Linus Responds To Microsoft Patent Claims

An anonymous reader writes "Linus Torvalds has a sharp retort to Microsoft executives' statements in a Fortune article that Linux violates 235 Microsoft patents. In an emailed response to InformationWeek's Charlie Babcock, Torvalds writes: 'It's certainly a lot more likely that Microsoft violates patents than Linux does.' He added: 'Basic operating system theory was pretty much done by the end of the 1960s. IBM probably owned thousand of really "fundamental" patents... The fundamental stuff... has long, long since lost any patent protection.'" Torvalds also commented on Microsoft's stated intention not to sue Linux users: "They'd have to name the patents then, and they're probably happier with the FUD than with any lawsuit."

Sad or Telling?

Is it kind of sad that such retorts are necessary? Or is it telling, that M$ is continues to resort to such SCO-like tactics?

Re:Sad or Telling?

No, you misread the article completely. What it said is that Linus is dead and you should get a day job.

Re:Sad or Telling?

That was a funny article. Linus is probably right... Microsoft probably violates more software patents than Linux. Shall we start a web page listing patents that /.-ers believe M$ violates? It might be useful one day, if M$ goes all legal on us.

Re:Sad or Telling?

Oh! And we should keep the list secret!

Re:Sad or Telling?

No need, I've already made the list. And damn Microsoft violates a lot of patents; 312 to be precise.

Re:Sad or Telling?

I think we all know that the kernel is probably safe; except for some of the drivers. I'll wager that Microsoft is eying FAT and NTFS. Still, it's awfully easy to fix that. Just distribute a kernel without those drivers in the source, and just let someone outside the US distribute the patches, compiled modules, as well as compiled kernels. Is Microsoft seriously going to demand that everyone turn over their kernels to check whether the FAT file system support is compiled into it?

The problem here is not that MS would ever dream of going to court, it's that the FUD could be very effective at slowing adoption. I suspect that if anything, it's OpenOffice that would feel the wrath of being dragged into court. Going after the kernel is ludicrous, and would likely turn up absolutely nothing.

Re:Sad or Telling?

I suspect that Samba would be largely immune, as a good chunk of it comes from the olden days of the IBM-Microsoft alliance, and thus is likely under IBM's shield. Where Samba could get into real trouble is once version 4 is production-ready and people start implementing Active Directory networks on *nix boxes. Then you'll see the shit hit the fan, because I'll wager Microsoft has stuffed its portfolio full of AD-related patents.

Re:Sad or Telling?

AD is still just LDAP with a schema and some tools. They can patent try to patent that all they want, there is scads of prior art.

Re:Sad or Telling?

Would you care to bet that Microsoft will claim AD is an innovation on LDAP? I'm not saying that this or any other potential MS patent claim is legitimate. That's not the point. That's not the point of this whole topic. We all know that most (if not all) of MS's 235 patents are probably obvious inventions or have tons of prior art.

Re:Sad or Telling?

"Is Microsoft seriously going to demand that everyone turn over their kernels to check whether the FAT file system support is compiled into it?"

Is compatibility even an issue here? I thought you could reverse engineer or the equivalent thereof, to make systems compatible. Isn't this even one of the tennents of the DMCA? I know that isn't really patent related, but, is it against the patent law to interoperate with another system?

Re:Sad or Telling?

You know how the SCO lawsuit slowed adoption? It will be just like that.

No it won't be. SCO was, at the best of times, a bit player. I doubt that many legal departments even knew about that much about the case, as the mainstream media by and large abandoned it once it was clear that IBM was calling SCO's bluff.

Microsoft is not a bit player, and it's FUD will have an effect. Legal advisors are going to be telling their clients and/or bosses to stay far away from open source, or at the very least look into paying MS's license extortion (which is almost worse than not using open source at all). It might even mean that some commercial contributors may even have second-thoughts.

At best, this is going to be a roadblock. At worst, it's going to mean very tough times. Microsoft is not SCO. It's a powerful and deep-pocketed corporation that has ran over almost every attempt to slow it down.

That's actually an awesome idea

Microsoft probably violates more software patents than Linux. Shall we start a web page listing patents that /.-ers believe M$ violates? It might be useful one day, if M$ goes all legal on us.

With enough eyes, all patent violations are visible. Chances are, many large companies that hold patents that MS infringes upon don't even know the infringement is happening. If users were to discover and publicly document a few thousand tidbits such as, "Windows Vista's user-account control database clearly violates IBM's patent 1,559,664 of June 29, 1997," why, companies like IBM would almost be obliged to sue MS for damages.

I like this idea a lot. It's elegant as hell, because it takes advantage of the fact that Microsoft has more to lose than anyone from software patents.

Re GoodWay:Sad or Telling?

