Why Microsoft Won't List Claimed Patent Violations
Posted by
kdawson
on Mon May 14, 2007 07:20 PM
from the only-stick-they've-got dept.
from the only-stick-they've-got dept.
BlueOni0n writes "Earlier today, Microsoft announced it will begin actively seeking reparations for claimed patent infringement by Linux and the open source community in general. One opinion on why Microsoft won't reveal these 235 alleged IP infringements to the public is that they're afraid of having the claims debunked or challenged — so instead they're waiting until the OS community comes to the bargaining table. But a more optimistic thought is that Microsoft may be afraid to list these supposed violations because it knows the patents can be worked around by the open source community, leaving Microsoft high and dry without any leverage at all."
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Microsoft Says Free Software Violates 235 Patents 1217 comments
prostoalex writes "Microsoft told Fortune magazine that various free software products violate at least 235 patents, and it's time to expect users of this software to pay up patent licensing royalties: 'Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez sat down with Fortune recently to map out their strategy for getting FOSS users to pay royalties. Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents.'"
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Why Microsoft Won't List Claimed Patent Violations
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Where's Novell? (Score:5, Interesting)
Where is their press release regarding this?
Where's the Cease and Desist? (Score:5, Interesting)
If someone is making a dubious claim, slap them with a c&d, and force this thing into court.
Re:Where's the Cease and Desist? (Score:4, Funny)
Declaratory Judgement (Score:5, Insightful)
And if MS refused to tell you then couldn't you get a declaration from a court that your product doesn't infringe? IIRC, this is similar to what RedHat is pursuing in its case against SCO (which is on hold while SCO v IBM drags on).
Maybe a small Linux distributor with no assets and not much to lose could pursue a case like this against MS.
Re:Declaratory Judgement (Score:5, Informative)
Re:Declaratory Judgement (Score:5, Informative)
Re:Declaratory Judgement (Score:4, Funny)
Re:Declaratory Judgement (Score:4, Funny)
(http://www.gnolaum.com/)
Plus, that would be an evil act. Better hope one of those 5th level fighters wasn't a paladin
Re:Declaratory Judgement (Score:5, Insightful)
If microsoft is accusing you of breaking the law then they either have to prove it or retract the statement and settle. Sounds like it would be safer than that act since as microsoft has named a number, it would have to prove that number, even if a couple did stick then their original statement is still false.
More important during discovery you could get the court to force them list these patents and where the infringements are...
Since anyone supplying a linux appliance, system or server would fall foul of microsoft's claims then I suspect anyone with deep enough pockets could take up this cause.. or set up a company front to do so for them and let it take the fall if necessary
Re:Declaratory Judgement (Score:5, Informative)
(http://members.bellatlantic.net/~dutky | Last Journal: Thursday November 03 2005, @12:13AM)
First, any party bringing a lawsuit under the American legal system must have standing to sue, meaning that they must have a material interest in the outcome of the suit. Since Microsoft has not specifically threatened anybody, at the moment, it would be hard to establish standing. A really good lawyer might be able to argue that a Linux vendor is harmed by the implication that Microsoft will sue that vendors customers for patent infringement, but with any actual patent suits in process, it would be a hard sell.
Second, the American legal system refuses to issue advisory judgements, and requires that a case be 'ripe' before it can be adjudicated. Since the court would be ruling on a hypothetical ("if Microsoft were to sue for patent infringement, would we be found to be infringing?") the court would (and should) simply refuse to hear the case.
Here [lls.edu] is a good reference for standing, advisory opinions and ripeness. A little google-foo should easily turn up others.
The only bright spot in this, from a potential plaintif's point of view, is that, as a convicted monopolist, there might be a way to accuse Microsoft of restrain-of-trade, or some other violation of the Sherman Act [stolaf.edu]. Unfortunately, I think that prosecution of anti-trust cases must be brought by the federal government, and that is not very likely with the current administration. Private actions can be brought for violations of the Clayton Act [stolaf.edu] but I don't quite see how it could aply in this case, and only consumers injured by their dealings with the violator have standing to sue, which puts most direct competitors out of the running.
Disclaimer: IANALBIHTBL (IANAL But I Have Taken Business Law)
Re:Declaratory Judgement (Score:4, Informative)
(http://billposer.org/)
This is no longer true. A recent decision has relaxed the requirements for declaratory judgements in cases of alleged patent infringement. See http://www.wiggin.com/db30/cgi-bin/pubs/IPadvisory March2007.pdf.
Re:Where's the Cease and Desist? (Score:5, Funny)
Re:Where's the Cease and Desist? (Score:5, Funny)
Yes, this is indeed Slashdot.
