Show Us the Code

As I've noted before, I am something of a connoisseur of Microsoft's FUD against open source, in part because I believe each successive FUD-flavour of the month gives important hints about the evolution of the thinking and strategy within the company. The latest development in this area, which revolves around patents, is no exception – not least because I think people are drawing the wrong conclusions from it.

The patent issue has really come to the fore through last year's Microsoft-Novell agreement. This may be the most high-profile instance of Microsoft insinuating that GNU/Linux is infringing on some of its patents, but it is by no means the only one. Around the same time, Microsoft expressed a desire to enter into a similar relationship with Red Hat. Of course, neither move was out of the goodness of its heart: the more organisations that sign up to such deals, the greater the implicit support for the idea that there are indeed infringements that need to be covered.

Given Red Hat's reluctance to fall for this trap, it is no surprise that Microsoft has started casting its net wider by approaching companies whose use of GNU/Linux is only incidental. These include Fuji Xerox and Samsung, both of whom have announced patent agreements with Microsoft that explicitly mention Linux:

Fuji Xerox will obtain access to Microsoft patents for Fuji Xerox’s existing and future product lines, including products that incorporate proprietary source and open source software, such as Linux.

Samsung will also obtain coverage from Microsoft for its customers' use of certain Linux-based products.

One of the most original interpretations of these moves comes from Matt Asay, building on an insight of Mark Shuttleworth:

Microsoft's patent game is designed to force open source to compete on its terms. Mark made a hugely salient point on this: Microsoft has been a disruptive force in the software industry by building complex software and essentially giving it away for peanuts.

In turn, it is being challenged by open source, which is free. The difference, as Mark said, between $0.00 and $0.01 is huge. And that difference is not flattering to Microsoft, even despite its lower price points than its fellow proprietary competitors.

But if Microsoft can place a patent tax on all open source software or, at least, the open source software most threatening to its business, then it provides an effective way to inhibit open source disruption.

At first sight, this is an attractive idea, because it sits so comfortably with the hacker worldview that sees open source as special and inhabiting a completely different universe from that of proprietary, non-free products. It also confirms that the “free as in freedom



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"Fuji Xerox will obtain

gvendelin's picture

"Fuji Xerox will obtain access to Microsoft patents for Fuji Xerox’s existing and future product lines, including products that incorporate proprietary source and open source software, such as Linux."


Rich Man's picture

As a previous poster mentioned, the US is moving toward a first to file patent system. Can't this undermine the purpose of patents, which is to protect the INVENTOR?

boycott samsung

RAUL's picture

I have been using samsung LCDS, DVD-RW and Printers in my bussiness, and selling them to my clients, because they are pretty good. But after the agreement, i'll switch to HP Printers (fully supported on Linux), and LG LCDS and others components.
Sorry Samsung, you lost someone who buy/sell/recommended over 15 k$ of goods with your brand on it!!!
Maybe i should start looking at that Panasonic LCD TV, even if it cost a few more bucks!!!


Anonymous's picture

I wouldn‘t care success or failure, for I will only struggle ahead as long as I have been destined to the distance. I wouldn‘t care the difficulties around, for what I can leave on the earth is only their view of my back since I have been marching toward the horizontal.

Its time we all woke up

Anonymous's picture

Before the ownership of land was created the idea that a person could own "the land" was inconceivable. I suggest that what we are seeing is the "ownership" of ideas. I see nothing to suggest that any country in the capitalist world is really going to reform anything to do with patents other than to entrench them and make them easier to issue.

Since most countries have a "first to file" policy and the US is going this was as well, there will be no "prior art" recourse against patents. Its simply a progression of the same ideas that current drive the capitalist and economic world and no politician is going to push against this. Europe is going to allow software patents either by stealth through the laws of member countries or overtly through the commission. No court is going to invalidate the thousands of patents regardless of their techincal validity - that will continue to be litagated just as all ownership disagreements are today.

