The Linux Liability Problem

The last month has seen both Oracle and Microsoft take their gloves off in their competition with open source software. Where Oracle has taken a seemingly straightforward approach of copying the competition and undercutting their prices, Microsoft's move to invoke intellectual property and the terms of the GNU Public License (GPL) to counter open source competition is much more potentially damaging. What's more, while Oracle's success could be a positive force on open source, Microsoft's success could endanger the existence of the open source movement. Can the Open Invention Network, the Patent Commons or someone else save the day?

The Battle for Commodity OS is Over, and Linux has Won
For years, the challenge for Linux vendors has been to build a case that Linux and other open source software can be as good as or better than proprietary software in solving business problems. Now, Oracle has incorporated Linux into its own product line, and Microsoft has “partnered” with Novell to support Linux compatibility. There can be no question that Microsoft and Oracle have promoted Linux from “hobbyists' plaything” to “viable business solution.”

Until now, commercial operating system vendors (in other words, Microsoft) came up with a variety of arguments to convince their customers that open source software was a bad choice. Reliability, security and total cost of ownership are the big three that Microsoft promotes in its “Get the Facts” page about Windows Server versus Linux. Others that vendors harp on include availability of support services, quality of commercial proprietary code, and so on.

Proprietary software vendors manipulate emotions with charges that “Open source is communism” (Shai Agassi, president of the product and technology group at SAP) or “Open source is a cancer” (Steve Ballmer) to scare customers unfamiliar with open source licenses. Until now, however, legal liability has not been a high priority argument in favor of proprietary software.

But with Oracle and Microsoft both acknowledging and endorsing Linux as a viable alternative OS for server and desktop, the contest for credibility for Linux is over. Anything but a clear win for Windows is a victory for Linux: it means that Linux is at least as good a product as Windows.

Oracle did it by adding Linux to its product line; Microsoft by partnering with Linux vendor Novell. As far as these two leading enterprise software vendors are concerned, the server OS is now a commodity, and while price and functionality are still important, quality of support and other peripheral features are now of greater importance.

Oracle vs. Red Hat, Microsoft vs. Open Source
While Linux has gained credibility as a viable alternative to Windows, this battle is just a first step in what could ultimately become a very ugly war. With Oracle repackaging the guts of Red Hat's flagship product and cutting their price to the bone, Red Hat has very quickly acquired a big and tough competitor, though not an invincible one.

Red Hat has a well-earned reputation for delivering solutions and keeping their customers happy and loyal; Oracle's reputation in these areas is less than stellar. Red Hat can fairly compete against Oracle on the merits of their offerings, and customers can weigh the savings due to lower subscription rates charged by Oracle against the possible higher costs associated with lower quality customer service.

But suddenly, the greatest differentiator between OS vendors is no longer a question of features, function, performance, customer support, security, reliability or any feature of the product itself, but the existence of potential legal liability incurred by anyone who uses Linux.

Microsoft's initial announcement of their deal with Novell explicitly promised that individual users and noncommercial developers would never be subjected to any legal action relating to intellectual property issues with Linux. Of course, the corollary of that statement was made clear shortly in Steve Ballmer's statement that Linux uses Microsoft's intellectual property, and anyone using Linux commercially in any way could expect to be billed for it.

Ballmer at first declined to elaborate on how Linux violated Microsoft's intellectual property rights, but patents are the obvious and most damaging answer. Copyright law is powerful but limited. If Microsoft can prove Linux includes copyrighted Microsoft programs, they can force a rewrite of the offending code under copyright law. Copyright protection protects the expression of an idea, including a computer program.

Can Patents Kill Linux?
Patent protection, however, can be applied to all expressions of a function or solution to a problem. It doesn't matter if you came up with the idea yourself, if someone else patented it, you've got to pay to use it.

For example, if Microsoft happens to hold a patent on the software implementation of a telephone (see Patent # 7,120,140) you've got to come to terms with them if you want to include such an application with your own product. If you include your own software phone without Microsoft's permission, you can be sued; if you knowingly violate the patent, you can be sued for even more.

