Microsoft has divided opinion in the open-source world for years with its love/mostly hate relationship with open source. While the company has seemingly warmed up to open source in the past two years, its continued patent club has hung over projects like Linux. On Monday Microsoft sheathed the club for the open-source Mono project, but arguably needs to go much further to justify celebrations.
Mono was open source, in other words, but only usable for a select class of developer.
It therefore surprised some when Canonical, the company behind the Ubuntu Linux distribution and an ardent opponent of software patents, decided to include Mono in its standard distribution. The company publicly defended its decision and, in my opinion, was right to do so. It's simply a matter of pragmatism, as John Mark Walker points out because "if we ditched all free software for possible patent violations, we'd have nothing left."
Now Microsoft has ostensibly made everything easier for Ubuntu and the rest of the Mono-using world, by pledging not to assert its patents against Mono developers, distributors, and users (i.e., those that implement C# and CLI, ECMA specifications 334 and 335, as Mono does).
While Mon's chief developer Miguel de Icaza celebrated Microsoft's decision ("I am overflowing with joy right now"), Dana Blankenhorn asks if Microsoft's Mono moment will end up fracturing the open-source movement (or, at least, the Free Software Foundation and Ubuntu). Meanwhile, Sean Michael Kerner queries whether Mono will benefit from Microsoft's promise not to be Microsoft and threaten the world with patent-infringement suits.
Ultimately, however, the real question is, "Who cares?" As IBM's Bob Sutor, vice president of Linux and Open Source, suggests, Mono is small change compared to Linux:
With Microsoft making promises about Mono, they should pledge that they will not assert their necessary patents against the Linux kernel.
Bingo. Mono is small change. Linux is big money. If Microsoft can overcome its allergic reaction to Linux, we might actually be making progress.
Microsoft's Mono decision is an example of Microsoft discovering it needn't squash the small child it has already invited to play in its sandbox. Extending its "Community Promise" to Linux would demonstrate that the company is committed to joining the 21st Century and competing on the basis of its technical merits against Linux, rather than its patent portfolio.
The U.S. patent system being as messy as it is, it's certain that Linux violates Microsoft patents...just as it's certain Microsoft violates Linux-related patents held by IBM and other Linux proponents. It's time to call a cease-fire and get back to delivering value, not intellectual property promises and threats, to customers.
Update 9:17 a.m. PDT: I inadvertently conflated Microsoft's Community Promise to extending to Mono, rather than the ECMA standards 334 and 335.
Carlo Daffara, an open-source consultant, rightly notes that Microsoft's patent promise is not directly on Mono, but rather on these ECMA standards, which leaves "most of Mono...encumbered as before (WinForms, ADO.NET, ...)."
Mono founder Miguel de Icaza recognizes this and plans to deal with it:
Astute readers will point out that Mono contains much more than the ECMA standards, and they will be correct. In the next few months we will be working towards splitting the jumbo Mono source code that includes ECMA + A lot more into two separate source code distributions. One will be ECMA, the other will contain our implementation of ASP.NET, ADO.NET, Winforms and others.
It's a useful distinction, but doesn't detract from the original premise (if anything, it amplifies it): Microsoft has taken baby steps toward competing with open-source projects like Mono and Linux on technical merit, but it needs to do far more. Granting its "Promise" to Linux would be a big step in the right direction.
Follow me on Twitter @mjasay.
The more that Microsoft's patent lawsuit against (and subsequent settlement with) TomTom simmers in my consciousness, the more I want to boil.
I gave Microsoft the benefit of the doubt early on: I know a few of the Microsoft personnel involved in the case, and I think that they're wonderful people of integrity and intelligence.
They're also fiercely competitive, and it's becoming apparent to me that the TomTom lawsuit was designed to bludgeon one of Microsoft's biggest competitors, Linux; it was not any serious attempt to protect its intellectual property.
The Linux Foundation's Jim Zemlin captures my sentiments well:
In the last several days, Microsoft has shown that despite claims of acquiring a newly found respect for open principles and technology, developers should be cautious in believing promises made by this "new" Microsoft.
