on joe on patents

Some comments on joe’s post on Microsoft’s patents:

they’re unlikely to come after Linux distributors for the well-known “mutually assured destruction” reasons

Which is why they are going after Linux users, most of whom have no patents of their own to retaliate with. Besides the original Fortune article, check out this latest Ballmer quote, where he carefully points out that ‘people that use Red Hat’, rather than Red Hat, owe Microsoft money. (Of course, implicit in that is a threat against all Linux users who haven’t bought immunity from Novell.)

The infighting amongst the community (*cough* with Novell) is counterproductive to the larger goal. We need to advocate for patent system reform…

Well, yes and no; reform is important, but Novell’s alliance with Microsoft actively undermines reform by making the current system seem more reasonable. From now on, on both antitrust and patent fronts, Microsoft gets to point to Novell and say ‘we came to an agreement with Novell, so the system works fine- the problem is that Those Linux People are irrational.’ This is probably the second most damaging part of the Novell-MS alliance (right behind the constant release of free-but-not-really code which MS can later use to threaten users with.)

We need to advocate for patent system reform — like getting involved with the peer review that the USPTO has recently launched

While I do agree that advocating for patent system reform is a good thing, Peer To Patent (P2P) is a mixed bag for open source. If P2P reaches its goals, Microsoft and other large players (including some of the trolls) will have fewer — but still plenty — of patents to use against consumers. And those patents will be issued faster and be harder to challenge in court. On balance, probably still a good thing for the industry, but far from a solution to open source’s problem.

Until then, sadly, we have to play the game and get as many defensive patents as possible…

Completely correct, except that there is no ‘until then’, unless by reform you mean ‘abolition of software patents’. Otherwise, likely everyone will always have to play the game; ‘reform’ by itself will not be sufficient to protect anyone, since trolls with a dozen strong patents will be just as threatening as trolls with hundreds of patents of unknown quality.

… while rebuffing Microsoft’s scare tactics at the same time.

Completely agreed. Novell’s deal compromises the community’s ability to do that, though.

Tangentially, if you want to see what the most advanced patent trolls are thinking, this paper (co-written by a brilliant stanford IP prof and Nathan Myhrvold of Intellectual Ventures, formerly Microsoft) is a really interesting read. It deserves much broader coverage and interest than it has received.

Also tangentially, this post is reaching its one year anniversary and is still the top Google hit for ‘Ubuntu patent policy.’ Compare top hit for ‘Novell patent policy‘ and ‘Red Hat patent policy.’ But hey, they throw good parties. :)

[NP: Radiohead, In Rainbows]

[Picture by Flickr user Ioan Samueli, used under a CC-BY-SA license.]

13 thoughts on “on joe on patents”

  1. Espero que no venga Steve a decir ahora: “¡Oh! os lo dije, el peligro estaba ahí“, porque me parecería un ejercicio de cinismo un poco grosero. Aunque pensándolo bien, peores se han visto [IMG :-D] El certero Luis Villa tambiéncomenta la jugada en su blog. Para que luego nos vengan con la Ms-PL, la Shared Source Initiative, Port25 y demás zarandajas… [IMG :-D]

  2. I find it interesting that none of the posts about the Novell-Microsoft deal actually address the real issue: does Linux infringe on any of Microsoft’s patents? If it does, and the common saying is that any non-trivial piece of software violates patents, it seems Novell has done the responsible and legally required thing and licensed those patents. If it does not, then Novell got nothing out of the deal (patent-wise) and everybody can laugh heartily at their foolishness.

    It’s kinda like the whole RIAA business. Just because people think the labels are ripping them off and suing their customers, it does not make it legal to steal music. In the same vein, people may think the current patent system is abhorrent (and it is), but that does not make it legal to violate other people’s patents.

    So lets address the real question, does Linux violate any of Microsoft’s patents?

  3. jonathan: good question. Sadly, Microsoft hasn’t provided any warrants behind their allegations, so we don’t know. Do you have Microsoft’s seekrit list?

