December 4, 2006 5:05 AM PST
Perspective: Microsoft has OS patents; Linux has none
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It reveals that many open-source backers fundamentally don't understand the software business. When vendors compete, customers win. This is good.
Contrary to the numerous rants in the open-source community, the recent deal between Microsoft and Novell--in which the companies have agreed to interoperability, reselling and patent protection--is actually an excellent business deal and a good thing for the open-source community.
Microsoft is growing up after its antitrust issues. It is actually listening to its customers. Chief information officers have been telling Microsoft for years that they are sick of interoperability issues and that Microsoft has to stop acting like a big baby and learn to play well with others. The good news here is that Linux is now woven into the business fabric of every major company.
The reality of the technology business is that virtually every deal between big companies includes bilateral patent protection. Company A cross-licenses its patents with Company B. Neither acknowledges that the other is ripping off any intellectual property. Rather, each now has a finger on a legal atomic football that threatens to blow up both businesses if either goes to court to litigate for some bogus market advantage.
What usually keeps these companies from suing each other over patents is this legal notion of mutually assured destruction, since each company has patent libraries that overlap the other's cash cow products. When these companies do deals with each other, it is standard operating procedure to codify this presumptive way of doing business into the agreement--hence bilateral patent protection.
Microsoft's first deal in this new era of cooperation was with Sun Microsystems. Sun dropped its antitrust complaint (accepting a $2 billion check from Microsoft as part of the deal), and the companies pledged interoperability between their products. This deal quite naturally also included bilateral patent protection between Microsoft and Sun.
It did not, however, cover open-source developers. So let's say you download an open-source project like the NetBeans tool from Sun, add some cool features and redistribute your version of the tool. You have now violated hundreds of Microsoft patents on tools, and they can come after you.
It should be of no surprise to anyone that Microsoft holds numerous patents that Linux violates--it's just that polite company in the software industry won't say this aloud. You see, Microsoft hired folks like Dave Cutler out of DEC to build Windows NT, and it is actually an industrial-class operating system.
It originally included things like HAL (the hardware abstraction layer) that let it run on multiple processors including the PowerPC. I'm not a lawyer, and I'm not claiming that Linux violates any specific multiple-processor patent for Microsoft, but the odds are pretty much 100 percent that a good attorney from Redmond could build many different infringement cases that could go a long way in our court system.
In the Novell and Microsoft deal, many industry insiders are whining about commercial implementations, but I don't know what people expect Microsoft to do. Should they indemnify everyone who downloads and extends the Linux kernel from Novell from all of its patents?
If they did that, Red Hat could start getting the Linux kernel from Novell, be indemnified from all Microsoft operating-system patents and then sue Microsoft for the relatively few operating-system patents it has. Many of the whiners overlook what is significant about this deal. For the first time, one of these patent agreements also covers individual open-source developers.
A lot of people are saying Novell is paying "royalties" to Microsoft. Microsoft is paying Novell $108 million for Novell's patents, and Novell is paying Microsoft $40 million for Microsoft's patents. Or if you can do simple math, Microsoft is paying Novell $68 million for the patent agreement and then hundreds of millions more for Novell Suse Linux licenses and marketing expenses. Novell definitely came out on top here.
While the devil will be in the details, this deal is a good thing, and Red Hat should also do a similar deal with Microsoft. The interoperability commitment and bilateral patent protection is a good thing for customers that run Linux and Windows (every large technology customer). The patent protection is a good thing for open-source developers that extend the open-source projects covered under the agreements, since they now get more protection than they had before.
And I predict that this announcement has already forced every other major software company (BEA Systems, IBM, Oracle, SAP and others) to now consider similar deals to offer customers and developers some form of patent protection and indemnification. They have to do something, or the competitors that move first will take business away from them. Whether they announce these deals in public news conferences or offer similar protections quietly in the background to their customers, they'll have to do something.
