Nice Operating System You’ve Got There, It Would Be a Shame if Anything Happened to It

by Tim Lee on November 17, 2006 · Comments

Via Slashdot, here’s more evidence that open source community has reason to be concerned about the Novell/Microsoft agreement. In a question-and-answer session at a SQL Server conference, Microsoft CEO Steve Ballmer said:

Interoperability is always good for the customer, and it’s important. And we know customers want the interoperability that the hands showed between the Windows world and the Linux world.

“We’ve had an issue, a problem that we’ve had to confront, which is because of the way the GPL (General Public License) works, and because open-source Linux does not come from a company–Linux comes from the community–the fact that that product uses our patented intellectual property is a problem for our shareholders. We spend $7 billion a year on R&D, our shareholders expect us to protect or license or get economic benefit from our patented innovations. So how do we somehow get the appropriate economic return for our patented innovation, and how do we do interoperability. The truth is, because of the complex licensing around the GPL, we actually didn’t want to do one without the other.

I think this is a case where language has become a serious impediment to clear thinking about these issues. When Ballmer says that Linux “uses our patented intellectual property,” he almost certainly does not mean that Linux is in any way derived from Microsoft products, or that the people making Linux have somehow been free-riding off of Microsoft’s R & D efforts. Linux developers have repeatedly stated that Microsoft needs only to point out the infringing lines of code, and the Linux team will rip them out and replace them with code they write from scratch.

Rather, when Ballmer talks about protecting his “patented innovation,” he simply means that Microsoft holds patents that describe features that Linux happens to have. This isn’t surprising because as I’ve tried to document over the last few months, software patents have become so broad that it’s virtually impossible to write software without violating them. Every non-trivial piece of software violates dozens of patents.

In practice, then, Microsoft’s position is that no one may sell an operating system without Microsoft’s permission (or unless you’ve amassed enough patents that Microsoft can’t risk a patent war with you). Ballmer seems to be implying that, in effect, Red Hat and other Linux distros need to pay Microsoft for the privilege of participating in the operating system market. It’s hard to see how giving Microsoft the ability to extort money from their competitors promotes the progress of science and the useful arts.

That’s why I think that Braden got it precisely backwards when he said that “the GPL is a zero-sum game–you exploit open source software for your gain to the detriment of others.” The free software movement is perfectly willing to let commercial companies make a profit off of their software. In fact, companies like Red Hat have made millions from Linux, and I don’t think I’ve heard any Linux developers criticize them for it. All the free software movement asks in return is that commercial companies leave them alone. They want the freedom to develop great software without interference from lawyers. Unfortunately, Ballmer’s speech seems to put that freedom in doubt.

Comments Posted in: Patents

• Crosbie Fitch

  Yes, it would be like saying "You exploit the knowledge of mankind for your gain to the detriment of others" or "You exploit the public domain for your gain to the detriment of others"
  

  
  The whole point of the public domain is to enable people to build upon it, and exchange the value of their labours in a marketplace.
  

  
  And the public is perfectly capable of providing a monetary incentive to persuade individuals to publish their privately developed knowledge and discoveries (adding them to the public domain).
  

  
  We certainly don't need to grant monopolies that suspend the public's liberty. Such ideas were invented by those in the very earliest days of our technological industrialisation.

• X. Trapnel
  It's funny how this is the logical comment thread for a lot of what was discussed earlier, but it seems that everyone's already vented their spleens.
  
  Still: boo Microsoft! Boo!
• Noel Le
  First, its up to the courts and USPTO to decide whether Linux infringes MSFT's patents.
  
  Second, I agree that MSFT should point out what specific patents are infringed. When and how this is resolvd with FOSS distros will take its course, so lets not immediately assume that MSFT won't work at resolving the issues with Red Hat, and other companies, after Ballmer's statements.
  
  

  Ballmer seems to be implying that, in effect, Red Hat and other Linux distros need to pay Microsoft for the privilege of participating in the operating system market. It's hard to see how giving Microsoft the ability to extort money from their competitors promotes the progress of science and the useful arts.

  
  
  Third, no, Ballmer is not saying that others are prohibited from competing in the OS market. For once, Linux would only have to scrub out infringing code. Second, Ballmer is not saying all of Linux infringes. By the way Tim, this is one of the more unconsidered statements you've made.
  
