The great teacup patent storm

Microsoft's claim that Linux infringes on its patents is nothing more than a storm in a teacup.
Muggie van Staden
By Muggie van Staden, CEO, Obsidian Systems.
Johannesburg, 07 Aug 2007

Microsoft's claim that Linux infringes on its patents at the code level has split the open source operating system's developers into two camps: those who have signed patent-protection agreements with Microsoft, and those who have not. But both agree on one thing: there has been no infringement.

Microsoft's recent claims that parts of the Linux operating system infringe on the Redmond company's patents has been followed by the forging of agreements between it and developers of Linux distributions which effectively immunise them from any and all legal action Microsoft may take based on its claims.

While some have willingly sided with the proprietary software giant, others have chosen not to. But it seems that both agree on the fact that no infringement exists.

Microsoft is yet to display any evidence of these infringements. CEO Steve Ballmer has made a lot of noise in the press about their claimed existence, but has not backed this up by with any specifics. It's merely Microsoft's latest strategy against Linux and it seems doubtful that these fallacious claims would enjoy much success in a courtroom.

It's been done before. SCO launched a similar attack on Linux and failed - miserably. Microsoft's claims on the Linux code base, at this stage, seem every bit as farcical as SCO's, if not more so. It basically amounts to a cheap shot.

Taking sides

The claims have been joined by a new Microsoft approach to Linux, one in which it aims to side with Linux companies. On the one hand, this allows both sides to work on better integration of their platforms; on the other, it indemnifies the Linux company from any legal action taken by Microsoft, based on its claims.

On the one side we have Novell, Linspire and Xandros, which have all signed such agreements with Microsoft. They all claim, however, that there is no base to Microsoft's accusations and that they are merely signing from a strategic perspective, specifically to focus on integration of their products with Microsoft's as this is a core demand being expressed by customers.

On the other hand, we have Red Hat, Mandriva and Ubuntu, which have all refused to sign, stating categorically that there is no infringement in the Linux code base and also that they have no interest in forging agreements with Microsoft.

Peace of mind

Microsoft's claims on the Linux code base, at this stage, seem every bit as farcical as SCO's, if not more so.

Muggie van Staden, MD of Obsidian

It's interesting that while the two camps of Linux companies have taken different actions in this scenario, both agree that Microsoft's claims are baseless. However, it might seem the companies that have agreed to sign with Microsoft have undertaken an admission of guilt by doing so. This, of course, is not something they would express.

In this case, the situation is the same as with SCO, where the entire community agreed the company's claims to Linux's code were vacuous. SCO could not convince any of them otherwise and neither has Microsoft, although I have no doubt that the Redmond company will use the fact that some Linux companies have signed with it to state the opposite.

For customers, this is an interesting scenario. Of course, those who use the products of organisations that have signed with Microsoft enjoy extended indemnity from legal proceedings. However, they also face a threat to the existence of a product they probably rely heavily upon.

But here's a little known fact: customers on the other side of the Linux ship can enjoy the same peace of mind in terms of legal action indemnity. Red Hat, for example, offers an undertaking to cover customers using its version of Linux from any legal action from Microsoft. In the unlikely event that Microsoft does manage to get any legal support for its claims resulting in penalties for customers, Red Hat will cover those penalties. This is how sure Red Hat is that these claims will be baseless. The patent and infringement cover is provided with every purchase of Red Hat Enterprise Linux.

What is really brewing here, no matter what Ballmer says, is a storm in a teacup.

It is interesting (and somewhat laughable) that Microsoft, in the face of its own anti-trust situation and the fact that SCO has failed before it, seems bent on following its claims on the Linux code base.

The only leg it has to stand on in this regard is that some Linux companies have signed agreements with Microsoft - but what it will find in effect is that this does not mean they won't put up a fight.

* Muggie van Staden is MD of Obsidian.