Why Microsoft Won't List Claimed Patent Violations 626
BlueOni0n writes "Earlier today, Microsoft announced it will begin actively seeking reparations for claimed patent infringement by Linux and the open source community in general. One opinion on why Microsoft won't reveal these 235 alleged IP infringements to the public is that they're afraid of having the claims debunked or challenged — so instead they're waiting until the OS community comes to the bargaining table. But a more optimistic thought is that Microsoft may be afraid to list these supposed violations because it knows the patents can be worked around by the open source community, leaving Microsoft high and dry without any leverage at all."
Where's Novell? (Score:5, Interesting)
Where is their press release regarding this?
The big problem... (Score:4, Interesting)
The thing is, if Microsoft divulges what the FOSS patent breaches actually are, the community will respond promptly, and that particular bullet will have been fired. Until Microsoft's list is actually available, we don't know how much harm they'll be able to do, but there's not much chance they'll be able to inflict fatal damage to FOSS.
This patent grab is essentially a one-shot hit, and until now, was always more valuable as a FUD threat than an actual tool of coercion. Micah hacks the computer system so Nathan can win. Peter controls the radiation power, and the ending is a cliffhanger into the next and final episode. That Microsoft is choosing to use it now is indicative that they believe it's value as FUD has waned, and I suspect that has more to do with the outcome of their their patent proxy SCO's efforts than with Vista's failure.
Oooorrrrrrr (Score:2, Interesting)
Brilliant, actually.
Joe
Microsoft is playing poker. (Score:2, Interesting)
The first and hopeful reason for this is because most of their patents are pure rubbage. The second and also somewhat hopeful reason is they don't want anyone coming up with a strategy to overcome theirs. The third and less optimistic reason is that they're trying to maximise the amount of damage they can do.
Comedy option number four is that they're afraid of IBM, FOSS patents, and they're simply full of hot air.
Department of Redundancy Department (Score:5, Interesting)
Yesterday there was a link to a story on this issue, followed by lots of discussion as to why Microsoft is doing what they are doing. Today there is an opinion piece regarding the original story, in which someone lays out unsubstantiated brainstorms, all of which were covered yesterday.
I understand that Microsoft stories are huge traffic and comment generators on this website (any MS story is a guaranteed 300+ comments), but often times it seems as though the editors like to fuel the fire.
I don't know. Just thinking out loud...
- Scott
Where's the Cease and Desist? (Score:5, Interesting)
If someone is making a dubious claim, slap them with a c&d, and force this thing into court.
Equitable Estoppel or Laches? (Score:5, Interesting)
IANAL, but I have some small knowledge of the law in this area...
If MS has knowledge that their patents are being violated, yet refuses to tell the violators exactly what patents they are violating and how, aren't the patent claims automatically nullified, since they made no good faith attempt to resolve the situation? If Linus or the OSDL contacts Microsoft and are rebuffed when they formally requests details of the patents in question and how they are being infringed, I would expect they would be laughed out of the courtroom in the best case. At worst, this might be viewed as a thinly diguised extortion attempt.
This is sort of like delivering a copyright infringement notice to a website without telling them what the infringing material is, and demanding the entire site be shut down or pay the claimants whatever they see fit.
Re:SCO (Score:5, Interesting)
SCO failed Microsoft... so, as the old saying goes, if you want something done right, you gotta do it yourself.
How will the major players respond? (Score:3, Interesting)
Specifically, I wonder how the following organizations will react:
IBM (big in Linux these days)
Dell (Given the timing one has to wonder if the new announcements by Microsoft are designed in part to kill the Dell Ubuntu machines)
RedHat
Sun
Free Software Foundation (have Microsoft made any claims that FSF software infringes on their patents yet)
Motorola, Cisco, Linksys and others who are using linux on embedded devices
The big question is who is going to keel over and stop using linux, who is going to "cut a deal" with Microsoft (IBM for example may just engage in some kind of cross license deal rather than try to fight) and who is going to fight?
will the Novell deal backfire? (Score:5, Interesting)
Re:Where's Novell? (Score:2, Interesting)
My understanding is that IBM has more patents than any other company, whats the chances of them telling Microsoft to back off or face a nasty patent war?