Re:Mutually Assured Destruction (Score:5, Insightful)
(http://www.tombstone...in/index.cgi?page=56)
My goodness, how apocalyptic.
Take a look around -- there is a whole big world out there beyond the borders of the USA, and a healthy technical industry as well.
If the US decides to blow their own industry away, that's more for everyone else.
No FSF owned software has been challenged (Score:5, Interesting)
(http://www.dina.kvl.dk/~abraham/)
There are two good reasons why no FSF owned code has been challenged:
1) The FSF is a legal entity, and can actually defend itself. The FUD factor is much higher for the project with no/many owners. Who is going to stand up for them?
2) The FSF is very careful about patents, it is quite common on the GCC list to see comments along the line of "the obvious technique for doing this is patented, but I found an alternative way to do it, so let's implement that". The core GCC developers seems to read patents in order to know what to avoid.
The obvious exception seems to be OpenOffice.org which is owned by Sun, but Microsoft has a cross-license agreement with Sun (like most of the large technological companies has with each other), which may make it difficult for Sun to defend OpenOffice.org. After all, thanks to the cross-license agreement, Microsoft is not accusing Sun of any wrongdoing.
Re:Where's Novell? (Score:5, Insightful)
The thing I think is interesting is MS's deal with Novell. If MS really had this big patent portfolio on which Linux was infringing, then Novell would have been in a very weak bargaining position.
Instead we see the opposite - MS paid Novell a lot of money for that deal. To me this says that MS is full of shit, its patents are hollow (or uninfringed), and they were paying a lot of $$$ to Novell to try and add credence to their dubious claims.
But what would I know - I'm just a hippy Linux user
Re:Where's Novell? (Score:5, Informative)
Re:Where's Novell? (Score:5, Interesting)
(http://www.billrocks.org/)
Re:Where's Novell? (Score:4, Interesting)
(http://www.quantumtemple.com/)
However I agree, it's probably just FUD from M$. They've already been caught infringing on lots of patents over the years so they're probably hoping to make a deal to keep themselves relevant.
Re:Where's Novell? (Score:4, Funny)
(Last Journal: Wednesday October 24, @11:51AM)
Are you perchance an IRS officer?
Re:Where's Novell? (Score:5, Informative)
Are you familiar with the terms of the BSD license? Last I heard BSD was a free, permissive license [wikipedia.org]?
Maybe Microsoft "owes" to you, but according to the BSD license isn't Microsoft free to implment that TCP/IP stack at will?
And the fact that there is nothing wrong with that (Score:5, Insightful)
(http://www.robbak.com/)
Re:And the fact that there is nothing wrong with t (Score:5, Insightful)
(http://www.donarmstrong.com/ | Last Journal: Thursday February 27 2003, @01:09AM)
It's odd that you would bring this up in defense of BSD/Expat/MIT vs copyleft, because this is almost exactly the same reasoning behind the Free Software movement: the inability to modify software that is not freely available in source code format leads to us rewriting it. Having done so, we license the resultant works so that we won't have to do so again.
At the end of the day, though, most of us wouldn't care what licenser something is released under so long as we can modify it and combine it with other free works; the unfortunate nature of closed source software is the only reason that the GPL exists... if everyone gave away source code, we would never had left the halcyon days of the dawn of computing.
Barrel is smoking, feet are bloody (Score:5, Interesting)
Both parties are in awkward positions, if pro-Free-software legal experts are correct in their interpretation of the MS-Novell agreement and the GPL.
Increasingly it looks like the agreement will be in conflict with GPL3, and as software included in SLES migrates towards using GPL3 Novell will either have to freeze SLES at the last version of code relesed under GPL2 or somehow find their way out of the agreement to stay current.
MS is in an awkward position because in their end of the deal they are obligated to sell SLES certificates. Technically they are now a Linux distributor. To sell a distribution you MUST abide by the GPL--even under GPL2 when you distribute GPL software you MUST make the source code available without restriction. It does not matter if the code implements a patented invention, MS could not charge a royalty/licensing fee to restrict use of the application or its source code without violating GPL. If MS is serious about trying to enforce its patents it must immediately terminate its agreement with Novell. GPL3 would not make the above situation any different for these existing patents from what I understand--what GPL3 does is keep authors of GPLed code from creating NEW patents based on the functionality of that GPLed code (could a lawyer out there tell me if that is a valid interpretation?).
I'm not convinced MS will get very far with this latest cage-rattling. I suspect many of the involved patents are pretty dubious in nature--and some may be very old and could be close to expiration by the time litigation has finally reached a conclusion (another reason why they wouldn't pull a SCO and head into an embarrassing, protracted legal battle over IP). I also suspect that the Linux kernel itself violates few if any patents at all given how architecturally different it is from the Windows kernel. Microsoft would most likely go after the more outer layers of the OS onion--those involving interoperability with Windows. That is, after all, the stated focus of the MS-Novell deal.
