Microsoft's Ballmer steps-up Linux infringement suit rhetoric

Microsoft's Ballmer steps-up Linux infringement suit rhetoric

Summary: 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.

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TOPICS: Open Source
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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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  • "Intellectual Property" != "Patents"

    You fell for the sleight of word.

    Ballmer didn't say "Patents" even once. He repeatedly said, "intellectual property." As we've seen with the SCOX suit, the squishy refusal to specify is the hallmark of someone who doesn't [b]have[/b] legally enforcable claims and just wants to raise a stink.

    Steve would like the world to think that Microsoft has some sort of ownership right over every one of its users and can charge for access. Microsoft has come very close to saying exactly that to analysts -- and given their market saturation, charging some sort of "head tax" for access to their herd is one of their relatively few real growth opportunities.
    Yagotta B. Kidding
    • Put-up or Shut-up

      It's time for Ballmer to put-up or shut-up.

      If he thinks he has a case then he should bring it. Otherwise we are coorect in seeing this for the extortion scheme it is.
      Tim Patterson
      • Probably should be "Shut-Up"

        If MS enters litigation against a Linux vendor in a bid to claim IP rights (or patent), the first action said litigant would complete is a countersuit with the same claims, namely that GPL'd code is certanly in Vista and the courts needs to let the world see MS's precious source code. It's a valid and highly probable claim to make that would need to be tested in court.

        It also might be a great opportunity to see Ballmer squeal like a pig.
        msolgeek
        • Saying is one thing, proving is another.

          Unless Linus Torvalds (or anyone else in the GNU camp) has bothered to patent anything Linux -- in any country, there is no intellectual property in Linux code to protect from Microsoft infringement. (Copyright is not the same as IP Property Rights as protected by patent law.)

          Since, by design, Linux is a UNIX "clone", Microsoft's UNIX license means it has all of the IP it needs to protect Windows from infringement claims by any Linux distributor -- and it's relationship with Sun seals the deal.

          The GPL itself makes it pretty much impossible for anyone to claim ownership of Linux IP anyway (except maybe Linus Torvalds, as the author of the kernel) so who would MS be infringing against? And what kind of monetary damages can be claimed when Linux is a "FREE" operating system?

          Such a countersuit would also open the doors for the courts to scrutinize the GPL in ways not considered up until now and it is my impression that if a contract (which is essentially what a license is) cannot be enforced, it is invalid.

          It's not at all clear to me that the GPL would survive such scrutiny since there is no clear way to enforce its terms on contributors to the Linux codebase.
          M Wagner
          • HUH?

            What are you talking about?

            Linux != Unix.

            A Unix license means nothing in relation to Linux.

            The GPL is a valid license which absolutely can be enforced just as any other license.

            Your post is so full of inaccuracies that I'm wonering if you haven't bought into some serious MS FUD.
            Tim Patterson
          • Funny you should bring that up

            [i]Unless Linus Torvalds (or anyone else in the GNU camp) has bothered to patent anything Linux -- in any country, there is no intellectual property in Linux code to protect from Microsoft infringement. (Copyright is not the same as IP Property Rights as protected by patent law.)[/i]

            They have. Quite a few companies have, in fact, but the one I know about best is Red Hat. Do an inventor search on "Ingo Molnar."

            [i]Since, by design, Linux is a UNIX "clone", Microsoft's UNIX license means it has all of the IP it needs to protect Windows from infringement claims by any Linux distributor -- and it's relationship with Sun seals the deal.[/i]

            The fact that Linux imitates Unix doesn't mean that Linux has no independently patentable content any more than the fact that MSWinNT had a POSIX layer did.

            [i]Such a countersuit would also open the doors for the courts to scrutinize the GPL in ways not considered up until now and it is my impression that if a contract (which is essentially what a license is) cannot be enforced, it is invalid.[/i]

            And if it's invalid, the licensee has no right to use the (indisputably) copyrighted material -- thus the giant hammer of statutory infringement comes down on the not-licensee.