Linux has won, and it's time to let the next phase begin. The days of kumbaya, where vendors are locked arm in arm singing open-source love songs to "grow the market" through co-opetition are over.
The software business is a ruthless business. Linux is now so important that technology vendors are fighting for competitive advantage over their peers. It's ugly. It's competition. And it's good for customers.
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In a similar case, SCO tried and failed. Last Friday, a Utah judge asked for evidence. SCO could not deliver. As a result, the SCO shares dropped and its value went from $400 million to $26 million in a few hours.
When Steve Ballmer will be able to prove there are MS patents into the Linux kernel, we will eventually believe his claim. In the meantime, MS is playing with fire. And it might burn its fingers.
MS may have some specific patents in mind when Steve Balmer made his claim or he may have only spoken on the assumption that a patent violation could be found if they looked long and hard.
The fact is that Microsoft probably does have a lot of patents that they could sue Linux over. Those patents may or may not be valid, but a lawsuit from Microsoft is going to hurt Linux a lot more than it's going to hurt Microsoft.
I know of at least two local business that stopped it's server migration to Linux when SCO started suing. I also know that one of them is now looking at Suse because of the Microsoft/Novell agreement. The fact is that a lot of business do think about their own liability when using software especially after the SCO fiasco.
It's pretty obvious that KDE has a "Start" menu that borrows heavily from Microsoft's Start menu. Gnome is a little different, but still very similar. Now, if Microsoft tried to sue the KDE devs about it, the KDE people could came that Microsoft's patent is invalid because it's too obvious, or that someone else had invented it before Microsoft.
There's also the concept of the taskbar. I don't know if there was any operating system that had one which predates Windows. I know that Macintosh didn't. If you couldn't see the open window, the program wasn't running. Microsoft probably holds a patent on that.
Assuming that Microsoft does have a patent on the Start menu and taskbar, it's pretty clear that, until invalidated, KDE and Gnome are infringing on those patents. Would the courts uphold it? Who knows... let's just hope it doesn't come to that, because Microsoft's got a much better legal team.
These are just a couple of probably hundreds of things that Microsoft could have patents on. Sure, they seem pretty standard/obvious today, but that really doesn't matter much in the patent world.
Hint: Suppose Microsoft has several patents of questionable validity. If they Sue, the defendant has to pay for their lawyers and also take the time to disprove the patent claimed by Microsoft.
Microsoft wins because 1) They have deeper pockets. 2) FUD is created and with FUD, comes perceived risk.
The microsoft / novell deal does two things.
1) It mitigates the risk and threats posed by Microsoft.
2) It give Microsoft time to compete. As well as it gives them time to spin this for positive PR in their current Anti-trust lawsuits here and in the EU.
Its a win/win situation.
Linux infringes on more than a few of Microsoft's patents that I can think of - the FAT filesystem is a good start (http://news.com.com/Microsofts+file+system+patent+upheld/2100-1012_3-6025447.html), as well as the NTFS filesystem ones. There's probably a bunch of GUI stuff in KDE/Gnome that could be legally infringing as well. Remember, you're dealing with companies that have thousands of patents on what is generally the most intuitive way to implement things so the idea that there would be no infringement is fairly remote.
The real danger is that patented code is incompatible with the GPL. If *any* of the core system of Linux is covered by patents owned by companies not willing to release full public royalty free rights then the GPL itself prevents you from redistribution - even if you get a limited license from the patent holder.
http://www.os2world.com/cgi-bin/news/viewnews.cgi?category=2&id=1165009111
For one Novell has applied its own patents to Linux.. So have HP and IBM.
Also speaking of maybe stepping on patent toes! I am sure MS violates Novell Patents (When it comes to directory services, volume management and several other things) And IBM (SMB and a few other things) HP etc. I am positive all the companies listed above have some patent violations on each other!