  4. Louis,

    Normally I find your comments quite insightful, but with this blogpost I think you have been hitting the crack pipe a little too hard. You stress the word “users” and state that those users who use Redhat would be the targets of Microsoft patent suits. The *only* (AFAIK) company that has ever contemplated(they never actually did) going after “end-users”(ie.individuals) was SCO. It would be a cold day in hell before microsoft would sue individuals for any patent infringement-i say this because a) up till now microsoft hasn’t sued any entity for patent infringement, b) if they were to sue an *indidivual* they would be commiting PR suicide. Now I do not see how they could target a company which uses Redhat without priori having proved in a court of law that Redhat violates microsoft patents. You are the one studying law not me so i leave it up to you to show us how microsoft could sue company-which-uses-redhat-linux for patent infringement, without already having successfully sued redhat for a breach of those patents.

    The closest thing which ever happened to what you are describing is the SCO case. But the differences are staggering-a) SCO tried to attack “linux” not Redhat, Novell, Debian etc. b) although they spread lots of FUD about patents being violated-patents were not ever part of any of the claims brought before a court c) SCO was an already dead company no longer capable of competing through product innovation-the lawsuits were a last ditch effort to survive.

    I can read your text and just substitute SCO for every occurence of Microsoft-do you really believe such an analogy is anything but misleading? I get the feeling that not only are you being misguided by Ballmers FUD but that you have allowed yourself to be co-opted by his FUD machine. I understand your anger over the Microsoft-Novell deal but I do not see any justification for expressing your anger at such by playing into Ballmers FUD in an apparent anti-Novell backlash. In your years studying law you should be versed enough to be able to recognize that the only “carefully pointing out” which Ballmer engaged in was speaking in such a way as that nothing he said is binding or of legal consequence. Pure Doublespeak. Companies have gone after end-users for copyright infringement(RIAA) but never for patents. You conflate the two and in so doing you are furthering Ballers FUD.

    please explain to me how i am wrong…..

  5. Novell started the in-fight, not the rest of the community. Should we all just stand by and pretend we didn’t see anything because infighting is contra-productive, when in fact Novells actions are at least as hurtful if not more?

  6. Jonathan: That’s a question worth asking, perhaps – but not one we can easily answer right now. Microsoft says so – but won’t say which.

    There’s an equally valid question on the other side: does Microsoft violate any of “Linux’s” patents? (where here Linux can be taken to mean Novell, Redhat, OIN, etc.)

    I would (without being able to back it up, of course) assume both that linux violates MS patents and that MS violates patents owned by the various linux companies – that’s the reality of the current patent landscape. It’s in _both sides’_ best interests to not take this to court – an attitude that OIN embodies rather more clearly than some others.

  7. It just seems that any US company selling a product in the US is responsible for ensuring that their product follows US laws. I’m not sure knowingly selling a product that *probably* violates US laws and just waiting to see if anyone calls you out on it is a very good defense.

    Novell, Sun, IBM, Canonical, Red Hat, the EFF, etc. have plenty of lawyers. Why not do a patent search for every patent Microsoft has, divvy it up, and put this issue to rest? That’s how the “community” works, lots of people doing small parts to add to the whole.

    It seems highly irresponsible to say that Microsoft’s claims are pure FUD when no one is willing to do the work to back it up. Of course it would be nice if Microsoft would just publish their list, but that’s not something they are required to do. Its up to Linux companies to ensure they are following US law.

  8. […] Hi Luis! First off, personal blog, opinions don’t represent that of my employer, not a corporate shill, blah blah blah. Which is why they are going after Linux users, most of whom have no patents of their own to retaliate with. Besides the original Fortune article, check out this latest Ballmer quote, where he carefully points out that ‘people that use Red Hat’, rather than Red Hat, owe Microsoft money. (Of course, implicit in that is a threat against all Linux users who haven’t bought immunity from Novell.) […]

  9. […] Luis Villa’s Blog / on joe on patents “Which is why they are going after Linux users, most of whom have no patents of their own to retaliate with.” – this is obviously possible, and Ballmer loves to imply it, but i think MSFT suing customers would be absolute brand suicide. i’d be surprised. (tags: microsoft litigation linux steveballmer luisvilla patents) […]

  10. Joseph: It is not irrelevant in this case, and “two to tango” does not really apply (it often doesn’t, as Voltaire said, a witty saying proves nothing).

