The Linux Liability Problem

b-eye | 07 December 2006 | Pete Loshin

[ShadowAce]

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. The future of computing may depend on the lawyers.

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:

• Lobby for reform and rationalization of the patent system, specifically to eliminate software patents and/or require a higher degree of substantiation that a patent application is truly unique, novel, and not an obvious extension of an existing mechanism. This strategy is already being pursued by the Patent Commons project as well as by others.
• Align with some company or consortium of companies with its own patent portfolio to gain parity with Microsoft, and give Linux a sporting chance. Again, OIN and the Patent Commons serve as the two most visible possibilities.
• Proactively remove patent violations from the open source programs. As explained earlier, this is probably not a useful approach.
• Collect the money and resources to defend against an onslaught of litigation. Microsoft has deep pockets, and victory for Microsoft would mean a virtually limitless flow of income from virtually all software consumers, at no additional cost to them. An open source industry win would be pyrrhic, as the cost of such a defense would be crippling.
• Give up and sell out. That's what Novell did, and (perhaps because they did so first), it's a net win for them: more money in from Microsoft than money out to Microsoft. Red Hat might not get such a good deal, nor might anyone who puts up a real fight.

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:

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

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.

[rzeznikj at stout]

I didn't say MS lifted the stack.

I just said my guess was they did.

There's a difference between a fact and a guess, Iggle...

...and apparently you do not know the difference.

[Golden Eagle]

It's still not lifting if was given to them for free, your uneducated guesses and incorrect assertions are best kept to yourself.

[RussP]

Oh, Gosh, so it's OK for MS to accept code for free, but not anyone else?

For the record, I already said I have no problem with MS accepting BSD-licensed code, but you are the one making an issue of Linux being free.

[RussP]

"Typical BS from you. Microsoft didn't "lift" it from anyone, they bought it from another company named Spider. You can read it here from one of the admins at freebsd.org, or try some actual research yourself instead of parroting the normal nonsense you hear from your uninformed buddies:"

Actually, I *hope* MS obtained the TCP/IP stack from somewhere else, whether "lifted" or bought. At least then it has a chance of being correct.

And let's just be thankful that MS wasn't around when TCP/IP was originally developed. Had they been the originator, they'd have it copyrighted, and the Internet would probably be about as "open" as MS Office. In that case, we might not even be able to use the Internet without MS products.

[Golden Eagle]

so it's OK for MS to accept code for free, but not anyone else?

What are you mumbling about now? I just showed Microsoft did NOT get their TCP/IP for free, are you having trouble following links again?

[RussP]

"What are you mumbling about now? I just showed Microsoft did NOT get their TCP/IP for free, are you having trouble following links again?"

You seem forget your own posts rather quickly:

"It's still not lifting if was given to them for free, ..."

You are obviously implying that accepting free code is acceptable. But earlier in this thread you were upset that some people are willing to accept Linux for free.

[Golden Eagle]

I have no problem with MS accepting BSD-licensed code, but you are the one making an issue of Linux being free.

Linux isn't actually "free" like BSD, it has all these nasty catches put in the license by the leftist Stallman you blindly support. Linux isn't American Unix either, as you know it was created by the poor son of communists in east Europe who couldn't afford or didn't want to pay for US Unix. It's really quite simple, all your twisting like Mr. Gumby in defense of Stallman and his foreign born clone O/S is hilarious.

[Golden Eagle]

Again there's no need for the foreign clone Linux backed by communists and leftists like Stallman. Use opensolaris instead, it has very little Stallman code and better freatures like ZFS and DTrace.

[rzeznikj at stout]

It doesn't matter where they got it from. Spider successfully ported the stack into another usable form (which they could do under the BSD license--so long as the original creator got due credit). MS "licensed" the code and stuck it in their OS,

Oh, and Spider's TCP/IP stack wasn't even designed to work in NT--MS had to do some serious porting of both Spider's stack and the STREAMS wrapper to get it to work with NT.

