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Ballmer Suggests Linux Distros Will Soon Have to Pay Up 520

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 G3ckoG33k ( 647276 ) on Tuesday October 09, 2007 @08:40AM (#20909929)
    Suddenly, I like Ballmer a little less. Possibly, the Linux foundation's [] will harness those feelings; it is after all supported by HP, Ericsson, Nokia, Novell, IBM, RedHat, and ... Microsoft... WTF?!
  • by Jaxoreth ( 208176 ) on Tuesday October 09, 2007 @08:43AM (#20909961)

    which intellectual property is MS saying open source solutions are infringing on?
    The ones in the flying pink teapot the size of a refrigerator.
  • He could be right... (Score:5, Interesting)

    by Jennifer York ( 1021509 ) on Tuesday October 09, 2007 @08:43AM (#20909963) Homepage
    Ballmer may be right in that some Open Source Software infringes on their patents. I'd be surprised if it were otherwise; they are giving out patents on single click purchasing [], and even the simple check box []

    Microsoft is unlikely to enforce it's patents, but what should scare us are the other Patent Houses where their business model is based on litigation []. They are the dangerous ones...

  • by SkunkPussy ( 85271 ) on Tuesday October 09, 2007 @08:45AM (#20909985) Journal
    My guess is that any of Microsoft's patents could be coded-around trivially - therefore their patents, once revealed, have no value. Their only value is as a bargaining tool (cudgel).
  • IANAL... (Score:2, Interesting)

    by nimid ( 774403 ) on Tuesday October 09, 2007 @08:52AM (#20910033) Homepage would it be possible for Microsoft to settle/lose a non-novel and obvious patent case just so that it would set precedent? (One that would hurt them a little but OSS a LOT)

    If this could be done, wouldn't it validate the patent and allow the plaintiff to then go after Open Source Software? It would be a bit like the whole SCO fiasco again but only with the power of the courts behind them.

    Thank goodness that in this enlightened age, no-one would collude and pull off something like that.
  • by bogaboga ( 793279 ) on Tuesday October 09, 2007 @08:52AM (#20910041)
    Isn't there a law to force Ballmer to put up or shut up? Is it possible to go to court to have him clear the air instead of damaging Linux's progress? lawyers please clarify.
  • Linux's Retaliation (Score:4, Interesting)

    by Zombie Ryushu ( 803103 ) on Tuesday October 09, 2007 @08:59AM (#20910115)
    Is there any way we can really sock Microsoft in the Jaw on this? Like, can an organization or Alliance of some kind pre-emptively sue MS to say "You cannot repeatedly make threats that we infringe on your whatever simply because you want to scare people?
  • by Technician ( 215283 ) on Tuesday October 09, 2007 @09:09AM (#20910235)
    but which intellectual property is MS saying open source solutions are infringing on?

    Let's make it simple.. Take a lot of code and patent a few ideas. Someone else does the same. In review as your code gets complicated, you may very well have used someone else's IP in your implimentation. Often in a patent dispute regarding code, the countersuit results in a cross license agreement. IBM and others have war chests full of patents to protect FOSS against attacks.

    MS hints at an attack as part of the FUD campaign. If they launch a real attack, the code of Windows will be put on the operating table for dissection for infringements. See any problems with this? Just to show an easy to see example, Microsoft was sued over the use of a trash can in Windows. That is why they have a recycle bin. Apple owns the trash can.

    Now look at a copy of Ubuntu. It has a little box with a recycle logo in view right on the desktop. They call it the Trash. Who can sue? Apple, Microsoft? If Microsoft sues, guess what happens to tabbed browsing in IE7. This is something showing on the surface. Start digging into functionality and the fight could get ugly for Microsoft. The bigger the code, the bigger the possiblilty of infringment of someone else's pattent. The code doesn't get much bigger than Vista for the desktop.

    Can you say HUGE BULLSEYE? The noise is just noise. It is intended to slow down the implimentation and keep obvious duplication of features to a minimum by the competition by raising the question of costly litigation. It's just the ongoing FUD campaign.

    Prior art and other discoveries in a court battle could be very damaging to many of Microsoft's patents. If they don't name them, they can't be shot down.
  • by Jerry ( 6400 ) on Tuesday October 09, 2007 @09:12AM (#20910281)
    Novell has publicly denounced MS' claims about this.

