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Ballmer Suggests Linux Distros Will Soon Have to Pay Up 520

Posted by Zonk
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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Ballmer Suggests Linux Distros Will Soon Have to Pay Up

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  • by mikesd81 (518581) <mikesd1@NOsPam.verizon.net> on Tuesday October 09, 2007 @08:34AM (#20909859) Homepage
    It seems that Microsoft is becoming more and more like a little kid every day. I just don't understand how in any normal world they can stay in business. All they do is spit out the same FUD every chance they get. It's like the boy who called wolf.
  • by Dunbal (464142) on Tuesday October 09, 2007 @08:38AM (#20909903)
    I couldn't tell from the article, but which intellectual property is MS saying open source solutions are infringing on?

          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.
  • They must love FUD (Score:5, Informative)

    by Anarke_Incarnate (733529) on Tuesday October 09, 2007 @08:42AM (#20909945)
    They keep throwing Novell's name around. Novell has publicly denounced MS' claims about this. http://en.opensuse.org/FAQ:Novell-MS [opensuse.org]
  • by Jerry (6400) on Tuesday October 09, 2007 @08:59AM (#20910105)
    They refuse to say, have been asked to spell it out, and continue to threaten without making any specific claim.

    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.
  • I'll pay up! (Score:4, Informative)

    by Anonymous Coward on Tuesday October 09, 2007 @09:01AM (#20910133)
    As soon as Microsoft pay's up to Xerox for windows. BSD for the Tcp/IP stack. Berkley for nslookup.exe.

    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
  • by Macthorpe (960048) on Tuesday October 09, 2007 @09:06AM (#20910197) Journal
    For what seems to be the nine billionth time, no. Copyrights require that they are defended, not patents.
  • by hypnotik (11190) on Tuesday October 09, 2007 @09:13AM (#20910287) Homepage
    Actually, that would be trademarks.
  • by Salsaman (141471) on Tuesday October 09, 2007 @09:14AM (#20910305) Homepage
    So why don`t they lobby the US government to get rid of software patents ? Why do they lobby in Europe and other places to try and get software patents accepted there ?

    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.
  • by ozmanjusri (601766) <aussie_bob@nOsPAm.hotmail.com> on Tuesday October 09, 2007 @09:16AM (#20910341) Journal
    For what seems to be the nine billionth time, no.

    Make it 9000,000,001.

    The non-presumptive laches defense applies specifically to this circumstance.

    Although a presumption of laches arises where the patentee brings suit more than six years after gaining actual or constructive knowledge of defendant's infringing activities, the defense of laches is not defined by any specific period of time. Any period of time may be found to amount to unreasonable delay, depending on the facts present, although shorter delays are less likely to trigger the defense.
    http://www.converium.com/2103.asp [converium.com]

    Because the Open Invention Network and others have repeatedly requested that Microsoft identity the infringing code, the laches defence becomes non-presumptive much earlier.

  • by morgan_greywolf (835522) on Tuesday October 09, 2007 @09:36AM (#20910539) Homepage Journal
    MOD PARENT UP! If you're not understanding what he's saying, due to all the legalese, it's this:

    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.

  • by rtyhurst (460717) on Tuesday October 09, 2007 @09:37AM (#20910555)
    That's the whole point.

    They *aren't* saying, they're just FUD-ing.

    From a linked story at vnunet.com:

    http://www.vnunet.com/vnunet/news/2200498/oin-calls-microsoft-bluff?vnu_lt=vnu_art_related_articles [vnunet.com] ...Mark Taylor, president of the Open Source Consortium [...] described Microsoft's tactics in damning terms.

    "We say show us the patents," he told vnunet.com. "This has been the strategy against open source all along. It's precisely the same tactics as SCO used: implied threats and mafia techniques. This is just FUD. It's smoke and mirrors. "

    Taylor added that Microsoft is sorely mistaken if it hopes that its actions will slow down the spread of open source. ....

    M$ has a history of trying to protect and extend its domination over the software market with legal wars and threats of legal wars.

    With the failure of VISTA, and IE getting serious competition from Firefox, M$ isn't so much a software company any more so much as a litigation company.

