MS: Linux Will Be Hounded Over IP For 4 to 5 Years

MS: Linux Will Be Hounded Over IP For 4 to 5 Years

By Pamela Jones
Groklaw

July 27, 2003

Ballmer and Gates just told us [ http://www.eweek.com/article2/0,3959,1203429,00.asp ] something that isn't a surprise, but it's a confirmation of what I've been saying for months, that SCO is just the opening shot. We can expect more attacks about IP issues. Here's Ballmer first:

"Can IBM give you a product roadmap for Linux? Can they deliver new features and fixes to Linux? Does it indemnify the intellectual property in Linux? No, no and no," he said.

And here's Gates:

"At a Q&A after Ballmer's address, Chairman and Chief Software Architect Bill Gates said that Linux is not covered by many of the cross-licensing agreements in the software industry, leaving an opening for new IP disputes. Linux is a form of Unix, not a new operating system environment, Gates said, and Microsoft products achieve a level of innovation beyond Unix's.

"'Our innovation reminds people that our operating system is not standing still,' Gates said. 'Over the next four or five years people will understand more about the intellectual property issues around open source software and Linux and that will address the open ended liability without indemnification for customers. There is going to be some friction around that side of the system.'"

Well, they don't get the power of Linux, once again, speaking of innovation, and he still thinks it's UNIX, but at least we know what to expect. "Innovation" from Microsoft.

They have laid out their battle plan, so we can now suit up. Here's what they mean by innovate in the software, as opposed to the legal, sphere, according to Gates: "We don't have to get into new products and develop new products, we just have to innovate and add value to those we have. "

So, what do you think? Will MS win the innovation contest with GNU/Linux using that strategy? Once again, they just don't get it. That seriously impairs their effectiveness, happily. Here is the one part Ballmer gets right, hence the panic: "The issue is whether software is a business of innovation and value or will it be commoditized?"

Here's the part MS doesn't get about the GPL. It provides companies with superior indemnification compared with any proprietary product. Anyone who receives GPL'd software, no matter how they got it, as binary, as source, both, or even if they just tripped over a CD of it on the street and took it home, has the following rights under the GPL [ http://www.gnu.org/philosophy/free-sw.html ]:

"Free software is a matter of the users' freedom to run, copy, distribute, study, change and improve the software. More precisely, it refers to four kinds of freedom, for the users of the software:

"The freedom to run the program, for any purpose (freedom 0).
"The freedom to study how the program works, and adapt it to your needs (freedom 1). Access to the source code is a precondition for this.
"The freedom to redistribute copies so you can help your neighbor (freedom 2).
"The freedom to improve the program, and release your improvements to the public, so that the whole community benefits freedom 3). Access to the source code is a precondition for this.

"A program is free software if users have all of these freedoms. Thus, you should be free to redistribute copies, either with or without modifications, either gratis or charging a fee for distribution, to anyone anywhere . Being free to do these things means (among other things) that you do not have to ask or pay for permission."

Those four freedoms are your indemnification.

Now, if there were ever a valid copyright or patent infringement claim, nothing can protect you from that. You must deal with the problem and excise any offending code, which is what the community has been asking SCO to make possible. Nobody wants their code, if it is truly theirs and truly infringing. But end users aren't liable with respect to copyright infringement in software they legitimately got, as Eben Moglen pointed out and we reported earlier:

"You don't need a copyright license from anybody to use any program. That's like saying you need a copyright license to read a newspaper ... if there's plagiarised material in the New York Times, that doesn't mean that people who buy the New York Times are liable."