One might suppose the idea of creating a software version of a phone is a natural and obvious extension of the art of programming, considering other instances of physical devices, such as calculators, filing cabinets, calendar planners, telephone and contact directories, and so on. You are free to argue your case that the patent is not valid, as long as you've got $2 to 4 million, or more – the estimated legal cost of contesting a patent.

If Microsoft enforces its copyrights, compliance is a simple matter of comparing source code and rewriting the offending code. Taking a proactive defense against patent lawsuits is virtually impossible: you'd have to examine Microsoft's entire patent portfolio, compare those patents against each open source program, determine whether they infringe any patents, and systematically remove all offending functionality from every open source program.

Notice that I wrote "remove offending functionality" rather than "replace offending code," because patents cover expressions of the mechanism, not just the patent holders' version. This is not a good option because of the cost and potential cost: if a patent violator can be shown to have willfully violated a patent (that is, with knowledge that he/she is violating the patent), the patent holder can be awarded much higher damages than when the violation is accidental.

One reason high tech companies do R&D is to build a patent portfolio that can be used as protection and leverage in such instances. A company can negotiate cross-licensing deals under which it grants its competitors permission to use its patents in return for permission to use the competitions' patents, rather than asking for payment on each license. This works fine for big companies that have comparable patent libraries, but it can be used to put smaller companies out of business.

The Open Invention Network and Other Potential Saviors
The answer for Linux so far has been to create new approaches to aggregating and sharing patents for the benefit of the open source community. The two most important, so far, are the Open Invention Network and the Patent Commons Project.

The Open Invention Network (OIN) is an intellectual property company launched in 2005 with backing from IBM, NEC, Novell, Philips, Red Hat and Sony to promote Linux by using patents to create a “collaborative environment.” According to the Web site, “Patents owned by Open Invention Network are available royalty-free to any company, institution or individual that agrees not to assert its patents against the Linux environment. This enables companies to make significant corporate and capital expenditure investments in Linux – helping to fuel economic growth.” It also makes it possible for commercial ventures as well as individual users and developers to “...invest in and use Linux with less worry about intellectual property issues. Its licensees can use the company’s patents to innovate freely. This makes it economically attractive for companies that want to repackage, embed and use Linux to host specialized services or create complementary products.”

Open Source Development Labs (OSDL) formed the Patent Commons in 2005 “to provide a central location where software patents and patent pledges will be housed for the benefit of the open source development community and industry.” Founding members include IBM, Sun, Red Hat, even Novell and Microsoft. While OIN currently holds a baker's dozen of patents (and these are referenced at the Patent Commons Web site), the lion's share of patents are provided by IBM, followed by Computer Associates (14); Ericsson kicked in one patent.

Patent Commons includes more than patents, and keeps track of various other pledges and commitments that open source users and developers can use to protect themselves, including open standards, indemnification programs offered by different vendors, and agreements by intellectual property owners to allow no-cost use of their patents.

IBM has been very public in its support for open source, and has pledged 500 patents to be used freely in open source software. However, their response to Microsoft's claims that Linux infringes its intellectual property is less than resounding: IBM, according to Scott Handy, VP of Worldwide Linux and Open Source for IBM, “fully support[s] the OIN statement.” However, does that mean IBM is willing to step in to a fight to the finish with Microsoft?

Open Source Options
One option for Linux vendors is to sell out: pay Microsoft whatever they ask to avoid lawsuits. That's what Novell has done by partnering with Microsoft. If you buy SUSE Linux, Microsoft won't sue you. By extension, if you buy some other vendor's Linux, Microsoft might sue you, or the vendor you bought it from. Given the willingness Microsoft has shown in the past to take their customers to court over licensing issues, an IT executive would be remiss if she did not take the threat seriously.