    This is more of a case where one party is doing something wrong and the other party asks the first one to stop. Insert any of a number of applicable analogies here.

    Novell has made their bet: they are betting that Microsoft, its formats and technologies will continue to rule supreme. Having made that bet, they want this to happen and support it (Mono, Moonlight, voting for OOXML, Miguel saying OOXML is superior, etc etc etc). They are betting on this, and hope to carve out a niche for themselves where they can be the Linux company that stands beside Microsoft.

    Perhaps it even makes business sense. It does not serve the community as a whole. Novell has done and still does a lot of things right within the community, but this is trying to avoid drowning by standing on the shoulders of the other swimmers. The rest of the community would rather swim together, and don’t really see the risk of drowning (that is, until someone stands on their shoulders).

    Novell can fix this, if they wish. Until then, the tango they are performing is with another partner…

  11. […] On Joe On Patents Apparently the “Many Eyes” Need Glasses Plone's Open Source Community is Strong as Ever Why Ubuntu Linux Tops Debian Digital Photo Management In Linux, Part 2 Did Microsoft Ruin SCO? Mono at ReMIX: No Moonlight Incarnation of WPF Planned New Linux Server Competition for Novell, Red Hat? Measuring Process Scheduler Performance First Look: IBM's Symphony Office Suite :On Joe On Patents On Joe On PatentsOct 11, 2007, 21 :30 UTC (0 Talkback[s]) (76 reads)(Other stories by Luis Villa) “…[T]hey're unlikely to come after Linux distributors for the well-known 'mutually assured destruction' reasons “Which is why they are going after Linux users, most of whom have no patents of their own to retaliate with. Besides the original Fortune article, check out this latest Ballmer quote, where he carefully points out that 'people that use Red Hat,' rather than Red Hat, owe Microsoft money. (Of course, implicit in that is a threat against all Linux users who haven't bought immunity from Novell…)” Complete Story […]

  12. “I find it interesting that none of the posts about the Novell-Microsoft deal actually address the real issue: does Linux infringe on any of Microsoft’s patents? If it does, and the common saying is that any non-trivial piece of software violates patents, it seems Novell has done the responsible and legally required thing and licensed those patents. If it does not, then Novell got nothing out of the deal (patent-wise) and everybody can laugh heartily at their foolishness.”

    I find it interesting that you really believe that this is “the real issue”.

    The “real issue” is, should software patents be legal in their current form? Should it be legal for Microsoft to hold 16 patents that concern the positioning of a cursor on a screen, when Pfizer holds *one* patent for Viagra?

    Once upon a time, Microsoft believed that software patents were a bad thing. But then they looked at how successfully IBM was levying taxes by substituting patents for legitimate innovation, and said “hey, we could do that too.”

    The real issue is, what happens if Red Hat happens to be violating bullshit patents that should never have been issued in the first place, and Microsoft successfully puts Red Hat’s balls in a vice based on those bullshit patents?

    Of course, we’ll never know, because Microsoft isn’t that stupid. Because even though they’ve got a gun pointed at our privates, we’ve got a gun pointed at their privates. And all they can do is talk a bunch of smack and try to scare people — and the more they do it, the more people will resist them.

    Does anyone remember the Ernie Ball story? Ernie Ball became one of Red Hat’s first big customers. Why? Because M$ put a big squeeze on them, and they said “we will never again do business with someone who treats us like we’re crooks.”

    Good luck suing customers, Steve-O. I’m sure that’ll go over swimmingly for you.

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