To date SCO has not offered any legitimate proof. Legitimate proof would be identifying the code so it can be immediately removed. But that potential liability is true for Microsoft also, as the current InterTrust patent lawsuit against them testifies, which we reported yesterday. More here [ http://www.theregister.co.uk/content/4/22404.html ]. And don't forget the Timeline patent case, which Microsoft lost. Here [ http://www.tmln.com/press.htm ] is the memo Timeline, Inc. put out in February of this year, warning companies to analyze their "potential patent infringement(s)..." It sounds a lot like SCO's letter to its partners:

"Memorandum

"To:                 Interested Parties
"From:           Timeline, Inc
"Subject:     Timeline Patent Coverage
"Date:            February 2003

"Timeline[base ']s US Patent # 5,802,511; US Patent # 6,023,694; and US Patent # 6,026,392 (herein collectively the [OE]511 patents) have been termed pioneer patents in the design and use of data marts and data warehouses. Timeline has licensed the patents to Microsoft Corporation, Oracle Corporation, Lawson Software, Hyperion Solutions, Sagent Technology, Broadbase Information Systems (now part of Kana), Noetix, and Seagate (now Crystal Decisions) to provide coverage for their products in certain circumstances. Additionally, Timeline provides products which are embodiments of the [OE]511 patents under OEM agreements with many companies (including Microsoft).

"Timeline has also received patent coverage on all or a portion of the inventions covered by the [OE]511 patents in Australia, Israel, Mexico, and Singapore. Additional patents are pending within the same field in the U.S. and many other countries.

"This memorandum is intended to help third parties analyze potential patent infringement(s) as it relates to their own product offerings. It is Timeline[base ']s position that any party on notice of the existence of the [OE]511 patents has a legal duty to investigate and form a reasoned opinion on infringement. That is not Timeline[base ']s duty. And, if a party forms an opinion that there is infringement, then its duty is to procure a patent license, or modify its products to [base "]design around[per thou] an infringement, or cease any further use, license, maintenance, etc. of the product. Otherwise, the users, manufacturers, and distributors are subject to statutory claims for treble damages for willful infringement similar to those embodied in RICO, Anti-trust and Consumer Fraud statutes.

"The [OE]511 patents can apply to stand alone software products or combinations of software products. Of particular focus at this time are products used in conjunction with Microsoft SQL Server 7.0 or after. All Microsoft products stand-alone are licensed. But whether a combination of products infringes all the elements of a valid claim of a Timeline patent must be examined. If so, then whether the non-Microsoft code or product provides at least one of the material steps in such infringement must be determined. In that case, the step(s) provided by the third party product or code is not covered by Microsoft[base ']s license. The user, licensee, licensor, or manufacturer must secure its own license or stop any further use.

"Timeline takes the position that Microsoft Analyst Services databases built with Microsoft[base ']s tools (Manager) provide all necessary steps to infringe one or more of the independent claims of the [OE]511 patents. It would follow that third party products which provide the additional material feature or function covered by a dependant claim to one of those independent claims would cause a new infringement outside the scope of Microsoft[base ']s license. Microsoft does not concede that its products in fact infringe, nor was such a statement required under the Timeline patent license it procured. Also, not every user of SQL Server will use the allegedly infringing portions of SQL Server. However, that is now moot. A combination where all material steps are present, and at least one material step is performed by a third party, requires its own license; regardless of whether Microsoft itself provided sufficient steps to independently infringe a different claim.

"Timeline does not take the position that Microsoft SQL Server relational databases built using the basic DTS functionality necessarily infringe the [OE]511 patents. However, Timeline believes that third party code or products used in conjunction with DTS can easily expand DTS capabilities to cause an infringing combination.

"In the recent litigation Microsoft Corporation vs. Timeline, Inc., Microsoft attempted to get the courts to interpret its license to the Timeline patents such that any step performed by Microsoft products would be ignored in an infringement analysis of a combination of products used together. This would have required the court to throw out a specific limitation contained in the Timeline/Microsoft license on this point. Microsoft[base ']s efforts failed."

There is plenty more to the memo, but you get the idea. If you are a business using Microsoft SQL Server software, do you feel safe? Totally indemnified?

GNU/Linux and MS are on an even footing with respects to liability, except that GPL'd software gives you enhanced protection. Microsoft's battle plan is FUD, FUD, and more FUD. They want you to think that using their products will indemnify you. Actually, no. They want you to not think. Their plan depends on it. As Peggy Lee sang, "Is That All There Is?" It's just a crying shame, though, IMO, to use the legal system to achieve what is merely a PR/business goal.

3:19:27 PM