I don't have a problem when two companies have a cooperation deal, like you say it is standard business. But as been shown over the last weeks since the deal was announced, Novell looks at this as a standard deal, MS does not.
That is the problem.. :-(
Per Ballmer?s words, MS is looking for Linux companies to pay them license fees for patents they have not even proven are being violated.
They are hoping to pull off the SCO tactic of getting people to pay for something they have not proven they own and also scare off future potential Linux customers.
Microsoft could care less about interoperability! They only care about future growth.
But the man-behind-the-curtain scenario that you fail to spot, even though you are looking right at it, is that while you claim (in your title) that Microsoft has the upper hand in IP, you state the fact that they paid more to Novell than they received from Novell.
If Microsoft has patents, and "Linux" has none (assuming here that "Linux" refers to Novell), why did Microsoft sell out there own shareholders to pay Novell more money than they received from Novell?
It sounds to me that you've been at the Darl McBride School of Spin.
If this claim had any validity, open source would never have taken off in just a few years to the point that the monopolist Microsoft would feel the need to "reach out" to it. After all, Microsoft is doing this for _their_ bottom line. The claim is not just nonsense, it also allows the author to praise a deal that has divided the "open source" community.(1)
The self-serving part of the nonsensical claim is that the MS/Novell "partnership" inevitably opposes the new version v3 of an essential software license, the GPL. GPLv3 is not _inherently_ bad for the author's business, but the author is anti-GPL enough so as to agree with the poison(2) dispensed by Daniel Lyons(3). (Learn more about Lyons to find out about corporate anti-Linux spin-doctoring to ridiculous proportions.) Why couldn't the author just lay his anti-GPLv3 card on the table in this article? The answer is then he would not be able to so easily gush about how "customers win", etc.
(1) http://techp.org/petition/show/1
(2) http://floatingpoint.wordpress.com/2006/10/16/an-open-source-ceo-on-the-gplv3/
(3) http://www.thejemreport.com/mambo/content/view/174
The analogy "like a fish flopping about" is a bit more precise...
It occurs to me that if the US would just do away with patents on software we would all have less to talk about. :)
The fact that Unix came first should give Linux a leg up on MS plus if Unix was given over to the public domain it would invalidate a heck of a lot of MS patents as either obviouse since Unix came first, or flat out already been done.
I'm sure you can patent a thousand variations of code to do the same task. "Be an operating system" but you can't change that Windows is an OS and as such stands on the shoulders of other OS's that came first and probably violates all those patents.
But again, even assuming that OSes were first invented in 1966 (they weren't, they are even older) any basic patents on them would've expired in 1981. Another reason you don't find any patents on those basic OS concepts is that software patents weren't allowed back then though they are now old enough that some of the first software patents that were allowed have expired (like the Unisys patent on GIF files).
Linux didn't evolve from Unix, it was adopted by a group seeking to make a publicly available clone of Unix back when Unix was a hot property and it's owners were charging huge premiums for their versions of it. It started as a "poor man's Unix" and has developed into something quite remarkable.
I think if you study the Sony vs Bleem case you will find this is true.
I will see if I can find the link.
Since this is an excepted legal practice and Microsoft is very tight with releasing their source code, how can this not be Reverse Engineering.
When companies tried to sue Emulator companies for copying their systems the judges would get upset because they did it through Reverse Engineering.
How does that not apply with Microsoft doing it. Sony lost and they have deep pockets as well.
Linux companies need to make sure they use the proper defense when they fight this. If they bring up their own patents the fight will be harder.
The emulators copy the entire look and feel of the original. Yet they are legal. They were made to look like and run the original programs but have none of the code so they are not the same.
Don't blindly accept that the agreement you agree to is binding. As the saying goes "you can't sign away laws and your rights by an agreement".
Apple says you can't install the Apple OS on anything but Apple hardware. Not true and they lost this fight in court. They just like to pretend they didn't.