When it counts, it appears that Microsoft still actively seeks to undermine those technologies or standards that are truly open, especially when those technologies pose a significant threat to (its) business.
Microsoft can rightly complain that it's a prisoner of the same patent system that it wields as a cudgel. But I don't believe in using the legal system to give someone--anyone--the edge in a product-driven marketplace. If Microsoft has to compete with lawyers against Linux instead of with product line managers, it should simply pay out a massive dividend and close up shop.
Microsoft is a better company than this. Unfortunately, its recurring rash of legal cunning against open source is getting stale. I want to believe that Microsoft can change. As Zemlin suggests, however, perhaps this leopard really can't change its spots.
Microsoft is asking the world to judge it by its actions. That's what we're doing, and Microsoft loses that case.
Follow me on Twitter @mjasay.
Microsoft and TomTom have settled their patent dispute, including claims related to the FAT file system and Linux. But the rest of the open-source world, which could be affected, isn't ready to lie down and accept Linux's possibly besmirched reputation.
Red Hat, for its part, declares that "without a judicial decision, the settlement does not demonstrate that the claims of Microsoft were valid." And Pamela Jones of Groklaw, a highly influential open-source legal blog, deprecates Microsoft's claims ("What? You thought Microsoft's spin on things was always gospel?"), citing the Software Freedom Law Center's commitment to sticking up for Linux, even if TomTom quickly caved.
The settlement neither implies that Microsoft patents are valid nor that TomTom's products were or are infringing...The FAT file system patents on which Microsoft sued are now, and have always been, invalid patents, in our professional opinion.
SFLC remains committed to protecting the interests of our clients and the community. We will act forcefully to protect all users and developers of free software against further intimidation or interference from these patents.
SFLC, working with the Open Invention Network and the Linux Foundation, is pleased to participate in a coordinated, carefully graduated response on behalf of all the community's members to ongoing anticompetitive Microsoft conduct. We believe in strength through unity, and we think our community's unity in the face of these threats has helped to bring about Microsoft's quick settlement on all issues with TomTom.
This is good news because I admit I read the settlement as an implication that TomTom caved. As ZDNet's Larry Dignan suggests, however, "the settlement doesn't seem to answer a lot." For Microsoft, this may well be a good thing: FUD (fear, uncertainty, and doubt) is as good as a court judgment against Linux.
This was Microsoft's tactic in its Novell patent deal. Every press release about interoperability included verbiage about patents and Linux. I talked with Novell's press team repeatedly during this time and was always told, "Microsoft insisted on including that language. We wanted to focus on interoperability, which is what customers actually care about."
Microsoft may or may not have been trying to sully Linux's reputation with the TomTom lawsuit, and this settlement doesn't clarify things at all. Fortunately, the SFLC is on the case. It's a more than ample counterbalance to Microsoft's worst intentions.
Follow me on Twitter at mjasay.
In technology, the best indication that you've "arrived" as a company is when you get hit by a patent infringement suit. By this measure, Red Hat, which was just hit by a patent-infringement suit from little-known Software Tree, is ready to join an elite circle of premier software vendors like IBM, Microsoft, and HP, each of which spends a lot of time and money defending against patent lawsuits.
Congratulations, Red Hat. Doesn't it feel great?
This isn't, of course, the first lawsuit that Red Hat has faced. Firestar, IP Innovation, and DataTern have also launched lawsuits against Red Hat, at least two of which have been settled. Red Hat, to its credit, resolved these patent suits in favor of the broader open-source community, though Sun later went one step further and invalidated the patents.
To its detriment, Red Hat is now a big enough and important enough company to have patent infringement lawsuits become part of its daily existence.
This is the second time that Red Hat's JBoss Hibernate technology has been hit with a patent-infringement suit. However, it's telling that neither FireStar (the first plaintiff) nor Software Tree (the second) filed against JBoss, though the same allegedly infringing code would have been extant prior to the Red Hat acquisition.
Why bother with JBoss? There's much more money in the Red Hat till.
Savio Rodrigues points out that Software Tree doesn't appear to be a garden-variety patent troll. It has a real business. It's ironic, however, that this business wasn't too concerned with JBoss until Red Hat's deeper pockets backed it.