  Fourth, please explain, why should FOSS be privileged beyond the rest of commercial industry that must comply with patent law. In the name of freedom? Would you also argue that developers at IBM and HP should be able to take their code to the next company they work for, as this will increase their freedom?
• Tim
  Noel, I'm not asking for open source software to be privileged. I don't think any part of the software industry should be subject to software patents.
• Doug Lay
  I wonder if any Linux distributor or group of kernel contributors would consider filing a pre-emptive lawsuit against Microsoft in an effort to force MS to reveal which patents it believes are applicable.
  
  IIRC, Red Hat did something similar when they filed a lawsuit against SCO back in 2003. That case, of course, has been hold for years as SCO's case against IBM slowly crumbles in a Utah court, and I'm sure any suit against MS would move at a similarly glacial pace. It would force Ballmer and other MS executives to be careful with their words, though - bluster and bluff could potentially come back to haunt them years later.
• Noel Le
  Tim, have you thought about how patent law may affect and be addressed, differently, by individual FOSS developers, firms like Red Hat and other quasi-entities in the FOSS industry.
  
  Many FOSS companies now scrub any code they release, and offer IP indemnification. Quasi-commercial FOSS entities like SourceForge and Samba that may not have resources can find some solace in third party FOSS legal groups. Individual developers, unless they distribute infringing code (granted I'm not yet sure at what point liability is incurred), would not be prowled on by IP firms. It seems like the patent storm clouds aren't as bad as you paint them Tim.
• eee_eff
  Third, no, Ballmer is not saying that others are prohibited from competing in the OS market. For once, Linux would only have to scrub out infringing code. Second, Ballmer is not saying all of Linux infringes. By the way Tim, this is one of the more unconsidered statements you've made.
  
  Well, Microsoft's proxy, TSCOG, has refused repeatedly to state which lines infringe their so-called "IP." as GROKLAW has documented numerous times. Microsoft has, BTW, filed many totally fraudlent patents, ones that relie on prior art known to everyone, with the clear intention of bullying FOSS develpers and firms. So comparing Microsoft to the Mafia is an entirely correct metaphor.
  
  Fourth, please explain, why should FOSS be privileged beyond the rest of commercial industry that must comply with patent law. In the name of freedom? Would you also argue that developers at IBM and HP should be able to take their code to the next company they work for, as this will increase their freedom?
  
  PLEASE READ THE CONSTITUTION NOEL. The stated purpose of the granting of limited time monopolies is to promote the progress of science and the useful arts, not to enrich particular industrial sectors, picking winners and losers, as your analysis of the above research would imply.
  
  I am heartened by the fact that the Constitution only gives Congress the right to provide such limited time monopolies, and imposes no affirmative duty whatsoever upon Congress to enact or continue such protections.
  
  So if progress can occur without patents, there need in a particular sector is obviated.
• Noel Le
  Mr. E, now that you've repudiated the work of Thomas Jeffer, our first patent administrator, I'm not sure why you're asking to me read his lasting legacy in the American economy.
  
  Your point raises several issues though. I'll just stick with one. How much is the patent system holding back FOSS? Thats the question we're all getting at right.
  
  If patents unreasonably raise the cost of production/sustainment for an important industrial sector, I would switch a lot of my views. But I don't think thats happening.
• eee_eff
  How much is the patent system holding back FOSS?
  
  I don't think that the patent system itself would hold FOSS back at all, if it were competently administered. There are several Microsoft patents (for example the one on a desktop switcher, which was granted a couple of years after I had used it in my linux distro, and should constitute some kind of fraud on their part.
  
  The mis-use of the patent system by MS is causing many to realize that it can become a danger, and leading many to suggest throwing out software patents altogether. (Cause a effet) So if you want software patnets to exist, someone should prosecute MS for their fraud, or at least through out about 90% of their fake patents.
  
  It is through the use (or I should say mis-use) of the legal system, when combined with a dis-functional patnet application process, that empowers companies like Microsoft to bully others who actually do innovate. There are many examples (remember, for example AddStor? Netscape? Be?)