Perhaps Microsoft will sue Red Hat for trademark infringement (vs. copyright or patent)

Perhaps Microsoft will sue Red Hat for trademark infringement (vs. copyright or patent)

Summary: There's a lot of legal mumbo jumbo in this post. So, let me preface it with the official disclaimer that I am not a lawyer.

TOPICS: Patents

There's a lot of legal mumbo jumbo in this post. So, let me preface it with the official disclaimer that I am not a lawyer. But I'm pretty sure I've got most of this right.  

Last week, in a post that details how Microsoft's CEO Steve Ballmer took the "Linux infringes on our intellectual property" sabre-rattling to an entire new level (he made it pretty clear that Microsoft will be seeking payment from Red Hat), I erred with a slip on a very important legal technicality: a mistake that most didn't notice, but a mistake that I never should have made given that it's one of my areas of expertise.

In that post, I wrote:

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.

I ended the post with a poll (one that you can still vote on by the way) that asks if ZDNet's readers if they think Microsoft will sue for patent infringement and, if so, who will it sue? 

One ZDNet reader with an extremely sharp eye (he goes by the name of Yagotta B. Kidding and he's a regular) zapped me. In the very first comment that appears at the bottom of the blog post, Yagotta wrote:

"Intellectual Property" != "Patents"....You (David) fell for the sleight of word. Ballmer didn't say "Patents" even once. He repeatedly said, "intellectual property."


It's an error that people who are not well-versed in the subtleties of intellectual property (IP) often make. But I should have known much better since I've spent a fair amount of my time educating and correcting people on the very same issue. 

Ballmer did indeed say "intellectual property." Given that most if not all of the speculation around the sort of IP infringement suit that Microsoft may bring against Red Hat has discussed patent infringement (as it may relate to enforceable patents that Microsoft might have on operating system kernels, Office productivity software, the SMB networking protocol, it's messaging API -- aka: MAPI, and/or .Net), I dove straight for the patent angle and never once considered that patents may have nothing to do with it.

That could be in the case. Especially since Novell, in its watershed deal with Microsoft, has taken great care to reiterate that it still believes that it has not infringed on any Microsoft patents. Why then would Novell pay such a huge sum of money (with a promise of longer-term royalities) if it really believed this? Answer? Microsoft may have presented Novell with compelling evidence that Linux (or something that Novell was distributing) infringes on its copyright.  Or maybe a trademark (or a servicemark).

Yagotta is right. Just because "Patent" = "Intellectual Property" doesn't mean "Intellectual Proerty" = "Patent". So, we have to be careful about the assumptions we jump to when someone like Steve Ballmer says the word "Intellectual Property."  Quite often, usage of the phrase "Intellectual Property" in the context of a potential infringement suit is a form of deliberate ambiguity. In other words, the person using the phrase is deliberately avoiding the usage of anything more specific like patent, copyright, or trademark.

The intent could be to keep people guessing (and fearful). In other words, Microsoft may not want to show its hand just yet. It could mean that Microsoft isn't sure about the type of infringement suit it might bring, if it brings one at all. It could mean that Microsoft will file suit on the basis of multiple forms of IP infringement. Or, it could mean nothing. Maybe Ballmer wasn't trying to be ambiguous. Maybe he was doing what a lot of people do -- casually using the phrase "intellectual propety" where he really meant something more specific like a patent, copyright, or trademark.

So, what's the big deal? The differences between the three, in the context of software, are extremely subtle but very important. It's actually worth it for all of us to understand those subtleties so that, in what we say and write, we can be specific where specificity is important and ambiguous when ambiguity is called for (for example, when you want to refer to multiple forms of intellectual property with one word). 

Let's start with copyrights. I'm sure someone will nail me for being overly simplistic (I'm trying to keep this as brief as possible), but copyrights pretty much refer to any thing that can be copied. Sheet music is copyrightable. Architectural designs are copyrightable. The programming code (otherwise known as "source code") written in some computer programming language (for example, something written in C++) is copyrightable. What ever the form of "art" may be, once someone creates an independently derived work (basically derived from their brain), it's copyrightable which means that other people cannot create reproductions without the original artist's OK.  