First, the title itself "Microsoft has OS patents; Linux has none" shows a great misunderstanding of what Linux is. A 30 second Google search would reveal that there are countless organizations and corporations supporting Linux with patent pledges etc. Linux itself is not a legal entity and as such cannot hold patents. Not a good way to start.
Then there is: "It reveals that many open-source backers fundamentally don't understand the software business. When vendors compete, customers win". This is a very misleading and insulting statement. Everyone on the planet and their grandmother understands that competition is good. The Novell/Microsoft deal is about cooperation (on IP), and not competition. On top of that, anyone who runs a business for longer than 5 minutes understands that shareholders are the number one priority for _any_ business, not customers. So your statement should have read --> "When vendors cooperate (on IP), shareholders win." Then, and only then, the first part of your statement would make sense.
Your whole example of forking NetBeans code from Sun is ill-conceived since NetBeans (as most things from Sun - until recently) has been licenced under CDDL. It means one cannot modify it and distribute it. What you describe is illegal. So Microsoft can come and litigate you for years about their patent claims, but Sun could shut you down in a matter of weeks (if not days). This kind of an example is completely irrelevant to the Novell agreement.
Next, there is your "polite company in the software industry" comment .. did you not mention a few paragraphs above about the mutual-destruction thing? First you claim they keep quiet out of fear now because they are polite? Which one is it? Maybe they are politely afraid or are you just trying to confuse your readers?
"I'm not claiming that Linux violates any specific multiple-processor patent for Microsoft, but the odds are pretty much 100 percent" .. so you're not claiming it yet it's 100% certain. Hmm. Yes, readers are idiots.
The sentence "Should they indemnify everyone who downloads and extends the Linux kernel from Novell from all of its patents?" shows you have no understanding of the terms of license (GPLv2) under which Novell is allowed to distribute the Linux kernel. There is a reason why Microsoft offered a covenant to Novell's customers, and not Novell.
Your complete lack of understanding of the terms of license (GPLv2) is also shown in the example you try to give about "Red Hat could start getting the Linux kernel from Novell". You are coming up with examples which would not even be conceivable. What you describe would be illegal under the terms of license under which Novell distributes Linux kernel.
Your statement "Novell definitely came out on top here." almost seems naive. As if you?re unfamiliar with the companies involved and their tactics. Do you honestly believe Microsoft came into this unprepared and were caught with their pants down by Novell? Does that have any basis in history?
You keep taking about "bilateral patent protection" between the two companies, where in fact none exists according to both sides. It was only a covenant not to sue to each other's customers, and not some "bilateral patent protection". Because going back to this License deal, if in fact it is a "bilateral patent protection" then Novell is violation the license under which it has the right to distribute Linux. Which in turn means Microsoft bought a bunch of worthless vouchers? Again, you seem to be very naïve about Microsoft.
"The patent protection is a good thing for open-source developers" - That's such an over-reaching misleading statement. Newsflash: the pledge only applies to unpaid OpenSUSE volunteers, not open-source developers in general. Please attempt to understand how open-source development process works and where OpenSUSE developers come into play and then re-think whether this pledge is a good thing.
Yet another profound misunderstanding of the open-source model can be seen in your comment "I predict that this announcement has already forced every other major software company to now consider similar deals to offer customers and developers some form of patent protection and indemnification." So you're suggesting a flat Microsoft tax on all software development? Are you OK, man? Any Linux distribution consists of blood and sweat of many many unpaid volunteers. Your suggestion that any work I do on my own time should be assumed to be violation Microsoft Patents and therefore requiring an upfront payment is very insulting.
"The days of kumbaya, where vendors are locked arm in arm singing open-source love songs to "grow the market" through co-opetition are over" - I thought this is the jest of the Microsoft/Novell deal? Cooperation, love, protection, peace, etc? No? I?m not sure what?s the need for all these misleading statements.
