FAQ: Microsoft and Open Source Patents

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Microsoft believes that Linux and open source software violates 235 of its patents and it wants violators to pay up. The company for years has been bashing the open source community and this latest move may well be the bloodiest battle yet.

Which patents have allegedly been violated?

Microsoft's legal general Brad Smith gave a broad breakdown of the alleged violations during an interview with Fortune magazine, but has not detailed specific patents that have been violated. Smith said the Linux kernel violates 42 patents and the operating system's user interface violates 65. The Open Office application suite violates 45 patents and open source e-mail applications infringe on 15. Other open source software applications infringe on 68 patents.

What is the official word from Microsoft?

Microsoft's Intellectual Property team is handling this issue and it isn't saying anything beyond a statement released to the press by Horacio Gutierrez, vice president of intellectual property and licensing: "Even the founder of the Free Software Foundation, Richard Stallman, noted last year that Linux infringes well over 200 patents from multiple companies. [Gutierrez cited this passage.] The real question is not whether there exist substantial patent infringement issues, but what to do about them. Microsoft and Novell developed a solution that meets the needs of customers, furthers interoperability and advances the interests of the industry as a whole. Any customer that is concerned about Linux IP issues needs only to obtain their open source subscriptions from Novell."

How does this relate to Microsoft's partnership with Novell last year?

As part of the deal, the two agreed not to sue each other's customers over patent and intellectual property infringements. Dell joined the pair a few weeks ago. The Covenant to Customers ruffled major feathers in the Linux and open source community for its many loopholes and missing details and led to accusations that Novell was bamboozled again by Microsoft.

How did the open source community react?

Richard Stallman, the leader of the Free Software Foundation, says the next version of the GNU General Public License, GPL 3.0, which is nearing final draft, will be crafted to block the type of patent/IP deal Novell and Microsoft cut.

What is at stake for users?

Users found to be using software that infringes on patents could be held liable, but first Microsoft will have to reveal the specific patents it is talking about. Until then, Microsoft is turning up the heat but nobody is about to get burned. Users should check their contracts from vendors that supply open source products. Vendors such as Red Hat and Sun offer limited forms of protection.

How much will Microsoft want vendors/users to pay?

Unknown -- it is likely Microsoft would target a few key vendors and distributors whose software has trickled down into many other open source packages. Red Hat and Ubuntu Linux are two very popular Linux distributions that could come under the microscope.

Why is Microsoft doing this now?

Linux/open source is getting its tentacles deep into many companies and Microsoft wants to control this as much as it can in order to maximize its own profits. Also, the open source desktop operating system and applications are starting to chip at Microsoft's revenue foundation -- Office and Windows. "Microsoft is being pushed on a lot of sides and they are showing that they are going to respond," says Laura DiDio, an analyst with the Yankee Group who has been following software indemnity issues for years. "This is very interesting. Another question is will you see other companies like Apple, which is based on Unix, will they say Linux and open source infringes on our side."

Is this a new tactic from Microsoft?

No. Microsoft has been threatening to use this weapon for some time, but this is the most concrete step it has taken. The company started building up to this crescendo for many years by protecting its own users over patent and other infringement cases. In 2003, it signed a licensing deal with the SCO Group to insulate Microsoft customers from copyright infringement issues. In a move similar to what Microsoft could now do after having alleged patent infringement, SCO sued IBM and sent letters to 1,500 Linux users warning them of potential copyright infringement and other legal issues. Also in 2003, Microsoft moved to clear up indemnity issues with its users by lifting a cap on what it would pay to protect volume licensing customers from infringement suits over Microsoft products. In 2004, the program was expanded again to include almost all customers. At the time, critics said it was mostly a marketing move, but in the light of this week's infringement allegations it may have been setting a defense before going on offense.

What can Microsoft do if vendors do not voluntarily comply?

Microsoft could take them to court, but smaller open source and Linux vendors without the financial means to fight would likely cave in long before that happens.

Does this mean the end of some open source products?

That is to be determined, but if Microsoft pushes the issue it could throw open source software into chaos. The company for years has been labeled by critics as the master of fear, uncertainty and doubt (FUD). The FUD aspect alone could cause enough ripples with the buying public that Microsoft would never have to put any teeth behind the threat of legal action.

How unpopular is this going to be?

If you like reading blogs and discussion threads then crank up your browser because the acid tongues are already wagging. Microsoft is well within its legal rights to protect what it has invested billions to create, but that doesn't mean the process won't have a pungent odor.

This story, "FAQ: Microsoft and Open Source Patents" was originally published by Network World.

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