Re:Much of Microsoft's IP strategy is FUD (Score:5, Interesting)
Re:Where's Novell? (Score:3, Interesting)
Re:The big problem... (Score:5, Interesting)
Viridian (MS Virtualization update for those not following along) was supposed to be released 4th qtr '06, but was pushed to '07 and they just announced that they are dropping promised functionality. I believe I read that some of that dropped functionality was designed to deal heavily w/multi-processor/multi-core technology.
360 is popular but makes no cash. Zune is getting hammered.
I would agree that their current strategy was formed before the general publc knew Vista was going to be a dog. MS has known it is in danger for quite a while. Not the same as actually being on the ropes for a company with as much market inertia as they have, but starting to look scary.
They must have known their ship was taking on water long before the general public became aware.
Regards.
Re:Like McCarthy holding up an envelope (Score:5, Interesting)
While that may be true, it's also true (or alleged to be true) that Senator McCarthy held up a blank sheet of paper when he first claimed he had names of Communist conspirators/spies.
Furthermore, many of the people who were publicly humiliated and accused of being Communists were in fact nothing of the sort. Unfortunately, the problem with defamation is that once the slander/libel is out there, it's really hard to retract. Especially if the party making the outrageous claims is a respected Senator who gets to mobilize government resources to harass people. McCarthy's abuse of the system was his way to attack political opponents, not get rid of real Communist spies.
While it's quite probable that there are some real patent violations in the Linux kernel and in the source code of various GNU tools, that's about all you can say. Whether these infringed patents are even valid is another matter -- and you can certainly bet that FOSS authors are going to go after at least some of Microsoft's patent claims on the grounds that the patents are invalid. For each patent that gets invalidated, Microsoft's patent portfolio becomes just a little bit less valuable...
So it's not in Microsoft's interests to divulge just which patents they feel have been infringed. Worst case scenario, they could lose a good chunk of their portfolio and still have nothing to show for it because the remaining patents that withstood scrutiny might be found to not apply; those patents that do apply could be easily worked around with a modest investment of engineering effort.
What makes me wonder is why Microsoft is bothering to take a page from SCO's playbook. It hasn't worked too well for SCO, so why does Microsoft think they'll fare better with the same strategy?
To tie this back to the McCarthy analogy: even if Microsoft is right that there are infringed patents (which is statistically likely), there's no guarantee that Microsoft has done the due dilligence to ascertain which specific patents have been infringed and leave no margin for doubt. Microsoft has broken down the numbers by OS component (kernel, "GUI," etc.) to tell us how many patents they believe have been violated by each component, but again, we only have their word for that. For all we know, Microsoft is trolling and pulled these numbers out of thin air. Kind of like McCarthy's list.
This seems like a pretty obvious fishing expedition. You know, the kind that involves big nets that scrape the sea floor and damage coral reefs, to use yet another tortured metaphor.
Re:Now that the SCO case is tanking .,.. (Score:5, Interesting)
then they ridicule you,
then they fight you,
then you win." -
-- Mahatma Gandhi
Seriously, Microsoft is getting ready to pull off their kid gloves, now. They are really, truly, in a rather scary position.
1) Their flagship product, Microsoft Windows, is selling very softly. Word on the street is "don't buy until Service Pack 1, at least". (Told to me by our local computer store, I might add) Dell has reverted to Windows XP. Lots of public institutions are making very public noises about switching to alternatives, such as Ubuntu. What's worse is that some are actually doing it, and it's working. Apple OSX is ballooning. People are sick of viruses and dumb security alerts. The cost of supporting Windows clients has been rising almost exponentially as the number of band-aids required to keep a Windows system running has exploded. Anti-virus, Anti-spyware, Firewall, Malicious Software Removal kit, r00tkit detectors, frequent software updates, it's just getting to be too much for any reasonable non-technie to manage.
2) Their next big product, Microsoft Office, is similarly under heavy assault. The Massachussetts ODF debacle brought to the forefront the basis of Microsoft's lock-in, and jurisdictions are switching rapidly to ODF, PDF, and other open formats. Just today, we saw Norway joining the fray [slashdot.org].
3) Their big ace in the hole is the Windows API. [joelonsoftware.com] But they're losing that on several fronts:
3A) The Windows API is the cause of many security problems, since it's a buggy, insecure, festering pile.