    I say they have richly earned the thumping they will receive at the hands of Open Source over the next few years.

  • by TheRaven64 (641858) on Tuesday October 09, 2007 @10:07AM (#20910933) Journal

    BTW: Software patents are not enforcable in the EU.
    As of the latest EU patent directive, the enforceability of software patents is an issue to be decided by each member state. They are not enforceable in the UK, but they soon will be in some other countries (the new French President, for example, has spoken in favour of software patents).
  • SCO all over again? (Score:5, Informative)

    by Midnight Thunder (17205) on Tuesday October 09, 2007 @10:17AM (#20911049) Homepage Journal
    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.

    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?
  • by Billly Gates (198444) on Tuesday October 09, 2007 @10:37AM (#20911319) Journal
    However Linus has stated publicaly and in emails to developers that they should not seek out patent filings due to tripple damages of willful infringement. THis can be used to show Linus had willful intent to steal the ideas of Microsoft and of course their lawyers will say the fact that he said this after SCO sued for patent infringement showed foreseeable harm since they were all aware they could be sued again. sigh

    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.
  • by z0M6 (1103593) on Tuesday October 09, 2007 @10:40AM (#20911373)
    For those who are wondering what the lanham act is:

    http://en.wikipedia.org/wiki/Lanham_Act [wikipedia.org] gives some explanation without too much legalese.
  • Slander? (Score:5, Informative)

    by twoshortplanks (124523) on Tuesday October 09, 2007 @10:51AM (#20911525) Homepage
    The law of slander in the UK is such that you can sue someone who makes statements that cause harm to you or your company. While truth remains a defense against slander, in the UK the onus of proof is on the person who made the statements.

    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)
  • by The Cisco Kid (31490) on Tuesday October 09, 2007 @11:14AM (#20911853)
    idol: something your worship, or put on a pedestal (or vote for in a popularity contest on TV)
    idle: sitting doing nothing, a car engine 'idling', an 'idle' threat.

    And the big thing that scares Microsoft is the idea of not having a the vast majority of control over software that people use. If there were ever fair competition, then they wouldnt be able to break file formats and network protocols at will, they would have to be compatible to continue to hold *any* portion of the market, and they would actually have to compete on reliability, usefulness, etc. And that has never been one of their strong points.
  • by nomadic (141991) <nomadicworldNO@SPAMgmail.com> on Tuesday October 09, 2007 @11:23AM (#20912019) Homepage
    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?

    In a lot of jurisdictions there's a civil claim for "tortious interference with business relationships", which I think this may fall under.
  • by russ1337 (938915) on Tuesday October 09, 2007 @11:27AM (#20912101)
    Oh, my mistake, they've actually said 235 patents, [google.com].

    see here [cnn.com]
    and here [engadget.com]
    and here [arstechnica.com]


    But I do apologize for saying 135 instead of 235....
  • by s4m7 (519684) on Tuesday October 09, 2007 @11:50AM (#20912451) Homepage

    Couldn't Linux companies sue MS claiming that Balmer's statements are harming their business
    Sure. Show me the Linux company with a warchest that makes it worthwhile to pursue action against Microsoft's legal juggernaut. Even the theoretical maximum damages you could claim aren't worth the substantial risk of losing. If Microsoft has just one patent that's being infringed by just one Linux company, their claims are "valid" and your suit tanks. Meanwhile you've exposed yourself to counterclaims, and risk creating a lot of work and headache for the entire open source community. Nobody really wants to be a target. In addition, nobody is really suffering that much from MS's claims. Most people who know what they are talking about are aware that MS can't go after the *users* of their "patented technology" any more so than to enjoin their usage. Distributors are at least potentially liable for damages.

    especially in light of the fact that MS refuses to identify these patents?
    Well that's their ace in the hole isn't it? As long as they won't identify a specific patent, they aren't limited to a subset of distros that provide, for instance, access to windows shares, ability to read/write ntfs partitions, RDP, or any other MS technologies that *might* be what they're talking about. You can bet that any non-legal personnel at MS will not disclose what patents they refer to outside of a courtroom, because as soon as they do they start limiting themselves.
  • by init100 (915886) on Tuesday October 09, 2007 @11:53AM (#20912489)

    You can't work around a patent by implementing the same thing differently

    That depends entirely on the patent. Many patents are concept patents, and those would not allow a different implementation. There are also algorithm patents, which would allow an implementation that does not use the patented algorithm.

