CNN and others are reporting that Microsoft has asserted that Linux and free software violate 235 of their patents. This is the logical next step after the Microsoft and Novell deal that provides amnesty to Novell customers against potential intellectual property violation lawsuits.

Here’s some background: A few months ago Microsoft signed a deal with Novell which would give Novell some upfront cash and make Microsoft a reseller of Novell’s Linux offerings. As a part of the deal, Microsoft promised not to sue Novell’s customers if it was found the Linux and other free software components violated Microsoft’s intellectual property. This cleverly sidesteps the stipulations set down by the GNU General Public License Version 2 (GPLv2), which is the license used by the Linux kernel and plenty of other free and open-source software bundled with Linux distributions. GPLv2 states that you cannot have an exclusive licensing deal:

“… we have made it clear that any patent must be licensed for everyone’s free use or not licensed at all.” (from GPLv2)

The deal between Microsoft and Novell gets around the issue, albeit on very shaky ground, by claiming that there is no patent licensing involved in the deal; Microsoft just agrees not to sue Novell customers. This loophole is being plugged in the draft for GPLv3 though it is unclear whether GPLv3 will be adopted in a widespread manner. Linus Torvalds has expressed reservations against the use of GPLv3. In any case, none of this affects the current software that is already licensed under GPLv2.

An article on InformationWeek explains the rationale behind Microsoft’s latest claim. According to the article, Microsoft is not pleased about the provision in GPLv3 that plugs the loophole that Microsoft is exploiting to prevent use and free distribution of free software. The latest move is a way of flexing some muscle to negotiate, though it is unclear to me what common ground could be reached.

SCO tried doing something similar, though they decided to sue some big corporations to scare other corporations to give them “protection money.” SCO decided to go against IBM, which made big news at the time, but the whole issue has all but faded into obscurity and the rapid erosion of SCO’s market share. At that time, the naysayers claimed that the lawsuit would affect the adoption of Linux because big corporations would be wary of using software that they could get sued for. Since then, the adoption of Linux has grown leaps and bounds, whereas SCO has not been able to prove any violation of their intellectual property yet.

Microsoft is a much bigger company than SCO, and they are using a different ploy, something that seems much more clever at the outset. It remains to be seen where this war goes. My personal feeling is that Microsoft is making a big mistake and will not gain much out of it. Here are my reasons:

  1. Most big companies are both Microsoft and Linux shops. It won’t serve Microsoft’s interests to antagonise their own customers.
  2. Software patents themselves are increasingly untenable. A lot of software patents (and all patents in general) are granted without too much prior research and can be proven to be obvious or invalid because of prior art.
  3. Even if the patents do hold up, it is not very hard, especially for huge open source community, to work around the patents so that they are no longer violated. For this reason, Microsoft has been unwilling to show exactly what the infringement is. As evidenced in the SCO case, this does not go down well with the courts.
  4. Microsoft has a lot of money and a lot of lawyers, but the adversaries that they would have to deal with are no pushovers either. Names like IBM, Sony, NEC and Sun are the ones that come to mind.

I’ll be keeping a close watch on this for sure!

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