Microsoft’s Foss Patent Infringement Holly Stark ITT Technical IT 302 Abstract This paper takes an in depth look at the claims from Microsoft that FOSS (Free and Open Source Software) committed patent infringement in 2006. It also discusses how the events have impacted FOSS, whether negatively or positively and how the actions have changed both since 2006. Microsoft’s Foss Patent Infringement Free software is wonderful and corporate America seems to love it. It’s often high-quality stuff that can be downloaded free off the Internet and then copied at will.
It’s versatile – it can be customized to perform almost any large-scale computing task – and best of all its crash-resistant. More than half the companies in the Fortune 500 are thought to be using the free operating system Linux in their data centers. In 2006, Microsoft cast a shadow over Free and Open Source Software by alleging that they had violated 235 patents such as the Linux kernel, Samba, OpenOffice. org and others. Foss’s legal representative Eben Moglen contended that software is a mathematical algorithm and, as such, not patentable. Parloff, R. 2007) But what of Microsoft’s claims? Are they valid? But first to answer that you need to understand what a patent really is. A patent is essentially a limited monopoly whereby the patent holder is granted the exclusive right to make, use, and sell the patented innovation for a limited period of time. Granting exclusive rights to the inventor is intended to encourage the investment of time and resources into the development of new and useful discoveries. Once the term of protection has ended, the patented innovation enters the public domain.
The problem of the patentability of software has become one of the most debated issues with regards to open source software. The Supreme Court stated in a unanimous opinion that patents have been issued too readily for the past two decades, and lots are probably invalid. For a variety of technical reasons, many dispassionate observers suspect that software patents are especially vulnerable to court challenge. This ruling works in FOSS’s favor. Patents can be invalidated in court on numerous grounds; others can easily be “invented around. Still others might be valid, yet not infringed under the particular circumstances. FOSS has some well known patrons working in its corner as well. In 2005, six of them – IBM (Charts, Fortune 500), Sony, Philips, Novell, Red Hat (Charts) and NEC – set up the Open Invention Network (OIN) to acquire a portfolio of patents that might pose problems for companies like Microsoft, which are known to pose a patent threat to Linux. So if Microsoft ever sued Linux distributor Red Hat for patent infringement, for instance, OIN might sue Microsoft in retaliation, trying to enjoin distribution of Windows. Parloff, R. 2007) A preliminary legal analysis of FOSS licenses conducted seems to suggest that the novel licensing model used by FOSS is legally valid, a fact that lends substantial credit to the movement. Other indications as to the soundness of the licenses are also encouraging; a ruling in Germany that has recognized the validity of the General Public License (GPL) ( J. Hoppner,2004), which further serves to stress that FOSS is a global phenomenon that is revolutionizing the entire field of software development.
Microsoft realized that something had to change when it comes to patents. They basically had three choices. They could do nothing, it could start suing other companies to stop them from using its patents, or, they could begin licensing its patents to other companies in exchange for either royalties or access to their patents (a “cross-licensing” deal). They chose to do the latter. In December 2003, Microsoft’s new licensing unit opened for business, and soon the company had signed cross-licensing pacts with such tech firms as Sun, Toshiba, SAP and Siemens.
On November 2, 2006, Microsoft went public and announced a partnership with Novell to collaborate to help Microsoft’s Windows, a proprietary operating system, work with Novell’s Suse Linux, which is based on open-source code. In addition, the software makers struck a deal on patents designed to give customers peace of mind about using Novell’s open-source products. This partnership made Novell the only company in the industry that was able to provide the customer not only with the code to run Linux, but also with a patent covenant from Microsoft. Evers, Joris 2006) Some thought that it showed that Microsoft was kind of being forced to see Linux as a significant competitor and the FOSS model as a viable business model. (Upfold, Peter 2006) My personal opinion is that this was an attack on the open source community. Microsoft hasn’t actually changed its tune; it’s still actively attacking free software and trying to abolish GNU/Linux while promoting Windows and other proprietary software as though they are complementary to free software, which they are not. It’s PR nonsense and Microsoft is good at PR.
Since then, Novell was sold in 2010 to Attachmate Corp. and a concurrent sale of certain intellectual property assets was sold to CPTN Holdings LLC, a consortium of technology companies organized by Microsoft Corporation. It plays right into the hands of Microsoft’s PR campaign, which strives for a fusion where Microsoft controls both sides of the competition and then derails the side which is less favorable to Microsoft. Microsoft has done that over and over again for many years and victims include giants like IBM and Apple.
While FOSS licenses generally protect end user freedom in the realm of copyright, they have no effective protection against threats from software patents, especially from entities outside the FOSS community. In responding to the threat from software patent holders, the FOSS community has created innovative licensing schemes. ( Davidson, S. J 2006) Permissive licenses, such as the Apache licenses, have different patent rights clauses from reciprocal licenses, such as the MPL and GPL. In dealing with potential patent claims, GPL 2. has a “Freedom or Death” termination clause – “any patent must be licensed for everyone’s free use or not licensed at all. ” GPL 2. 0 does not allow the development of software that requires any kind of license payments for third party patents. (Hacker. J. n. d. ) GPL 3. 0 was drafted to cope with global software patent threats and to provide compatibility with more non-GPL FOSS licenses. The current GPL draft 3. 0 keeps GPL 2. 0’s copyleft feature and includes new provisions addressing evolving computing issues, such as patent issues, free software license compatibility, and digital rights management (“DRM”). McMillan, R 2007) As of today, Microsoft is still attacking free software with two types of tactics. The tactics largely include litigation and the use of so-called Fear-Uncertainty-Doubt (FUD) tactics designed to undermine the popular perception of the open source philosophy. This year alone they have won several cases either outright, in appeal or countersuits against Motorola’s Android features. The rest of the FOSS community seems to be on edge and waiting to see what happens next.