Clearly, Microsoft's move is intended to do nothing but enrich Microsoft. Rather than rewarding innovation, as the patent system was intended, Microsoft's many un-litigated patents can be used for leverage (some might call it extortion) against anyone they decide to act against. Wouldn't it be the better part of valor for Red Hat, say, to pay $40 million to Microsoft (as Novell is doing) rather than spending the hundreds of millions they might be forced to defend against some as yet undefined number of patent actions?

Perhaps not. To date, no open source software has been found in court to infringe any patent. And Microsoft has yet to be specific about which of their intellectual property is being violated, so for now, their threat is still just that – a threat. Open source developers can do only so much:

Does the GPL Help or Harm Linux?
So far, I haven't mentioned what we could call open source's “secret weapon”: Section 7 of the GPL. It reads in full:

If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances.

Open sourcers have been saying, “Let us know what infringes so we can take it out. And by the way, Novell has to stop selling all of our code because they've put a condition on using it.” But Microsoft's deft use of the GPL is that they turn the weight of its enforcement against Linux vendors, while taking on what appears to be no legal liability at all: Novell is the one selling “protection” to their Linux customers, and Novell is the one violating the GPL (if it can be proved by law). Microsoft isn't distributing any open source software, and they aren't bound by any open source license.

The irony of the GPL is that Microsoft is not bound by it, and the only entities that can be harmed by it are those who benefit from it – open source vendors. Enforcing the GPL would mean that Novell, and any other Linux vendor who agrees to Microsoft's terms, could be forced to stop distributing Linux – which is just what Microsoft wants.

Hey...we all had to learn for ourselves. Here's a little bit of how we got to this point...

(Is there a maximum size for posts on Freerepublic? If there is, I might have to move this to some free webspace somewhere....)

The Current Golden Eagle Lie/Hypocrisy/Cluelessness/General Lunacy List:
(Now with 21% less lifting!).

Lies:

Here's where he says that Microsoft didn't lift the TCP/IP stack from UNIX because it was given to them for free: http://www.freerepublic.com/focus/f-bloggers/1751419/posts?page=62#62

and here, a few posts later, claims that it wasn't given to them for free: http://www.freerepublic.com/focus/f-bloggers/1751419/posts?page=65#65

Here's where he says Google is a monopoly:

http://www.freerepublic.com/focus/f-news/1661196/posts?page=3#3

and here, on the same thread, denies he ever said it:

http://www.freerepublic.com/focus/f-news/1661196/posts?page=15#15

Here's where he says that all GPL copyrights are signed over to Stallman: http://www.freerepublic.com/focus/f-backroom/1612495/posts?page=44#44

then, when he's caught, says that he's not sorry (or, as I like to call it, a "nopology"): http://www.freerepublic.com/focus/f-backroom/1612495/posts?q=1&&page=62#62

Here's where he refers to Dell "systems": http://www.freerepublic.com/focus/f-chat/1585665/posts?page=35#35

Then denies his own copied-and-pasted quote: http://www.freerepublic.com/focus/f-chat/1585665/posts?page=137#137

then blames me for it all, saying I should have reminded him of his own words: http://www.freerepublic.com/focus/f-chat/1585665/posts?page=165#165

Then, here's where he makes more false accusations of ME: http://www.freerepublic.com/focus/chat/1592292/posts?page=90#90

and here's where I ask him to prove I said the things he accused me of: http://www.freerepublic.com/focus/chat/1592292/posts?page=92#92

Here's where he doesn't provide any proof: http://www.freerepublic.com/focus/chat/1592292/posts?page=95#95

And fails again to prove what he says: http://www.freerepublic.com/focus/chat/1592292/posts?page=99#99

And yet again, repeating the accusations, but failing to provide proof: http://www.freerepublic.com/focus/chat/1592292/posts?page=122#122

