Microsoft vs. Open Source: Setting the Battle Lines

Microsofts statement opens, "The companys longstanding preference is to license rather than litigate and Microsofts work over the past three years to build a bridge with open source is a result of that commitment. The November agreement with Novell addresses the IP issues in open source while meeting both the distributors needs and, more importantly, the needs of the customer."

While Microsoft professes a preference to license rather than litigate, its record indicates otherwise. On Feb. 22, 2007, a jury awarded a $1.52 billion patent judgment in favor of Alcatel-Lucent against Microsoft over the Redmond, Wash., companys use of MP3 codices. This was the largest patent award in history. In the Eolas case, Microsoft was also found guilty in a $521 million patent infringement ruling over how Internet Explorer handled embedded content.

Richard Fontana, counsel for the SFLC (Software Freedom Law Center), which works with the Free Software Foundation, said he "suggests that it is Microsofts proprietary software that is full of IP risk, and not Linux or FOSS [free and open-source software]. In the past three years alone, Microsoft has publicly paid out more than $4 billion dollars in settlements and court awards for alleged infringements of other companies patents. And if any of Microsofts own patents are not novel and non-obvious, that means that Microsofts purported IP includes property it does not actually have any right to own—property that has essentially been misappropriated from earlier inventors, or from the public."

The Microsoft document states: "The patent issue with open source has been in discussion for some time, first raised by various leaders in the free and open source community. According to its August 2004 announcement, the Open Source Risk Management group stated (PDF) that Linux could be in violation of 283 patents and, as such, could expose customers to undetermined licensing costs. Richard Stallman further validated this in late November when he noted that a thorough study found that the kernel Linux infringed 283 different software patents, and thats just in the United States. Of course, by now the number is probably different and might be higher."

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There are several things to note here. First, the statement doesnt mention that Microsoft CEO Steve Ballmer had already made this claim in 2004. It also ignores the fact that the OSRM studys author, Dan Ravicher, an attorney and executive director of PUBPAT (the Public Patent Foundation), completely denied Microsofts implication that Linux was violating Microsofts patents. As Ravicher said then, "There is no reason to believe that GNU/Linux has any greater risk of infringing patents than Windows, Unix-based or any other functionally similar operating system."

Stallmans comment was about that same OSRM study. There was nothing new in his remark.

Fontana observed that Microsoft "refuses to identify specific patents or explain how theyre being infringed, lest FOSS advocates start filing challenges to them. In other words, Microsoft is afraid of identifying any of these 235 patents because if they did, the free/open-source software community would be able to prove that the patents are invalid, or unenforceable, or that FOSS does not, in fact, infringe the claims of those patents."

The statement went on, "Customers have asked industry leaders in both proprietary and open source to address these issues and over 90 percent of customers support the Novell agreement as addressing this need for vendor interoperability and cooperation." This study, however, looked primarily at interoperability, not intellectual property issues.

The Microsoft-sponsored IT executive survey was very limited regarding IP. The IP part consisted of executives agreeing or disagreeing with the following statements: "Technology companies, not end users or businesses, should take responsibility for the intellectual property in the products they ship and service." And, that "vendors should acquire IP rights to their competitors products, if necessary, to prevent them from being exposed to any risk." The vast majority liked the idea of not having any risk.

Having mentioned the Novell deal, Microsoft moved on to the meat of the matter, saying, "The latest draft of the GPLv3 attempts to tear down the bridge between proprietary and open-source technology that Microsoft has worked to build with the industry and customers. Customers in multiple industries have already called for and endorsed the bridge as a positive move in their favor. AIG, Credit Suisse, Dell, HSBC, Nationwide and Wal-Mart are just a few of the customers who have already signed on."

These companies are those that have bought Microsoft-provided, Novell SLES (SUSE Linux Enterprise Server) certificates. Ballmer claimed in November that Microsoft was motivated to sign a deal with SUSE Linux distributor Novell because Linux "uses our intellectual property" and Microsoft wanted to "get the appropriate economic return for our shareholders from our innovation."

Novell CEO Ron Hovsepian replied at the time, "Our agreement with Microsoft is in no way an acknowledgment that Linux infringes upon any Microsoft intellectual property. To claim otherwise is to further sow fear, uncertainty and doubt, and does not offer a fair basis for competition."

Novell hasnt changed its position. Bruce Lowry, Novells director of global public relations, said, "We stand by Rons open letter of Nov. 20on this issue. The fact that MSFT is now putting numbers to the patents it thinks are infringed doesnt change our position. Our focus in the patent deal with MSFT was to remove the patent issue from the table for customers."

In other words, Novell continues to state that it does not believe that Linux violates any of Microsofts patents. If knowing that Microsoft wont bother Novells customers on such issues makes them feel better, thats fine.

Finally, Microsoft addresses its real concern: "Microsoft is discussing the patent issue even more directly now, with specifics about patent numbers and areas of infringement, in response to continued industry question and concern over the GPLv3s adoption. Unfortunately, for customers, the Free Software Foundations efforts with GPLv3, while not harming existing contracts, can harm the desired interoperability and open exchange that we have increasingly seen between proprietary [software] and open source over the past several years."

In part, Microsoft cares about these issues because the latest GPLv3 revision would make future patent deals like the Microsoft-Novell one almost impossible. What may be far more important though is that the open-source software lawyers are now claiming that by reselling SLES certificates, Microsoft has become a Linux distributor and is therefore bound by the existing GPLv2.

Fontana explained, "Now that Microsoft has effectively become a distributor of Linux, by distributing some 50,000 or so Novell SLES coupons, it has perhaps unwittingly restricted its ability to sue Linux users over its patents. While this is particularly clear under the forthcoming Version 3 of the GPL, the Microsoft lawyers who helped craft the MS-Novell deal appear to have overlooked the fact that, by procuring the distribution of lots of free software under GPL Version 2, among other licenses, Microsoft has already lost some of its power to assert patents against subsequent distributors and users of that software."

eWEEK.com Senior Editor Steven J. Vaughan-Nichols has been using and writing about operating systems since the late 80s and thinks he may just have learned something about them along the way. He can be reached at sjvn@ziffdavis.com.

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