Open Source Getting Snake Eyes With Microsoft
After getting a deal with Novell, Microsoft is now pushing itself to the Open Source Community through questionable legal tactics as shown by two News.com articles below. "Questionable" since their intent was to make money out of the Open Source Movement, litigate those who will not follow and creating fears to open source users. Hmm, typical Microsoft tactic of Fear, Uncertainty and Doubt (FUD), learned from IBM and Intel. It seems that Microsoft would like the world to go back to Dark Ages again. Limiting the growth and development Open Source Movement is like building a 10-meter high dam to stop a 100-m high tsunami: no matter what Microsoft do, the Open Source Movement will continue to grow and strive. What is now in question is how serious is Microsoft in embracing the Open Source Movement. Methinks that Bill Gates and his cohorts (old Microsoft generation such as Steve Ballmer) should retire first and leave the company to a younger and more collaborative generation led by Ray Ozzie. Only then I will believe that Microsoft is truly serious with the Open Source Movement. By then, Microsoft might play straight and make its open-source partners see "snake eyes."
P.S.
Hey, Microsoft Guys, I still remember how you use SCO as your dummy against Free/Libre Open Source Software (FLOSS). Have you forgetten what happen after SCO declared their intention to sue everybody? Does anybody still remembers SCO for that matter? Your FUD tactics will not only backfire against you, but would only solidify the FLOSS community against you. Do continue, it would make my job easier to convert other people to using FLOSS instead of your software products.
Microsoft agitates for open-source patent pacts
http://news.com.com/Microsoft+agitates+for+open-source+patent+pacts/2100-7344_3-6183662.html
Story last modified Mon May 14 15:58:50 PDT 2007
Following some frosty responses to Microsoft's controversial patent deal with Novell last year, the software maker has begun a more aggressive attempt to convince open-source software companies to license its know-how.
In an interview with Fortune magazine published this week, Microsoft's top lawyer, Brad Smith, provided a stark tally of 235 Microsoft patents the company believes are violated by free and open-source software, though he stopped short of detailing any. Specifically, he alleged that the Linux kernel violates 42 Microsoft patents; its user interface and other design elements infringe 65; OpenOffice.org infringes 45; and other packages infringe another 83 Microsoft patents.
Microsoft could have several motives for rattling its patent saber: slowing down open-source rivals, raising fears of open-source legal risks among customers, and winning payment for technology the company believes it deserves from a group that's been generally been unwilling to pony up.
But according to Horacio Gutierrez, vice president of intellectual property and licensing at Microsoft, the company's move is designed to bring parties to the negotiating table that currently aren't there. "There is nothing specific about open-source software that warrants an exception of the intellectual property laws that apply to everyone else," Gutierrez said. He called the purported patent infringements "not accidental."
Microsoft is a major player in the existing legal and business establishment for handling intellectual property, which includes assets such as patents, trademarks and copyrights. That framework gives considerable power to incumbent companies with large patent portfolios and sufficient resources to pursue more.
"It's a game in which those who have a lot of resources to throw around have a lot of advantage," said Tom Carey, a partner in the Boston-based intellectual property law firm Bromberg & Sunstein.
As an example of what it would like to see, Microsoft points primarily to the Novell patent deal struck last November, in which Microsoft is selling coupons that permit use of Novell's Suse Linux Enterprise Server along with the assurance that Microsoft won't assert its patents against customers. It's unclear how high open-source patent protection is on most companies' priority list, but Microsoft has made a big deal out of the fact that Linux protections are included in two patent-swap deals this year made with Samsung and Fuji Xerox.
Raising the prospect of open-source patent risks might not be likely to make Red Hat, the top Linux seller, overcome its current unwillingness to pay Microsoft for patent rights. But it could pressure Red Hat and others indirectly, either through jittery customers or through big-business partners such as IBM. That's Microsoft's hope.
"We don't think that customers will want to continue on without a solution to the problem," Gutierrez said. Microsoft also pointed to the fact that AIG, Credit Suisse, HSBC, Nationwide, and Wal-Mart all have bought the Linux Suse Linux coupons from Microsoft.
But does open-source infringe?
The only problem with Microsoft's plan: so far its actions have only rallied the open-source troops, and not everyone believes the open-source gang egregiously violates the intellectual property regime.
"I don't think open-source is not playing by existing intellectual property rules," said Mark Radcliffe, an intellectual property attorney with DLA Piper. "Currently, open-source (participants) use copyright for everything they do. A lot of open-source companies have patents."
Radcliffe also derided Microsoft's reasoning that the purported open-source patent violations aren't accentual because the company thinks hundreds of cases exist. "It's an illusion or deceptive to say merely because there apparently potentially a lot of patents infringed, it's intentional. That's certainly not the legal standard," he said. "I would also be willing to bet, given the number of patent suits against Microsoft that they've lost, under their own theory, Microsoft itself is intentionally infringing."
The fact remains, though, that patents and open-source software can be anathema. Patents give exclusive, proprietary rights to those who hold them, but open-source software is built on a philosophy of free technology sharing. Many in the open-source realm deride software patents and have been lobbying to curtail their influence.
When Novell and Microsoft announced their patent deal, the Free Software Foundation was quick to say it would move to prohibit such arrangements in a future version of the General Public License (GPL), the most widely used open-source license. The most recent draft seeks to prohibit all future deals of that nature and potentially past ones, too.
The timing of Microsoft's pronouncement is telling, Radcliffe said, "particularly when you think that GPL version 3 is still in draft. I don't think that is a coincidence," he said.
Red Hat, which indemnifies its customers against legal risks and has promised to rewrite any software found to violate others' intellectual property, told its customers Monday they have nothing to fear. "The reality is that the community development approach of free and open-source code represents a healthy development paradigm, which, when viewed from the perspective of pending lawsuits related to intellectual property, is at least as safe as proprietary software," the company said in a statement.
