Microsoft's Ballmer steps-up Linux infringement suit rhetoric

If users of Linux have any concerns about being the target of a Microsoft-sponsored patent infringement suit, then Microsoft's CEO Steve Ballmer apparently wants them to know that those concerns are justified.

According to ComputerWorld, during a Q&A session that followed the keynote speech he delivered to attendees at a Professional Association for SQL Server (PASS) conference in Seattle, he clearly stated his opinion that Linux uses Microsoft's intellectual property. He was non-specific though about what part of Linux. "Linux" is technically just the operating system kernel (while the larger package of software that often comes with it is referred to as GNU/Linux). But many people drop the "GNU" and refer to the whole kit and kaboodle as just "Linux."

ComputerWorld's Eric Lai reported:

A key element of the agreement now appears to be Novell's $40 million payment to Microsoft in exchange for the latter company's pledge not to sue SUSE Linux users over possible patent violations....."Novell pays us some money for the right to tell customers that anybody who uses SUSE Linux is appropriately covered" Ballmer said. This "is important to us, because [otherwise] we believe every Linux customer basically has an undisclosed balance-sheet liability."...he was adamant that Linux users, apart from those using SUSE, are taking advantage of Microsoft innovation, and that someone -- either Linux vendors or users -- would eventually have to pay up....."We are willing to do a deal with Red Hat and other Linux distributors." The deal with SUSE Linux "is not exclusive," Ballmer added.

Back to September 2004 when it signed its watershed stand-still agreement with Sun, Microsoft  CEO Steve Ballmer made it crystal clear that Microsoft comes from the school of respect when it comes to intellectual property. Said Ballmer during a press conference regarding that agreement:

It's an agreement that comes from two companies that believe in intellectual property, that develop intellectual property and that are respecting intellectual property.

By November of that year, a pattern was emerging. Back then I wrote:

Redmond has settled with no fewer than seven existing or potential litigants (and probably more that we don't know about) for a mind-numbing $3.77 billion over the last 12 months. Just to put that in perspective, if Microsoft was a nation with a 2003 GDP of $3.77 billion, its rank would be 159th in the world, right after Barbados ($4B) and Burundi ($3.8B), and just ahead of Guadeloupe, Liberia, Guam, Sierra Leone, Virgin Islands and Bermuda.

The way in which Microsoft was clearing its legal decks (not to mention how, around that time, it hired IBM's ex-patent portfolio architect Marshall Phelps) may have also been a signal to the market that it was embarking on new journey, the end of which would be an IP legal offensive. After all, the company could hardly expect others to respect its IP unless it started respecting the IP of others. 

What parts of Microsoft's intellectual property portfolio might certain Linux distributions be disrespecting? Perhaps the Linux kernel itself is infringing on core parts of Windows or MS-DOS. Or maybe SAMBA -- a utility that amongst other things can make a Linux machine look like a Microsoft file and print server (I use it for that here at my house) -- infringes on Microsoft's SMB protocol (I've heard but not confirmed that IBM's 500 patent gift to the open source community may have covered SAMBA's back).

Then, there's OpenOffice.org which is distributed with most copies of GNU/Linux. Because of their agreements with Microsoft, both Sun and Novell now have protection in place. But if OpenOffice infringes on and of Microsoft's Office-related IP, Red Hat and others may have Ballmer's interestingly articulated "undisclosed balance-sheet liability" to reconcile at some point. Some believe that OpenOffice is untouchable because of how widely its getting used in Europe and how European antitrust officials are already heavily sensitized to anything Microsoft does that could perceived as threatening.

Then, there are two technologies that were incubated out of Miguel de Icaza's startup Ximian -- eventually acquired by Novell. One of those is Evolution, a piece of software that could infringe on any IP that's related to Microsoft's e-mail technologies. The other is Mono -- essentially a Linux-based clone of Microsoft's .Net.  There could be others.

Novell and Sun have negotiated protection for themselves. Reading between the lines (or just the lines themselves), this month's landmark agreement between Novell and Microsoft appeared to be about that sort of respect more than anything else. Now, it's uncertain as to whether Microsoft will be seeking that respect from Red Hat or from users of Linux, or if it is just rattling its sabre in a way that makes users and businesses fearful of going near Red Hat's offerings. First of all, Microsoft wouldn't bother suing anybody who couldn't afford to pay (you don't sue someone that doesn't have money). Second, my sense is that, of the ones that could afford pay, hardly any are not already Microsoft customers. For the most part, suing Red Hat's customers would be the  same as suing its own customers which isn't very good for business. So, if an infringement suit is going to show up on someone's doorstep, it will most likely be a Linux distributor like Red Hat before it's anybody else's.

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