2002 Memo Reveals HPs Fear of Microsofts Litigiousness

A recently revealed, internal memo to senior HP staffers reveals HP's circa-2002 thoughts on when, how and why Microsoft would start filing patent infringement lawsuits against HP's use of open-source software.

eWEEK.com has confirmed that an internal Hewlett-Packard Co. memo to senior HP staffers, which surfaced on Friday, reveals HPs circa-2002 thoughts on when, how and why Microsoft Corp. would start filing patent infringement lawsuits against HPs use of open-source software.

The memo is dated June 3, 2002 and shows how worried HP executives were that Microsoft might be getting ready to use patents to attack open-source programs.

In the memo, Gary Campbell, then vice president of strategic architectures for Industry-Standard Servers and now vice president and chief technology officer of Enterprise Servers and Storage, explained that HP had just reached a new patent cross-license agreement with Microsoft and that, in the course of making this agreement, he believed that "Microsoft is about to launch legal action against the industry for shipping Open Source [sic] software that may force us out of using certain popular Open Source products."

Campbell wrote that "Microsoft could attack Open Source Software for patent infringements against OEMs, Linux distributors, and least likely open source developers. They are specifically upset about Samba, Apache and Sendmail. We believe Samba [the Windows-compatible file server/client] is first, and they will attempt to prove it isnt covered by prior patent cross as a so-called clone product carve [sic] out in the previous agreement."

/zimages/6/28571.gifFor a full copy of the memo, click here.

Campbell took this threat seriously. "Basically, Microsoft is going to use the legal system to shut down open source software, and for all of its cleverness, the GPL makes it fairly easy unless a white knight steps in," he wrote.

Why? Campbell thought Microsoft could do this "because the GPL license has a mutually assured destruction clause in section 7, if anyone is sued over a patent infringement, no one is licensed under the GPL to ship GPL-ed products. This is probably what Microsoft intends to do."

Despite this doom-and-gloom prediction, Microsoft has not pursued any such lawsuits.

This interpretation of the GPL is also not shared by most people in the business. Eric S. Raymond, Open Source Initiative leader, said that "Microsoft aims to destroy us with patents. HP contains clueless executives. Yawn. Old news."

At least one open-source company, Red Hat Inc., isnt worried about these possibilities. Mark H. Webbink, Red Hats deputy general counsel and secretary, says, "Historically, Microsoft doesnt start lawsuits against competitors. Theyre not, despite what you might think, really that litigious a company."

But, Webbink continued, "If Microsoft were to have such patents and start pursuing them, wed be open to licensing such patented technologies, and I think Microsoft would be happy to license it to open-source companies."

None of this may matter, though. While Microsoft has not commented on the memo, Elizabeth Phillips, an HP public relations representative, said that this is old news. "As this memo was created over two years ago, we believe it is not relevant today. That said, HP has a proven history of taking measured steps to put its customers first and provide them with the functionality and benefits of open-source software. Demonstrating unwavering commitment to meet the needs of its customers, HP was the first major Linux vendor to offer indemnification protection against SCO-related lawsuits, thus enabling HPs customers to continue their Linux deployment plans with confidence."

She added, "Microsoft continues to be one of HPs strongest partners. HP is committed to delivering choice for its customers, and this is done through a multi-[operating system] strategy of Windows, Linux and HP-UX on industry-standard platforms."

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