Microsoft: IP Licensing Inevitable

By Peter Galli  |  Posted 2004-11-15 Print this article Print

Defending intellectual property and patent licensing is quickly becoming a hot button for proprietary and open-source software developers alike.

Defending intellectual property and patent licensing is quickly becoming a hot button for proprietary and open-source software developers alike.

For many, its not a case of if but when Linux and open-source software developers will be forced to license other vendors intellectual property, regardless of how complicated it may be to execute under the GPL (GNU General Public License). As a result, enterprises standardizing on open platforms are paying closer attention to the growing risk of legal action the software could bring.

Microsoft Corp. announced last week that it will expand its intellectual property protection policy and cover all customers using current and older versions of its software. Many Linux vendors, such as Red Hat Inc. and Novell Inc., already offer limited indemnification to cover patent actions such as The SCO Group Inc. lawsuits.

Click here to read more about Microsoft claiming intellectual property rights. But given Linuxs continued growth, customers are worried that some third-party code will eventually find its way into the operating system, over which someone could then claim patent protection.

"I really think that is inevitable. There has already been a commercialization of open source, which is evident in the increased level of sophistication across their technology stack," David Kaefer, Microsofts director of intellectual property licensing, in Redmond, Wash., told eWEEK. "I think in the end, if you are Novell or Red Hat, your corporate customers dont want to wait 10 years and get embroiled in something that is uncertain," Kaefer said.

Jamey Anderson, manager of Local Area Network Services at ADC Telecommunications Inc., in Minnetonka, Minn., chose Windows over Linux for that reason. "We simply arent interested in having to worry about potential legal risks of deploying Linux," said Anderson.

According to Mark Webbink, deputy general counsel and secretary for Red Hat, the GPL states that if the licensor holds patents or has licensed patents that apply to the technology, the licensor must ensure that all downstream parties may use the software as provided by the GPL. "The solution to this is for a patent holder or patent licensee to provide an express patent license accompanying the GPL," Webbink said.

That Microsoft and Sun Microsystems Inc. are willing to make patented technology available to open-source vendors is encouraging, Webbink said. "If proprietary and open-source providers can come together to find ways of sharing innovations, we think this is a good thing for the software industry," he said.

But Eben Moglen, general counsel for the Free Software Foundation, in New York, does not see it this way. The foundation does not believe its going to have to start licensing others intellectual property and patents. "Microsoft has not actually stepped forward and said that anything we are doing infringes on a patent," said Moglen. "Microsoft still has not asserted that patents govern free software. What is really fascinating is how they keep doing everything except that."

Check out eWEEK.coms for the latest open-source news, reviews and analysis.
Peter Galli has been a financial/technology reporter for 12 years at leading publications in South Africa, the UK and the US. He has been Investment Editor of South Africa's Business Day Newspaper, the sister publication of the Financial Times of London.

He was also Group Financial Communications Manager for First National Bank, the second largest banking group in South Africa before moving on to become Executive News Editor of Business Report, the largest daily financial newspaper in South Africa, owned by the global Independent Newspapers group.

He was responsible for a national reporting team of 20 based in four bureaus. He also edited and contributed to its weekly technology page, and launched a financial and technology radio service supplying daily news bulletins to the national broadcaster, the South African Broadcasting Corporation, which were then distributed to some 50 radio stations across the country.

He was then transferred to San Francisco as Business Report's U.S. Correspondent to cover Silicon Valley, trade and finance between the US, Europe and emerging markets like South Africa. After serving that role for more than two years, he joined eWeek as a Senior Editor, covering software platforms in August 2000.

He has comprehensively covered Microsoft and its Windows and .Net platforms, as well as the many legal challenges it has faced. He has also focused on Sun Microsystems and its Solaris operating environment, Java and Unix offerings. He covers developments in the open source community, particularly around the Linux kernel and the effects it will have on the enterprise.

He has written extensively about new products for the Linux and Unix platforms, the development of open standards and critically looked at the potential Linux has to offer an alternative operating system and platform to Windows, .Net and Unix-based solutions like Solaris.

His interviews with senior industry executives include Microsoft CEO Steve Ballmer, Linus Torvalds, the original developer of the Linux operating system, Sun CEO Scot McNealy, and Bill Zeitler, a senior vice president at IBM.

For numerous examples of his writing you can search under his name at the eWEEK Website at


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