Bad cop thunders, good cop moves at Microsoft

Bad cop thunders, good cop moves at Microsoft

Summary: FUD about patent claims means little to the mass market, because patent holders rarely go after customers, but it might mean something in the enterprise space. It might cause enough hesitation that large companies will listen to a Microsoft "blended operating systems" pitch aimed at pushing IBM aside.

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Good Cop, Bad Cop records of Boston logoThe good cop-bad cop dance continues at Microsoft, with bad cop CEO Steve Ballmer again threatening Linux with litigation while good cop Bill Hilf is made master of all Windows Server marketing. (The image is still the logo of this fine Boston music publisher.)

Ballmer's latest tirade was aimed specifically at Red Hat, which is the leader in enterprise Linux and just reported another strong result. If you can stand some registration headaches, a video of his talk is here.

This does not mean Microsoft is about to call in the lawyers. The relevant quote is "People who use Red Hat, at least with respect to our intellectual property, in a sense have an obligation to compensate us." (The italics are mine.) As in, it would be nice if they did.

There are a few ways this could go. Microsoft could send letters to Red Hat Enterprise Linux customers asking that they pay it not to sue. Or it could simply wait for another patent holder, say Eolas, to file the suit. After all, Eolas beat Microsoft out of $521 million in August.

There are problems with either approach. Any shakedown would go to court, because it's a guarantee not all Red Hat customers will go along. And the Eolas patent covers embed technology used on Web pages, which is not part of the Linux operating system. (Besides, the U.S. Patent Office is considering invalidating it based on prior art.)

Meanwhile good cop Hilf is reportedly expanding his role, moving from an engineering position where he interacted with the open source community into an outright marketing job involving Windows Server. This could mean he's going to sing the interoperability song to enterprise customers.

Combine this with Microsoft's ongoing efforts in hospital computing and it seems to me the company is continuing its move "up the stack" into the area once called mainframe computing, where it faces a head-on collision with IBM.

FUD about patent claims means little to the mass market, because patent holders rarely go after customers, but it might mean something in the enterprise space. It might cause enough hesitation that large companies will listen to a Microsoft "blended operating systems" pitch aimed at pushing IBM aside.

Topics: Operating Systems, Hardware, Linux, Microsoft, Open Source, Servers, Software

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24 comments
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  • Naw .... Never happen ..

    Quote:

    "There are problems with either approach. Any shakedown would go to court, because it?s a guarantee not all Red Hat customers will go along. And the Eolas patent covers embed technology used on Web pages, which is not part of the Linux operating system. (Besides, the U.S. Patent Office is considering invalidating it based on prior art."

    I would LOVE to see that, the USPO invalidating things.

    I read a PATENT application by Microsoft of fairly recent vintage. It stated (I do not remember which one, so do not ask) That it was a patent to be able to control screen display / graphics by sending special sequence of characters to COMMAND the display to do display and rendering (Paraphrased Version).

    WTF? Common, things have gotten out of hand with patents and software.
    Linux_4u!
    • winning without a suit being filed...

      As I indicated, I agree with you. I think it most likely that Microsoft will use this threat in its marketing to enterprise customers.

      And I think the Hilf announcement is confirmation of this. Both cops will live in the same cop house.

      Although rather than good cop bad cop maybe we should call them Toody and Muldoon. http://www.tv.com/car-54-where-are-you/show/712/summary.html
      DanaBlankenhorn
  • 'Abusive Behavior' and Antitrust

    Do Ballmer's comments constitute 'abusive behavior' and if so does it follow that such comments are Antitrust actionable?
    D T Schmitz
    • Given their track record - Yes

      "Do Ballmer's comments constitute 'abusive behavior' and if so does it follow that
      such comments are Antitrust actionable?"

      It won't be actionable by the for-sale DoJ, however if I was RH I'd be making noise
      in the EU.

