Microsoft's saber-rattling against open source

Microsoft has been building up its patent portfolio and making smaller moves for at least four years, but has not sued anyone yet

Microsoft rattled its saber this weekend, using Fortune magazine to claim that open-source software collectively violates more than 200 of its patents.

The news shouldn't surprise anyone. Microsoft has not only been building up its patent portfolio and making smaller moves for at least four years, but last November, two weeks after Microsoft inked a deal with Linux distributor Novell, Microsoft CEO Steve Ballmer didn't exactly disguise his threat. "In a sense, you could say anybody who has got Linux in their data centre today sort of has an undisclosed balance sheet liability," he said.

This isn't a fight that will quickly wrap up cleanly, but the FAQ that follows lays out some of the most pertinent discussion points so far.

What's Microsoft's beef? At root, it's a clash between a for-profit company that expects to be paid for its efforts and an amorphous community that wants software to be freely used and shared. The dispute isn't new at Microsoft. When Chairman Bill Gates was just 20, he wrote his "An Open Letter to Hobbyists," in which he railed at 1976's computer users for "stealing software." Fast forward 31 years, and Microsoft claims that free or open-source software (FOSS) violates 235 of Microsoft's patents. In other words, Microsoft is asserting that Linux and OpenOffice and other FOSS has stolen something that rightfully belongs to Microsoft.

Microsoft's talking patent infringement, so has it sued anyone? No, not yet — and maybe never. Microsoft breathed nary a word about lawsuits in either the statement circulated to the press over the weekend, or in the interviews that formed the foundation for the Fortune article that broke the story. "The company's longstanding preference is to license rather than litigate," the statement read. Most analysts, legal and otherwise have also said it's unlikely Microsoft will actually sue, since those who most use FOSS — corporations — are also important customers of the developer.

Has Microsoft at least spelled out what patents it believes have been violated? No. The tell in the Fortune piece is attributed to Microsoft's vice president of intellectual property and licensing, Horacio Gutierrez, who "refuses to identify specific patents or explain how they're being infringed, lest FOSS advocates start filing challenges to them." This refusal to name names has put open-source advocates into a lather. "If Microsoft had sound and critically relevant patents to assert, they wouldn't need to screw around with vague threats," said Linux evangelist Eric Raymond. "They'd simply publish the patent numbers and it would be game over for Linux."

Okay, so no specifics. ... But does Microsoft have at least a general idea where the violations occur? Microsoft's general counsel, Brad Smith, painted some very broad strokes in the Fortune story. Of the 235 patents claimed, Smith said that the Linux kernel violates 42 of them; the operating system's graphical interface, 65; OpenOffice, 45; open-source email programs, 15; and other open-source software, 68.

How does the Microsoft-Novell deal of last November fit into this? Taking its public comments at face value, Microsoft would love to see that model extended throughout the open-source world. "The November agreement with Novell addresses the IP issues in open source while meeting both the distributor's needs and, more importantly, the needs of the customer," Microsoft said. In that pact, the two companies indemnified each other's customers from patent lawsuits, while Novell agreed to pay Microsoft a share of its SUSE Linux revenue. Last November, in fact, Ballmer was quoted by the Seattle Post-Intelligencer as saying, "We are willing to do the same deal with Red Hat Linux and other Linux distributors." Yesterday, Gutierrez made it pretty clear that the Novell format is Microsoft's preference. "The real question is not whether there exists substantial patent infringement issues, but what to do about them," he said. "Microsoft and Novell already developed a solution that meets the needs of customers, furthers interoperability and advances the interests of the industry as a whole."

What's the connection with GPLv3? GPLv3, or General Public License, Version 3, is the under-consideration revision to the popular open-source license from the Free Software Foundation (FSF). The draft of GPLv3, which was released in late March, includes new language that would make impossible any future Microsoft-Novell type deals. "The recent patent agreement between Microsoft and Novell aims to undermine these [open-source] freedoms," said Richard Stallman, FSF president and principal author of the GPL, in a statement accompanying the March 28 rollout of the draft. "In this draft, we have worked hard to prevent such deals from making a mockery of free software."

Microsoft, of course, sees it differently. "Unfortunately for customers, the Free Software Foundation's efforts with GPLv3, while not harming existing contracts, can harm the desired interoperability and open exchange that we have increasingly seen between proprietary and open source over the past several years," the company said.

Is anyone in open source shaking in their boots over this? Early returns say negatory. Red Hat, the largest distributor of Linux, declined to comment yesterday, but pointed to a new entry posted on its corporate blog. "Our confidence in our technology and protections for customers remains strong and has not wavered," said the company's intellectual property team. "When viewed from the perspective of pending lawsuits related to intellectual property, [open source] is at least as safe as proprietary software. We are also aware of no patent lawsuit against Linux. Ever. Anywhere." OpenOffice.org, which Microsoft said had violated 45 of its patents to put together the same-named business suite, called the claims "desperate."

What will happen next? The only people who know, assuming they do, are the top-tier executives at Microsoft. And they're not talking.

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