I think we'd first see action against Samba for example. Mono would've been a target as well, but the Novell agreement took care of that. Frontpage interoperability with Apache is another likely Free software target (I realise not all of their targets are GPL, though that is their prime concern). ODBC drivers that let Linux talk to Microsoft databases might be in the crosshairs. This strategy could be part of the "if you can't beat them, join them" plan: If Vista and the corresponding to-be-released server OS prove to be disappointments over the long term the Windows platform as it exists today may be allowed to wither and die on the vine, to be replaced with something more Linux-like (or perhaps BSD-like).
If it does indeed "pull an Apple" and underpin its OS with such Free content it'll need a differentiator--and they intend that to be backwards compatibility with what will be "legacy Windows", which will also allow them to maintain their vendor lock-in. That key piece of the puzzle cannot be Free under the MSFT business model so the goal of more aggressively enforcing patents is likely to explore the feasibility of taking the "MSFT/Linux" or "BSD Windows" route whilst maintaining the leverage they enjoy as a monopoly.
Their investment in "open source research" as of late has provided them with some ammunition, however I think they are still too clumsy with the gun and will only be able to shoot themselves in the foot with such a clumsy strategy. MS is resilient though, so I hope defenders of Free software can keep them off balance before they recover.
Re:Where's Novell? (Score:5, Informative)
(Last Journal: Wednesday January 15 2003, @02:17AM)
Re:Where's Novell? (Score:4, Insightful)
(Last Journal: Friday March 16 2007, @03:02PM)
Please look up laches. [lectlaw.com] While it is true that you don't automatically loose if you don't defend, you still can loose.
Re:Where's Novell? (Score:5, Insightful)
(http://fnordius.blogspot.com/ | Last Journal: Friday December 20 2002, @06:48AM)
JOHN CLEESE: "You've trespassed upon my property!"
GRAHAM CHAPMAN: "I did not."
CLEESE: "You did! You did! You owe me a toll!"
CHAPMAN: "I wasn't aware that I did. Where did I step on your property?"
CLEESE: "...I won't tell you."
CHAPMAN: "What? Why not?"
CLEESE: "If I told you, then you'd find a route that doesn't cross my property. That would ruin my chances of collecting a toll in the future, now, wouldn't it?"
CHAPMAN: "You are a very silly man and I have no intention of paying."
CLEESE: "THERE! You did it again! Now pay up!"
CHAPMAN: "No. Go away."
Re:MSSCO (Score:4, Insightful)
The big problem... (Score:4, Interesting)
The thing is, if Microsoft divulges what the FOSS patent breaches actually are, the community will respond promptly, and that particular bullet will have been fired. Until Microsoft's list is actually available, we don't know how much harm they'll be able to do, but there's not much chance they'll be able to inflict fatal damage to FOSS.
This patent grab is essentially a one-shot hit, and until now, was always more valuable as a FUD threat than an actual tool of coercion. Micah hacks the computer system so Nathan can win. Peter controls the radiation power, and the ending is a cliffhanger into the next and final episode. That Microsoft is choosing to use it now is indicative that they believe it's value as FUD has waned, and I suspect that has more to do with the outcome of their their patent proxy SCO's efforts than with Vista's failure.
Re:The big problem... (Score:5, Interesting)
Viridian (MS Virtualization update for those not following along) was supposed to be released 4th qtr '06, but was pushed to '07 and they just announced that they are dropping promised functionality. I believe I read that some of that dropped functionality was designed to deal heavily w/multi-processor/multi-core technology.
360 is popular but makes no cash. Zune is getting hammered.
I would agree that their current strategy was formed before the general publc knew Vista was going to be a dog. MS has known it is in danger for quite a while. Not the same as actually being on the ropes for a company with as much market inertia as they have, but starting to look scary.
They must have known their ship was taking on water long before the general public became aware.
Regards.
Re:The big problem... (Score:4, Interesting)
Think of the reaction Earnie Ball had when the BSA came and found a handful of illegally installed apps. There are also examples of what a number of school districts did when the BSA and Microsoft hammered them in attempts to force them into new and expensive licensing contracts.
So they are "taking on water" but will these extortion/patent threats just send a few customers overboard or will there be an abandoning of the ship when it is shown that they can not take this to the courts without a massive reciprocation?
LoB
Re:SCO (Score:5, Interesting)
SCO failed Microsoft... so, as the old saying goes, if you want something done right, you gotta do it yourself.
