By Stan Beer
Speak to anyone outside of Microsoft who knows anything about Microsoft's claim that Linux software violates 42 of its patents and most of them agree - Microsoft is running scared. Many believe that Microsoft's public announcement smacks of desperation and is a risky move by a company that has run out of ideas.
This is not the first time that Linux has been under attack for alleged patent infringements.
"We've heard all this before with the SCO (Unix) case," says Steven D'Aprano, operations manager for Windows-Linux integration consultant Cybersource. "We know that Microsoft had been funding SCO, tossing them a few million here and there to keep the case alive.
"SCO did their best to show that there was supposed patent and copyright violations in the Linux kernel. While the case hasn't completely finished yet, it has lost steam because SCO has got no evidence to support their claims.
"Until Microsoft start to actually point at particular bits that they claim are in patent violation then talk is cheap."
According to D'Aprano, an open source advocate, if Microsoft actually does put on the gloves against Linux, it will have a tough time deciding who to go after.
"Microsoft has been dropping hints that they're going to use patents as a weapon against the open source community but it's a very nebulous target for them to hit," says D'Aprano. "There's no company for them to go after. That's what SCO found. The reality is that even if they did hypothetically find that there are patent infringements the open source community would simply remove the offending code - it would be gone in the next release of Linux. People will still be able to go ahead and continue using Linux because the so-called infringing code would be gone.
"In addition there's no one to sue. Microsoft could probably make a few lead developers' lives miserable but these aren't multinational companies with deep pockets that they're going after. The worst case is that they might bankrupt a couple of individuals."
However, all of that is assuming that there are patents being violated and are actually valid.
D'Aprano says: "One of the things that may come out of this is that making a patent case is actually quite dangerous. The US Patent Office is notorious for handing over very weak patents and if it actually goes to court often the patent can be overturned.
"Even if hypothetically there are patent infringements in the Linux kernel, then the open source community would do the right thing and remove the offending code and, because open source development moves so rapidly, that means Linux would no longer be infringing before it even got to court. So even if Microsoft did have a case, by the time it got to court the case would be gone and whatever damages that they were able to ask for would be very minimal."
So what patents could Microsoft possibly believe it holds that Linux violates?
"The sort of things that Microsoft might hold patents for which concern the Linux kernel could be like techniques for managing memory," says D'Aprano. "A lot of the software patents that have been granted are extremely general and obvious to anyone that's been working in the industry. The patent system works well for specific innovations but they've been granted for things that are very general and not innovations at all which is very worrying," says D'Aprano.
However, D'Aprano, like many others, believes Microsoft is simply trying to employ bullying tactics in a desperate attempt to shore up growing leaks in its client base.
"I don't believe Microsoft genuinely believes that its technology has been ripped off," he says. "If that was the case it would have done something about it years ago. The Linux kernel and all the source code is open. Anybody can download it and read it. You can't tell me that Microsoft hasn't had its people going through every line of the Linux kernel for last 10 years. Of course they have.
"The fact is this is not about preventing Linux from ripping off Microsoft technology. This is about scaring off potential Linux customers. They don't know how to compete with Linux directly.
"An awful lot of customers are going to Microsoft and saying 'we need you to interoperate more easily with our Linux server.' They're thinking if they've got one Linux server, then how long is Microsoft going to keep the Windows servers there."
The problem, according to D'Aprano, has been exacerbated with the muted reaction in the business world to the release of Vista.
"People are thinking about paying thousands of dollars to migrate to Vista with the costs of retraining, software licenses, hardware updates being incredibly significant. This explains why there's been so little interest in upgrading to Vista. When XP came out people were saying they couldn't wait to jump on board. With Vista they're bored because there's nothing in Vista that people really want. A lot of people are saying that Vista is like XP with some nice graphical themes added.
"Companies are thinking that if they've got spend tens of thousands of dollars to migrate away from XP, what's the advantage of migrating to Vista and why don't they look at migrating to Linux. That's what's got to be scaring Microsoft more than anything else."
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