Funny, that.
Welcome to the patent defense club, Red Hat. Get used to the new norm of fending off lawsuits from patent trolls and insignificant software companies with nothing to lose and everything to gain.
Even so, as Microsoft and others regularly besieged by patent-infringement lawsuits will tell you, it's better to be big and targeted than small and ignored.
Follow me on Twitter at mjasay.
There are lots of reasons to believe that Microsoft isn't going after open source with its TomTom patent infringement suit and, as Rob Enderle points out, TomTom can hardly afford to defend itself, anyway:
TomTom, which hasn't exactly been an open source poster child, has a problem....Tom Tom really doesn't have the resources to defend against an IP infringement attack during what is likely to be an ugly revenue year. It recently warned that it probably won't be able to repay creditors -- it took a 989 million euro fourth-quarter loss -- and doesn't appear to have the money to pay anyone at the moment. (How it will rigorously defend itself against Microsoft with no money will be interesting to watch).
As Enderle points out, TomTom could be using the vociferous (and often anti-Microsoft) open-source community to fight a public relations battle for it, so that it won't have to engage in costly litigation. It won't work. The open-source community is smart enough to not allow itself to be someone else's pawn.
Ultimately, Microsoft is suing because it believes TomTom violates its patents, with the primary concern being TomTom's GPS patents, not those related to Linux. It's probably time for the open-source world to acknowledge that Microsoft has other priorities that don't involve killing open source, however much that may be part of some Microsoft veterans' strategic vision.
Follow me on Twitter at mjasay.
Last week, Microsoft promoted Horacio Gutierrez, formerly vice president of intellectual property, to corporate vice president. This week, Gutierrez polished his new business cards and sent them TomTom's way, with a patent infringement lawsuit.
As CNET News' Ina Fried reports, Microsoft on Wednesday launched a patent infringement lawsuit against TomTom, maker of GPS systems. TomTom, for its part, summarily rejects the claims and says it will "vigorously defend" itself. Lawsuits are filed all the time, but this one is of particular interest to the open-source community because it includes three claims of patent infringement related to Linux file management technologies.
Glyn Moody wonders whether Microsoft has taken the first step in an all-out patent offensive against Linux. After talking with Gutierrez earlier this week, I highly doubt that.
As Gutierrez told CNET News, Microsoft's lawsuit is very specific to how TomTom uses the Linux kernel: "(It's the) TomTom implementation of the Linux kernel that infringes these claims. There are many flavors of Linux (and) many implementations of the Linux kernel. Cases such as these are very fact-specific."
This hardly sounds like a sneaky launch of the spiffy new patent product line at Microsoft. It sounds more like what Gutierrez claims it is: "This is just a normal course-of-business dispute between two companies. (Linux) is not the focal point of the action." Ironically, it could have been obviated had Microsoft bought TomTom back in 2006, as it was then rumored to be interesting in doing.
For all the bluster in the open-source press right now, it's important to keep in mind that TomTom has been battling patent lawsuits for years, some of which may relate to its use of Linux. In 2005, its CEO said at the ICT2008 conference that TomTom spent more that year on patent litigation than on anything else combined. Microsoft's eight-part lawsuit is par for the TomTom course, it would seem.
This speaks ill of the patent minefield that awaits any technology company, a problem called out recently by Red Hat associate general counsel Rob Tiller. But it doesn't necessarily mean that Microsoft has declared war on Linux.
For Microsoft to do that credibly, it would have to go where Linux is strongest and has the highest earning potential: servers. There, Microsoft will encounter IBM and others with bigger patent portfolios than its own. Microsoft has shown little appetite for that fight.
It's also important to remember, as TechFlash reminds us, that Microsoft has never been a litigious company. While I despise the FUD that Microsoft has promulgated around open source and Linux, specifically, over the past few years, the reality is that Microsoft has sued only three times in its company history over patent claims.
This is not Microsoft's opening salvo in a war against open source. That "war" has been ongoing for years, has taken many forms, and seems to want to change open source's $0.00 price tag to something higher. Something, in other words, with which Microsoft can compete.