  • by mabhatter654 (561290) on Tuesday October 09, 2007 @12:38PM (#20913265)
    Most engineering firms don't seek out patents for the same reason... it's better to work 100% independently without looking at other code or patents. Then if you do run across a patent, you have the lawyers tell you how to deal with it one claim at a time. You may only need to change 1 thing to not infringe and you can show a clean trail of independant research leading to different results. IF you make a policy of searching the patent database, then people may claim you were "trying" to get around their patents and the work wasn't your own. They may claim you willfully ignored THEIR patent amid all the others if you happen to infringe.. if you start a program to read them you have to read ALL of them, even the submarines and such you may not know about!!! It's wasted effort to still get sued.
  • by Pelekophori (1045104) on Tuesday October 09, 2007 @01:31PM (#20914107)

    You can only break the laws of a sovereign nation whilst you are within the jurisdiction of that nation.

    Not true. Lots of countries have extraterritorial legislation. For example the UK authorities can prosecute for sexual offences committed overseas against children under 16 by British citizens or residents. Several countries (eg Belgium and Spain) have laws which allow them to prosecute "crimes against humanity" in whatever country they occur. Thus Spain once tried to extradite General Pinochet from the UK to face trial for actions he committed entirely within Argentina.

    But you do of course have to be within the grasp of the prosecuting authorities for them to enforce the outcome of any prosecution.

  • by golodh (893453) on Tuesday October 09, 2007 @01:44PM (#20914369)
    This isn't the first time that Mr. Ballmer makes unsubstantiated allegations on the subject of supposedly infringed Microsoft patents. The last time he shut up after awhile.

    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.

  • by Grishnakh (216268) on Tuesday October 09, 2007 @01:53PM (#20914529)
    You can only break the laws of a sovereign nation whilst you are within the jurisdiction of that nation. That is part of the definition of sovereignty. If you are outside the USA, you can't by definition break US law. Whatever you did has to be illegal in both places.

    Wrong (unfortunately).

    US citizens get in legal trouble all the time because of things they did outside the US: visiting Cuba will earn you a big fine, for instance, if the US government finds out (and they do sometimes). US citizens who went to Thailand and had sex with minors have come back and faced criminal charges. Also, Dmitry Sklyarov was in jail for a while because he wrote a program that violated the DMCA, while he was living in his home country of Russia!

    Anyone that steps onto USA soil, citizen or not, is absolutely subject to our (oftentimes stupid) laws for things they did outside this country in the past. Yes, it seems pretty ridiculous, but your assertion is clearly incorrect for anyone living in or even visiting the USA. I don't know how it is for other countries, but if you think about it, any country's government can arrest you and prosecute you for anything they want once you're inside their borders, laws be damned. So far, the USA is the only prominent country that seems to make a habit of it.
  • by falconwolf (725481) <falconsoaring_2000NO@SPAMyahoo.com> on Tuesday October 09, 2007 @08:03PM (#20919503)

    Perhaps patents should have to be actively protected, like trademarks, and if a company lets another company use their patent for too long uncontested it becomes public domain.

    Patents have to be protected as it is. If a patent isn't protected, via Laches, Doctrine Of or Doctrine of Latches [lectlaw.com] a patent owner can loose their patent rights if they don't enforce those rights.

    Falcon
  • by s4m7 (519684) on Tuesday October 09, 2007 @09:25PM (#20920273) Homepage
    From your link:

    But laches may be excused from ignorance of the party's rights; from the obscurity of the transaction; by the pendency of a suit, and; where the party labors under a legal disability, as insanity, infancy and the like.
    (Emphasis mine)

    Seriously though, patent prosecution laches only became viable fairly recently, in Symbol v. Lemelson, and it was a pretty extreme case. something like 35 years elapsed. Laches doesn't apply as well to Patent law though because all patents are documented with the USPTO. It is the responsibility of an inventor to make sure that he's not stealing someone else's invention. The same does not hold true for trademark or copyright however.

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