And now, where his "proof" of what I said is something I didn't even post: http://www.freerepublic.com/focus/f-chat/1592292/posts?page=125#125

and where he has the nerve to ask another poster to back up what they say with specific examples, despite the fact that he refused to do so for me: http://www.freerepublic.com/focus/f-chat/1592292/posts?page=255#255

and here is where he demands that yet someone ELSE provide a link to prove what THEY said: http://www.freerepublic.com/focus/f-chat/1568848/posts?page=68#68

and here is where he claims he will admit mistakes, despite the fact that he hasn't admitted this one: http://www.freerepublic.com/focus/f-chat/1592494/posts?page=43#43

Here he is claiming that Red Hat has a couple of hundred Linux kernel developers: http://www.freerepublic.com/focus/f-chat/1527263/posts?page=49#49

And here he is claiming no one knows how many kernel developers work for Red Hat: http://www.freerepublic.com/focus/f-chat/1527263/posts?page=77#77

and here, he denies that he said hundreds, yet again (21st paragraph): http://www.freerepublic.com/focus/f-chat/1592292/posts?page=131#131

And here he is getting nailed for it yet again:
http://www.freerepublic.com/focus/f-chat/1592292/posts?page=132#132

and again: http://www.freerepublic.com/focus/f-chat/1592292/posts?page=137#137

and claiming that I never proved that he was wrong about the number of kernel developers at Red Hat, despite the fact that he said "literally hundreds" himself, but later retracted it: http://www.freerepublic.com/focus/f-chat/1592292/posts?page=134#134

Here he is saying that he's leaving a thread: http://www.freerepublic.com/focus/f-chat/1592292/posts?page=127#127

and here he is, many days and over 100 posts later, still posting: http://www.freerepublic.com/focus/f-chat/1592292/posts?q=1&&page=284#284

Here's where he tries to say that Richard Stallman is opposed to all patents: http://www.freerepublic.com/focus/f-chat/1592292/posts?page=261#261

Here's where he amends his statement to say "software patents": http://www.freerepublic.com/focus/f-news/1609606/posts?page=22#22

Here's where Jim Robinson tells about creating the Freerepublic Forums in '97: http://www.freerepublic.com/focus/f-news/1011545/posts

And here's where GE, a man on the cutting edge of technology, claims he managed to get a membership at FR two years before the forums existed: http://www.freerepublic.com/focus/f-news/950193/posts?page=285#285

Here's where he hijacked the Open Source Ping List, and the ensuing discussion: http://www.freerepublic.com/focus/f-news/1571222/posts?page=8#8

Hypocrisy:

Here, he complains that Cedega's bad because it's not free: http://www.freerepublic.com/focus/f-chat/1591595/posts?page=115#115

and then, mocks another user for suggesting that Cedega be free: http://www.freerepublic.com/focus/f-chat/1591595/posts?page=134#134

then complains that Linux is bad because it is free: http://www.freerepublic.com/focus/f-news/1530486/posts?page=40#40

then says Solaris is good because it's free: http://www.freerepublic.com/focus/f-chat/1490554/posts?page=21#21

Here he is, criticizing Linux because it doesn't run Windows apps (despite the fact that it can, in some cases): http://www.freerepublic.com/focus/f-chat/1591595/posts?q=1&&page=115#115

Here he is, recommending Solaris, which doesn't run Windows apps: http://www.freerepublic.com/focus/f-chat/1490554/posts?page=21#21

...and Apple, which doesn't either: http://www.freerepublic.com/focus/f-chat/1573697/posts?page=9#9

and copping out when challenged about Windows inability to run Linux apps: http://www.freerepublic.com/focus/f-chat/1591595/posts?page=118#118

Here, he's criticizing others for namecalling: http://www.freerepublic.com/focus/f-chat/1584107/posts?page=29#29

And here he is, namecalling: http://www.freerepublic.com/focus/f-news/1583531/posts?page=61#61

Here's where GE says Stallman is a whacko leftist: http://www.freerepublic.com/focus/chat/1601565/posts?page=24#24

Here's where I agree: http://www.freerepublic.com/focus/chat/1601565/posts?page=30#30