3B) Even so, it's being emulated, warts and all [winehq.org] with increasing effectiveness with the WINE codebase.
3C) Lastly, it's just not as relevant anymore. New apps today are commonly web-based, partly to avoid the problems inherent in client-side software.
Case in point: I had a school contact me JUST TODAY and ask if our product (normally Windows/Mac) would work with WINE. (No need for WINE - it's GTK-based)
4) They've almost completely failed to diversify their product line despite trying for over 10 years to do so. They have other, profitable products, but the amount earned by MSN and Xbox is a pittance compared to what Windows and Office earn for them.
So why wouldn't they fight back with whatever they have? They're SCARED SILLY. They have BILLIONS of dollars in their war chest, and their revenue stream might be flat, but there's still an INSANE amount of cash available. They won't take this lying down, folks.
Get ready for the fight of your lives - this will make SCO look like yesterday's donuts.
It seems unfair (Score:4, Interesting)
Re:MSSCO - MSNBC (Score:2, Interesting)
Re:Where's Novell? (Score:5, Interesting)
Can Somebody Tell Me Why? (Score:3, Interesting)
At least MS getting SCO to pull a stunt like that (I have no comment on whether I think that's true) would make sense, as it wouldn't be any harm to MS; but time has shown the harm it's done to SCO, and I can't imagine MS would want to get into a losing fight like that, directly. Is there some way they could actually come out on top by this? I have a hard time believing people do things without a rational reason; now what is it?
Re:Earn a living with closed-source software (Score:1, Interesting)
I make a living developing software that heavily uses open-source software. Mostly websites, and web services. Linux, Apache (or lighttpd), PHP (often, but not always), and a database server (MySQL or PostgreSQL) on the back-end. Making use of open-source PHP frameworks, or complete CMS systems which can be customized or extended on behalf of a client for a fraction of the cost of developing it from scratch. HTML and JavaScript for the front-end, using open-source tools for development (Firefox, Quanta), open-source JavaScript libraries (stuff like Prototype, Dojo, MooTools, Yahoo's UI library), and on occasion using Firefox / XUL for user interfaces.
I simply could not do what I do using proprietary software, Microsoft or otherwise. Everything would take longer, and unless I wanted to write everything myself from scratch, I'd have to pay some insane fees for pretty much every component I use. My clients could not afford that, so they would either end up cutting the project scope back dramatically (and being very unhappy with the result), or they'd go with someone else who can give them better value for money.
I would have to be an idiot not to leverage all the available free software wherever I can.
Barrel is smoking, feet are bloody (Score:5, Interesting)
Both parties are in awkward positions, if pro-Free-software legal experts are correct in their interpretation of the MS-Novell agreement and the GPL.
Increasingly it looks like the agreement will be in conflict with GPL3, and as software included in SLES migrates towards using GPL3 Novell will either have to freeze SLES at the last version of code relesed under GPL2 or somehow find their way out of the agreement to stay current.
MS is in an awkward position because in their end of the deal they are obligated to sell SLES certificates. Technically they are now a Linux distributor. To sell a distribution you MUST abide by the GPL--even under GPL2 when you distribute GPL software you MUST make the source code available without restriction. It does not matter if the code implements a patented invention, MS could not charge a royalty/licensing fee to restrict use of the application or its source code without violating GPL. If MS is serious about trying to enforce its patents it must immediately terminate its agreement with Novell. GPL3 would not make the above situation any different for these existing patents from what I understand--what GPL3 does is keep authors of GPLed code from creating NEW patents based on the functionality of that GPLed code (could a lawyer out there tell me if that is a valid interpretation?).
I'm not convinced MS will get very far with this latest cage-rattling. I suspect many of the involved patents are pretty dubious in nature--and some may be very old and could be close to expiration by the time litigation has finally reached a conclusion (another reason why they wouldn't pull a SCO and head into an embarrassing, protracted legal battle over IP). I also suspect that the Linux kernel itself violates few if any patents at all given how architecturally different it is from the Windows kernel. Microsoft would most likely go after the more outer layers of the OS onion--those involving interoperability with Windows. That is, after all, the stated focus of the MS-Novell deal.