      MS used the same position to argue against the royalty free availability of
      interoperability specifications required by the EC ruling, however when asked for
      evidence was unable to produce anything.

      I've no doubt Linux violate a number of MS's trivial patents, MS has been filing
      thousands a year to protect their monopoly. If evidence is needed software
      patents are abusive look to MS, the least innovative IT company, filing the number
      of patents they do.

      MS position reminds me of this quote by Bill Gates:

      "If people had understood how patents would be granted when most of today's
      ideas were invented and had taken out patents, the industry would be at a
      complete standstill today. ... The solution is patenting as much as we can. A future
      startup with no patents of its own will be forced to pay whatever price the giants
      choose to impose. That price might be high. Established companies have an
      interest in excluding future competitors."

      Of course at MS any behaviour is excused as long as they profit from it. I don't
      know why MS competitors haven't done more to support Wine, without the
      destruction of MS the whole industry will continue to be held hostage.
      Richard Flude
      • Invalidate Patents by the Obviousness Test

        I agree Richard that the pure number of patents that MS holds is being used as an 'intimidation factor' but recent changes to patent law will allow many of the issued patents to be challanged and invalidated by virtue of the [http://arstechnica.com/news.ars/post/20070430-supreme-court-ruling-makes-obvious-patents-harder-to-defend.html]Obviousness test[/url].

        Ballmer is going to need to stop sabre rattling and produce specifics or risk Antitrust violations.

        Richard Flude comes through with yet another winning response! :)
        D T Schmitz
      • Invalidate Patents by the Obviousness Test

        I agree Richard that the pure number of patents that MS holds is being used as an 'intimidation factor' but recent changes to patent law will allow many of the issued patents to be challanged and invalidated by virtue of the [url=http://arstechnica.com/news.ars/post/20070430-supreme-court-ruling-makes-obvious-patents-harder-to-defend.html]Obviousness test[/url].

        Ballmer is going to need to stop sabre rattling and produce specifics or risk Antitrust violations.

        Richard Flude comes through with yet another winning response! :)
        D T Schmitz
        • P.S. Hello?

          printf ("Hello World!\n");
          Hey, maybe I should patent this. ;)
          D T Schmitz
        • Unfortunately he doesn't

          "Ballmer is going to need to stop sabre rattling and produce specifics or risk
          Antitrust violations."

          All that any patent party needs to intimidate others is the money to fight a lawsuit
          for as long as possible, or threaten a lawsuit via the media.

          The "Obvious Test" achieve one thing, reducing the number of patent threats
          towards the big guys by parties that don't have the legal resources to undermine
          patents, don't expect significant number of patents by the big guys to be
          overturned.

          The quality of the patent is not the only avenue for abuse, in fact it isn't used at all
          in most cases.
          Richard Flude
    • AntiTrust concerns

      There is no longer an anti-trust law, as such, in the U.S. If no one enforces a law, it ceases to have meaning.

      But Ballmer's bluster may have an impact in the EU, which still maintains and anti-trust proceeding against Microsoft. And one has to wonder what his remarks mean in that context...so thanks for bringing it up.
      DanaBlankenhorn
      • Fortunately...

        The US Justice Department and FTC aren't the only institutions that can bring antitrust suits in the US. The laws are still on the books and the courts still recognize them, whether the Bush Administration likes it or not.
        John L. Ries
  • Ballmer tried this before ...

    This isn't the first time that Mr. Ballmer makes unsubstantiated allegations on the subject of supposedly infringed Microsoft patents. The last time he shut up after awhile.

    Interestingly, and following SCO's proven tactics in the matter, he stubbornly refuses to say *what* patents are allegedly violated.

    Of course Mr. Ballmer admits that he doesn't expect to see a huge revenue stream from licensing agreements (he named the Novell agreement), but that isn't the point you see.