And last but not least there is "It's ugly. It's competition. And it's good for customers." I think you got the ugly part, and I think we established that customers are not benefiting from this .. so yes, it's ugly, it's business. And it's good for the shareholders.
Overall, god, what an awful article. Full of misinformation, overstatements, ill-conceived examples, insults, and just plain ignorance. The scary part is that it really represents a view of may so called "leaders" and people of power. Very scary.
every Operating System vendor. One could also
ask why it is that only Linux of all the general
purpose OSes - apart from NetBSD and OpenBSD -
happens to run on practically all the hardware
platforms when nearly all the proprietary ones
only run on on or at the most, two.
Could it be that lacking software patents, they
are free to simply get on with the job?
One might also make an analogy with cosmetic
surgeons and emergency medical teams - cosmetic
surgeons have - and need - vast legal backup and
their victims' approval at each appropriate
stage. Emergency medical teams tend not to -
they just get on with the job.
Now which would you prefer to have deal with an
emergency tracheotomy? an emergency trepanning,
to relieve a blood clot's otherwise fatal
pressure on the brain? an emergency
appendectomy?
Think on it.
[quote]
When vendors compete, customers win.
[/quote]
Can you please explain how a cross patent deal is competition between vendors?
If you think this deal is good for anybody except Microsoft then you are a fool, because you are giving a public opinion having very obviously not read (or not understood) the deal.
This article reveals how little the software business understands about software programmers - their life blood.
Good coders do not do it for money (although that is a nice benefit) - you cannot make someone do something they do not enjoy just for the money and expect them to turn out quality code. This is Microsoft's greatest problem and the free software community's greatest asset.
Great programmers do it for the love of it and get rewarded hansomely for their passion (either by their peers or financially).
The software business is driving the talented people out by effectively saying "You can do what you love to do - but *only* for us."
By using software patents and having this weird US corporate view that success is measured by the number of your competitors you can kill (rather than the quality of your product), the mainstream US software industry is on a path to self destruction.
You state that the software industry is 'ruthless' as if this is a good thing. Would you like your neighbours to be ruthless?
How yould you feel if they bulldozed your house because you painted it the same combination of colours as theirs - only they *thought* of it first?
I have yet to meet an MBA who wasn't a blubbering idiot.
Easy degrees attract lazy, dumbasses.
There are many hundreds of innovative Linux distros out there, many for special needs like multimedia, education, terminals, vertical market application and many of these like mine are created by volunteers who don't receive any real recompense for their efforts, only the satisfaction of a job well done and the joys of positive feedback.
Under your good for big business system, how do all these hundreds of distro producers who have no real money, pay for such an agreement with MS?
I see no way Hosay. We'll have to stay freebooters as we were before, but now courtesy of Novell's agreement about Linux, we can be sued by an anti altruist monopololy as pirates as well.
Man, they must hand that title out on a whim nowadays... for two big fat reasons:
1st off, IBM has handed over large numbers of its own patents specifically as contributions to the Open Source movement... CNET itself has a pile of references to this in its own archives (starting with this one ferinstance; the rest are easy enough to find: http://news.com.com/IBM+offers+500+patents+for+open-source+use/2100-7344_3-5524680.html )
2nd off, present or no, [i]patents are a red herring argument in the first place[/i]. You don't need patents to innovate, since you would --by default-- establish prior art with your product. This is true even if some other company decides to patent your idea later on... which in turn would make said patent invalid for enforcement - against anyone, since all others would merely point to the prior art.
Geez - can you do us a favor and make sure that whoever writes opinions for you in the future actually knows *** they're talking about?
Thx in advance,
/P
Linux deliberately has no patents for the simple reason the Linux manifesto clearly declares Linux as a public project where NO BODY should make $$$ out of any royalties whatsoever.
Linux has a totally different business model buddy!
Besides, in theory if cars were made like Windows, especially the brakes, we would see a lot more crashes and fatalities. While Linux, albeit not 100% perfect was designed so people can enhance and fix on it.