Also, M$ is possibly seeking mutual indemnification from theft of property prosecution. If M$ can press the Linux Foundation and FSF-GPL+ to provide such a settlement, then they are safe from being financially raped, forced to release M$ products to F/LOSS-GPL, or destroyed by forcing removal of all OSS-GPL copyrights protected code from M$ products.

So, who will be the first to flinch in this obvious game of chicken/standoff. I suspect, that M$ is looking to be another dickless empty SCOrotum.

I ain't good enough with code, but I will continue to put some loss money on the Linux Foundation, FSF-GPL, EFF .... It is a very good idea to start loading the evidence weapon that will put a through&through hole in M$. I mean we may as well help them commit economic suicide. Work with the Linux Foundation folks ... I will be sending them a couple hundred more $ this year for the TEK-War. I hope I can get a hat that says I supported the F/LOSS troops in battle against the M$techno-fascist.

!HAVEFUN!

Re:Sad or Telling?

I hope that it's telling, after all Microsoft is essentially following tactics from IBM a company that is not, primarily in the software industry. They have essentially hired IBM's patent lawyer, Marshall Phelps [slashdot.org]

Re:Sad or Telling?

I personally think that they are trying to do damage control from Dell agreeing to preinstall Ubuntu. Dell's move is huge for Linux as a jumping-off point, and MS (imho) is trying to keep it from looking like Linux is a real competitor.

Re:Sad or Telling?

Dell's move is huge for Linux as a jumping-off point, and MS (imho) is trying to keep it from looking like Linux is a real competitor.

Yeah, and the ironic thing is that, by making all these spurious accusations, M$ is only validating Linux as a viable competitor.

Re:Sad or Telling?

Just remember kids that you can't spell Microsoft without SCO (and MIROFT).

Re:Sad or Telling?

Actually, from MICROSOFT you can spell:

SCO TO FIRM
SCO FROM IT
SCO OF TRIM

and permutations thereof.

Re:Sad or Telling?

I'M FOR COST

Re:Sad or Telling?

i prefer "of scrotim"

Re:Sad or Telling?

"sue Microsoft over some alleged infringements in MS-DOS"

It was lots worse than that:

In 1991, Microsoft employees launched an exceptionally dastardly plan to kill another competitor, DR DOS. DR DOS sales threatened MS-DOS, the early predecessor to Windows 95 that established Microsoft's operating system monopoly. DR DOS sales were on the rise--they doubled from $15 million in 1990 to $30 million in 1991. They soared again to $15 million in the first quarter of 1992 alone. Then disaster struck.

Microsoft was writing Windows 3.1, an important upgrade to the hugely popular Windows 3.0. In September 1991, a plan was hatched to use this upgrade to kill DR DOS. In an email discovered by the Dept. of Justice, the head of Windows development and Microsoft VP David Cole wrote, "aaronr had some pretty wild ideas after three or so beers--earleh has some too." The plan was to plant code into Windows which would "put competitors on a treadmill" and cause the system to "surely crash at some point shortly later." In order words, Windows would intentionally bomb if it detected DR DOS.

At this time, many computer vendors were considering switching from MS-DOS to the superior, cheaper DR DOS. Microsoft was especially concerned about IBM. Wooing these PC vendors was crucial to the future success of DR DOS, as was the good will of "early-adopters" (i.e., technically savvy users who drive new trends in the computer industry).

These vendors and early-adopters were also the same people who received a Christmas "beta" pre-release of Windows 3.1. They discovered--to their horror--that using DR DOS would cause vague system errors to pop up in Windows 3.1; they dumped DR DOS in droves. By the fourth quarter of 1992, sales of DR DOS had dropped from $15 million to only $1.4 million. The once mighty competitor became a has-been and was sold to Novell and later Caldera.

Re:Sad or Telling?

Yes, it is well known to anyone who's looked into the workings of the SCO Group.

Caldera bought DR-DOS from Novell in 1996, for $400 thousand, long after the alleged damage to the product had been done. The company settled with Microsoft over the DR-DOS lawsuit for an 'undisclosed sum' in January 2000, which Microsoft valued at $155 mn, but others speculated was actually 'much higher'.

http://news.bbc.co.uk/1/hi/business/600488.stm [bbc.co.uk]

http://www.windowsitpro.com/Articles/ArticleID/804 5/8045.html?Ad=1 [windowsitpro.com]

In August 2000, Caldera agreed to acquire the Santa Cruz Operation's Unix products, including UnixWare and the SCO name. Caldera later changed its name to The SCO Group, but Caldera management remained in charge, i.e. the company was actually Caldera, not the old Santa Cruz Operation, which became Tarantella, and in 2005 was acquired by Sun Microsystems.

http://www.infoworld.com/articles/hn/xml/00/08/02/ 000802hncaldera.html [infoworld.com]

http://www.sun.com/software/tarantella/index.xml [sun.com]

Caldera's financial statements (see www.sec.gov) show it lost more money in 1999 and 2000 than its total revenue for each year, and had negative cash flows from operations. How was such a company able to issue equity that investors actually bought, pay for its ongoing losses and come up with enough money to acquire and sustain UnixWare, another loss-making business, along with the SCO name, in a deal valued at $91 mn? The answer is that the entire operation was funded by the DR-DOS lawsuit.

http://practical-tech.com/operating-system/linux/c aldera-buys-sco-unix-professional-services/ [practical-tech.com]

http://www.newsforge.com/os/04/03/30/0047220.shtml [newsforge.com]

Re:Sad or Telling?

