Linux infringes Microsoft's patents

Fortune Magazine has published an interview with Microsoft's Steve Ballmer, where he has made the comment that Linux infringes 235 of its software patents, and it will be looking for licences from developers and corporate users. As your friendly neighbourhood Prophet of Doom, I have been announcing the advent of the Great Software Patent War for some time now. Yes, I know, being right all the time is tiring and risky business, Cassandra had a cruel fate after all.

The argument put forward by Microsoft seems straightforward. "We own some patents, Linux implements some of those inventions in their code, if you want to use Linux, then you must pay us". Nobody has been sued yet, but it is obvious that the interview has been designed in order to issue a blunt threat against Linux users and developers to enter into negotiations with Microsoft.

This threat is unlike the much debated and scorned SCO v IBM case, where SCO has been conducting a lengthy (and ultimately futile) suit arguing copyright infringement by IBM and Red Hat. Unfortunately for Free and Open Source developers and users, Microsoft's claims have more weight given the strength of software patent claims in the United States. 235 patents are not something to be shrugged-off, this could truly spell the demise of many small-scale FOSS projects.

I've been trying to figure out the strategy behind this, after all, there was a feeling in some sectors that Microsoft had been warming towards FOSS. There was the adoption of an open source strategy, and the heavily talked-about deal between Novell and Microsoft. Under that deal, Microsoft and Novell promised not to enforce each other's patents, while Novell promised to pay Microsoft a percentage of its revenue. This deal, of course, is not kosher in Free Software circles. Moglen made it clear that the GPL v3 would be re-drafted in order to make such a deal a breach of the GPL, which was eventually done with the latest draft. According to the new version:

"You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a patent license (a) in connection with copies of the covered work conveyed by you, and/or copies made from those, or (b) primarily for and in connection with specific products or compilations that contain the covered work, which license does not cover, prohibits the exercise of, or is conditioned on the non-exercise of any of the rights that are specifically granted to recipients of the covered work under this License [...]"

This convoluted clause is designed specifically to attack the Novell and Microsoft deal, hence its nightmarish wording. Similarly, the new GPL contained a clause that could eventually be used to make the patent licence contained in the new GPL into a viral clause similar to existing copyleft clause in GPL v2. Obviously, these developments seemed to prompt action from Redmond, and today's announcement seems precisely to do that.

But why now? It seems obvious that the threat is designed to issue a clear threat against the GPL v3, and perhaps it attempts to influence the draft's discussion. This may be the reason why the FSS, Stallman and Moglen have answered forcefully, almost with a "bring it on" attitude. They know that the pendulum is swinging against unfettered software patents, and that this case could very well prove to be the silver bullet that fatally wounds the current system. Imagine a situation where large numbers of corporate Linux users are sued by Microsoft. The result could very well be a legislative push against broad patentability. Microsoft is also playing with fire by entering into IBM's turf. As one of open source's corporate patrons, IBM has an impressive software patent arsenal that it could deploy if things get to an all out litigation battle. It is an open secret in the industry that as things stand, everyone is infringing someone else's patents, and what sustains the balance at the moment is a complex network of cross-licensing between industry giants. I have always believed this is one of the reasons why FOSS projects have managed to remain litigation-free so far. If Microsoft sues, will IBM retaliate? What would such a case look like?

Expect geekdom and the blogosphere to go nuclear over this one.