            You really should read what Eben Moglen has written on why nobody in their right mind will every challenge the GPL in court.

            [i]It's not at all clear to me that the GPL would survive such scrutiny since there is no clear way to enforce its terms on contributors to the Linux codebase.[/i]

            "They" don't need to enforce its terms. The GPL isn't a EULA -- it doesn't take away anything from the licensee. It's purely to the benefit of the licensee, so challenging it is a spectacular act of legal [i]seppuku[/i].
            Yagotta B. Kidding
          • sorry you do not get it

            Linux is not unix. having a unix licence doesn't mean you get to use linux code or the patents associated with it. Yes, if you knew anything about Linux, you would know there ARE patents associated with linux code, that the holders have pledged can be used by GPL code. MS is not GPL code.

            And monetary damages... ok right, again you do not get it. Copyright is value. GPL code allows copyright code to be exchanged to create greater value. Are you suggesting that you can violate copyright and get away with it just because it is exchanged under certain licence conditions?

            And again you really do not know what you are talking about. Yes the kernel has contributions from many different coders. If MS infringed on the code contributed by IBM, then they are infringing on IBMs copyrights (and potentially patents, depending on the code).


            As for wheter the GPL would survive such scrutiny, you obviously havnen't been following it's scrutiny in the courts this year.

            Seriously dude, you don't know what you are talking about.
            mobrien_129
          • No need to prove anything

            All I said is that a litigant could countersue regarding the distinct, and perhaps likely, possiblility that there is even one shred of GPL'd code in Vista. That brings a subpoena to MS to force release of its code base for independent review. The issue of the validity of the GPL is an entirely seperate issue that would likely be held on a seperate docket.

            If MS contends IP, patent, or copyright infringement, they open themselves to the same contention by others. Yes, the would be quite a mess in the courts, but MS stands to lose substantially if forced to reveal code and you can bet that that will be foremost in the Linux community's agenda.

            Given that MS is still working to get license for its KNOWN infractions, the potential for many more unknown infractions is certainly a reasonable claim and the only way to prove otherwise is a source code review. Do you really believe that MS would ever want ot put itself in that realm of possibility?
            msolgeek
          • msft and linux patent links...

            http://swpat.ffii.org/players/microsoft/index.en.html

            http://www.prime-radiant.com/technologies/Linux.html

            as for the rest of your post, get a clue and do some reading because you don't know what you're talking about.


            gnu/linux...giving choice to the neX(11)T generation.
            Arm A. Geddon
          • OK. You've said it, now ...

            Marc:

            [i]Since, by design, Linux is a UNIX "clone", Microsoft's UNIX license means it has all of the IP it needs to protect Windows from infringement claims by any Linux distributor...[/i]

            You may want to re-read that several times in order to wake up to how silly it sounds.

            The SCO Group, not to be confused with The Santa Cruz Operation, was not authorized to sell a fully paid-up Unix license [to anyone] without Novell's pre-approval. You may want to read up on this in the Asset Purchase Agreement and the Technology Licensing Agreement for future reference since you keep repeating that as if it were true.

            By the way, The SCO Group isn't a party to either of those agreements and the judge has already ruled that the Unix copyrights didn't transfer to them from The Santa Cruz Operation. What exactly *were* they selling to MS? Any idea?

            On top of that even *if* MS had a [new] valid Unix license that doesn't mean they aren't infringing on copyrighted code (very unlikely, I'll admit) or patented functionality (you may want to become aware of patents owned by Linux contributors such as IBM/Sequent, HP, SGI, etc., since you appear to be in denial on that point as well) because they have paid for a license for SOMETHING ELSE!