Is it kind of sad that such retorts are necessary?

Unfortunately, the damage is done. I work for a large financial organization that was *just* venturing outside of Microsoft operating systems and the lawyers sent out a notice today that we are to remove all traces of "open source" software, effective immediately.

I suspect that lots of organizations were in such a boat and Microsoft played their cards accordingly.

Re:Sad or Telling?

Good - your company obviously wasn't serious about open source software anyway. Note that Redhat pledged to indemnify their users, so your powers that be were not really serious about anything.

Re:Sad or Telling?

"You need to change jobs, because the only damage done here, is to your company."

He works for a large financial company - one large enough to have its own law department. While eliminating open source software from their infrastructure is certainly unreasonable, it's unlikely that they'll be "damaged" by it. There are plenty of good closed-source solutions out there.

As for having to change jobs, well, changing jobs on the basis of software morality (a dodgy proposition at best) might be reasonable in a very select few markets. Lots of people can't simply throw a tantrum and quit just because they don't get their way.

Re:Sad or Telling?

Unfortunately, the damage is done. I work for a large financial organization that was *just* venturing outside of Microsoft operating systems and the lawyers sent out a notice today that we are to remove all traces of "open source" software, effective immediately.

I bet most institutions would be dead in the water if this advice were taken quite literally, as Microsoft used BSD code in there TCP/IP stack for a long time. Goodbye 95/98/NT/2000. Even if your not totally literal, there are tons of open source stuff that every company makes use of everyday, even if it doesn't register in the minds of the layman.

• Perl scripts that make reports? Gone, you can't run the reports without the open source interpreter.
  
• MySQL/Postgresql databases? Just because you're using Access on the front-end doesn't mean Access as the data store.
  
• Email? Even if you're running Exchange, you might still be protected with a hardware anti-spam device, which often runs a modified version of spam-assassin.
  
• Web filters/proxies? Again, most hardware based filters run off of an open source backend, in this case Squid.
  
• Web servers?
  
• File servers?
  
• Even not being able to use FireFox would upset some VIP somewhere, enough to get the decision reversed.
  

I'm sure there are more, but I believe that if all the admins of the world who got this request complied, Microsoft would be lynched in a heartbeat.

In fact, there should be a "Open Source or Die!" day where all machines that run open source software turn off. The inability to do anything would boggle the corporate mind.

Re:Sad or Telling?

I bet most institutions would be dead in the water if this advice were taken quite literally, as Microsoft used BSD code in there TCP/IP stack for a long time. Goodbye 95/98/NT/2000.

Microsoft to this day, still has many tidbits of BSD code sprinkled throughout its Windows and Visual Studio codebases. I used to work on the Visual Studio team, and I'm still friends with a number of the devs over there. You can always do the classic:

strings c:\windows\system32\ftp.exe |grep Regents

and be treated to...

@(#) Copyright (c) 1983 The Regents of the University of California.

(note this is still present, even in Vista)

Re:Sad or Telling?

I work for a large financial organization that was *just* venturing outside of Microsoft operating systems and the lawyers sent out a notice today that we are to remove all traces of "open source" software, effective immediately.

Could you give me a hint of which financial company? I'm worried that I'm keeping my nest egg funds in a company who lets idiocy run its course without actually checking the facts. I suppose such a company would likely panic for any non-serious market trends which leads to me being poor because someone freaked out over something that was simply not true.

Re:Sad or Telling?

Why not take some time to write a well reasoned response that you can send up the management chain and to the legal department. Point out how your company is currently benefiting from open source and how painful it would be to replace the open source currently in your infrastructure.

This is an opportunity to educate. Don't waste it.

Re:Sad or Telling?

I work for a large organization where the lawyers are seasoned and don't run amok from simple allegations. We have a large installation of solaris and linux hardware with some Redhat clustering coming down the road for Oracle. The plans are not changing until/if/when the legal system determines the Microsoft allegations are founded and laws have been broken. Until then, Microsoft is, as usual, probably full of shit. As I suspect your post is.

Class Action Lawsuit

It's time for Linux contributors to start a class action (defamation) lawsuit. Given the number of contributors, I'd say we're looking at several billion in damages. Maybe then we'd see some details.

