Microsoft has long made some nice cash from convincing Android vendors that they should pay them for Linux-related patents. Now, for the first time, a . Mind you, there's never been any proof that Linux violates any of Microsoft's patents. Despite that, several C level executives have made similar contracts and tell me that Microsoft has been shaking them down for Linux patent licensing agreements for years.
One involved attorney explained, “Microsoft has been doing this for years, although I don't know whether a patent cross license, as compared to a monetary payment, has usually been part of the deal.” An executive added, “ In our case we had no patents of our own. We had to sign an NDA [non-disclosure agreement] barring us from revealing any of the Microsoft's Linux infringement claims.”
Why would a company do this? A C level executive told me, “We use a lot of Microsoft software as well, and it was cheaper than fighting with them over our contracts. We want to do business, not fight over legal claims that have nothing to do with us.”
Another told me that, When Microsoft bought the Novell patents in 2011, “We knew Microsoft had to share those patents under the GPLv2, but our in-house counsel thought that didn't mean that Microsoft still couldn't charge for their use.” So this business decided “It's just part of the cost of doing business with Microsoft if you use Linux in the data-center and who doesn't?”
This doesn't come as much of a surprise for those of us who've been following the business side of Linux. Jim Zemlin, executive director at The Linux Foundation, said, "Microsoft's patent license agreements are not news. The company is trolling for dollars and companies are compelled to settle for less money than it would cost to litigate with Microsoft.”
Zemlin continued, “The key to remember here is this: When Microsoft signs a patent license agreement with a company and that company uses Linux, it doesn't mean that the company concluded they needed a license for Linux. It only indicates that it concluded it needs a license to at least some of the Microsoft patents. Patent license agreements cover any and all technologies between the two companies. In the case of Amdocs: yes, they run their business on Linux servers, as most companies do today, but it is a mistake to conclude that Linux was the impetus for the licensing agreement. For Microsoft this is an attempt at another sound bite for a tired and dying FUD campaign."
Mark Webbink, a visiting professor of law at Duke University, executive director of the Center for Patent Innovations at New York Law School and former Red Hat agreed. “I don't think this is the first MS patent licensing deal covering Linux on servers, and like the others it is a licensing deal with a user, not a Linux 'developer/distributor. (d/d)'"
“What continues to fascinate me, Webbink said, “is that, with the exception of Novell, those d/d's remain license free. You would think if it really had something, MS would have asserted patent infringement against Red Hat a long time ago.”
This was, however, to Daniel B. Ravicher, Executive Director of the Public Patent Foundation (PUBPAT) the first he'd “heard of MS asserting patents against users of Linux on servers, although it doesn't surprise me. They stopped innovating long ago, so all they can do now is try to become a leech on Linux. They'll have to take cheap payments or eventually go to court, and with the range of equitable defenses that can be asserted against them, including patent misuse, I think they'd have a tough road to hoe there.”
In the meantime, though, until some business decides to fight Microsoft's Linux patent claims, or Microsoft does after a Linux distributor, it appears that, just like with Android, Microsoft will continue to profit from unproven Linux intellectual property claims.
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