Corporate interests own the political process because they drive the economy - sure the "voters" choose which party, but in terms of business rules and laws major parties subscribe to the some ones; thats why businesses "contribute" to all major political parties - after all its businesses who have the money.

The _only_ way forward is to create a commons, a safe ground on which "open" technologies can florish and the only way for this is to hold enough patents (or have them pledged) that can be used to create that safe ground. The wailing and crying over stupid patents is _not_ going to change a single thing.

MS et al is totally aware of this, has been for years and the value of companies in the future will be determined by their ability to navigate Intellectual Property rocks and reefs of business and no thing will alter that.

OS has two choices - play the game or become irrelevant. Oh, and companies who pledge their patents will do that for as long as it suits them - ie until a better offer comes along. I don't personally _like_ this, but I can see that this is how it is - there is no point ranting and railing against the reality of the world we inhabit. It OS writers and proponents are smart we need to outsmart the other businesses and clever code won't help here - its a different kind of problem.

Its a race and if OS is going to survive it will have to run very fast and be very nimble and out manouver large companies.

Prior art

Anonymous's picture

Since most countries have a "first to file" policy and the US is going this was as well, there will be no "prior art" recourse against patents.

Stop the FUD. This is simply wrong. "First to file" has absolutely NOTHING to do with "prior art." "First to file" has to do with who is granted a patent when two people seek to patent the same idea. Under the current US system, if you can prove that you had an idea before the person who patented it, you can have the patent assigned to you. This is true even if the idea was not made public and the second person invented it independently of you. Under "first to file," that's no longer possible. If you have an idea and don't patent it and someone else does, you have no claim to take the patent.

"Prior art" is used to determine (in some cases) whether or not an idea is patentable at all. If you can show that an idea was publicly known and used prior to the attempted patent, you can have the patent thrown out. This stands even under a "first to file" patent system.

"First to file" addresses who gets a patent. "Prior art" addresses whether or not an idea is patentable. The two have little if anything to do with one another.

There is a big difference

Anonymous's picture

There is a big difference between land and ideas. Two people cannot own the same piece of land without joint agreement. However, two people can have exactly the same idea completely independently. Your analogy is broken.

welly well well. I just

tk's picture

welly well well. I just patented the wee idea of a method to extract oxygen from the surroundings and transport it via hemoglobin to organic tissue.

Well - basically - breathing. So, if you all don't cough up $20 licensing fee to me annually, stop breathing. I am fist to file, and all those mothers out there using my patent illegally in producing there offspring, my lawyers will want a word with you.

Intellectual Property does not exist

Glyn Moody's picture

If people became aware of this simple fact - that intellectual property does not exist - I think it might be easier to persuade even politicians to do something about this crazy state of affairs.

The term "IP" is a very clever trick played by those who indeed want to own ideas. I always use the phrase "intellectual monopoly" instead, because that's what copyright and patents are: they are monopolies granted by the government for a limited time to encourage innovation and creativity. If, instead of talking about extending "property" rights for "IP", you phrase it as extending a monopoly right, that doesn't sound so good, because it's clear that something is being taken away from everyone.

I think we must work hard to roll back this term "IP", because every time we use it we reinforce the misconception that ideas can be owned. As soon as you get people to think in terms of monopolies, they become far less impressed by big business's demands for more "IP" protection, and the case for copyright and patents is correspondingly weaker.

Good reading about the "intellectual monopoly" nonsense

Anonymous's picture

You're right; there is no "intellectual property." From the FSF:

Eben Moglen, an actual lawyer, has confirmed this, too.

Re: Intellectual Property does not exist

Anonymous's picture

Hey Glen, when not trying to make a point about the "way the world is" above, I would say that it is the free sharing of ideas (IP) is a foundation of modern society - but I think that this foundation is under threat from those with a world view that believes that protecting monopolies of large, amoral, shareholder return driven corporates is a goal of modern society.