Copyrights are the fundamental form of intellectual property that is openly shared or "licensed" amongst open source developers. The basic idea is I can write some source code and I can license it to other developers in such a way that they can reproduce it, change it, improve it, and redistribute it, and everyone downstream (to whom code is repeatedly distributed) inherits those same rights. Those developers are getting access or a license to my copyrights (and a liberal one at that). There are a lot of open source licenses that have been approved by the Open Source Initiative (the de facto consortium that the open source community relies on for such certifications), all of which are slightly different in terms of obligations to both licensors and licensees. So, it's difficult to generalize. 

Patents are the ultimate form of intellectual property because, for as long as a patent is enforceable, they actually trump copyrights. In the context of software, when someone gets a patent from the US Patent and Trademark Office (USPTO) for the software they've developed, what they're really getting is a patent on a business process. A business process is the ordered execution of a set of discreet steps. Take a look at any source code and you'll see that it's pretty much the same thing. Business processes have long been patentable. But some business processes (for example, Amazon's One-Click on-line buying patent) can't exist outside of a software context. Such software implementations were not patentable until a series of court cases in the 1980s set a new precedent.There's a lot of debate around whether those were wise precedents to set and if software should be patentable. But for the time being, it is. 

But prior to that period of time, software could not be patented. For example, most Unix users will recognize the utilities and functionality in GNU Linux as being the same as what's in Unix. But, when much of Unix was developed, the authors did not seek to patent the software (and the business process contained within). Instead, the source code was copyrighted.  So, when the Free Software Foundation (the FSF) developed clones of many of the utilities found in Unix for GNU Linux, there was no way it could infringe on a Unix patent. To avoid infringement of any kind, the FSF only needed to recreate the process of each utility, but with source code of its own so as not create a reproduction of the source code used in Unix (which would have constituted copyright infringement). Look for example at SCO's infringement suit against IBM over Unix and Linux. Forgetting for a minute the question of whether SCO is actually the rightsholder to some or all of Unix, the infringement suit is about misappropriation of copyrighted source code, not patents.

But, had the authors of those Unix utilities patented their work, things would be different (and this is why patents trump copyrights).  If for example, some utility was patented, then it wouldn't matter what source code the FSF cooked up in the process of cloning that utility. The source code is irrelevant. Software patents are not specific to implementation. They're specific to process. So, once a software patent has been issued, it doesn't matter what code, or fruit, or vegetables you use to emulate the process contained within. Such emulation, (aka: an implementation of the patent) is only allowed if the patent holder says its allowed and under the terms the patent holder specifies.

Using Amazon's One-Click patent as the example, it really doesn't matter how original the source code you used on your Web site to enable one-click purchasing is (in other words, how non-infringing it might be on other copyrighted code). If your one-click feature bears enough of a resemblance in process to Amazon's One-Click, you may very well be infringing on Amazon's patent. Now, just supposing you got a copy of Amazon's source code and used that too. Well, then, not only would you have infringed on Amazon's copyright, you would have basically ruined any chances of defending yourself against a patent infringement suit because if you're copying their code, then you're also copying their implementation of their patent. Talk about a smoking gun!

If you follow Mary Jo Foley's blog, then you'll probably recognize this discussion around the Amazon One-Click patent. Between Yagotta B. Kidding's comment on my other blog and a series of e-mails that went back and forth between Mary Jo and me earlier today, I thought that now would be a good time to do a bit of a deeper dive on this issue. With all the rhetoric around potential infringement on Microsoft's intellectual property, last Friday, Mary Jo asked Microsoft to show us the proof in the form of infringing code (something that's normally asked for when investigating copyright infringement). Actually, Mary Jo's mixed metaphors of patents and copyrights was a good thing. Microsoft has been so coy and has left us so guessing with ambiguous language and rhetoric that she's right: it's time to get down to brass tacks. Is it patent infringement? Or is it copyright infringement. And if it's one, the other, or both, what is it in GNU Linux that's infringing?