    Hovsepian lies.

    It's NOT what they SAY that counts, it's what they DO.

    And what Novell does is to continue to PAY MICROSOFT A ROYALTY for each copy of SLES that it sells. Ballmer called that payment the "IP Bridge": []
    And you'll see, as well, an economic commitment from Novell to Microsoft that involves a running royalty, a percentage of revenue on open source software shipped under the agreement. .... and we're going to make clear that IP, the patent bridge, the IP bridge is an important thing.

    That royalty payment says that NOVELL "BELIEVES" that Linux contains MS IP, even though there has been no proof of such a claim.

    Why did Novell do this? Hovsepain claims he couldn't sell SUSE against Windows, which is probably a true statement about his sales ability, but I believe he had $308M other reasons, and a hope that Microsoft's legal pressure on other distros would force FOSS users to move to SLES and pay for it.

  • Interesting (Score:3, Interesting)

    by JeremyGNJ ( 1102465 ) on Tuesday October 09, 2007 @09:24AM (#20910421)
    It will be interesting to see their next step.

    Phase 1 was "state the fact about patent infringement".
    Phase 2 is now "explain that since the VENDOR wont pay for patents, then the customers will be on the line" Phase 3 ???

    Microsoft will eventually HAVE to file a suit or someone will file a suit against them for scare tactics of some sort. I'm sure the Microsoft lawyers understand this, which means they must have a phase 3 in mind. Who will be the first target? And in which court?

    Sometimes I think Microsoft can't lose this battle. If their first suit really tests patent law and then win...well then they start the major money collection, and Linux suffers a hit for it's users having legitimate concerns of legality. However if the patent claims are denied...the Microsoft basically has the green light to use the patents owned by countless others. Because of their size and bankroll, they can implement such technologies much quicker than most companies, and they will pull ahead on many fronts.
  • by pgaffney ( 247103 ) on Tuesday October 09, 2007 @09:52AM (#20910741)
    From Yahoo Finance/GOOG:
    Market Cap (intraday)6: 192.87B
    Enterprise Value (9-Oct-07)3: 177.78B
    Trailing P/E (ttm, intraday): 50.15
    Forward P/E (fye 31-Dec-08) 1: 31.46

    How many Linux servers does Google have?


    Kill! Kill! Kill!
  • OOXML (Score:5, Interesting)

    by jafoc ( 1151405 ) on Tuesday October 09, 2007 @10:11AM (#20910987) Homepage
    I'm not authorized by Ballmer to speak about what he may have had in mind, if anything, but Microsoft claims that their OOXML file format which they're (despite the initial failure) still trying to get approved as an international standard can be used "on Linux" (this claim was made in the standardization committe on this matter in Switzerland, of which I am a member) and they are offering (unacceptable) terms and conditions for using their patents on this "standard".

    Microsoft hasn't honored my numerous requests to provide a list of the patent numbers is question even though I demonstrated that the ISO/IEC directives say clearly that patents should be disclosed.

  • Restraining order (Score:2, Interesting)

    by Falstius ( 963333 ) on Tuesday October 09, 2007 @10:14AM (#20911023)
    If someone followed me around saying untrue things about me, I'd get a restraining order. I wonder if Redhat can do the same. Treat Ballmer like the drunken ex-husband he resembles.
  • by fork_daemon ( 1122915 ) on Tuesday October 09, 2007 @10:17AM (#20911051) Journal

    Don't these kinds of threats put MS in legal jeopardy? Couldn't Linux companies sue MS claiming that Balmer's statements are harming their business, especially in light of the fact that MS refuses to identify these patents? I would think that this situation could cause more problems with the EU.

