Are Microsoft's patent lawyers really this dumb?

Are Microsoft's patent lawyers really this dumb?

Summary: Are Microsoft's patent lawyers playing possum? Or are they really as clueless about what makes open-source software tick as they seem, based on Microsoft's July 5 statement regarding the GPLv3 and Novell?


Are Microsoft's patent lawyers playing possum? Or are they really as clueless about what makes open-source software tick as they seem?

Consider the latest patent-related statement Microsoft published to its Web site on July 5 a statement claiming it is not party to the GPLv3 and is not bound by it.

"While there have been some claims that Microsoft’s distribution of certificates for Novell support services, under our interoperability collaboration with Novell, constitutes acceptance of the GPLv3 license, we do not believe that such claims have a valid legal basis under contract, intellectual property, or any other law. In fact, we do not believe that Microsoft needs a license under GPL to carry out any aspect of its collaboration with Novell, including its distribution of support certificates, even if Novell chooses to distribute GPLv3 code in the future."

Curious (and nervous) customers -- and possibly other Linux vendors with whom Microsoft is still hoping to cut patent deals -- must have started asking Microsoft about what it plans to do once Novell adopts the GPLv3, as its officials have indicated it plans to do.

Microsoft's short answer: We're trying to back out of the distribution part of our Novell deal as fast as we can. The Novell certificates distributed by Microsoft currently cover GPLv2-protected versions of SuSE Enterprise Linux. But, given these Linux certificates reportedly have no expiration date, there seems to be a chance that customers could use them for future GPL v3-covered Novell software. That's why Microsoft's adopting a poison pill now:

"Microsoft has decided that the Novell support certificates that we distribute to customers will not entitle the recipient to receive from Novell, or any other party, any subscription for support and updates relating to any code licensed under GPLv3," according to the July 5 Microsoft statement.

Open-source expert and former Microsoft employee Stephen Walli wondered about Microsoft's real open-source intentions, based on Microsoft's latest legal statement:

"The (July 5) Microsoft statement seems a bit premature and over reaching," Walli said. "Stating outright that they aren't a party to it, means they've cut themselves off from using it in some future circumstance where it might be genuinely business beneficial. They would need to unmake this statement. By saying they can't envision such a situation arising shows a lack of imagination, and makes them as religious on the issue as (Free Software Foundation founder Richard) Stallman. They remain 'committed to working with the open source community' without actually wanting to participate in it."

Leave aside for a moment the question about whether Microsoft is trying to coopt or cooperate with the open-source movement. From a legal standpiont, here's what doesn't add up, to me. Microsoft employs hundreds (if not thousands) of lawyers. How could these lawyers have:

* failed to forsee that the Free Software Foundation would find a way to put a legal monkey wrench into the GPL to thwart Microsoft's intent to undermine Linux and the GPL?

* allowed the Novell support certificates that Microsoft has been distributing to go out without an expiration date on them?

* expected Novell not to back the GPL v3, in spite of the money it paid to Novell to cement its first patent-protection deal with a Linux distributor?

Is Microsoft legal holding a trump card that no one knows about? Or is Microsoft really as inept in fighting off open source as it currently seems?

Topics: Microsoft, Legal, Open Source, Software


Mary Jo has covered the tech industry for 30 years for a variety of publications and Web sites, and is a frequent guest on radio, TV and podcasts, speaking about all things Microsoft-related. She is the author of Microsoft 2.0: How Microsoft plans to stay relevant in the post-Gates era (John Wiley & Sons, 2008).

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  • Can't be stopped

    Trump card or not, Microsoft cannot stop the rapid pace of Linux/FOSS adoption. The patent situation only really applies to the U.S. The MS patent saber-rattling is largely meaningless outside the U.S.

    I don't think MS and their lawyers really understand the FOSS community and what motivates us. The usual tactics haven't worked. At best they can only hope to slow FOSS adoption in the U.S. but only in the short-term.

    When is MS going to learn that cooperation and participation is a win-win. They cannot stop FOSS and continued attacks and threats will only hurt them in the long run. If MS were to choose real interoperabilty and cooperation they could eventually see the community working with them instead of having them as adversaries.
    Tim Patterson
    • Stopping theaft is not trying to stop open source.

      Stopping unlicnesed use of their IP is quite a bit different than trying to stop open source.
      • Nothing needs to be stolen to interoperate between Linux and MS. All that

        is needed are good, well documented apis, protocols, and document formats. MS is actively trying to make sure that Windows does NOT interoperate, at the same time signing agreements to fix it.
        • Nothing new here...

          Microsoft has been playing this game for years. They practically invented it.
          This is why the coddle the developers and IT folks. It would not work for them
          unless the IT people and developers will look the other way while they block any
          and all alternatives for anyone brave enough NOT to use their software.

          The only reason the doc formats have changed is that open source has finally
          caught up with the old proprietary formats.

          Microsoft will never open their software formats, this is the key to the monopoly.
          Sure, you can add whatever software you like (maybe you can do something
          compelling, MS sure isn't worred about it) but there is no way you are going to get
          them to ever play fair.

          Since when has MS ever bothed with doing anything legal? And, why should they?
          They never get punished, not even when they are convicted.
          • MSFT competes with themselves

            "The only reason the doc formats have changed is that open source has finally caught up with the old proprietary formats"

            The doc formats (I assume you are referring to Office) would change regardless. Microsoft is in the software upgrade business and their main competitor is earlier versions of their own product.
      • Theft?

        What theft bit?

