Aaron Ricadela
Microsoft Corp. has for the first time said it believes 235 of its patents are being violated by the free- and open-source software, or FOSS, movement. The Redmond, Wash., software company said the system infringed on 42 patents; its graphical user interface violated 65. The Open Office suite infringed on 45, email programs another 15 and other assorted free and open-source software amounted to 68 patent violations. Brad Smith, Microsoft general counsel, and Horacio Gutierrez, head of intellectual property and licensing, revealed the figures in an interview with Fortune magazine. Microsoft is trying to steer users toward versions of open-source software provided by Novell Inc., a networking company with patents that it struck a deal with last year. Fortune reported that Eben Moglen, longtime counsel to the Free Software Foundation and the head of the Software Freedom Law Center, contends that software is a mathematical algorithm and, as such, not patentable.
Now that the computer industry has its first accounting of how many patents Microsoft says are violated by open-source software, the question for many tech vendors is how aggressively the software giant will begin enforcement. And judging from the reaction in the blogosphere, the new disclosures inspire fear.
Microsoft has already begun collecting payments and gaining access to the patent portfolios of companies that use the open-source Linux operating system in their products. The list includes Novell (NOVL), Fuji Xerox, and Samsung Electronics.
License to Code
Microsoft sees those agreements as templates for future cross-licensing deals, and it's rattling a legal saber to gain an edge. When it comes to compensating Microsoft for its intellectual property, discussion is less painful than litigation, according to Horatio Gutierrez, Microsoft's vice-president of intellectual property and licensing. "The alternatives to licensing are alternatives that aren't very attractive for anyone," he says.
Microsoft contends that the Linux operating system and other open-source software programs violate 235 of its patents. The company plans to use that intellectual property to collect royalties from companies that make, distribute, and use Linux. Microsoft's plans were disclosed in a May 14 article in Fortune.
Linux and other open-source software are covered by the General Public License (GPL), which lets users modify programs' source code so long as they redistribute their changes to other users. Microsoft says the Linux kernel, which controls the software's most basic functions, as well as other elements of Linux and open-source productivity and e-mail software infringe on its patents, Fortune reported.
Let's Make a Deal
Now, the question is how will Microsoft collect. The GPL prohibits companies that sell or use Linux from paying royalties for technology embedded in its code. But a licensing deal Microsoft struck on Nov. 2, 2006, with Novell, distributor of the Suse version of Linux, appeared to circumvent that restriction by enacting a pledge by the companies not to sue each other's customers for potential patent infringements (see BusinessWeek.com, 11/3/06, "Linux Linkup for Microsoft, Novell").
As part of the deal, Novell agreed to pay Microsoft a portion of its Linux revenue worth at least $40 million. But Joe LaSala, senior vice-president and general counsel at Novell, says none of his company's software violated Microsoft's patents, and that the agreement was about technical compatibility between the companies' products. "We're quite explicit about that," he says. "We've heard their arguments."
Nevertheless, Microsoft has pursued deals that incorporate similar legal principles. Among these are licensing deals Microsoft struck on Mar. 22 with Fuji Xerox, a joint venture between Fujifilm Holdings (FUJI) and Xerox (XRX); and on Apr. 18 with Samsung. Gutierrez says the arrangements resemble aspects of the Novell agreement. Those companies received licenses from Microsoft for technologies used in Linux and other open-source software contained in products they sell. "Nobody thought it was possible to build a bridge between the worlds of commercial and open-source software," Gutierrez says. Microsoft is also considering other means of compensation for its Linux-related Internet protocol, he adds.
But a new version of the GPL due in July could prohibit Linux distributors from entering such deals. The current draft of the license's third version would add restrictions against patent-protection deals like the one Microsoft entered with Novell. That could close avenues for those companies that include Linux in their products to make patent peace with Microsoft. The issues could come to the fore again when Eben Moglen, a Columbia University law professor and former chief counsel for the Free Software Foundation, which controls the GPL, gives a speech at an open-source software conference May 22 in San Francisco.
Bloggers Demand Details
On the blog front, the new revelations from Redmond sparked calls for the company to disclose just which of its patents it thinks Linux violates.
Ex-Microsoft employee Robert Scoble wrote in his Scobleizer blog that "Microsoft has more than 800 lawyers and it looks like they are going to make sure that they remain relevant through legal action." Its actions could affect Google (GOOG) and other companies that make heavy use of Linux, Scoble notes.
Larry Augustin, an angel investor and former CEO of onetime stock market superstar VA Linux, wrote in his Weblog that Microsoft is bullying other companies by making vague threats. "If Microsoft believes that free and open-source software violates any of their patents, let them put those patents forward now, in the light of day," he wrote.
Mary Jo Foley said in her ZDNet blog that Microsoft has "ended any illusion that it planned to try to build bridges with the open-source community." The company's decision to go public with the number of patents it thinks Linux violates "shows Microsoft must think the GPL v3 has teeth," she wrote.
And Matt Asay, vice-president of business development at Alfresco, a Britain-based open-source software company, wrote in InfoWorld's Open Sources blog that Microsoft "wants to kill open source through whisper campaigns." He added, "It's hard to get excited about paying Microsoft's poll tax when Microsoft refuses to substantiate its claims."