    The DOJ of course is completely hopeless at this point, but other countries can still offer some relief.
    In my opinion, Companies like RedHat, IBM and the members of the OIN should counter sue MS for trying to threaten their customers without giving any proof to their claims. Everyone has been saying this from ever. If Linux infringes the patents, tell us which one. We'll redesign our code accordingly. If they do not tell what patents are being infringed, then there is nothing we can do to find out that. Windows code is not open. Linux is. Everyone is free to look at the code. It is more likely, MS infringed on GPL and other opensources Licenses by copying code from Linux to be used by them. Their code is binary. No source to check. How are we to know what they got in there?
  • by arkhan_jg ( 618674 ) on Tuesday October 09, 2007 @10:25AM (#20911165)
    The patents are a meaningless threat in the EU at this time, as software patents are currently not legal or enforceable across the EU. Given that, the EU antitrust court is unlikely to do anything with regards such threats that are pretty much only relevent within the US. Fraid you're stuck with needing the DOJ to instigate antitrust proceedings. I share your lack of belief that the DOJ will actually do anything.
  • by initialE ( 758110 ) on Tuesday October 09, 2007 @10:30AM (#20911225)
    I for one see a problem with this line of defense. If Microsoft fails to mention which patents are allegedly infringed, then when they do eventually show their hand, they can claim that it was a patent that was not initially in the scope of their claim, but one that was only recently discovered by their legal department. And who could blame them, having to wade through an ocean of their own IP. A judge could be easily persuaded to believe this.
  • Re:OOXML (Score:3, Interesting)

    by Billly Gates ( 198444 ) on Tuesday October 09, 2007 @10:30AM (#20911231) Journal
    Don't forget mono either and of course patents for true type fonts. If gnome becomes a liability because Miguel thought .NET was so cool I will be quite pissed and switch to KDE. I have had a feeling mono and the upcoming silvermoon is just a way to trojan horse all the linux distros with ms IP and Miguel might be in on it.

  • by Yvanhoe ( 564877 ) on Tuesday October 09, 2007 @10:32AM (#20911253) Journal
    That's called defamation suits and if Red Hat was really mentioned, they could sue Ballmer. I'm sure the EFF would be willing to help. The thing is, Red Hat isn't really a litigatous bastard and I believe they are right. Just ignore these crackpot claims, continue to make business decisions based on facts. Businessmen may not be less technically-savvy than IT engineers but I bet that they are more able to recognize a racket/scam when they see one. And this one is pretty obvious.
  • by russ1337 ( 938915 ) on Tuesday October 09, 2007 @10:41AM (#20911387)

    they can claim that it was a patent that was not initially in the scope of their claim
    True, they could... but somewhere in the deepest darkest depths of Redmond there is a safe which contains the list of 135 Patents they think have been infringed. If that list was ever discovered after they changed their mind, then they'd be in some serious trouble..... i.e lying to that Judge.
  • by XenoPhage ( 242134 ) on Tuesday October 09, 2007 @11:04AM (#20911703) Homepage

    What shocks me is that this is legal.
    Why should this shock you? If there's no law against it, it's usually because no one has taken the issue to court. We're talking about a multi-billion dollar corporation, known for using strong-arm tactics, threatening what amounts to a bunch of independent developers who probably have enough trouble ensuring that there's food on the table and a roof over their head.

    Think of it this way, the big corporation has money to burn on this issue and can easily wait out the small developer. It's extremely likely that the small developer, who can't afford a high powered lawyer, will run out of legal funds very rapidly and have to give up on the case. Microsoft isn't after money, at least not directly. They're much more interested in halting the development of an OS that, over time, has the potential to crush their business.

    The sad part is that they can halt Linux growth just as quickly, and just as effectively, by never actually taking this to court. They're already off to an amazing start with the "IP deals" they've made with various vendors. The fact that some vendors are making deals with Microsoft is enough for all the PHBs throughout the world to sit up and take notice. While Linux may be the better alternative in many cases, PHBs will definitely err on the side of caution and try to "protect" the business by staying out of the murky waters. Better to deploy Windows and have receipts and licenses to prove it, than to deploy Linux and get sued later.

    Regardless, I find it in bad taste. Instead of working to make a better OS, Microsoft is resorting to FUD. It's like the bully at school. He's big and mean looking, and you don't know if he can kick your ass or not. You're smarter, dress better, and will go farther in life, but he still scares you. Do you really want to stand up to him and hope you can deal with him? Or do you just hand over your lunch money and hope he goes away?
  • by Courageous ( 228506 ) on Tuesday October 09, 2007 @11:19AM (#20911949)
    Don't these kinds of threats put MS in legal jeopardy? Couldn't Linux companies sue MS claiming that Balmer's statements are harming their business,...