Clever trick or not, when US courts rule USD xxx M$ in favour of patents that are a) under dispute b) just pathetic from the point of originality, inventiveness and utterly fail any test regard obviousness, (RIM) the only conclusion I personally come to is that the landscape of tech is to be licensed as property by those who have the most capital.

Amoung those who have power in capitalist societies (large, amoral, roi driven corporates, corporate funded politicians and courts who predominately deal with crimes of human behaviour) there is no way that just stating opposing world views will change anything.

This issue does not just apply to software, it applies to biology as well as other fields - for example people die, all the time, because treatments are priced to pay license fees to patent holders and not all people can pay the price - so they die untreated.

My understanding of the society we inhabit is that courts will do the bidding of the key holders of power and the average OS developer, small business, etc isn't one of the key holders of power. Large corporates employ most of the populace - politicians won't listen to impassioned contrasting views from a vocal minoriity however dearly these views are held.

My comment was not meant to advocate sitting back and doing nothing - rather I felt that like many tech debates the environment is being ignored. I believe that the OS community has to work to play the pieces it has and not whinge and wine about how stupid the society is. At least, if we will do that we will lose, and personally I believe that OS and the creed of OS has the potential to drive a revolution in human society for the benefit of all.

But I also recognise that the current kings of power will be diminished and they will not go down easily.

Maybe I'm an incorrigible optimist

Glyn Moody's picture

I do believe that the force of ideas can eventually change things. Just look at the free software movement, which was effectively created by one man - RMS. Look at how the idea of openness and collaboration has become a commonplace.

That's why I stress the idea of rephrasing the debate in terms of intellectual monopolies: nobody likes monopolies, and it shows the "IP" maximalists for what they are: greedy and selfish.

Nobody said it would be easy.....

Mitigation and similar offenses

Wesley Parish's picture

On Groklaw, that was raised several times - if some such thing is being alleged of Linus et alii, there must be an attempt to allow them to mitigate this. I.e., no one has the right to allege something about someone and then deny them the right to fix it, to alter it for the better.

Microsoft in the form of their CEO, Steve Ballmer, alleged that Linux violates Microsoft software patents, without any specifity. In other words, denying Linus et alii, the right to mitigate this alleged offense by rewriting the code. And as was argued on Groklaw several times, this in the case of The SCO (Societe Commercial du Ondit - the Rumourmongers Co.) Group's harrassment of Linux, actually works against The SCO Group. In Microsoft's case, it works equally well against Microsoft. CEO Steve Ballmer is proved beyond rational doubt to be in fiduciary breach to Microsoft's investors, because he has made serious allegations against a major competitor, but has neither taken action to corect this - ie, a lawsuit - nor has provided any specificity to permit the competitor to mitigate the situation.

Even worse, Steve Ballmer has made obvious the connection between The SCO Group and Microsoft Corp - Darl McBride made such allegations without specificity when The SCO Group was ailing financially and was going to topple over and collapse anyway; Microsoft's stock price has been ailing and has only been rescued by the expedient of Microsoft Corp changing cash into stock - buying back their own stock, in other words.

Or in other words, Steve Ballmer has done the world the inestimable service of declaring that MS Windows Vista is indeed the world's longest suicide note, and this patently absurd whingeing and whining about patents, is a mere comma along the suicide note's length.


Glyn Moody's picture

For the Groklaw cross-reference. I don't have time to read as much of it as I'd like - it's a bit too, er, productive at times.

Why not stripp the XP/VISTA/2K3?

Anonymous's picture

Why not stripp the MS-XP/VISTA/2K3 to sourcecode?

MS may be more subtle than you think

Karl O. Pinc's picture

Microsoft's goal is to limit FOSS. Microsoft has always focused on the developer, they now find they are losing developers to FOSS. Perhaps Microsoft is attempting to drive corporate developers away from FOSS and fragment the "corporate" Linux community.