Linux may not have as many self-serving standards like Windows (like the standard where Windows has a 2-decade old feature of Crash-n-burn), but it surely has a following.
I wonder if the BSOD is patented too? I only see that screen on my Windows box.
If Windows was so great how come none of the life-support systems run it? How come it had to be a proprietary or a well-unknown OS to run it?
It seems that when something is Patented, it does not encourage innovation. Patents encourage royalties and segregation.
I'm glad that I chose Linux, using Ubuntu distro. I'm new at it, and I'm having less problems with it than Windows.
BTW: If a trucker can understand Linux, then Windows is a patented no-brainer TOY operating system full of patentents including patent #666,FFF for the Positive Crash And Burn Protocol to give jobs to the techies.
First, you can't prove that "if cars were made like Windows, especially the brakes, we would see a lot more crashes and fatalities", so that's simply just a childish assumption. Using your own words (thus taking the dangerous risk of sounding ignorant), Linux, as you say, it's not 100% perfect (quite far from it) and "was designed so people can enhance and fix it", but it seems those people haven't been able to develope a good UI and make it more user-friendly and compatible.
The probability of an OS "crashing-n-burning" is directly proportional with the amount of software developed for and used on it, so it's perfectly normal (for any unbiased person, that is) that Windows "crashes-n-burns" more usually than Linux (which does too, in case you don't know). I mean it's hard to make an OS crash when you barely have software that runs on it, isn't it? Anyway, you can try to just plug in hardware without installing the appropriate Linux drivers for it (if you find them and if they exist) and you'll have lots of fun.
You see the BSOD on your Windows box? Then either you're using an old version of Windows or you simply don't know how to work with a Windows machine, because my XP never gives me that. Either way, of course you don't see that screen in Linux: Linux simply crashes, it doesn't explain you the reason it did like Windows.
If you would know anything about what you're ignorantly talking about (which one can very easily see you don't), that is, if you'd know anything about Operative Systems, you'd know that "none of the life-support systems run it" because Windows (that is, *the commercial versions of it*) is not an OS developed for critical real-time applications (that's not a "deficiency", it's a characteristic consequence of its purpose); only recently Microsoft entered that market, with Windows Server Cluster Edition. Now let *me* ask you something: if Linux is so great as you say, how come only 0.37% of people use it (http://marketshare.hitslink.com/report.aspx?qprid=2)?
What it seems to me is that, for some people, when something os pstented, it's immediately something bad (provided we're not talking about Apple, of course). Patents encourage respect and fairness.
I'm glad to myself that I chose and choose Windows, and I'll be upgrading to Vista. And if you want to have more problems with it than with Windows just try to do something simple like calibrating your microphone for Skype.
BTW: If one is unbiased and realistic regarding Windows (thus Microsoft), then Linux is useless desktop Operative System for people who don't know how to work with a Windows machine and/or for those self-considered tech-savy's that like to spend a whole day calibrating a mic or finding software that works in their OS.
They can't accept anything they don't own. That is why they bundle other people ideas in Windows to take the market of the originators. The problem with Linux for them is that they can't touch GPLed code, so they are simply trying to aquire it in a different way.
Please save us from the Microsoft is doing the righ thing attitude. It's like trusting an alcoholic in a public bar.
You can't trust Microsoft, that should be evident from anyone who has followed their history.
- Industrial-class operating system?
- by chuck_whealton December 9, 2006 10:35 AM PST
- Windows is an "industrial-class operating system"? You're kidding, right?
- Like this Reply to this comment
-
(61 Comments)I absolutely agree that Windows based operating systems have their place and there are a lot of good things about it.
However, for the time being, I'm going to stick with UNIX or VMS if I want industrial class.
I'm not saying that won't change in the future, but I'm sorry... I don't agree with the "industrial-class" designation at this time.
Charles R. Whealton
Charles Whealton @ pleasedontspam.com