    It would seem to me to be a variation of Slander of Title, but whether or not a "variation" counts here I do not know.

  • by yuna49 ( 905461 ) on Tuesday October 09, 2007 @11:26AM (#20912077)
    The various posters here who say "show us the patents, we'll code around them," obviously don't understand the situation as well as you do.

    Let's take a hypothetical (and false) case as an example. Suppose the original coders of the NCSA Mosaic browser (the predecessor of Netscape and essentially all graphical web browsers) decided to patent the back and forward navigation arrows as a "device to permit navigation of network-delivered content" or some such patentese. The only way to avoid infringing this patent is not to use navigation arrows, not to write a different block of code to implement navigation arrows. It's like the trash can issue mentioned in another posting in this thread. Patents don't cover the code itself but the process the code implements. Even if Microsoft showed us the patents, it could be quite difficult to avoid infringing some of these.

    As a real example, take the case of the patent Microsoft holds on a procedure to update Powerpoint shows online. (I read this a while ago and don't want to spend the time to look it up at the USPTO again.) The patent covers a procedure whereby an application checks online to see whether there's a newer version of the file it is about to open. If so, it automatically downloads the update and opens it instead. Obviously this was targeted at people making presentations so that the staff back in the home office could make last-minute corrections, and the presenter would never need to download the updated file herself. The patents for processes like these often contain sweeping declarations of what's covered in the patent, so even updating systems that don't precisely match the specific one described might be deemed infringing. Suppose, for instance, that Azureus checked to see if a new Java version were available when launched and downloaded and installed the new version automatically. Infringement?
  • by david_thornley ( 598059 ) on Tuesday October 09, 2007 @11:30AM (#20912139)

    There's also the fact that Microsoft is a publicly held company, and is required to seek profits. No matter how much cash they have on hand, they aren't supposed to use it frivolously. Not that this stopped SCO, but SCO wasn't much of a going concern.

    Further, there's no guarantee that Microsoft will have a friend in the White House come January 20, 2009, and starting lawsuits to suppress competition could backfire in the next few years.

    Finally, software patents are of dubious legality in the US. So far, nobody's gone to the Supreme Court claiming that they're invalid, and so the Supreme Court hasn't ruled. (One of the interesting notes on one of the recent patent cases the Supremes heard was one justice asking another if they'd ever held that software patents were legal, and being told "no".) All of the parties to patent cases going to the Supreme Court have had a desire to preserve legal software patents, and have been arguing over things like obviousness.

    If a company actually likes software patents, it would be very dangerous to sue a company like Red Hat over patent infringement. Red Hat has enough money for good representation, and can afford to ask the Supreme Court if software is patentable. Microsoft very definitely doesn't want to risk that.

    Therefore, Microsoft is just going to continue to blow FUD over this. It's by far their best strategy if they want to use patents for anything.

  • by Risen888 ( 306092 ) on Tuesday October 09, 2007 @11:55AM (#20912529)
    Topic drift alert...

    The sad part is that they can halt Linux growth just as quickly, and just as effectively, by never actually taking this to court. They're already off to an amazing start with the "IP deals" they've made with various vendors. ... PHBs will definitely err on the side of caution and try to "protect" the business by staying out of the murky waters. Better to deploy Windows and have receipts and licenses to prove it, than to deploy Linux and get sued later.

    While I agree with your analysis, I don't think it proves your point (about halting Linux growth). FTR, I'm talking about the desktop here. Linux owns the server space, MSFT's hardly even a relevant player, that's not going to change. Money talks, and while MSFT's got a lot of it, so does IBM. So does Sun. So do lots of other very large and well-regarded companies. Shit, I'm drifting away from my already drifted point! Which is this:

    The great big boulder that will be desktop Linux will never start rolling with business. Regardless of lawsuits, IP deals, FUD, or counter-FUD. Not gonna happen. There will always be an excuse somewhere up the corporate ladder to "play it safe" and stay with Windows. Whenever someone tries a "from the top down" push for Linux, MSFT buys them off or scares business away from them, and that's not going to change anytime soon either. Linux on the desktop, therefore, must come from the ground up. Which is good, and inevitable. That's how Free Software works. That's how Free Software has always worked, and it works well, and even though it's slow, it's a steady growth. The Linux userbase grows every year, while MSFT has nowhere else to go. It'll happen. Not only will it happen, basic economics dictates that it must happen.