First, once the GPL v3 comes out corporations that have patent agreements regarding FOSS will probably find themselves burned. At a bare minimum they will probably find their FOSS choices to be more limited than had they not signed a patent agreement with Microsoft. They may find themselves left with the old GPL v2 code and unable to take advantage of new developments. Or, they may find themselves sued for GPL v3 violations. If they wish to avoid this then Microsoft will be sure to take a pound of flesh in exchange for getting out of the agreements. It's likely corporations will blame FOSS rather than themselves, even though they should have seen it coming. In any case, FOSS development will be slowed.

Second, IANAL, but I understand that willful violation of patents carries a harsher penalty than accidental violation. If a corporation acknowledges that Microsoft holds patents on code in Linux, it seems to me that that corporation exposes itself to increased risk should a suit arise. Because software patents are so broken it seems that any non-trivial code may be subject to somebody's patent. Depending on how Microsoft has constructed the patent agreements, companies subject to these agreements may find themselves sued should they contribute code not protected by the agreements to Linux, either new code or re-purposed old code. After all, how likely is it that Microsoft is selling a get out of jail free card that covers any code that ever finds it's way into Linux?

Or perhaps the agreements don't cover all use cases. Suppose they cover products but not internal corporate use. That could certainly hinder corporate IT-related adoption. Regardless, a few expensive court settlements could have a chilling effect on corporate contribution to or adoption of Linux. Maybe Microsoft has learned from SCO that it takes an actual court win to instill fear, and they're setting themselves up a case they know they can win.

It could be that Microsoft just wants to have as big a protection racket as possible. After all, the more people sign up for protection the easier it is to convince the rest that paying up is a necessity. But I think that Microsoft is trying to take advantage of the fact that corporations are stupider than people. They are easier to intimidate, more likely to follow a herd mentality, and easier to sucker into trading long term benefit for short term gain.

Interesting analysis

Glyn Moody's picture

I hope that Microsoft isn't as shrewd as you think....

Linux is so good...

Anonymous's picture

Apparently Samsung felt that Linux was so useful that they would give their entire patent portfolio to Microsoft based on risk analysis. Dang, Linux must be worth ALOT to them.

Nice point

Glyn Moody's picture

Though I'd prefer not to have to turn things around in this way.


Krendoshazin's picture

With the release of GPLv3 just months away, hopefully loopholes like this will soon be closed, under GPLv3 if a company wants to offer patent protection for a particular item relating to that patent, they can't just offer that protection to a specific group of people and then sue all the rest, the protection must apply to every single individual who uses that code, essentially making the company gives up their patent rights.

Of course there's still the problem of it creating a situation where code is protected from patents it doesn't need protection from, creating a false dichotomy.

This is naturally a problem, but I feel that part of the problem is fear from those who use what the protection includes, without being included in the protection. If there's no patent issue to begin with, there's no problem, but if a company has to protect -everyone- who uses the code they appear to be protecting, then there shouldn't be a problem there either, it removes the doubt surrounding the use of the product, and puts an end to the FUD.

But remember

Glyn Moody's picture

That there's little chance of Linux (the kernel) being released under GPLv3, which complicates matters.

I agree

Krendoshazin's picture

I agree that it may take a while for the kernel to switch to GPLv3, but like Bruce Perens said in his GPLv3 article, switching to GPLv3 won't be that hard, they just have to make an announcement that they plan to switch, and allow people to make objections to the effect that they want their code removed, so it's just a case of waiting for them to do it.
Their objection to the new version stems from a misunderstanding on the belief that they will have to give up their cryptographic keys, hopefully this misunderstanding will be resolved.

With pretty much the entire core of gnu/linux belonging to gnu (coreutils, binutils, gcc, glibc, etc), it will be very hard for people to avoid the result of switching to GPLv3, and should help in speeding up the licence switch.

It's true

Glyn Moody's picture

It's true that Linus seems to be warming slightly to GPLv3 after being strongly against it, but I wonder whether the huge number of contributors to the kernel will make the mechanics of conversion too difficult. We shall see.