GPLv3 the impetus for Microsoft's latest Linux attack campaign

GPLv3 the impetus for Microsoft's latest Linux attack campaign

Summary: With one stroke, Microsoft has ended any illusion that it planned to try to build bridges with the open-source community. And it appears the primary reason for Microsoft's decision to go back on the public attack against Linux and other open-source software is the looming Version 3 of the Free Software Foundation's General Public License (GPL).


With one stroke, Microsoft has ended any illusion that it planned to try to build bridges with the open-source community. And it appears the primary reason for Microsoft's decision to go back on the public attack against Linux and other open-source software is the looming Version 3 of the Free Software Foundation's General Public License (GPL).

In a newly published interview with Fortune magazine, Microsoft licensing officials go on the record claiming that the company believes free and open-source software infringes on 235 of Microsoft's patents. At the same time, Bill Hilf, Microsoft director of platform strategy -- and the company's main liaision to the open-source community -- was quoted on a tour in Southeast Asia as saying that "the Free Software movement is dead," and "Linux doesn't exist in 2007."

What's changed Microsoft's tune? Here is the explanation for Microsoft's actions that the company's public relations agency began circulating among the press on May 14:

"In a just-published article, Microsoft has publicly acknowledged that is has 235 patents that read on open source technology. As you know, Microsoft has had a long, public discussion about intellectual property issues. The company’s longstanding preference is to license rather than litigate and Microsoft’s work over the past three years to build a bridge with open source is a result of that commitment. The November agreement with Novell addresses the IP issues in open source while meeting both the distributor’s needs and, more importantly, the needs of the customer.

"Customers have asked industry leaders in both proprietary and open source to address these issues and over 90% of customers support the Novell agreement as addressing this need for vendor interoperability and cooperation ( ).

"Microsoft has made other efforts, as well, to advance open source interoperability and encourage pragmatic open source development with our intellectual property . These include the Covenant not to Sue open source hobbyist developers as part of the Novell agreement ( ) and the Open Specification Promise ( ).

"The patent issue with open source has been in discussion for some time, first raised by various leaders in the free and open source community. According to its August 2004 announcement, the Open Source Risk Management group stated that Linux could be in violation of 283 patents and, as such, could expose customers to undetermined licensing costs ( ). Richard Stallman further validated this in late November where he noted that “a thorough study found that the kernel Linux infringed 283 different software patents, and that's just in the US. Of course, by now the number is probably different and might be higher.” ( )

"The latest draft of the GPLv3 attempts to tear down the bridge between proprietary and open source technology that Microsoft has worked to build with the industry and customers. Customers in multiple industries have already called for and endorsed the bridge as a positive move in their favor. AIG, Credit Suisse, Dell, HSBC, Nationwide, and Wal-Mart are just a few of the customers who have already signed on and Microsoft has announced Samsung and Fuji-Xerox as the second and third distributors of Linux who are providing their customers with IP rights.

"Microsoft is discussing the patent issue even more directly now, with specifics about patent numbers and areas of infringement, in response to continued industry question and concern over the GPLv3’s adoption. Unfortunately, for customers, the Free Software Foundation’s efforts with GPLv3 while not harming existing contracts can harm the desired interoperability and open exchange that we have increasingly seen between proprietary and open source over the past several years."

For those who prefer the short version of the statement, Microsoft suggests the press use this quote, attributable to Horacio Gutierrez, Microsoft Vice President of Intellectual Property and Licensing:

“Even the founder of the Free Software Foundation, Richard Stallman, noted last year that Linux infringes well over 200 patents from multiple companies. The real question is not whether there exist substantial patent infringement issues, but what to do about them. Microsoft and Novell already developed a solution that meets the needs of customers, furthers interoperability, and advances the interests of the industry as a whole. Any customer that is concerned about Linux IP issues needs only to obtain their open source subscriptions from Novell.”

What's got Microsoft so spoooked? As the Fortune article noted, the GPL v3's provisions regarding the Microsoft-Novell deal suggest that Microsoft itself could be considered a "Linux distributor," and thus beholden to the GPL v3 terms. And even if that doesn't happen, under the GPL v3, other Linux distributors would be barred from doing deals like the one struck by Novell and Microsoft.

For the past few months, Microsoft publicly has pooh-poohed these arguments. But the company's latest decision to go public with claimed patent infringement numbers and other inflammatory statements, to me, shows Microsoft must think the GPL v3 has teeth.

What's your read on Microsoft's public statements in this matter?

Topics: Linux, Legal, Microsoft, Open Source, Security, 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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  • OSS is not above the law

    <p>If the OSS community can have GPL 3.0 which states that if you deal with GPL 3.0 then you've donated your patents.</P>

    <p>If the OSS community is taking this stand <b>then they ought to honor others patents </b>including patents belonging to Microsoft</p>

    <b>Currently the OSS is so full of themselves.</b> They are not above the law. They have to honor others patents.
    • Then by all means....

      [i]Currently the OSS is so full of themselves. They are not above the law. They have to honor others patents.[/i]

      List with specificity which patents are being violated. You can't say that someone is breaking the law, and then refuse to say which laws because you know it will be challenged.

