Thursday, November 18, 2004

Microsoft's Balmer on patent infringement by Linux

Although there have been some indications that Microsoft is moving toward an IBM-like, non-litigious approach to intellectual property, a recent statement by Steve Balmer suggests that patent infringement issues with Linux remain. A later report refines the context of the statement, from "Microsoft says Linux violates patents..." to "Microsoft says OSRM says Linux violates patents..." A still later report quoting Dan Ravicher, author of the OSRM study, questions the revised Microsoft interpretation. There has been much discussion on the internet about the issue.

from Reuters, Nov. 18:

-->Linux violates more than 228 patents, Microsoft Chief Executive Steve Ballmer said at the company's Asian Government Leaders Forum in Singapore. He did not provide any details on the alleged violations, which the Linux community disputes.

"Someday, for all countries that are entering the WTO (World Trade Organization), somebody will come and look for money owing to the rights for that intellectual property," he added. <--

HOWEVER, later on Nov. 18, Microsoft denied part of the story.

From Mary Jo Foley at eWeek:

Microsoft Corp. is denying that its CEO Steve Ballmer told Asian government leaders on Thursday that Microsoft believes that Linux violates more than 200 software patents.

Instead, Ballmer was citing a controversial study done earlier this summer by a risk-mitigation consultancy that claimed that Linux has been found to violate more than 200 software patents, according to a Microsoft spokesman.

"Steve [Ballmer] was speaking at the Asia Government Leaders Forum [in Singapore] and noted the recent OSRM [Open Source Risk Management] report in answer to a question he was asked on Linux and licensing costs," said the Microsoft spokesman. "It wasn't in the context or perspective of 'Microsoft saying this,' but rather 'Here's what the industry is saying and it is a factor to consider.'"

A published report claiming that Ballmer said Microsoft believes Linux violates 228 or more software patents created a quite a stir across the Web on Thursday.

According to the story, Ballmer did not go so far as to say Microsoft planned to sue Linux vendors or customers over the alleged violations. However, he did note that "someday, for all countries that are entering the WTO [World Trade Organization], somebody will come and look for money owing to the rights for that intellectual property," according to the report.

In August, OSRM, a provider of open-source consulting and risk mitigation insurance, announced it had unearthed 283 issued, but not yet court-validated, software patents that could conceivably be used in patent claims against Linux. OSRM is planning to begin offering a patent-litigation insurance policy for Linux users and developers in 2005.

Microsoft has not weighed in publicly on whether it has discovered patent violations by open-source vendors involving any of its products. But the Redmond, Wash., software vendor, like a growing number of corporations, is availing itself of a variety of tools for monitoring the source of its own source code, Microsoft officials said.

David Kaefer, Microsoft's director of business development for IP and licensing, told Microsoft Watch earlier this month that Microsoft has been creating process controls to ensure that Microsoft knows from where its own code is coming. Microsoft has created a number of tools and is licensing others that will allow the company to make sure that there is no hidden code (open-source or otherwise) in its products that shouldn't be there, Kaefer said.



This statement didn't impress Novell which -- like Microsoft -- owns a very large number of software patents.

"The intellectual property risks associated with open-source software are really no greater than those with proprietary software and so far, nobody has filed any patent claims against open source," said Bruce Lowry, Novell spokesperson.

"Novell provides indemnity protection against legal action for our customers and we are committed to using our own patent portfolio to protect our open source software offerings," Lowry added.

Last month Novell chief executive Jack Messman declared that his company would use its patent portfolio to defend customers who used its open source software.

Gael Duval, founder of Linux vendor Mandrakesoft, accused Ballmer of scare tactics, and argued that Windows users were just as much at risk as Linux users.

"Again [we have] some fear, uncertainty and doubt from Microsoft. They do whatever they can to fight against Linux," Duval said.

"On the other hand, Microsoft is involved in a number of patent trials, so governments who use Microsoft products face patent lawsuits no more and no less than for Linux products," Duval added.

Stuart Cohen, chief executive of the Open Source Development Labs (OSDL), said his organisation had a lot of confidence in Linux's robustness when it came to IP, patents and copyright.

"Some of the world's largest vendors share our view and are willing to stand behind Linux to protect their customers, as are we. HP offers its Linux customers indemnification. So do Red Hat and Novell. Both Novell and IBM have publicly promised to use their extensive patent portfolios to protect Linux customers," said Cohen.

"And OSDL set up a $10m legal defence fund for Linux customers. With Linux adoption growing three times faster on the server than any other operating system, customers are clearly continuing to embrace Linux," Cohen added.

Microsoft was not immediately able to expand on Ballmer's remarks, which have sparked speculation that they represent Microsoft's plans for litigation against Linux.

Ballmer stopped short of saying that Microsoft itself would be suing Linux users, and also did not say who owned the patents in question. Previous reports have claimed that Linux violates 283 patents.

Analysts believe Ballmer's remarks could actually rebound on Microsoft.

"The impression that customers will get from these sort of comments will do nothing to move them closer to a mature and strategic relationship with Microsoft," said Rakesh Kumar, senior vice-president at META Group.

"Users are intelligent enough to assess their own risks. Microsoft needs to build bridges with international organisations rather than being abrasive," Kumar added.

If Ballmer's remarks do represent a turning point in its battle with Linux, then it is heading for explosive confrontations with several other IT giants.

On Wednesday, Sun chief executive Scott McNealy said his company was ready for war over the issue of intellectual property litigation.

McNealy told ZDNet UK sister site ZDNet Australia the recent Kodak patent case was an example of the company "taking a bullet" to protect its end-users.

"Customers need to use a software provider with cash in the bank, who protects and indemnifies them and will look out for their interests," McNealy said.

When asked how many bullets Sun could take, McNealy said the company had $7.4bn in the bank, strong growth and an "IP war chest" that "scares a lot of companies away". McNealy did not rule out a patent war, but was confident of Sun's position should one occur.

UPDATE. from eWeek.,1759,1729908,00.asp

"Microsoft is up to its usual FUD [fear, uncertainty and doubt]," said Dan Ravicher, author of the study Microsoft cites, who is an attorney and executive director of PUBPAT (the Public Patent Foundation).

"Open source faces no more, if not less, legal risk than proprietary software. The market needs to understand that the study Microsoft is citing actually proves the opposite of what they claim it does."

"There is no reason to believe that GNU/Linux has any greater risk of infringing patents than Windows, Unix-based or any other functionally similar operating system. Why? Because patents are infringed by specific structures that accomplish specific functionality," Ravicher said.

"Patents don't care how the infringing article is distributed, be it under an open-source license, a proprietary license or not at all. Therefore, if a patent infringes on Linux, it probably also infringes on Unix, Windows, etc.," he said.

It makes no difference whether and how software is distributed, Ravicher said. "The bottom line is there's no reason to believe that Windows, Solaris, AIX or any other functionally similar operating system has any less risk of infringing patents than Linux does."


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