Or, is it trademark infringement? Trademark infringement is one of those forms of infringement that nobody stops to think about in a software context. But it's actually quite relevant. Intellectual property basically amounts to control. When you have IP, be it a patent, a copyright, or a trademark, you end up in control of certain things and their destinies. Trademarks are one way to assert control over a software ecosystem. One case in point is Java. For many years, various companies were trying to tap into the riches of the Java ecosystem without having to answer to Java's inventor, Sun.  Most notable were the open source implementations of J2EE (the enterprise edition of Java) from JBoss (with its namesake offering) and a French consortium known as ObjectWeb (with JOnAS).

Much the same way GNU Linux has a kernel and then a bunch of accoutrements (mainly utilities) that come with it, J2EE was a package of the J2SE (standard edition) virtual machine at its kernel with a bunch of very enterprise-driven accoutrements. One way JBoss and JOnAS got away with their open source implementations of J2EE is that they never actually delivered the J2SE portion with their software. They provided the accoutrements but you had to go get J2SE itself from Sun (the download has always been free). But there was still one problem. The sorts of businesses that run J2EE servers needed to know that those J2EE servers were certifiably up to snuff. Proof that a J2EE server met Sun's acid test for J2EE compatibility came in the form of a Java imprimatur that Sun made available to J2EE providers like IBM, Oracle, and BEA only after the official test was passed. Getting J2EE certification was (and still is) a big deal because it's the sort of assurance that many IT shops look for before they'll part with their dollars.  This is where the trademark comes into play.

"Java" and all other derivations of Java (like "J2EE") are trademarks that belong to Sun. So, before JBoss or ObjectWeb could could say that their products were Java servers or J2EE servers in their literature, documentation, advertising, etc., they needed a license to the Java trademark. In the case of J2EE, they had to go through the certification process as well. Not only did this affect JBoss and JOnAS, it impacted downstream distributors. For example, before Red Hat acquired JBoss, it was distributing JOnAS with Red Hat Enterprise Linux (RHEL). In doing so, Red Hat had to be extremely careful about two things: First, that JOnAS had not somehow misappropriated the Java trademark in a way that RHEL was inheriting the liability and second, that in talking to its customers about the inclusion of JOnAS in RHEL, that Red Hat wasn't inadvertently misappropriating the trademark by saying something like "Red Hat Enterprise Linux includes a J2EE server." 

As a reminder, I'm not a lawyer. But, much the same way Sun's control over the Java trademark centers around compatibility, I can't help but wonder if, in distributing open source software that is often described as being compatible with Microsoft's software, the distributors of that open source software could have been infringing on Microsoft's trademarks. It would depend on the specific usage of the trademarks. Going back to the Java example, it probably would have been OK for JBoss to say something like "JBoss is the pre-eminent open source target for Java developers" versus something like "JBoss is the pre-eminent open source J2EE server". The differences are subtle. The latter probably constitutes trademark infringement. The former probably doesn't. If, somewhere in the documentation, literature, or software user interfaces that Red Hat and other distributors are distributing, Microsoft's trademarks were subtley infringed upon in this fashion, that could also put them in a bit of legal pickle (in addition to any copyright and/or patent infringement).

Topic: Patents

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  • Side bar...

    The thing I find most interesting here is how the Linux community and the press has reacted (over reacted?) to Microsoft's statements. Indeed the entire front page of ZDNet has been litered with stories, guesses, and blogs full of wild speculation since MS signed the deal with Novell.

    Could it be that this is a time to take a wait and see approach. I mean all this speculation does little at all. If and when MS files a suit, then there will be plenty to write about. Until then, the press looks like chicken little...
    • Wait and see....?

      Aren't there some laws that would see this MS sabre-rattling as an attempt to sabotage a business. I don't know much about the legalities, but I don't see too many restaurant owners standing around and bad-mouthing the competetion to kill their sales.
      • Funny you should ask

        [i]Aren't there some laws that would see this MS sabre-rattling as an attempt to sabotage a business.[/i]

        Yes, the Lanham Act. The term you're looking for is "trade libel" and it falls under the same statutory section as "false and deceptive advertising."
        Yagotta B. Kidding
      • Hard to apply to Linux distros.

        If I say Linux has infringed on my IP I have made a very, very broad statement. It is directed at no one in particular and harms no one in specific. (Opera Winfry made a negative statement about beef in general and the Panhandle Cattleman's Association tried to sue and lost big time.)