Much of Microsoft's IP strategy is FUD (Score:5, Insightful)
Just take a look at the amusing comments on the Office blogs about licensing their Office 2007 user interface IP. It's abundantly clear that some of the bigwigs in management there are not lawyers, and haven't even read about their own company's history in this area with Apple and others in the past. Some of them really do believe that just because they spent a significant amount of time and money researching something, they automatically get perfect monopoly protection of that research under IP laws.
Re:Much of Microsoft's IP strategy is FUD (Score:5, Interesting)
US Government (Score:4, Interesting)
(Last Journal: Wednesday September 22 2004, @11:13AM)
I may have been a little later to jump on the Linux bandwagon back then, but I've been onboard since 99 or 00, and by the time 02 or 03 came around, I saw the writing on the wall. This whole thing was magnified by the ME disaster, BOB, and Clippy. These failures are key to understanding WHY Microsoft is doomed to failure.
ME, BOB, and Clippy are all UI designs, not core components. Microsoft has stopped making core improvements to the OS for some time. And by CORE improvements I mean innovations to the underlying OS. By now, Windows should have been FULLY virtualized and abstracted away from the underlying hardware. Microsoft has made the error of tying itself to x86 architecture to much, and that is now limiting its ability to add true functionality (like virtualization), something that is vastly needed, especially in the server market, where each service almost needs its own host.
Along comes Linux, which ISN'T tied to a piece of hardware, and has abstacted various layers so that it doesn't need to be tied to specific hardware, and it is leading into virtualized hosted environment. I suspect the next revolution in OS is going to be complete abstraction of the core OS from the underlying HW via vitualization, which will break the bonds from x86 architecture.
So, by NOT interfering (protecting MS), the US Government is actually helping Microsoft CRUSH itself by trying to maintain a codebase that is incomprehensible because it has never had to change architecture. If the US government tried to break up Microsoft all those years ago, Windows and the core application and server products might have been improved to the point that the monopoly would still exist, only in three parts.
As it looks right now, MS is a beached Whale, and the tide is still moving out. The mighty leviathan is being crushed under its own weight in an environment that is changing faster than it can. Be warned, Microsoft (or whatever happens to it) will still have remains, but it will not be the powerhouse it once was.
Like McCarthy holding up an envelope (Score:5, Insightful)
(http://www.wrightwing.net/)
Re:Like McCarthy holding up an envelope (Score:4, Informative)
(http://www.wrightwing.net/)
Re:Like McCarthy holding up an envelope (Score:5, Informative)
Just because there's a shark in a lake filled with trout doesn't mean you drain the lake to kill the shark. You could be one of the trout.
Re:Like McCarthy holding up an envelope (Score:5, Interesting)
(http://www.users.qwest.net/~lionlad/)
While that may be true, it's also true (or alleged to be true) that Senator McCarthy held up a blank sheet of paper when he first claimed he had names of Communist conspirators/spies.
Furthermore, many of the people who were publicly humiliated and accused of being Communists were in fact nothing of the sort. Unfortunately, the problem with defamation is that once the slander/libel is out there, it's really hard to retract. Especially if the party making the outrageous claims is a respected Senator who gets to mobilize government resources to harass people. McCarthy's abuse of the system was his way to attack political opponents, not get rid of real Communist spies.
While it's quite probable that there are some real patent violations in the Linux kernel and in the source code of various GNU tools, that's about all you can say. Whether these infringed patents are even valid is another matter -- and you can certainly bet that FOSS authors are going to go after at least some of Microsoft's patent claims on the grounds that the patents are invalid. For each patent that gets invalidated, Microsoft's patent portfolio becomes just a little bit less valuable...
So it's not in Microsoft's interests to divulge just which patents they feel have been infringed. Worst case scenario, they could lose a good chunk of their portfolio and still have nothing to show for it because the remaining patents that withstood scrutiny might be found to not apply; those patents that do apply could be easily worked around with a modest investment of engineering effort.
What makes me wonder is why Microsoft is bothering to take a page from SCO's playbook. It hasn't worked too well for SCO, so why does Microsoft think they'll fare better with the same strategy?
To tie this back to the McCarthy analogy: even if Microsoft is right that there are infringed patents (which is statistically likely), there's no guarantee that Microsoft has done the due dilligence to ascertain which specific patents have been infringed and leave no margin for doubt. Microsoft has broken down the numbers by OS component (kernel, "GUI," etc.) to tell us how many patents they believe have been violated by each component, but again, we only have their word for that. For all we know, Microsoft is trolling and pulled these numbers out of thin air. Kind of like McCarthy's list.
This seems like a pretty obvious fishing expedition. You know, the kind that involves big nets that scrape the sea floor and damage coral reefs, to use yet another tortured metaphor.