Posted on 12/10/2006 2:19:05 PM PST by 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:
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.
So we're better off with billionaires, and left relying on them for our needs according to their definition of "fair"?
Look, if you insist on sending your money to billionaires for something you can get for free, go right ahead. It's when those billionaires make their fortune by controlling what should be open, public standards that I get upset.
Think about how stupid it is to let that happen. Imagine what television and radio would be like if the public had been stupid enough in the past to let some corporation control the transmission standards and force anyone who wants to sell TVs or TV transmitters to pay a royalty in perpetuity. Had someone like Bill Gates developed those standards, that could be the situation today.
Imagine an Internet in which you have second-class or no access if you don't use MS products. That's where we could well be today if MS were allowed to do whatever they want.
Yes, I'll trust capitalists more than socialists every time.
Sounds like paranoid delusion to me, how exactly are you claiming that will happen? This better be good, since you're asking me to support leftist socialists like Stallman instead.
Hey, I agree 100% with you on Stallman's politics. He's way out there on the Left. But that's irrelevant. His "copyleft" concept may have saved the software world from total domination by Microsoft.
If he and his fellow "hackers" (in the positive sense of the word) are willing to share the fruits of their labor, how can you complain about that?
Suppose someone could produce a quality car and copy it for $0.01 each. If he was willing to give you one, would you complain and insist on paying GM their "fair" price of $25,000 instead -- in the name of "capitalism"? Of course not.
Now let me try to explain how MS tries to control Internet access. Something like 90-95% of the users out there use IE, their browser. They can subtly and secretly violate Internet standards in such a way that only *their* Internet servers are compatible with their browser.
So if a company uses non-MS servers for their corporate website, the visitors have problems, and the company loses business. That puts pressure on the company to use MS servers, and it tends to induce users to use IE just to avoid the potential hassles.
I understand that those kinds of problems did occur in the past, but fortunately MS could not make it work because they not dominate the server market as they do the browser "market." But you can bet it wasn't for the lack of trying. And if Apache and Linux hadn't been around, MS would now have an absolute stranglehold on the Internet.
Please explain your deep and abiding love for William H. Gates III, billionare left-wing socialist pig.
Having money does not mean one is a capitalist. RE: George Soros, William Buffet, Ted Turner, et al.
Typical open source BS. " I know he's a radical leftist socialist, but that doesn't mean he deserves any criticism, nor do I because we are together saving the world from the evil capitalists."
he and his fellow "hackers" (in the positive sense of the word) are willing to share the fruits of their labor, how can you complain about that?
How about because about all they ever do is copy the functions of other, already existing US products, and then give them away to the rest of the world for free. That's how Linux came along. Torvald's was the poor son of a communist who didn't want to pay for or couldn't afford US UNIX, so he made a cheap copy instead. The result has been Silicon Graphics, Cray, etc declaring bankruptcy the last few years and tens of thousands left unemployed at other US companies like Sun.
Suppose someone could produce a quality car and copy it for $0.01 each.
Yes the leftists are putting together an "open source" car, did you not read the link I sent you above. And no I won't support radical leftists at any price, my values can't be bribed, unlike yours, apparently.
And if Apache and Linux hadn't been around, MS would now have an absolute stranglehold on the Internet.
And if Democrats weren't around Republicans would have a stranglehold on the government. Doesn't mean I'm going to defend Democrats, ever. I guess you will though, so long as you get some of those 'free' cars they're working on.
Stallman is a green party Naderite, while Gates has given to Republican offices all over the country. Gates is further right than Jobs at Apple, who is still further right than Stallman. I'll take either over that fruitcake Stallman, who wants all software to be what he calls "free", but for us to pay a "software tax" instead.
Yes. No one is saying different.
while Gates has given to Republican offices all over the country.
He also gave to Harry Reid, Teddy Kennedy and Patty Murray.
As well as a big gift to the UN for "population control." And let's not forget his big gift of 97% of the Microsoft Windows source code to the Communist Chinese government.
I'll take either over that fruitcake Stallman, who wants all software to be what he calls "free", but for us to pay a "software tax" instead.
And the nice thing about the open source community is that there is room for many divergent views, including right-wing gun nuts like Eric Raymond (who donated to Sam Brownback) and liberitarians like Bruce Perens. This is in contrast to the Microsoft High Council that donates just like Bill.
And do note that when Stallman called for the "software tax" to fund open source it was because of the de facto software tax that PC buyers pay to Microsoft because of the licensing agreements that Microsoft insists upon.
Liar.
You support Bill Gates. He's as chummy with the Chinese Communists as Hanoi Jane ever was with the North Vietnamese. And the Chicoms have nuclear tipped missles pointed at us.
Now if Bill opened up 97% of the Windows source code to every American business like he did for the Chicoms, you might have some moral high ground, but since he didn't, you're simply a Communist sympathizer.
No, I don't think so. That would make the MS executables WAY too small and efficient.
As opposed to them getting 100% of the Linux code, which you fully support? Microsoft doesn't "give" China the code, either. They allow them to view some, but not all, of it under strict circumstances.
You on the other hand prefer the Chinese get 100% of the Red Hat Linux code, including the right to copy, modify, rename and resell, all without a dime back to Red Hat in North Carolina. That's why the Chinese get to legally rename "Red Hat" to "Red Flag", and then legally resell it across Asia without even a thanks back to Red Hat. That's what you support, not "shared source" but "free source" for the Chicoms. Call names all you want, but it's obvious who the liar and hypocrite is.
Unfortunately, much of the computer industry is dominated by liberals and Leftists. Stallman is an extreme case, but I believe the industry supports Democrats overwhelmingly over Republicans. I don't understand why. What are you going to do? Quit using computers? Ya, right.
Of course not, but just because there are many leftists in software (vs. hardware for example) doesn't mean I give their most outrageous leftists a pass, much less defend them as you are Stallman.
A good analogy is you like movies, and your favorite is Michael Moore, and why not since Hollywood is mostly leftists. Stallman is actually more left than Moore, yet here you are trying to rationalize your support. The best you've come up with is you like his free bribes. Conversely, I spit on them, and spend as little time as possible using his software, just like I avoid Moore's products, free giveaways or not.
Michael Moore's movies are political, but Richard Stallman's software is not even slightly political, so your analogy falls flat on its face. Beyond that, Stallman is but one of many, many contributors to Linux and open source in general.
Stallman is an interesting character. Although I profoundly disagree with him on many political issues, I nevertheless respect him for his vision of free software. The modern mass-market software industry, you see, is hardly a model for free enterprise. The way MS was able to leverage its de facto control of public standards (Word, etc.) with proprietary formats is a classic example of the failure of free enterprise. We can only hope that that failure is temporary. Currently, the only hope for rectifying that failure is Linux and Open Document Format.
LMAO! So I guess he is just on vacation then accidentally ends up addressing the United Nations each time he appears there? A few months ago Stallman delivered a petition with 165,000 names he had signed to the French Prime Minister, but I guess you think he was there to provide some technical support instead LOL. Nothing political about having your own "manifesto" either huh, I guess you have one too?
LOL your denials are hilarious. Stallman is referred to as "the father of free software" and current estimates are 70% or more of all open source use his license, and he owns the copyright on more code in a typical Linux distro than anyone. I have a feeling you already knew this though, but nothing will stop your defense of his leftist movement since you've already established the importance to you of his bribe.
Believe what you want, but you are very confused, and I don't have time to continue this pointless exchange.
Bill gates donates to planned parenthood does that make windows pro abortion? Bill gates has met one on one and praised the Chinese head of state I guess that means Bill Gates software is all about chi coms right?
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