When Microsoft and Novell signed their patent agreement in October, the ink wasn't even dry before Steve Ballmer stood up and claimed Linux was infringing on his intellectual property. Linux users scoffed and said "put up or shut up". Microsoft has now put a bit more meat on the bones of its claims.
In an interview with Fortune Magazine, Microsoft general counsel Brad Smith said Linux (by which he means the Linux kernel and some other software distributed under the General Public Licence) infringes 235 of Microsoft's patents.
Which patents are being infringed he won't say, but Microsoft's message is clear: It's not content with the billions it already has in the bank - it wants royalties from all free software too.
Software seppuku
This is an absolutely suicidal move by Microsoft for three main reasons:
1. Mutually assured destruction. It cannot win without inviting retaliation from even bigger patent-holders such as IBM (a huge Linux supporter), a move that would drown the entire industry in lawsuits. If it loses, it's quite likely the US patent system will be drastically overhauled in a way that Microsoft won't like. The current system is broken, allowing companies like Microsoft to patent such "innovations" as comparing two variables, a technique described in software texts dating from the 1960s and doable in 1950s languages like Fortran. There are already some rumblings from the US Supreme Court that the patent system is in dire need of an overhaul.
2. Who exactly does Microsoft sue? Does it sue the German developer who put a patented technique into the Linux kernel? Not likely: US software patents are not respected in Germany (and most other countries) and a single developer won't be able to afford royalties. Besides, Microsoft has already said it won't assert its patents against individual open source developers. Does it sue Linux distributors? Only Novell has played ball so far and given Microsoft money: the others have refused. Red Hat points journalists asking for comment on these statements to its assurance programme, which protects customers using free software.
Plenty of customers already detest Microsoft's business tactics.
Paul Furber, senior group writer, ITWeb
That leaves Microsoft's own customers as the only possible targets. The Fortune article says this is what Microsoft is doing: going around the Fortune 500 and threatening legal action if they don't cough up. As SCO has discovered, suing your own customers is not a viable long-term business model.
Plenty of customers already detest Microsoft's business tactics. Knocking on their doors and demanding royalties will merely prompt some of them to adopt alternatives far quicker than they would have. Can you imagine those conversations?
Microsoft sales exec: "Hi, if you're using Linux, we'll need to reconsider our legal position."
Fortune 500 CIO: "So let me get this right: I've spent millions of dollars with you on licences over the years and now you want to sue me for using code you don't own and didn't write?"
3. Microsoft has just told the whole world: "This is all we have and we're pretty desperate." Free software packages such as the Linux kernel are not particularly vulnerable to annoyance lawsuits. Code can be developed in countries other than the US, patented techniques can be removed or worked around in a very short time, and armies of volunteers can and will scan for prior art that would immediately invalidate any of Microsoft's claims.
Microsoft, on the other hand, is tacitly admitting it cannot compete on merit and must rely on a quirk of the US patent system to proceed. It won't even specify exactly what patents are infringing. But it's really bad, apparently. "This is not a case of some accidental, unknowing infringement," says Microsoft's licensing chief, Horacio Gutierrez. "There is an overwhelming number of patents being infringed."
Well spotted Horacio. Programmers around the world generally don't rush to Microsoft's Web site to see whether they can legally use techniques like comparing two variables. They use software techniques like everyone uses science and mathematics: as freely available knowledge resources that everyone can use and build upon. You should try it sometime.
Related column:
Patent war nonsense
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