Microsoft won't say how much farther out of the scabbard it will pull its saber if the current effort fails to bring forth more patent deals with open-source companies.
"I don't have the answer for that. I have the answer for those that want to be responsible," Guttierez said.
But Microsoft would prefer not to sue, according to Guttierez. "If we wanted to litigate we would have done that a long time ago. Litigation is not an effective way of going about solutions," he said, adding that the company released the tally of potentially infringing patents now only after three years of effort to come up with a "constructive" way of dealing with the situation.
Open-source allies are willing to call Microsoft's bluff.
"I can't see it as any more than a somewhat hollow anti-open-source charade," said Matt Asay, vice president of business development for open-source document management start-up Alfresco. "If they want to really get people buying into their patents, they've got to put forth some substance...They haven't shown what the patents are or what they cover."
Larry Augustin, a venture capitalist who grew wealthy off a Linux-related initial public offering, told Microsoft on his blog to "put up or shut up." "If Microsoft believes that free and open-source software violates any of their patents, let them put those patents forward now, in the light of day, where we can all evaluate them on their merits," Augustin said. "If not, then stop trying to bully customers into paying royalties to use open source."
Litigation is unlikely, said Brian Kelly, an intellectual property attorney with Manatt, Phelps & Phillips: "If the end game is a lawsuit, you probably lead with a lawsuit."
Of course, the SCO Group did lead with litigation in 2003 when it took on IBM with claims that Big Blue violated its contract by bringing proprietary Unix technology to open-source Linux. But Linux continues to spread widely despite that case--even with SCO suing actual customers.
At the same time, open-source allies are accumulating more legal heft by banding together and signing up some of the computing industry's largest companies. Oracle now sells its own version of Linux, and Sony, Red Hat, IBM, Novell and Philips formed the Open Invention Network in 2005 to try to amass a patent counterweight. Patent holders who join the organization or license its patents agree not to sue over patents in the "Linux environment."
Even if Microsoft doesn't sign any more patent pacts, just slowing down the competition could be counted as a victory. Illuminata analyst Jonathan Eunice, in a blog posting Monday, likened Microsoft's patent threat to Iraq's use of Scud missiles in Persian Gulf War of the '90s.
"The point wasn't to actually use the weapon, but rather to require opposing forces to plan and take countermeasures against the possibility of use," he said. "While they were so occupied, they were less effective doing other things."
CNET News.com staff writer Ina Fried contributed to this report.
Copyright ©1995-2007 CNET Networks, Inc. All rights reserved.
Report: Microsoft says open source violates 235 patents
http://news.com.com/Report+Microsoft+says+open+source+violates+235+patents/2100-1014_3-6183437.html
Story last modified Mon May 14 06:16:01 PDT 2007
Microsoft claims that free and open-source software violates 235 of its patents, according to a magazine report published Sunday.
In an interview with Fortune, Microsoft top lawyer Brad Smith alleges that the Linux kernel violates 42 Microsoft patents, while its user interface and other design elements infringe on a further 65. OpenOffice.org is accused of infringing 45, along with 83 more in other free and open-source programs, according to Fortune.
It is not entirely clear how Microsoft might proceed in enforcing these patents, but the company has been encouraging large tech companies that depend on Linux to ink patent deals, starting with its controversial pact with Novell last November. Microsoft has also cited Linux protection playing a role in recent patent swap deals with Samsung and Fuji Xerox. Microsoft has also had discussions but not reached a deal with Red Hat, as noted in the Fortune article.
Microsoft CEO Steve Ballmer is also quoted in the article as saying Microsoft's open-source competitors need to "play by the same rules as the rest of the business."
"What's fair is fair," Ballmer told Fortune. "We live in a world where we honor, and support the honoring of, intellectual property."
The story notes that some big tech proponents of open source have been stockpiling intellectual property as part of the Open Invention Network, set up in 2005 by folks like Sony, Red Hat, IBM, NEC and Philips. The article surmises that if Microsoft were to go after open source, these companies' combined know-how might give it some patent weapons to go after Windows.
A Microsoft representative did not immediately respond to an e-mail seeking comment.
Given how deeply entrenched open-source software has become in the computing industry, taking direct legal action against the open-source realm would be a complicated, hackle-raising undertaking for Microsoft. Customers use open-source software widely, and many major computing companies--IBM, Dell, Sun Microsystems, Hewlett-Packard, Motorola and Oracle, for example--support Linux work directly.
It's not the first time that open-source patent concerns have arisen. A 2004 study by a Open Source Risk Management, a company selling insurance against risks of using open-source software, concluded that Linux could violate at least 283 patents, 27 of them Microsoft patents.
Patents and the open-source movement get along awkwardly at best. Patent law gives proprietary, exclusive rights to patent holders, but open-source programming is built on the idea of free sharing. Newer open-source licenses sometimes address the issue by requiring contributors to open-source projects to grant users and developers of the software a perpetual, royalty-free license to any patents that relate to the contribution.
Different companies have dealt in different ways with the open-source patent conundrum. For example, HP has taken a pro-patent stance, while IBM, Nokia, Sun and others have granted some rights to use some of their patents in open-source software.
The Open Invention Network remains a relatively young effort, but it has attracted participation this year from proprietary software giant Oracle and from Linux support seller Canonical. A company may license the network's patents for free as long as they promise not to assert any patent claims against those involved in the "Linux environment."
The Free Software Foundation is working on a new draft of the General Public License, one element of which will ban partnerships such as the one struck by Novell and Microsoft.
Copyright ©1995-2007 CNET Networks, Inc. All rights reserved.
posted by Nick Tolentino at 4:27 PM
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