a anti-Slavery fan you are, you have to admit that there's at least a chance that Slave is indeed the plantation masters property. After all, the plantation master holds a lot of slaves and while this one is free, you can still take a look at his papers, only the master has access to most of the town records so it isn't all that difficult for it to p
  • I suppose both of them would be glad to step in as soon as MS starts playing hardball in the patent game.
  • No disclosure (Score:4, Insightful)

    by Mixel (723232) on Saturday November 25, 2006 @08:09AM (#16983510) Homepage
    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.

    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.
  • The patent system in the US is a complete mess. When a monopoly can be recognized by the legal system, and still allowed to fill it's war chest unquestioned, something needs an overhaul. I too challenge microsoft, just as sco was challenged, to come forward with their disagreement. This is pointless because in all probability, microsofts intent is not based on resolving a patent issue. Their intent is to kill the competition. They will drag this FUD out for as long as possible. Novell is just a pawn (
  • 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.

    Says who? If there's one thing that the SCO case has been good for it's been to demonstrate that Linux is pretty solid from an IP perspective. IBM didn't necessarily hand over the patents because they thought Linux was infringing on them. You're making that statement without investigating the reasons behind why IBM gave the Linux community a patent shield.

    If anyo

  • by john-da-luthrun (876866) on Saturday November 25, 2006 @09:14AM (#16983818)

    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.

  • by John Hasler (414242) on Saturday November 25, 2006 @09:14AM (#16983820) Homepage
    > 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.

    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.
  • There's a Mexican standoff in place in the industry right now, and it's been there for years. MS, IBM, Sun, Novell, Heck even codgers like Computer Associates all have enough vague patents to start a big nasty lawyer-fest should they choose to do so. For the most part, they keep each other in check. It's a fragile balance though. I think it's practically a given that MS has at least one and probably many patents upon which a number of FOSS projects could be claimed to infringe. Some are probably imposable to code around too, being on basic ideas like UI elements, file access, printing, or any number of obvious fundamental computing concepts. Sure, they should be invalid in principle, but you'd need to out lawyer the Beast of Redmond to prove it. What I wonder is, does really MS have the balls to do something about it? One would think that actually attempting to dust off Red Hat or whomever with a patent infringement suit would be much like the assassination of Archduke Ferdinand. It could easily broaden into a wider morass of litigation like SCO almost did. Once the patent wars begin, where would they end? Starting IT Patent War I would have the potential for big gains, but who could foresee the outcome? Do they really want to risk a patent fight with someone like IBM? Could they justify that to their share-holders? I'm sure the Austro-Hungarian Empire and the Ottoman Empire both thought teaming up with the Kaiser would let them pick off lots of territory from Britain and Russia. You can't find those countries on a map now.

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