            Proving that MS has a *valid* license for Unix is where you may want to start any research or discussion on this. After that the long uphill journey to show that a Unix license absolves them of infringing on *any* other OSes still lies ahead of you.
            Still Lynn
          • read the GPL

            here's a link:
            http://www.gnu.org/copyleft/gpl.html

            ok, read it? good. the GPL DOESN'T take away
            ownership of code. you only give away code if you
            explicitly give it to someone else (e.g. to the
            FSF).
            since patents in the EU are pretty much invalid,
            no patent suits would affect linux distribution
            within the EU.
            also, take a look at the SCO case for an example
            of what happens when you try to make
            unsubstantiated claims. MS will need solid claims
            with code to back up any IP suits. since linux is
            GPL they really don't have any excuses for
            getting it wrong. personally, i'd love to see
            them make a bad lawsuit in the UK (since the
            loser pays all costs). also they'd risk ****ing
            the courts off (much like the RIAA did when they
            sued a load of individuals).

            how would one enforce GPL terms on the
            contributors? well, read groklaw for that one
            Scott W
      • "Put-up or Shut-up"I agree

        My thoughts on this lead me to think its hype.
        Wga cracked the Microsoft dam and they do not want the trickle of windows users that are going to Linux to become a raging river.

        They have seen how Firefox went from a trickle to a flood and are into damage control.

        I do not know wether they have any real claims but I am not worried at this time.
        I am using Suse so it appears I am covered.

        Its now we see the underlying evils of large corperations.
        I note that extreme government is evolving along the same lines at about the same speed
        Fear mongering and sueing is rampent.
        coincidence anyone.
        to much power will always corrupt
        clockmendergb9
    • RE: "Intellectual Property" != "Patents"

      I can't believe he was able to say the following without ROTFL.

      "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."
      Protagonistic
  • Violation

    So according to Ballmer the "patent covenant" is about Linux.

    Novell is clearly in violation of section 7 of the GPL and can no longer distribute Linux.

    Nice try Ballmer. If he thinks that Linux infringes patents then let him bring the case. Stop using these implications for purposes of FUD.

    Of course many of us saw Ballmers intentions from the start.

    Novell has destroyed themselves. It's only a matter of time before they realize this.
    Tim Patterson
    • Novell has been on the brink of death ...

      ... since Windows Server displaced NetWare. When Novell purchased the USL from AT&T they acquired a cash cow of remarkable size. This was their golden opportinuty to turn NetWare into somehitng which could compete head-to-head with Windows Server but instead, Novell proceeded to sell USL IP off -- piece-by-piece. IMO, this was a BIG mistake.

      Today, all Novell has is its IP and their UNIX IP is being challenged by SCO. If they retain UNIX ownership, their relationship with MS could extend their life indefinitely. Making a Sun-MS-Novell alliance a very powerful competitor to IBM.

      BTW, who is going to enforce section 7 of the GPL?
      M Wagner
      • Who?

        Who enforces any license?

        The courts.

        Granted the community doesn't have MS' BSA/FBI thugs at their disposal but any copyright holder of GPL code can bring a case against those who are believed to be in violation of the license and seek injunctive relief.
        Tim Patterson
      • re: BTW, who is going to enforce section 7 of the GPL?

        hmm, let me see...

        http://www.fsf.org/news/wallace-vs-fsf

        http://yro.slashdot.org/article.pl?sid=06/09/23/1655248&from=rss

        I'm sure can can do some searching on your own. of I see, you'd rather spread the FUD.

        gnu/linux...giving choice to the neX(11)t generation.
        Arm A. Geddon
  • Why Bother

    Christ... Microsoft Dominates the Market, why should they even bother worrying about something as petty as IP if they control the market. When some one starts making money off of their IP, I would then sue, but until then, I don't see the point.
    nucrash
    • They dominate the DESKTOP market ...

      ... but they WANT to dominate the server market because that's where the profit margins are!
      M Wagner
  • What Bull!

    Open source code is there, for all to see, and has been for years. If there were any infringing code, Microsoft had plenty of years to make any claims on that code.

    If any action by Microsoft is taken against open source, then the open source vendors need to retaliate back. Such examples are, the TCP/IP stack and Kerberos. Both are open source developed and are in Microsoft's products.

    Ballmer better be just yelling and screaming, or he will start a war that he can never win.
    linux for me