And here's where he disagrees that I agree: http://www.freerepublic.com/focus/chat/1601565/posts?page=31#31

And here's where he claimed I defended Stallman (I didn't) and fails to provide a link to back up his accusations:
http://www.freerepublic.com/focus/chat/1607069/posts?page=96#96

Here he is ridiculing another poster for using bold fonts to make a point: http://www.freerepublic.com/focus/f-chat/1493462/posts?page=130#130

And here he is using bold fonts to make a point: http://www.freerepublic.com/focus/f-chat/1592292/posts?page=106#106

Here he is, complaining about abortions in China: http://www.freerepublic.com/focus/f-chat/1592292/posts?page=106#106

and here he is, defending Microsoft's contributions to Planned Parenthood: http://www.freerepublic.com/focus/f-news/1492595/posts?page=22#22

And here he is defending Planned Parenthood itself: http://www.freerepublic.com/focus/chat/1601565/posts?page=33#33

and again, lying about the primary mission of that organization (he says it's to fight AIDS in Africa): http://www.freerepublic.com/focus/f-chat/1601565/posts?page=40#40

Cluelessness:

Here, he becomes concerned about security on Knoppix, a live Linux filesystem, written to a FINALIZED (read that: unwritable) CD-R, which by default, runs with all drives unmounted and in unwritable mode: http://www.freerepublic.com/focus/f-news/1536740/posts?page=18#18

Here's where a poster very obviously criticizes him for his closed-mindedness and he totally misses it, instead taking it as a compliment (post 79 and his response, 80): http://www.freerepublic.com/focus/f-news/1539488/posts?page=79#79

Here's where steve-b posts a link to a satirical blog - http://www.freerepublic.com/focus/f-chat/1625199/posts?page=113#113 and GE totally misses the satire, calling the author "just another concerned American with all these clones of US products being constantly pushed by the UN and leftists like Stallman." http://www.freerepublic.com/focus/f-chat/1625199/posts?q=1&&page=121#121

Here's where he claims that Linux destroyed another Freeper's CD/RW drive, despite the fact he didn't know the manufacturer or model of the drive, or the Linux driver, had never SEEN the drive, nor even met the guy who owned it: http://www.freerepublic.com/focus/f-chat/1629816/posts?page=65#65

General lunacy:

Here is a Linux thread with only one post by GE (notice how pleasant and peaceful): http://www.freerepublic.com/focus/f-chat/1500664/posts?q=1&&page=1

Here is a Linux thread where GE stayed and trolled (well beyond 280 posts, totally off the topic. No insults before he showed up, as with many of his threads. He has stated multiple times that he was leaving, yet he keeps posting, because he's a last word freak): http://www.freerepublic.com/focus/chat/1592292/posts?q=1&&page=1#1

Here's where he objects to a Dilbert cartoon with the caption,"Out, Out, you demons of stupidity!" because it has the word "demons" in it. He also gets upset in the same post over "mocking" of the Westboro Baptist Church, whose philosophies includes rejoicing at the funerals of dead soldiers with signs like "Thank God for IED's":

Here's where he again criticizes us for "bash"ing the Westboro Baptist Chruch: http://www.freerepublic.com/focus/f-chat/1710675/posts?page=356#356

Here's the post where he calls the Star of David (a Jewish symbol) "occultish": http://www.freerepublic.com/focus/f-chat/1710675/posts?page=317#317

Here are some of his infamous "picture posts", usually made when he is getting beaten very badly:

http://www.freerepublic.com/focus/f-news/1536740/posts?page=106#106
http://www.freerepublic.com/focus/f-news/1536740/posts?page=125#125
http://www.freerepublic.com/focus/f-news/1536740/posts?page=149#149
http://www.freerepublic.com/focus/f-news/1530253/posts?page=25#25
http://www.freerepublic.com/focus/f-chat/1489068/posts?page=29#29
http://www.freerepublic.com/focus/f-news/1487693/posts?page=163#163

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