IMPORTANT NOTICE

Please note that this article violates 207 Microsoft patents. Anyone commenting on it will be violating a further 703 patents. Except me.

Re:IMPORTANT NOTICE

You are coming to a sad realization that in Soviet Russia, new Microsoft patent meme infringes you 123 times. Cancel or Allow?

constitutional lawyers?

Can someone please explain to me how software patents "promote science and the useful arts?"

Wouldn't a patent law which does NOT promote science and arts be unconstitutional? Or am I misreading the constitution?

Re:constitutional lawyers?

In the US Constitution, it's Article I, Section 8, Clause 8 [wikipedia.org]

Re:constitutional lawyers?

Which article of the constitution, or, rather, any constitution, gives patents authority?

Article I section 8 of the US Constitution "The Congress shall have power" ... "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;" - US Constitution [cornell.edu]

Re:constitutional lawyers?

... states that Congress has the authority to establish laws that protect these to "promote the progress of science and useful arts."

Not quite exactly right. The constitution gives Congress the authority to promote the progress of science and useful arts by establishing these protections. It is a subtle but important distinction, and places the emphasis very firmly upon the promotion of progress of science and useful arts.

Re:constitutional lawyers?

- Science must be making progress in order to be promoted. DRM is regression of rights, thus it cannot be protected.

- Arts must be useful to be protected. I doubt entertainment can be considered "useful" in the way that was meant when the Constitution was written.

You are applying logic to laws. Never works. In this case, I think you will find that the sole judge of how the laws meet the goal is Congress. I think this came out in the challenge to the Sonny Bono/Mickey Mouse copyright extention. The SCOTUS decided that it was up to Congress to decide how best to promote the "useful arts", and if Congress felt that it was best achieved by locking up our cultural heritage, then so be it. One would also expect that SCOTUS would hold that it was up to Congress to decide what constitutes a "Useful Art", since that it a preamble to the actual phrase that authorizes Congress to create copyright laws.

Essentially what I am saying is that the part "To promote the progress of science and useful arts" is meaningless and the only important part of that section is: "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

Re:constitutional lawyers?

Essentially what I am saying is that the part "To promote the progress of science and useful arts" is meaningless and the only important part of that section is: "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

In much the same way "A well regulated militia, being necessary to the security of a free state" is meaningless and the only important part of that section is: "the right of the people to keep and bear arms, shall not be infringed."

Re:constitutional lawyers?

Here's the original text that was going to be inserted directly into the Constitution and formed the basis of the Second Amendment. The intent of the writers is pretty clear.

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

What we have now is text wrangled around by the the House and Senate and written in a fashion that is now out of custom. The meaning is still the same as reaffirmed by the judiciary and even Congress repeatedly.

Re:constitutional lawyers?

Software patents that were reviewed by qualified examiners and only granted if they were truly novel and non-obvious would promote science and the useful arts. I think far fewer people would have trouble with the concept if that were the reality -- in that case the intended bargain (the patent makes public the details of an idea that nobody else would have thought of on their own) would apply.

But the "grant first, ask questions later" approach of today's patent office, where one can patent an implementation that any programmer of above-average skill might come up with when presented with the same problem, means that we'd be better off with no software patents at all.

I'd be happy with either fixing the examination process or dumping software patents.

An example of a software patent that would reasonably be granted under a good examination regime, even though it did irk a bunch of people back before it expired, would be the RSA patent. That was not obvious to 99% of the skilled practitioners of the art until it was published. (And even now I expect most programmers have at most a high-level understanding of why it works, me included.)

Re:constitutional lawyers?

No.

Software is obsolete in 5-10 years.
A patent last for 20 years.
Copyright lasts for 95 years.

When the incentive monopoly lasts well beyond the life of the invention, the effect is obviously not promoting innovation. The effect is innovation suppression and wheel reinvention.

Re:constitutional lawyers?

We are talking about software, not a cure for AIDS.

I work in a software company, and I can assure you that we would be writing just as much software if there were no software patents.

Also, we have NEVER wondered how to write a particular algorithm, then found the solution in some patent disclosure document. Do you realize how absurd that sounds?

Re:constitutional lawyers?

Nobody has. And indeed, this is THE most underused argument against software-patents:

Patents are intended to promote progress by rewarding publishing of a method with a time-limited monopoly on using the method.

But, infact, literally *NOBODY* uses published patents as a source of learning new methods.

To the contrary -- if you learn there's a patent on a certain way of solving a problem, you do your best to stay the hell away from that method, and you actively try to *avoid* reading software-patents, since knowing them could make you liable for willfull infringement.

Linus, Linux, IBM, and patents

I'm not clear how IBM could own thousands of patents back in the 1960s- at that time it was clearly understood that software is a non-patentable "invention". Oh how I wish this common sense would be restored.