Open Source Fortune

Last month Fortune published an article entitled, “Microsoft Takes on the Free World,” in which Microsoft claimed that no less than 235 patents of theirs are being infringed by open source offerings. While it is not specific as to which patents are being violated it does state that almost half are by the Linux kernel and associated elements. The Fortune article was called a “patent assertion bombshell” by NetworkWorld and prompted BusinessWeek to write, “Now that the computer industry has its first accounting of how many patents Microsoft says are violated by open-source software, the question for many tech vendors is how aggressively the software giant will begin enforcement. And judging from the reaction in the blogosphere, the new disclosures inspire fear.” However, Bill Hilf, general manager of platform strategy and director of Microsoft’s work with open-source projects, said that the Fortune article misrepresented the company’s position. In an IDG NewsService interview he said, “The Fortune article makes it look like we are going out on this litigation path,” and, “That article spins it on the attack.”

Of course when it comes to Microsoft and Open Source, it does not take much to set things off, and whether or not the possible aggression is real or just perceived, the Fortune article has fanned the flames. Both sides are now digging trenches in preparation for what work out to be a pivotal point for the movement.

The roots of the scenario go back at least to November of last year when Microsoft and Novell teamed up for what was seen as an unprecedented arrangement. The partnership has Microsoft distributing and supporting, in a way, Novell’s Suse Linux platform; in return it agrees not to sue users of Suse for patent infringement. “Microsoft has promised not to file patent-rights lawsuits over any of its technology that’s blended with Suse Linux.” Though Fortune says the deal was, “met with apoplectic rage,” in free-software circles, the two companies positioned it in a positive light. Suse Linux would get the backing of a major player, concerns over patent infringement would be allayed, and therefore, Linux would become more popular in the enterprise. In addition interoperability, particularly in the server space, between Microsoft and open source offerings would be improved. However, skeptics feel that the deal opened the door for Microsoft to improperly leverage the relationship and perhaps sue other open source providers. Though Microsoft asserts that litigation is not its motivation its opponents are bracing themselves.

Meanwhile, Microsoft contends that all the talk of legal action is overblown, litigation is not the desired outcome. In an interview with IDG News Service Bill Hilf, said “Our strategy from everyone in the company … has always been to license and not litigate as it relates to our intellectual property.” ZDNet sites a Microsoft spokesman as stating, “If we wanted to go down that road we could have done that three years ago . . . Rather than litigate, Microsoft has spent the last three years building an intellectual property bridge that works for all parties–including open source–and the customer response has been tremendously positive. Our focus is on continuing to build bridges.” However, Microsoft may be avoiding litigation for another reason.

Jim Zemlin, executive director of the Linux Foundation, points out that, “The software maker is hesitant to instigate a patent war, as it has too much experience with the downside of such litigation. Just ask Microsoft about its MP3 patent dispute, in which a jury recently ordered the software maker to pay $1.5 billion to Alcatel-Lucent.” This belief leads Zemlin to call Microsoft’s actions “saber rattling.” Zemlin responded to the Fortune comments with an opinion piece in BusinessWeek. In that opinion he described Microsoft’s move as, “a rather bizarre public-relations campaign in which they alleged that Linux and Open Office may violate hundreds of the software maker’s patents.” As noted, Zemlin believes that Microsoft is hesitant to actually engage in litigation, he therefore thinks that the move is, more than anything, meant to slow the industry’s move to Linux. “Let’s face it: If you were making $1 billion a month, what would you do? Perhaps engage in rhetoric and hyperbole to generate some old-fashioned FUD (fear, uncertainty, and doubt)? Just looking at the numbers, it’s easy to see that even if the scare campaign merely delays a customer’s migration from Windows to Linux by a single day, Microsoft is $34 million dollars better off,” he writes.

Blogging for Wired, Mat Honan frames the standoff well, “This looks to be a big old fight that might not be settled anytime soon. It’s going to be a hot summer.”

A more complete version of this post, including links to market research, can be found at the website of Analyst Views Weekly.

More information on this topic can be found in the Linux & Open Source section of the Software, Computers & Services Market Intelligence Center.

And in the following articles:

Microsoft Would Lose Patent Rights under New Linux License Terms
InformationWeek, May 31, 2007
Microsoft would forego the patent rights it claims to hold over parts of the Linux operating system if it continues to make the open-source software available to customers through its partnership with Novell, according to a new draft of the open-source license published Thursday.

MS Sees No Conflict with Its Patent/Open Source Initiatives
PC Magazine, May 31, 2007
Microsoft does not believe there is an inherent contradiction between its recent statements that free and open-source software infringes on 235 of its patents, and the veiled legal threats that go along with that, and its attempts to reach out and build bridges with the open-source community.

Linux Users Ask for More
eWeek, May 30, 2007
Enterprise IT users are looking for the major Linux vendors to update their enterprise products less frequently and to give them much more guidance about what is included in the patches and upgrades. That was the message from users at the Open Source Business Conference here May 22, who spoke about the benefits and shortcomings of open-source technologies.

Firefox and the Anxiety of Growing Pains
New York Times, May 21, 2007
In 2004, with the release of version 1.0, Firefox became the dream of techies like Mr. Messina. Much in the way he helped coordinate supporters for Mr. Dean online, he got behind Spread Firefox, a campaign to rally the open-source base behind the browser. That effort culminated in a fund-raising drive to advertise Firefox in The New York Times. The ad, a double-page spread designed by Mr. Messina, ran on Dec. 16, 2004.

Microsoft Takes on the Free World
Fortune, May 14, 2007
Free software is great, and corporate America loves it. It’s often high-quality stuff that can be downloaded free off the Internet and then copied at will. It’s versatile – it can be customized to perform almost any large-scale computing task – and it’s blessedly crash-resistant.

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