| Microsoft vs. Linux: FUD or a warning shot? |
May 15, 2007
Is Microsoft's reviving of its patent threats against open source and Linux really something serious to worry over? Or is it a case of deja vu all over again and will Steve Ballmer's patent saber rattling come to nothing? Let's see what analysts and "experts" think.
Red Hat's IP (intellectual property) team, smelling smoke and fearing fire, stated: "Red Hat has led and continues to lead the open source industry in promoting innovation and making free and open source software easier to consume. This includes providing our clients the most comprehensive open source intellectual property protections through our Open Source Assurance program. Our confidence in our technology and protections for customers remains strong and has not wavered."
With that reassuring note for nervous customers out of the way, representatives of the leading Linux company also said, "The reality is that the community development approach of free and open source code represents a healthy development paradigm, which, when viewed from the perspective of pending lawsuits related to intellectual property, is at least as safe as proprietary software. We are also aware of no patent lawsuit against Linux. Ever. Anywhere."
One Wall Street insider, however, said he thinks the threat alone may be enough to damage the Raleigh, N.C., company. He said, "In the immediate term, this [Dell/Microsoft/Novell deal] has to further affect Red Hat unit pricing [as long as Dell can get more certificates at a comparable margin] and extend sales cycles, as customers have to do due diligence. Staying on the 'sales cycles' front, [Microsoft's] move today extends those further."
He continued, "My Red Hat management contacts tell me they're seeing no effect on either front -- but that's not what I'm hearing from the channel. One thing Red Hat has going for it is that the market's not a zero-sum game -- it's growing. But this patent infringement thing is going to freak out a lot of IT managers, which I can tell you from firsthand experience [equals] sales freeze."
Dan Kusnetzky, principal analyst at Kusnetzky Group, a technology research and marketing company, sees little for Linux to worry about on the legal front. "Microsoft, along with others, have used the tactic of using the media to 'go public' with intellectual property claims rather than using legal channels," Kusnetzky said. "This approach allows Microsoft to make a claim without having to provide the detailed proof litigation would require."
"In the abstract, this seems similar to the approach used by The SCO Group in its contract dispute with IBM, Novell, and its own customers [story]. SCO, however, chose to take the next step and actually engage the legal process. It can be observed that the process is both long and costly. SCO clearly has suffered due to its choice to litigate [story]. Microsoft appears to have watched this closely and has chosen a different approach," said Kusnetzky.
Why is Microsoft taking this path? Kusnetzky said he thinks there are three major reasons: - "Persuading end-user organizations to accept [Microsoft's] viewpoint and change directions without having to produce detailed proof. Microsoft is hoping to make the choice of open-source software seem dangerous and risky."
- "Preventing a customer backlash while still getting a controversial message out. Many large organizations have deployed Linux-based solutions; have started using Firefox or OpenOffice; and would take a dim view of Microsoft telling them that they're bad for having done that, that they have been stupid or something even worse, and should come running back to Microsoft, and that, if pushed, Microsoft could come to their offices with auditors and accountants taking names and asking for big fees."
"Microsoft's move could be viewed as a calculated risk. Some organizations would take this as further proof that Microsoft isn't a good partner and just might move more strongly in the direction of open-source software. Others would just pay up and go on."
- "Use the might and legal resources of a major multinational, multibillion-dollar company to scare small companies or open-source communities into changing directions without having to actually engage in a legal contest. After all, it doesn't cost much or take much time to present a press conference and send out a press release. If the small companies and open-source communities flinch, Microsoft has succeeded without a great deal of investment. Another point here is that courts are independent. It is possible that Microsoft could lose all or part of its case. Some of Microsoft's patents could be invalidated. Microsoft really doesn't want to risk that."
In the event Microsoft does show its patent cards and try to make a case against a Linux vendor, Linspire CEO Kevin Carmony said, "Yes, it would be ideal if Linux could do everything without ever needing to operate with patents and proprietary software, drivers and codecs, but as I have consistently said, that is simply not realistic technically or legally ... at least not today. Linspire has always been about choice, and I feel no differently about patents. As long as no one is pointing a gun to my head to use, or not use, any particular software or alleged software patent, then I believe having the freedom to choose what you want to install on your computer is a very good thing."
That isn't to say Linspire doesn't also favor fighting any such patent attack on Linux; it will. At the end of the day, though, if Linspire has to license patents from Microsoft to keep its distribution going, it will.
At least one attorney, Tom Carey, a partner at Boston law firm Bromberg & Sunstein and chairman of its business department, said he thinks this IP threat to Linux and open source might have some teeth to it. "While we all got a lot of amusement out of SCO's bumbling around in the dark on a botched breach of contract/copyright infringement action, the prospect of Microsoft suing for patent infringement is another matter altogether," Carey said. "Patent protection is often much stronger than copyright, and the complexity of sorting through all these patent claims will end up consuming many person-years."
"While Microsoft's current arguments [story] present a sense of deja vu, it is not really the same thing. The Fortune article is much more specific in its assertion that patent infringement is taking place," said Carey.
"The only question at the moment is, is this just FUD?," continued Carey. "That is, is Microsoft simply taking a low-budget way to promote its licensing strategy (don't sue, just grant interviews), or will they actually sue Red Hat, for example, or a major corporate user of Linux? If the lawsuit occurs, it will not be trivial, and it will definitely slow down the adoption of Linux."
-- Steven J. Vaughan-Nichols
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