Did they lift it directly from BSD? Hard to say, but considering some of the utilities have basically remained unchanged, I'm inclined to say yes.

Did they at least indirectly lift the stack? Unequivocally (and undeniably), yes. Legal, but highly unethical.

Which, btw, is originally a spinoff of OS/2 and elements copied from Digital VMS (for which Digital promptly sued and got an out-of-court settlement for).

fd--add this one to The List...

[rzeznikj at stout]

Thread Jester Ping

A low-volume pinglist dedicated for all the thread jesters out there--you know who you are...8^)

FReepmail rzeznikj at stout or MikefromOhio to be added or struck from the list...

[RussP]

"Linux isn't actually "free" like BSD, it has all these nasty catches put in the license by the leftist Stallman you blindly support. Linux isn't American Unix either, as you know it was created by the poor son of communists in east Europe who couldn't afford or didn't want to pay for US Unix. It's really quite simple, all your twisting like Mr. Gumby in defense of Stallman and his foreign born clone O/S is hilarious."

What's hilarious is your ridiculous view of the sitation. Let me just take one of several of your distortions above. Linus didn't develop Linux because he "didn't want to pay for US Unix." He developed it because at the time unix would not run on x86 PCs.

And that, incidentally, goes a long way to explaining the dominance of MS Windows today. Unix was a far superior OS to the original DOS (and that may be the understatement of the year), but it was too big to run on the early PCs. That's one of the reasons that DOS became the de facto PC operating system.

[Golden Eagle]

Legal, but highly unethical.

LMAO, or so says the schoolkid who spends all day defending his foreign commie clone of Unix.

[antiRepublicrat]

Sounds like paranoid delusion to me

You've never heard of "Embrace, Extend, Extinguish" (testimony here (.doc))? You've never read Microsoft's own "Halloween document" showing how they like to screw with standards in order to quash competition and own the functional area of the standards?

[rzeznikj at stout]

Dude, Iggle...

Quit trying to claim moral superiority--you wouldn't know ethics if it came up and bit you in the butt.

[Golden Eagle]

He developed it because at the time unix would not run on x86 PCs.

So now you're down to outright lies to defend Stallman and your commie cloneware, not that I'm surprised. FYI Xenix ran on 386 in 1983, almost ten years before Linux was created. I was using the SCO version back in the late 80's myself, while you were probably still in diapers.

[Golden Eagle]

Xenix ran on 386 in 1983

Meant to say "ran on Intel in 1983". Didn't run on 386 till 87, but still years ahead of Linux.

[television is just wrong]

No windows here - Mac and Linux only. No spyware - no virus. No Problems

[RussP]

"Meant to say "ran on Intel in 1983". Didn't run on 386 till 87, but still years ahead of Linux."

If that's true, then I stand corrected. But that's really a trivial point. The bigger point is that Linus did absolutely nothing wrong by developing his own OS and making it available for other to use for no charge.

Suppose someone decided to build his own car. Would you say he was immoral for not paying GM for a car? And would you call him immoral if he gave it away for free? I hope not.

Your position on Linux is patent nonsense, and I think that fact is obvious to everyone on this thread. I suggest you quit digging yourself into a deeper hole.

Then again, I hope I am not just falling for a troll.

[Golden Eagle]

Back to your failed car analogy again? Your memory really is weak, as I already said, yes, the leftists are putting together an "open source" car, did you not read the link I sent you above? But no, I won't support radical leftists or foreign cloners/communists at any price. My values can't be bribed, unlike others we see here, even when the original US products are made available to them for free, they still endlessly defend leftists like Stalman and his foreign cloners/communists.

[RussP]

OK, OK, I just put on my tinfoil hat, and now I'm starting to get it. Linux is a communist plot, and IBM is getting paid off by the Russkies and the Chicoms to push it. Bill Gates and Steve Balmer are our true capitalist saviors, and I should be ashamed that they don't have more of my money. After all, my petty needs are subservient to their great need to rule the world and make it a better place (for themselves, of course). How naive I must have been before I put on my hat to block those mind-control rays!