        Patents are not considered property in any sense of the word by people with functioning minds. Firstly the concept of patents on software is fundamentally flawed. So flawed that it's just silly to try and argue that they constitute 'property' in any form.

        Exactly what "IP" of Microsoft's does Linux infringe bit? Obviously since MS isn't saying, you can't possibly either. So until and unless MS enumerates specific infringements there are none.
        Tim Patterson
        • He may have been [accidently, as usual] right!!

          Since he actually said that M$ wants to stop the aft. They are the leaders in the field and *seem* to see their job as stopping the competition, which are all behind them.

          Of course the way they implement their tactics has bitten them many times but they always choose to pay the penalty, cash, behavioral or both, and continue on as before.

          Time will tell if this is their best option.
          Still Lynn
      • Semantics correction

        They are not stopping unlicensed use, they are preventing unlicensed use.

        This is not akin to shooting the guy leaving your house with your TV. This is more akin to buying the gun and putting a sign out on your lawn saying "No Trespassers".
        Michael Kelly
      • Who stole what?

        Yagotta B. Kidding
      • Tada!

        Care to describe and detail was you think is stolen? And don't say IP. That's saying you don't know.
        • M$ legal says it's not worth their time ...

          ... to detail what patents are involved as the list may change. Hmmmmmmmmmmm. Why would that be? Do they already know that at least some of their claims will fail?

          Until they do specify just what they consider to be theirs everyone else should take them at their word that it's not worth making a specific claim and skip any deals involving this attempt at selling a pig in a poke.
          Still Lynn
      • Ok mister lawyer

        You say FOSS is stealing , stealing what ? Just because Microsoft made a bogus comments doesn't mean you should take it seriously . Even Ballmer said the ZUNE would take the iPods market . If anything your claim is no different than Microsofts . You big wind bags , you are just full of hot air .
        I'm Ye, the MS SHILL .
      • You, of course, mean that Microsoft has never sold

        software that incorporated the IP of others.

        They have never lost a patent suit over software, nor have they ever settled such a suit "out of court" with non-disclosure agreements included.

        Update victim
      • Show Us The Code No_Axe ?

        Show us the code No_Axe that you think Linux currently seems to be infringing on ?
        You're more filed with hot air than Microsoft is . You truly are an arrogant Zealot .
        The Goliath is leading you to the edge of a Mountain just to watch the lil Lemming fly
        off ,,,
    • Problem

      Tim, my problem with the FOSS movement is that the only way you can cooperate with them is to effectively give up your right to "license" for a fee your intellectual property. This is the position that the FSF have taken with GPLv3 - if you want to interoperate with ANYTHING covered by the GPLv3 then you have to in turn give away your IP as well.

      That's simply ridiculous. Its the equivalent of saying that because Ford and GM want to "interoperate" and ensure their vehicles both run on independently produced gasoline that they should have to release detailed design information on their engines for anyone to use for free.

      The creation of software and the "for fee" licensing of it is the single biggest wealth generator ever in the history of the planet. I just struggle to understand how or why its bad to want to "sell" software.

      I just wish the FOSS movement spent less time on Microsoft, who are completely opposed and focussed on the wolf in sheeps clothing, Google. They have taken Linux and written some of the best clustering capabilities (by all accounts) and other incredibly powerful additions to Linux ever written, but they keep that "proprietary". Microsoft are happy to build a ladder themselves to get where they are going and hide the details of how they did it, Google wants to stand on the shoulders of giants, but heaven forbid they explain to anyone how they did it.
      • There is no IP in what is needed for interoperation. MS is actively working

        to create interoperability problems by creating baroque, overly complicated, and undocumented protocols, apis, and file formats. Then they turn around and try to sign half hearted agreements to collaborate on fixing all of the problems they intentionally created.

        And, the IP sheeet is just that.
        • No IP in MS interop?

          Almost certainly there is - the whole OpenXML debacle has proven that MS will deliberately bend their file formats and network protocols to include Patents, either valid or invalid. If they are the latter, they can probably rely on nuisance value being enough, provided they keep their "bite" low, to convince many companies to pay up rather than fight to have (initally unidentified) patents invalidated in court.
      • Wrong!

        Interoperability does not require the use or distribution of GPL v3 code.

        All that is needed is properly documented APIs and adherence to established, open standards. MS purposely takes open standards and twists them into their own bastardized versions specifically to break compatibility for the purpose of maintaining monopoly.

        Saying that the GPL forces anyone to give-up their "IP" is either just plain ignorance or purposeful misinformation.
        Tim Patterson
      • More complicated.

        Some companies will provide software free when the product in which it's used is open source, but charge a license fee when the downstream product is not.

        You wrote:

        "This is the position that the FSF have taken with GPLv3 - if you want to interoperate with ANYTHING covered by the GPLv3 then you have to in turn give away your IP as well."

        That's not incorrect, but the same code can be covered and not covered by the GPL.

        People are getting clever figuring out how to make money in the GPL ecosystem. You're right, the GPL is essentially hostile to a major industry, but if one can gain the advantage (low-cost development) and still make money, it's like a mouse figuring out how to grab the cheese without the trap closing.
        Anton Philidor
      • Completely wrong

        You said:

        "Tim, my problem with the FOSS movement is that the only way you can cooperate with them is to effectively give up your right to "license" for a fee your intellectual property. This is the position that the FSF have taken with GPLv3 - if you want to interoperate with ANYTHING covered by the GPLv3 then you have to in turn give away your IP as well."

        What [b]you're[/b] saying is completely ridiculous. Please explain to me how this has anything to do with interoperability. Either you have a distorted view of the GPL or you're just repeating anti-FOSS FUD.