Is Fighting Open Source With Patents A Smart Move By Microsoft?

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Fortune Magazine published an article in which they describe how Microsoft claims that free software, such as Linux, violates 235 of its patents.

Some key snippets (emphasis mine):

Microsoft is pulling no punches: It wants royalties. If the company gets its way, free software won’t be free anymore.

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Microsoft General Counsel Brad Smith and licensing chief Horacio Gutierrez sat down with Fortune recently to map out their strategy for getting FOSS users to pay royalties. Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents.

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In the meantime, with Microsoft seemingly barred from striking pacts with distributors, only one avenue appears open to it: paying more friendly visits to its Fortune 500 customers, seeking direct licenses.

If push comes to shove, would Microsoft sue its customers for royalties, the way the record industry has?

"That’s not a bridge we’ve crossed," says CEO Ballmer, "and not a bridge I want to cross today on the phone with you."

The article points out that Microsoft doesn’t make any specific patent claims. They simply break the number down into categories.

But he does break down the total number allegedly violated - 235 - into categories. He says that the Linux kernel - the deepest layer of the free operating system, which interacts most directly with the computer hardware - violates 42 Microsoft patents. The Linux graphical user interfaces - essentially, the way design elements like menus and toolbars are set up - run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68.

I understand that Microsoft is a business and has a duty to its shareholders and the right to protect its patents. **But the question I ask here is whether this is a good idea? Is this really a good strategy to meet its fiduciary duty? Will this keep its shareholders, customers, and developers happy?

At the moment, I don’t think this is a wise move. I’m not a patent expert so there is no point in me arguing on the validity of their patent claims, so I won’t. I will try to reserve judgment concerning the areas I am not well informed about. Instead, I want to focus on the negative perception of such a move for Microsoft and the potential effects of that.

On the face of it, given the recent pact between Novell and Microsoft, this seems like a transparent attempt to scare other Linux distributors into forming their own pacts with Microsoft. This perception of bullying certainly doesn’t help Microsoft’s image, which had been on the mend in the last few years.

Not only that, but by executing such a move, Microsoft will find it hard to avoid the charge of hypocrisy by its critics considering how Microsoft itself has been the victim of patent trolling in various lawsuits such as the EOLAS case and the more recent Vertical Computer Systems lawsuit over .NET.

Given the recent Supreme Court rulings around patent trolling, this announcement seems especially poorly timed. Microsoft appears to be trying to have it both ways, fighting against silly patents on the one hand while threatening enforcement of patents with the other.

Again, I do not know that Microsoft is engaging in hypocrisy or patent trolling. I am merely focused on the perception of their actions. I can’t claim that Microsoft is patent trolling because I don’t know whether these patent claims are legitimate. And that’s part of the problem. Nobody knows yet.

By not addressing specifics, Microsoft is not opening its patents to challenge. So while they might not be patent trolling in this case, they certainly are (whether intentionally or not) creating an environment of fear, uncertainty, and doubt for the ecosystems that have grown around these open source projects.

This at a time when Microsoft seemed to really be warming to Open Source. At the Mix07 conference, I really got the sense that developers and program managers at Microsoft are really starting to embrace the Open Source Software and how it fits into the Microsoft ecosystem.

This may be indicative of a disconnect within the Microsoft ranks. It seems that the new wave of Microsoft employees, especially many of their developers and Program managers, see Open Source as a way to enhance and generate value around the Microsoft .NET development platform. Meanwhile, it appears that the old wave of Microsoft executives and its legal department cannot look beyond the potential threat that OSS might be to Microsoft and smell opportunity.

This points to another potential negative effect of this strategy - potential developer discontent within and outside the company. Microsoft’s recent attempt to stifle Office 2007 ribbon look alikes pushed Mike Gunderloy from the ranks of being a relative proponent of Microsoft to deciding to completely leave the Microsoft universe. Could this announcement have a similar effect on other developers and hurt Microsoft’s ongoing competition with Google in retaining the best and the brightest?It remains to be seen.

As I said in a recent interview, I firmly believe that the .NET platform is a fantastic environment for developing open source software. I also believe that these myriad of open source projects built with .NET benefits Microsoft immensely. So this recent news about Microsoft’s Patent fight just leaves me scratching my head, not because I don’t think they have the right to defend their patents, but because I wonder if it’s really the smart thing to do at this time.

In any case, at the very least, I hope they don’t use the RIAA as a model of strategic brilliance and start suing their own customers. Now that, I can unilaterally claim, would be a bad move.

What are your thoughts on this? Am I off base and uninformed, or do I make a good case here?

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