        Now if they come out and say Red Flat specifically infringes on their patent, trademark, or copyrights then Red Flat would have legal cause to file a suit and demand to know what the infringement is. But by using the words "Intelectual Property" he could be talking about, well about anything really. Heck, he *could* mean that Red Flat hired a programmer away and there is litigation between the programmer and MS. We just don't know.

        Now some folks (Yaggota be kidding) think the Lanham Act gives cause to file a law suit, but such simply is not the case. The Lanham Act only deals with "advertizing" not general conversation that is reported by a third party. (News reporters.) As an example, if a reporter asked say the CEO of Chevy what he thought about Ford products he could say just about anything he desired. It is his opinion, it is not a deliberate act to misrepresent like it would be in paid advertizing. But say Chevy ran an add that claimed twice the milage of the Ford counterpart. That would give Ford grounds to bring suit and say prove that claim.

        No, the Lanham Act does not come into this regardless of how some folks would like it to.
        • Lanham Act explained

          Hee is a good site with a lawyer putting the legalise in to plain English and when it is applied under law.

        • Which is why

          [i]Now some folks (Yaggota be kidding) think the Lanham Act gives cause to file a law suit, but such simply is not the case.[/i]

          So that's why SCOX was able to get Red Hat's Lanham Act suit dismissed in Delaware and IBM's Lanham Act counterclaims dismissed in Utah.

          Oh, wait ...
          Yagotta B. Kidding
    • Just Wait And See

      If the schoolyard bully is gonna punch you out or if he's just bluffing.
      Best man spits over my hand.
      Best man steps over this line.
      No wait......he's the biggest......we know what he'll do.....better run like hell or hide out.
      Ole Man
  • Trade Secrets

    don't forget that trade secrets are another form of intellectual property. If you pick up a manual that says "MICROSOFT CONFIDENTIAL" laying on the street, and Microsoft customarily keeps such manuals locked up, and you use a method documented in the manual, you will be guilty of mis-using their trade secret intellectual property, even if it is not copyrighted or patented. (IANAL)
    • Key difference

      However, trade secrets (like trademark) don't go beyond the original miscreant.

      You can sue the person who left the document lying around, because he had a contractual responsibility to keep it confidential.

      You can probably sue the person who picked it up off the street, since he had good reason to believe that he shouldn't have read it.

      However, you're plain out of luck if you try to sue the customers who bought products made with the secret process. This is distinct from the case of patents (where you can actually get injunctive relief blocking the customers from practicing your patented invention) and copyright (where you can demand the return of illicit copies.)

      The law may be an ass, but it's not a completely dumb animal. There are pecious few situations where buying something in good faith can get you in legal troube, and even those won't get you in much of it.
      Yagotta B. Kidding
      • Please stop trying to invent something.

        MS has not said they had ANY plans to sue end users. The only "hints" to date have been towards Linux distros other than Novell.

        From what I see, the Linux fans are the only ones saying anything about end users. And that is nothing more than a childish (rather transparent) attempt to pull users into a fight with FUD.
        • Confirmation

          [i]From what I see, the Linux fans are the only ones saying anything about end users.[/i]

          Well, we always suspected that you didn't bother reading the news before spouting off about it.

          The "users" reference is directly from Ballmer's interview in [i]Comptuterworld[/i].
          Yagotta B. Kidding
    • Maybe, maybe not

      In the 80's (remember when?) IBM sued Hitachi for using trade secrets that turned out to be appropriated from dumpsters. Well, if I have my facts correct, IBM got virtually no redress for that due to the fact that the court found that IBM was negligent in protecting its property. It was laughable, but we IBM employees had our wastebaskets 'audited nightly' for a while. If a Microsoft manual were found on the street that could not have been proved stolen, then I think this is tough luck for them.

      The real issue here for all of us who are not lawyers in this thread, is that this will eventually compromise our superiority in software engineering, because "Frankly Scarlett" the Chicoms don't give a crap.
  • The FUD master

    "Why then would Novell pay such a huge sum of money (with a
    promise of longer-term royalities) if it really believed this?"