I think we'd first see action against Samba for example. Mono would've been a target as well, but the Novell agreement took care of that. Frontpage interoperability with Apache is another likely Free software target (I realise not all of their targets are GPL, though that is their prime concern). ODBC drivers that let Linux talk to Microsoft databases might be in the crosshairs. This strategy could be part of the "if you can't beat them, join them" plan: If Vista and the corresponding to-be-released server OS prove to be disappointments over the long term the Windows platform as it exists today may be allowed to wither and die on the vine, to be replaced with something more Linux-like (or perhaps BSD-like).
If it does indeed "pull an Apple" and underpin its OS with such Free content it'll need a differentiator--and they intend that to be backwards compatibility with what will be "legacy Windows", which will also allow them to maintain their vendor lock-in. That key piece of the puzzle cannot be Free under the MSFT business model so the goal of more aggressively enforcing patents is likely to explore the feasibility of taking the "MSFT/Linux" or "BSD Windows" route whilst maintaining the leverage they enjoy as a monopoly.
Their investment in "open source research" as of late has provided them with some ammunition, however I think they are still too clumsy with the gun and will only be able to shoot themselves in the foot with such a clumsy strategy. MS is resilient though, so I hope defenders of Free software can keep them off balance before they recover.
End Game (Score:3, Interesting)
Yes, this is bad publicity for open source through mainstream media (as, like it or not, most people don't get their tech news from people that can program), and yes, this will scare some companies into buying MS software in their next cycle, but really... what is the end game?
I saw an interesting comment here: http://neosmart.net/blog/2007/microsoft-linux-pat
Like it or not, Microsoft, as a company, are as smart as they are evil. There is something else behind this.
Re:So how can MSFT proceed if they don't list them (Score:5, Interesting)
Think about it. If MS were to actually start suing Linux users, it would make the front page of most newspapers in the US. The last time Microsoft was that involved in legal disputes in the US, it took a presidential impeachment to distract the public and the press. Microsoft would be under far more scrutiny than SCO, and the truth about their baseless claims would come out. By the time the dust settled and the judges dotted all the i's and crossed all the t's, precedents would have been established that would destroy Microsoft's core business practices. And because of the importance of the case(s), all the Fortune 500 companies would be demanding a speedy trial so that they could get on with running a business.
The more MS stalls, the more solid the case against them will be. If they come up with an excuse, it will be analyzed and probably debunked quickly, leaving them with fewer options. If they don't dig up every technicality they can think of, then they will lose sooner. The only option they have now to avoid inevitable humiliation in court is to stay out of court. Unfortunately for them, their FUD alone might provide enough grounds for somebody else to sue them, thus setting up the showdown they can't afford to have happen.
One thing is certain: once MS gets into court about these issues, they won't get to decide when they leave (just like SCO cannot drop charges and walk away). That makes it a huge risk for them to ever get near a court with their FUD.
And then, there is always the fact that IBM's Nazgul could beat the shit out of Microsoft with their all-encompassing Patent Portfolio. That might actually be the best delaying tactic: get into long fights with IBM, and make sure the real cases can't proceed until they are settled.
Anti-trust (Score:3, Interesting)
Re:Where's Novell? (Score:4, Interesting)
However I agree, it's probably just FUD from M$. They've already been caught infringing on lots of patents over the years so they're probably hoping to make a deal to keep themselves relevant.
Re:The big problem... (Score:4, Interesting)
Think of the reaction Earnie Ball had when the BSA came and found a handful of illegally installed apps. There are also examples of what a number of school districts did when the BSA and Microsoft hammered them in attempts to force them into new and expensive licensing contracts.
So they are "taking on water" but will these extortion/patent threats just send a few customers overboard or will there be an abandoning of the ship when it is shown that they can not take this to the courts without a massive reciprocation?
LoB
US Government (Score:4, Interesting)
I may have been a little later to jump on the Linux bandwagon back then, but I've been onboard since 99 or 00, and by the time 02 or 03 came around, I saw the writing on the wall. This whole thing was magnified by the ME disaster, BOB, and Clippy. These failures are key to understanding WHY Microsoft is doomed to failure.