      Oh, and BTW GPL3 doesn't say that if you deal with GPL3 you donate your patents. It says that when making a cross-licensing patent deal with a group of GPL users/distributors, you must apply it to all GPL users and distributors. Proprietary companies, however don't get that benefit; they have to make their own agreement. Donating patents means making it freely available to everyone, not just one group.
      Tony Agudo
      • Ask Stallman.

        He has a list of them 200 strong.
        • Ok, then let MS start filing the lawsuits. Thier inaction rings louder

          every day.
          • Timing is everything

            And in its proper time this to shall come to pass. ;-)
          • Silence is deafening... ;-)

            The problem is they claim their patents have been infringed but are doing nothing to mitigate the infringement.

            I do not believe they can wait too long. Look up laches with respect to patent law. It would appear unreasonable delay with respect to enforcing ones patent dilutes the claim.
          • While on the other hand

            if you have nothing really to enforce, then dilution is irrelevant. All we have so far is a claim by Stallman that is echoed by MS. Neither have a lot of credibility in my opinion..
          • Not really

            Or have you never heard of "submarine patents"?
          • You are thinking copyright

            That is true in copyrights, but I don't think it applies with patents.
          • Just like the....

            ... jpeg patent suits?? Your statements are so far to the left of the context of this discussion they should have their own story. JPEG has been around since ... forever... and yet some obscure patent based on mathematical formulas that were developed before Einstein was around was all it took to illicit hundreds of millions of dollars from some vendors (and the lawsuits are far from over...). It would appear that "unreasonable delay" does not protect anyone from anything.
          • can't wait

            You simply cannot wait if you know there is a patent violation. Failure to defend a patent in a timely manner is grounds to invalidate a patent. Of course, with the widespread abuse of 'submarine patents', anything is possible.
          • Not necessarily

            AT&T sued MS and MS were asked to pay $1.5 billion for a patent that MS had licenced from Fraunhauffer Institute (hope I got the name right).

            Now if MS goes to court, Linux would have to phony up billions. They would have to pony up based on the downloads, distributions. I dont think any corporate company can come to the rescue of linux.
          • Sorry but you are wrong

            WHat you suggest is only true of trademarks, not patents.
          • Re: Not necessarily

            [i]Now if MS goes to court, Linux would have to phony up billions.[/i]

            Who would have to pony up billions?

            none none
          • But MS cannot sue "Linux"

            "Linux" is a piece of software, not a legal entity unto itself. Micro$oft cannot sue "Linux". They would have to sue the authors of the Linux software. They cannot sue the end users, because that would be like suing a person who bought a TV that included parts which violated some other company's patents. I do not believe they can really sue the distributers, which is like suing Best Buy for selling the TV to the consumer. As I understand it, this means they would have to sue, individually, each programmer or group of programmers who allegedly infringed upon the patents claimed. I am no lawyer, but it seems to me that M$ would have to separately identify each package which allegedly infringes some patent claimed and sue the individual authors for each alleged infringement. I've never heard of a reverse class-action lawsuit.
          • You're right, it is

            If a company knows its patent is being violated and sits on that information without informing the violator and outlining consequences, the company implies consent to its usage. So you are right, if MS knows of violations they had better get their act together and protect their rights before enough time passes than the violator can claim implied consent.
            Michael Kelly
          • Where do you come up with this garbage?

            How long did it take for memory patents to come out in suits? How long was GIF format aroudn before there was a suit?
            How long did EOLAS wait?

            The list goes on and on and on and that is why they call them submarine patents.
          • with one problem

            If they do not act soon their patents are worth nothing. US patent law explicitly provides protection against extortion. If you do not actively protect your patents you loose the right to do so. You can not sit on a patent and then hijack a business. So now that MS has publicly stated their opinion they will have to act or loose.

            MS gives the reaon for not acting now in the fortune article:

            "Gutierrez refuses to identify specific patents or explain how they're being infringed, lest FOSS advocates start filing challenges to them."

            Now that sounds like a man sure of his case. I think this was a stupid move from MS. It forces them to act setting themselves wide open for retaliation from other patent moguls like IBM who have invested heavily in open source. Not only that...naming the patents will make Gutierrez' fear come true. We have all seen a lot of ridiculous patents being shot down after being challenged in court. Whatever remains from the patents might very well be easy to work around, something the US patent law also provides for. You have to give the infringer the opportunity to mend it's ways and get back to compliance or non infringement.

            Either way I can not see how this could turn out well for MS. Their reputation will get another chink in the armour, EU states will line up to fight what only can be seen as another monopolist bullying tactic (as long as MS refuses to name the patents), the Novell deal looks even worse now for the OS community all in all it looks like a loose loose situation they maneuvered themselves into.
          • Truer words have never been spoken

            And the longer MS waits, the worse chance they have a pressing a case. Especially after they've now publicly gone and named a number of patents.

            They are legally running right up to the "put up or shut up" point.
            Robert Crocker
          • Not really

            The longer it takes for linux to honor others patents the more cash they have to phony up