    Lets read what really happened:

    Under the patent cooperation agreement, Microsoft will make an
    up-front net payment to Novell of $108 million, and Novell will
    make ongoing payments of at least $40 million over five years to
    Microsoft, based on percentages of Novell's Open Platform
    Solutions and Open Enterprise Server revenues.

    Novell pays minimum $US40M over 5 years after receiving
    $US108M today. Just who paid who?

    It is amazing how this deal is being spun at ZDNet, you guys are
    really going all out to impress your overlord;-)
    Richard Flude
    • You have a missing link here.

      "Under the patent cooperation agreement, Microsoft will make an up-front net payment to Novell of $108 million, and Novell will make ongoing payments of at least $40 million over five years to Microsoft, based on percentages of Novell's Open Platform Solutions and Open Enterprise Server revenues."

      Yes, and???

      The part you are missing is WHY Novell paid anything to MS. You claim it has nothing to do with MS IP, ok then what's the $40 million for then? Cause they just like Steve Ballmer???
      • Exactly my thoughts

        Plausible explanation given what's said and that proves nobody is lying:

        1. patents have been raised in the mutual discussion, but it could be MS respecting Novell's patents.
        2. Novell says, we are not infringing on MS patents.
        3. So what is $40M for? Nothing? Copyright or Trademark infringement fits. Then, Novell can say "we told you so when we said we weren't infringing on MS patents....we never said anything about copyright or trademark infringement."
        4. $40M sets the baseline. Now, Red Hat knows what MS is going to come knocking for.

      • We don't know why

        Paying the money as a MS condition to the deal is IMO far more
        than Linux violation of MS IP.

        Let's read the following together:,1895,2062027,00.asp

        "... Novell is hitting out at statements made by Redmond
        executives that the deal acknowledges that Linux infringes on its
        intellectual property."

        And the open letter from Novell's CEO:

        "Importantly, our agreement with Microsoft is in no way an
        acknowledgment that Linux infringes upon any Microsoft
        intellectual property"

        Richard Flude
      • Missing link?

        What's the $108M for if not the agreement to cooperate in development of software which assures mutual customers the ability to leverage both companies software, or by inference are you suggesting that Novell is the only one that "whips out the checkbook" in this deal?

        Seems to me that no one is explaining or asking what the lump sum payment is for, but when one company applies the "buy now pay later" plan it's suddenly brought up as sign that they are hiding something.
    • I believe the term AT LEAST is material

      at least 40 million over 5 years, based on percentages of Novell's revenues. Sounds like a 40M guarantee, and more if Novell exceeds some quota. The net could actually swing in Microsoft's favor. $68M is pocket change.

      • Rubbish

        "The net could actually swing in Microsoft's favor. $68M is
        pocket change."

        Where's the evidence for that? Novell reaped a bundle from a
        deal that has EC antitrust silence written all over it and ZDNet
        plays it as Linux violates MS's IP?

        This is unbelievable. MS is in court with dozens of IP violation
        cases against it, Linux zero (SCO's case is now a contract case
        against IBM). No evidence has ever been resented that MS IP has
        been illegally consumed by Linux, yet MS had been found to
        have violated others IP.

        This is what Bill Gates had to say about him watching STOLEN
        copyright videos on YouTube:

        "Stolen's a strong word. It's copyrighted content that the owner
        wasn't paid for. So yes."
        The Wall Street Journal (19 June 2006)

        All we get MS funded FUD on ZDNet. Novell did NOT concede
        any IP violation in Linux in this deal - period!
        Richard Flude
  • Ah, but sue *whom* ?

    Keep in mind that Microsoft is rattling its sabers about suing Red Hat's (or not suing Novell's) [i]customers[/i] -- which is something you can't do with trademarks. Dang near impossible with trade secret, too.

    A clue to this, though, may be found in Microsoft's exchanges with the EC Competition Commission and with the DOJ. Microsoft has demanded (and gotten, in the USA) permission to charge per-seat royalties for unpatented technologies whose only statutory protection is the copyright on their documentation.

    Think of charging a road toll because you have the copyright to the map.

    It's a whole new kind of "intellectual property" which MS has discovered, and they have at least one United States District Court supporting them.
    Yagotta B. Kidding