TWO weeks ago there was a blog post (semi-formal report) from Glyn Moody which led to some more sensationalism about Microsoft's intent following Apple's lawsuit against Android [1, 2, 3, 4, 5, 6]. Microsoft supported this course of action [1, 2], which led Moody to the conclusion that Microsoft will sue again and Ken Hess subscribes to exaggeration when he asks (in the headline): "Another Linux Lawsuit Storm Brewing?"
Now that Microsoft's big operating systems, Windows 7 and Windows Server 2008, are on store shelves, is it time again for them to pick up the legal sledgehammer and go after Linux? I think the evidence for it is mounting. Microsoft has signed a deal with Novell, penned an agreement with Red Hat, sued and won against TomTom, signed a secret deal with Amazon, has lost costly suits against Uniloc and VirnetX and lost an appeal in its case against i4i. But this time, they're going to go for the jugular with a broad and sweeping patent infringement suite against major Linux adopters that haven't signed indemnification deals with them.
The problem here – with software patents in particular- is that they are so numerous, so broadly worded, and so inconsistently worded, that searching for them is like searching for a submarine in the ocean. It is incredibly difficult, incredibly expensive, and very frequently ineffective to look for the ones that could torpedo your software product. And so most of the industry doesn’t bother- they just cross their fingers and hope.
In an article titled "Does Windows cost Microsoft opportunities" by the SD Times, Novell VP and Mono Project lead Miguel de Icaza had some strong opinions about Microsoft's handling of the .NET platform. For reasons unknown, the article has been taken down but is still available on Google's cache. Here were some of the criticisms de Icaza had: "Unlike the Java world that is blossoming with dozens of vibrant Java Virtual Machine implementations, the .NET world has suffered by this meme spread by [Microsoft CEO Steve Ballmer] that they would come after people that do not license patents from them. Microsoft has shot the .NET ecosystem in the foot because of the constant threat of patent infringement that it has cast on the system."
'Vested interests behind discussion on patents'
[...]
Prominent sponsors and organizers of the GW Law programmes have included multinational pharmaceutical companies like Novartis, Gilead Sciences, the Pharmaceutical Research and Manufacturers of America (PhRMA), a club of the big pharma in the US, and the US-India Business Council (USIBC), and companies with a vested interest in software patents such as Intellectual Ventures, Microsoft, and Qualcomm. Many of these companies have patent applications pending in the Indian patent office and some like Novartis and Bayer are even dragging the Indian government to court in an attempt to undermine the safeguard provisions in Indian patent law.
What it also means is that it drives HTML5 farther towards a proprietary implementation. H.264 patents are owned by a group of companies who license the format through independent Denver-based MPEG LA, LLC. In countries that uphold software patents (like the U.S.), both browser makers (like Apple) and commercial content providers (like CBS) may have to pay to use the codec.
To sum up: first, submarine patents have been impossible for the past 15 years, which severely limits this supposed threat. Second, the patent claims against Theora come from its competitor, and not from a neutral party; the threats are well-countered by Xiph. Third, Google supporting Theora so openly effectively means that Google believes that Theora's patent threat is minimal.
In fact, this last part is delightfully interesting in light of Apple's original complaint against Theora. Back in 2007, Apple's Maciej Stachowiak argued that while Ogg/Theora/Vorbis are free of patents now, they might get into trouble later on.
“Apple's challenge to HTC would generalise to almost any other distributor of Android.”The TomTom case taught that by claiming to just target one company the claimant clearly tries to establish a precedence that will make others buckle.
Stallman says that "Apple is suing HTC, and the HTC phone runs software which includes Linux. But that doesn't make it clear whether the suit is about Linux, or other software."
It's worth explaining that Android will be remerged into Linux. Linux and Android had split before the latest release of Linux. Novell's kernel hacker, Greg K-H, was among those who rejected it because it became improperly engineered. Several weeks ago Google said that it would tidy Android up and put it back in mainline Linux.
Android is a complete platform that includes modified Linux and no GNU at all. Android is maintained by many developers from Google and it's now similar to a patchset to Linux (at least part of it), which cannot be included in the main branch anymore. I do not like Android all that much. I told Linus Torvalds about the issues with limitations like DRM in it, but he seemed apathetic.
"I think Microsoft's VFAT patent attack targeted free code which is part of Linux," Stallman recollected. And indeed, Tridgell developed a workaround shortly after TomTom had settled and enabled Microsoft to extort other users (distributors) of Linux using "TomTom" as the ammunition. Microsoft has used Novell in a similar way since 2006 and it was soon brought to light by Jeremy Allison and then Microsoft itself (in 2007). To Microsoft, patent FUD has been the strategy of choice for quite a few years, but it keeps quiet about it unless there is a lawsuit, cross-licensing, or an occsional roar. ⬆