ME, BOB, and Clippy are all UI designs, not core components. Microsoft has stopped making core improvements to the OS for some time. And by CORE improvements I mean innovations to the underlying OS. By now, Windows should have been FULLY virtualized and abstracted away from the underlying hardware. Microsoft has made the error of tying itself to x86 architecture to much, and that is now limiting its ability to add true functionality (like virtualization), something that is vastly needed, especially in the server market, where each service almost needs its own host.
Along comes Linux, which ISN'T tied to a piece of hardware, and has abstacted various layers so that it doesn't need to be tied to specific hardware, and it is leading into virtualized hosted environment. I suspect the next revolution in OS is going to be complete abstraction of the core OS from the underlying HW via vitualization, which will break the bonds from x86 architecture.
So, by NOT interfering (protecting MS), the US Government is actually helping Microsoft CRUSH itself by trying to maintain a codebase that is incomprehensible because it has never had to change architecture. If the US government tried to break up Microsoft all those years ago, Windows and the core application and server products might have been improved to the point that the monopoly would still exist, only in three parts.
As it looks right now, MS is a beached Whale, and the tide is still moving out. The mighty leviathan is being crushed under its own weight in an environment that is changing faster than it can. Be warned, Microsoft (or whatever happens to it) will still have remains, but it will not be the powerhouse it once was.
Re:Declaratory Judgement (Score:2, Interesting)
It'd never happen. Love them or hate them, Microsoft is the big 800 pound gorilla. Filing a lawsuit like that would be like hitting the gorilla with a big stick, hoping that if you hit it just right, it'll run away.
You'd better be damn sure before trying something like that, because there's a good chance Microsoft would crush anybody who failed, just to set an example.
Re:Like McCarthy holding up an envelope (Score:3, Interesting)
He could have been right once or twice, but it would have been pure luck, and his real reason wouldn't have been to break up an espionage ring but rather to consolidate poltical power.
Re:The big problem... (Score:3, Interesting)
I think the only conclusions that you can draw is that 1.) Microsoft is sweating and 2.) They are dropping all pretense of competing through selling better technology. They are, in effect, admitting they can't compete in the market, but since they wield enough power to _be_ the market, they will just screw with everyone until they either go broke, get bought, or quit because they know they can't beat 10 figures in a court of law.
Bah: Patents would be hard to enforce currently (Score:1, Interesting)
If MS describe the patent and how something in Linux infinges the patent, two things can happen.
1) patent occurs after functionality was implemented in Linux. Kinda hard for MS to say that the patent was for something new.
2) patent occurs before functionality was implemented in Linux. Kinda hard for MS to make case that the patent was for something that was not obvious unless the linux developer had a chance to copy the MS implementation and even then, since more of the new functionality occurs when the hardware evolves, it is unlikely that MS corporation could implement something new before a linux developer.
My guess is that MS can sputter about having IP, but until they buy out the government it does them no good. Watch congress for developments on this issue.
Re:The big problem... (Score:3, Interesting)
Because there aren't any (Score:3, Interesting)
I continue to be amazed that anyone is taking this seriously. There are ZERO MS patents violated by free software. If MS says otherwise, SHOW US THE PATENTS. If you won't do that, shut up and go home.
The only answer to anyone making such outrageous claims is to ask them, "Which patents?"
Imagine the following conversation:
Company: "You have 112 unpaid invoices."
Human being: "What are the invoice numbers?"
Company: "We won't tell you."
Human being: "Then how am I supposed to pay them?"
Company: "You aren't. We're just going to threaten you with them until we do what we want."
Human being: "...?"
That is exactly what MS are saying: you owe us, but we won't tell you why or how much. Now pay up.
As a Linux user, I'm wondering if I should contact MS demanding to be notified of exactly what patents are violated by software in the Ubuntu 7.01 and Slackware 11.0 distros. As a concerned citizen I am most desirous that I not use any violating software, but unless I know a) what the software in question is and b) what the patent it violates it is, I have no way of independently verifying that it is infringing. Therefore, unless they can provide me with evidence NOW that the software I am using is infringing, I will consider them estopped from ever enforcing their patents.