    The point is that "free as in speech" and "free as in beer" are threatening Microsoft's business model. If only he could somehow get rid of the "free as in beer", and with it the "free as in speech", he would turn Linux into just another commercial offering. And that's something he knows how to compete with. By fair means or foul (just see the recent EU verdict against Microsoft and judge Jackson's findings of fact in the DOJ-Microsoft case a few years ago for what those "foul means" amount to).

    It's also important to realise that no solution that consists of Linux simply dropping any code (assuming any Linux code were to be found to infringe on Microsoft's patents) can be acceptable to Mr. Ballmer.

    With that in mind it's easy to understand why Mr. Ballmer really *cannot* list the patents he wishes to receive "just compensation" for. It's because he does not want to give Linux any opportunity to remove any offending code (assuming there is any). He does not want any compensation either.

    He just wants to make Linux non-free because that's how he can get rid of it.
    Golodh2
    • Red Hat is another software company.

      And Linux has been turned into "just another commercial offering". One with 80% of its market.
      Anton Philidor
      • Completely beside the point ...

        @Anton Philidor

        I'm afraid you managed to say something that's true in itself while totally missing the point.

        The point isn't "Are there software companies that sell Linux_plus_support?", sure there are. Redhat and Novell being examples.

        Instead the point is "Do *all* Linux distributions have to pay license fees?" Because if that were the case, Linux *cannot* be distributed free of charge anymore.

        Just take a minute to think of that will you? End of "free as in speech Linux", and of "free as in beer Linux". End of Linux. Champagne in Redmond.
        Golodh2
  • Mr. Ballmer said "an EOLAS".

    He probably intended a company that suddenly appears in order to press an expensive patent claim. EOLAS being an example.

    I wonder if an EOLAS would go to Red Hat directly, or attempt to gain licensing fees from customers. Probably customers. After all, partly as a result of Mr. Ballmer's actions, customers realize that open source companies are just like all other companies. Except, in Red Hat's case at least, less inclined to make agreements that provide protection.
    Anton Philidor
    • Less inclined to make agreements

      It seems to me you're assuming Red Hat's/Linux's guilt. It's hard not to read Balmer's words as extortion, as in "you pay me or I'll sue you for some unstated reason".

      Would you consider SCO "an EOLAS" for MS?
      meelder
      • Not intentional

        Assuming any sophisticated software violates IP, Red Hat is selling a product that infringes. Unavoidable. And developers of all types of software (appropriately) do not do patent searches before writing. Only one reason being that unknowing infringement is not a liability.

        So Red Hat isn't "guilty" because to me that word implies intent. But the company does infringe, and probably on Microsoft's patents.

        If Red Hat recognizes the problem and is not negotiating in order to gain approval, then that would be guilty. But I have no evidence that's true.


        SCO was an EOLAS for IBM, an unsuccessful one. How successful the original EOLAS will be isn't clear yet.
        Anton Philidor
        • Anton...

          > "But the company does infringe, and probably on Microsoft's patents."

          Care to show proof of this?
          Cardinal_Bill
        • Extraordinary claims...

          demand extraordinary proof, and it would be nice if you could prove this claim.

          I think your point, however, is that everything infringes. So that means everyone needs cross-patent agreements with everyone else? And if that's true, isn't that a complete barrier to any innovation? And isn't encouraging innovation the whole idea behind our so-called "IP" (patent and copyright) law?

          If those laws are a barrier to innovation, as you seem to indicate they are, we should change them.
          DanaBlankenhorn
  • RE: Bad cop thunders, good cop moves at Microsoft

    Microsoft must be in scared-mode, what wtih Ballmer pulling an SCO.

    "We have patents!!! Red Hat infringes. Someday, I might get specific....."
    hairyR
    • It's hard to tell what he's up to...

      There are days when Ballmer sounds just like the pampered, arrogant Harvard S.O.B. he was in school. I don't know why he does it -- maybe he thought England was far away and word wouldn't get back.

      But it's not helpful.
      DanaBlankenhorn