Even so, I think that Microsoft has resigned itself to coexistence with open source, even if it's not always a peaceful coexistence. On the same day that Microsoft announced the TomTom lawsuit, Microsoft Windows chief Bob Muglia also acknowledged that eventually, "almost all our product(s) will have open source in (them)." Microsoft has taken a reality check, and open source is part of reality.
But part of that reality will absolutely be infringement of Microsoft's patents, and Microsoft's own violation of Linux-related patents (held by IBM, Hewlett-Packard, and others). That's the patent minefield in which the software industry operates.
It's not a system I like, but let's not get carried away. The GPS community doesn't seem to be wringing its hands over the fact that most of the claims in Microsoft's case relate to TomTom's alleged infringement of Microsoft's GPS technologies.
Maybe we, in the open-source world, need to settle down a little. We have an allergic reaction to patent infringement suits--and for good reason--but one company-specific lawsuit does not a war campaign make.
This TomTom suit, in other words, may well be the opening shot in a broader battle, but for now, it's the action of a sniper, not a broad fusillade.
In some ways, we should be grateful for how Microsoft has carried itself in this TomTom infringement claim. There are no broad pronouncements of Linux violations, as in the past. There are no white papers being circulated, decrying open source as anti-American and cancerous. There is just a reasoned, FUD-free patent infringement claim.
It may turn out to be specious, but it's very welcome to see it made without the sound and fury of past Microsoft public pronouncements about open source.
Follow me on Twitter at mjasay.
Techdirt goes into depth on ex-Microsoft executive Nathan Myhrvold's Intellectual Ventures, adding a slew of new reasons to consider the patent-hoarding company the ultimate in creepiness. Intellectual Ventures is out on the fund-raising trail (again - it just raised $1 billion in late 2007), despite the fact that it appears to have demonstrated little ability to generate cash for anyone other than Myhrvold, even despite his amassed 20,000 patents.
I'm not a fan of any patent troll, but the manner in which Intellectual Ventures spends and raises money takes the practice to new lows. Indeed, the Seattle Post-Intelligencer says it's not unreasonable to label Intellectual Ventures as a "giant pyramid scheme and a protection racket". Techdirt explains:
Another oddity is the vast amount of secrecy surrounding Intellectual Ventures. Anyone who sells a patent to the company or who licenses patents from the company are required to sign extensive non-disclosure agreements. When asked why, Myhrvold skirts the question by claiming many companies don't want to reveal what they're doing with IV. If that's true, though, why do they need NDAs in the first place? The company also uses an array of secret shell companies to go around buying patents, again raising questions about what it's doing. If the company is really so proud of its business model and doesn't think it's shameful, why is it hiding behind shell companies like garden variety patent hoarders. But, as we've learned, patent hoarders very much rely on secrecy to convince others to pay up.
Cisco and others have coughed up hundreds of millions of dollars to Intellectual Ventures, and have taken some steps to try to combat the company and its ilk. It's a nice gesture, but Myhrvold and his investors apparently bring too much cash to the table, earning Intellectual Ventures the dubious distinction of being the world's largest patent troll.
Myhrvold, of course, begs to differ, claiming that he's all about getting a fair return on innovation. Whatever. Most companies that innovate sell products. Intellectual Ventures sells the fear that one's home-grown products may earn a lawsuit.
Myhrvold? Well, according to the Wall Street Journal, his primary argument seems to be "everyone is doing it." I don't find this argument persuasive when my kids use it. I'd find it even less so if I discovered they were organizing protection rackets on the playground. It's shameful.
Network Appliance just announced that it is suing Sun Microsystems for patent infringement related to Sun's ZFS technology. Dave Hitz, co-founder and executive vice president of NetApp, pinged me to notify me of the suit and referenced his blog. I'll be following up with Sun's position on the suit as soon as it becomes clear.
About 18 months ago, Sun's lawyers contacted NetApp with a list of patents they say we infringe, and requested that we pay them lots of money. We responded in two ways. First, we closely examined their list of patents. Second, we identified the patents in our portfolio that we believe Sun infringes.
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