I'm not a lawyer and not sure if the doctrine of estopel applies, but I'm pretty sure if we all send registered letters to MS asking for immediate notification as to a) what software is violating MS patents and b) what specific patents each specific piece of software is violating that we can all plausibly claim, in the absence of an answer, that MS has no further claim on us with regard to this.
Anyone know the address of the MS legal department?
Re:I might respect Microsoft (Score:4, Interesting)
Re:Declaratory Judgement (Score:3, Interesting)
MS are fighting a shadow (Score:3, Interesting)
They claim 235 patents are infringed by the Open Source Community, but the "Open Source Community" does not exist as a legal entity -- it's not a person, it's not a company, it's not a even group acting under a single, shared motive. Break it down into Open Source and Free Software, and then break those down into companies and volunteers, and then into those who take are professionals vs. those who are just experimenting with a hobby, and you MIGHT have some sort of law suit. Most likely though, you just have FUD. Which is enough for MS, of course --- as long as the average consumer believes they have the one true window, they're happy with their production quality and customer service.
No FSF owned software has been challenged (Score:5, Interesting)
There are two good reasons why no FSF owned code has been challenged:
1) The FSF is a legal entity, and can actually defend itself. The FUD factor is much higher for the project with no/many owners. Who is going to stand up for them?
2) The FSF is very careful about patents, it is quite common on the GCC list to see comments along the line of "the obvious technique for doing this is patented, but I found an alternative way to do it, so let's implement that". The core GCC developers seems to read patents in order to know what to avoid.
The obvious exception seems to be OpenOffice.org which is owned by Sun, but Microsoft has a cross-license agreement with Sun (like most of the large technological companies has with each other), which may make it difficult for Sun to defend OpenOffice.org. After all, thanks to the cross-license agreement, Microsoft is not accusing Sun of any wrongdoing.
SCO all over again (Score:3, Interesting)
1. they know 99% of them will be debunked
2. *IF* anything is even remotely valid it will be worked around in a matter of days.
SCO tried this with the copyright bat and lost, which was funded by MS depending on your paranoida, now it appears MS didn't learn anything OR is trying to play the same card of a different suit.
Not it at all (Score:3, Interesting)
The OSS community will either debunk the claims, challenge the patents' validity or where the patents are valid, code around them. None of these activities benefits Microsoft. Brad Smith knows this, so he's keeping the list of alleged violations under wraps and using the empty threat of a lawsuit to push risk-conscious suckers in large business to pay up.
If we in the community want to kill this off, here's what we have to do:
1. Ask the key software maintainers to make a pledge to replace any code discovered to infringe a Microsoft patent in a timely manner and for free.
2. Find an insurance company willing to insure big business against liability to Microsoft for patents based on that pledge. Specificly, find one willing to insure them for less money than Microsoft wants.
UK Freedom of information act 2000 (Score:3, Interesting)
Re:And the fact that there is nothing wrong with t (Score:3, Interesting)
Now, maybe you think that's not a problem and you can always write your own code to do the same thing as their closed extensions and then release it as Free Software. But why should you have to? Perhaps it's just me being lazy, but I don't really appreciate the thought that I might have to rewrite from scratch something for which someone else refused to release the Source Code. And weren't they being the lazy ones in the first place, expecting to be allowed to use my hard work which I intended to be for everyone as the basis for something they want to keep caged up?
The BSD licence just says "Sharing is not stealing". The GPL goes a step further and actually says "Not sharing is stealing".
Re:Linspire sells out to MS. (Score:2, Interesting)
That's an amazing letter Linspire have concocted. Since when has capitulation to extortion been a matter of choice? The aim of extortion is to subvert choice. Appeasing Microsoft won't make them go away. Hitler didn't go away when Chamberlain came back from Munich waving a piece of paper. Pretty soon Microsoft will claim that all computer programs infringe "their" patents. You'll have to pay a tax just to write a while loop. Utterly uninspiring work, Linspire.
Re:And the fact that there is nothing wrong with t (Score:3, Interesting)
Re:Mutually Assured Destruction (Score:2, Interesting)
Think about it this way. What would happen to the US economy if Walmart folded up? It would be a huge blow to the US retail economy, but they aren't the only company around. The population stays the same, prices go up as suppliers sell through smaller shops, sales will go down, they'll tighten their belt, and the economy will adapt.