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Microsoft Corp. has for the first time said it believes 235 of its patents are being violated by the free- and open-source software, or FOSS, movement. The Redmond, Wash., software company said the system infringed on 42 patents; its graphical user interface violated 65. The Open Office suite infringed on 45, email programs another 15 and other assorted free and open-source software amounted to 68 patent violations. Brad Smith, Microsoft general counsel, and Horacio Gutierrez, head of intellectual property and licensing, revealed the figures in an interview with Fortune magazine. Microsoft is trying to steer users toward versions of open-source software provided by Novell Inc., a networking company with patents that it struck a deal with last year. Fortune reported that Eben Moglen, longtime counsel to the Free Software Foundation and the head of the Software Freedom Law Center, contends that software is a mathematical algorithm and, as such, not patentable.
Now that the computer industry has its first accounting of how many patents Microsoft says are violated by open-source software, the question for many tech vendors is how aggressively the software giant will begin enforcement. And judging from the reaction in the blogosphere, the new disclosures inspire fear.
Microsoft has already begun collecting payments and gaining access to the patent portfolios of companies that use the open-source Linux operating system in their products. The list includes Novell (NOVL), Fuji Xerox, and Samsung Electronics.
License to Code
Microsoft sees those agreements as templates for future cross-licensing deals, and it's rattling a legal saber to gain an edge. When it comes to compensating Microsoft for its intellectual property, discussion is less painful than litigation, according to Horatio Gutierrez, Microsoft's vice-president of intellectual property and licensing. "The alternatives to licensing are alternatives that aren't very attractive for anyone," he says.
Microsoft contends that the Linux operating system and other open-source software programs violate 235 of its patents. The company plans to use that intellectual property to collect royalties from companies that make, distribute, and use Linux. Microsoft's plans were disclosed in a May 14 article in Fortune.
Linux and other open-source software are covered by the General Public License (GPL), which lets users modify programs' source code so long as they redistribute their changes to other users. Microsoft says the Linux kernel, which controls the software's most basic functions, as well as other elements of Linux and open-source productivity and e-mail software infringe on its patents, Fortune reported.
Let's Make a Deal
Now, the question is how will Microsoft collect. The GPL prohibits companies that sell or use Linux from paying royalties for technology embedded in its code. But a licensing deal Microsoft struck on Nov. 2, 2006, with Novell, distributor of the Suse version of Linux, appeared to circumvent that restriction by enacting a pledge by the companies not to sue each other's customers for potential patent infringements (see BusinessWeek.com, 11/3/06, "Linux Linkup for Microsoft, Novell").
As part of the deal, Novell agreed to pay Microsoft a portion of its Linux revenue worth at least $40 million. But Joe LaSala, senior vice-president and general counsel at Novell, says none of his company's software violated Microsoft's patents, and that the agreement was about technical compatibility between the companies' products. "We're quite explicit about that," he says. "We've heard their arguments."
Nevertheless, Microsoft has pursued deals that incorporate similar legal principles. Among these are licensing deals Microsoft struck on Mar. 22 with Fuji Xerox, a joint venture between Fujifilm Holdings (FUJI) and Xerox (XRX); and on Apr. 18 with Samsung. Gutierrez says the arrangements resemble aspects of the Novell agreement. Those companies received licenses from Microsoft for technologies used in Linux and other open-source software contained in products they sell. "Nobody thought it was possible to build a bridge between the worlds of commercial and open-source software," Gutierrez says. Microsoft is also considering other means of compensation for its Linux-related Internet protocol, he adds.
But a new version of the GPL due in July could prohibit Linux distributors from entering such deals. The current draft of the license's third version would add restrictions against patent-protection deals like the one Microsoft entered with Novell. That could close avenues for those companies that include Linux in their products to make patent peace with Microsoft. The issues could come to the fore again when Eben Moglen, a Columbia University law professor and former chief counsel for the Free Software Foundation, which controls the GPL, gives a speech at an open-source software conference May 22 in San Francisco.
Bloggers Demand Details
On the blog front, the new revelations from Redmond sparked calls for the company to disclose just which of its patents it thinks Linux violates.
Ex-Microsoft employee Robert Scoble wrote in his Scobleizer blog that "Microsoft has more than 800 lawyers and it looks like they are going to make sure that they remain relevant through legal action." Its actions could affect Google (GOOG) and other companies that make heavy use of Linux, Scoble notes.
Larry Augustin, an angel investor and former CEO of onetime stock market superstar VA Linux, wrote in his Weblog that Microsoft is bullying other companies by making vague threats. "If Microsoft believes that free and open-source software violates any of their patents, let them put those patents forward now, in the light of day," he wrote.
Mary Jo Foley said in her ZDNet blog that Microsoft has "ended any illusion that it planned to try to build bridges with the open-source community." The company's decision to go public with the number of patents it thinks Linux violates "shows Microsoft must think the GPL v3 has teeth," she wrote.
And Matt Asay, vice-president of business development at Alfresco, a Britain-based open-source software company, wrote in InfoWorld's Open Sources blog that Microsoft "wants to kill open source through whisper campaigns." He added, "It's hard to get excited about paying Microsoft's poll tax when Microsoft refuses to substantiate its claims."
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