    Patience, grasshopper.
  • Back on their word (Score:4, Interesting)

    by nurb432 ( 527695 ) on Tuesday October 09, 2007 @12:02PM (#20912639) Homepage Journal
    Wasn't it about a year or so ago that Microsoft claimed their patents were just for 'defensive reasons' and they promised that they wouldn't on the offensive with them and start suing linux vendors? 'not to worry' they said...

    So who here actually believed them anyway?

    Time to start hoarding source code people. Phase 2 of the war has started.
  • by ajs318 ( 655362 ) <sd_resp2@earthsho[ ] ['d.c' in gap]> on Tuesday October 09, 2007 @12:07PM (#20912725)
    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. Also, you can never be extradited to face the death penalty; and it's pretty unlikely that you'd be extradited to face any penalty harsher than you would face in the country where you committed the offence.

    If a resident of Saudi Arabia visits the UK and drinks alcohol (which is entirely legal under British law) then he can't be prosecuted for it when he returns home. Nor can a Briton be prosecuted in the UK for smoking cannabis in the Netherlands. (Interesting aside: A US aircraft is considered US territory while on the ground anywhere in the world. So does that mean a car with an NL sticker on it is considered Dutch territory while it is on the road anywhere in the world?)

    There is no Lanham Act in UK law. Due to the exclusion of software from patents in UK law, the offences of which Ballmer is falsely accusing the various Linux distributors are actually non-existent. Unfortunately, Ballmer hasn't broken the law.
  • by HermMunster ( 972336 ) on Tuesday October 09, 2007 @01:41PM (#20914297)
    Yes, at least in part. They are claiming the disclosure would have very Linux hack challenging each patent thus overwhelming the company.

    What people should be doing is issuing certified letters to Microsoft requesting full disclosure with the notice that if they don't respond with the IP in question then all users are indemnified of all patents. Give them a time frame in which to proceed. Specifically state that the IP and Patents must explicitly be stated or the indemnification is automatic and global.
  • by AnalogDiehard ( 199128 ) on Tuesday October 09, 2007 @02:20PM (#20914945)

    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.

    That's like saying Al Qeada is not liable for the 9/11 attacks because they are based outside the US.

    The Lanham Act is designed to protect US companies from bullying tactics. Ballmer bullied a US company. He's liable whether or not he made such threats on US soil.

  • by Anarke_Incarnate ( 733529 ) on Tuesday October 09, 2007 @04:01PM (#20916499)
    No need. Red Hat, Novell, IBM, Sony, et al are in the Open Initiative Network. They use their patents as a shield and a sword, should ANYBODY try to start this type of war.
  • by h4rm0ny ( 722443 ) on Tuesday October 09, 2007 @05:42PM (#20917953) Journal

    Maybe that's why they paid up to Eolus, so that it had a grounding to go after their competitors who might be less able to stand up to it. I believe that Microsoft were originally keen to fight and then they paid up? And as I recall, the Eolas patent was something pretty stupid.

    I guess it's like... if you're a wizard with 1-hp and you're surrounded by goblins with 5hp, it makes sense to drop a fireball that does 6 hp damage on all of you. Yes - you get hurt, but your situation has still improved.
  • Last months I was at a meeting for european Linux admins and a guest speaker was a patent expert. Apparently he must have missed a memo because he started his pitch with "we are looking for experts such as yourself to come work with us on software patents as they are going to happen in Europe soon"... Amusing mayhem ensued. But what striked me most are two things:
    • out of 80 admins only 3 were vocal about the issues surrounding software patents. Okay, we were very vocal. But the others didn't seem to have a clue.
    • the next day the guy came up to us 3 specifically with a $trong recruiting pitch, saying that since we already knew the subject we had to come and work with him as there would be now way to avoid software patents anyway. I countered by saying that when China will decide that any patent is meaningless, then all bets would be off. But he countered that one by saying that China is the fastest growing market for patents on the planet...

    Interesting discussion anyway, even though I find the mix of lack of morality and the excess of $ deeply disturbing. Call me an idealist and cry me a river.

"An organization dries up if you don't challenge it with growth." -- Mark Shepherd, former President and CEO of Texas Instruments