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.
What's confusing? You like free products from leftists so much you spend your time trying to claim they're not leftists, or are irrelevant, both of which have been easily disproven. Quite elementary actually.
No because as you know Gates only allows his donations to be used for contraception. Also as already stated above the Red Hat Linux code is 100% given to the Chinese for free, which is why they can legally rename Red Hat to Red Flag, which they can't do with Windows. Why do you keep asking the same questions over in defense of the leftist Stallman and the free Linux giveaways to China? It obviously couldn't be because you're actually concerned in the least about free tech transfers to China, or else you would be speaking out against them as I do instead.
Would you buy a new car if the hood was locked shut and only the manufacturer was allowed to open it? Well, that is what you are essentially doing when you buy software from MS. Stallman thinks you should be allowed to open the hood (or let a third party open the hood for you), and I agree. So even though Stallman is a commie, he wants to give you much more freedom than "capitalist" Gates is willing to give you.
Should you be allowed to buy software from Gates? If you are dumb enough to think its in your best interest, then of course you should be allowed to do so. What should *not* be allowed is the Gates and Co. to control standards for public exchange of information. That's like letting some company have a copyright on the English language.
By the way, your concern that open source will drive down the cost of commodity software is akin the the anti-globalist Left's concern that Wal-Mart is driving down costs too much. You have a lot in common with those losers.
As opposed to you loving paid MS software so much you claim the leftist gates is not a leftist..
I have very little if anything in common with leftists, conservatives don't believe in models based on "giving everything way" either in principle or in action. That's liberal thinking pure and simple, and what you continue to expose despite already leaving the converstation once supposedly.
I doubt you actually ever need to tinker under the hood of your O/S, but if you do, you don't need some O/S Stallman wants to put the "GNU/" in front of to do it.
http://www.opensolaris.org/
No I simply claimed he's not as far left as the greenie Stallman, which he obviously isn't by any sane person's definition. Nor was he raised in some foreign country by communists, nor is his product the standard software of all communist governments like Linux is. All of which you already know, of course.
Are you actually advocating OpenSolaris? If so, you should know that Scott McNealy called it "Sun's version of Linux." And do you honestly suppose that Sun would have opened up Solaris were it not for the pressure from Linux?
By the way, you seem awfully concerned that China could use Linux to get ahead of the US. That can't happen if we use it too. But if we're stupid enough to keep paying billionaires for a product that is inferior to what we can get for free, I'd say we'll get what we deserve.
Your understanding of basic economics is abysmal.
Of course not. As I already said, Sun has already laid of thousands and thousands of workers, and felt they had to release their own code just to compete. Microsoft released source code to the Chicoms too, but only in order to compete with Linux as well. Without Linux in places like China, they would have had little choice other than to accept closed source offerings from the U.S., but now, they get almost everything "free".
I'd say we'll get what we deserve...Your understanding of basic economics is abysmal.
Not surprisingly you'll take the lazy way out and just sling insults instead. You'll get what you deserve, definitely.
Oh, so Linux caused Sun to layoff workers. I'm crying for them. And Wal-Mart probably forced Sears and Kmart to layoff workers too. That's the free market, dude! Apparently you have a hard time with that concept, eh. IBM embraced Linux and is doing quite well, I understand. Or is IBM a commie company in your little fantasy world?
And on top of all the other nonsense you write, you seem to assume that if the Chinese didn't have Linux they wouldn't just pirate MS software on a massive scale. Do you actually think the Chicoms will vigorously enforce our copyright laws?
Internationalism certainly has its price, although you seem to be blind to it.
Do you actually think the Chicoms will vigorously enforce our copyright laws?
Much more, now that they are part of the WTO. Unless you'd rather us all be running a Chinese standard format anyway.
"Internationalism certainly has its price, although you seem to be blind to it."
If you're not a Leftist anti-globalist, you could have fooled me.
By the way, Linux actually *prevents* China from having a major advantage over the US. US companies cannot get away with pirating Windows and Office on a large scale, but Chinese companies can. That would give the Chinese companies a significant advantage were it not for the fact that US companies (smart ones, anyway) can use Linux.
Hence, your admiration, obviously. They would beat us on Linux too, you say, unless we do our best to emmulate them.
And what are you suggesting? That we should deliberately handicap ourselves with a Windows/Office monopoly tax so the Chinese and Indians can undercut our prices even more? Sorry, but I prefer minimize my taxes both to the government *and* to Microsoft. I think Bill and Steve will manage to get by somehow.
Here's something interesting...
Open up any copy of ftp.exe in Notepad and scroll down a bit.
It states Copyright (c) 1983 The Regents of the University of California
Yep, my guess is they lifted virtually the whole TCP/IP stack right from BSD Unix...
That's interesting, but it's not illegal if the BSD license back then was the same as it is now. The BSD license basically allows anyone to copy and use the code without restriction, with the only condition being that they maintain the original headers (which MS apparently did in this case). I don't begrudge MS one bit for doing that.
But the idea that MS was on the cutting edge in OS design is just a pathetic joke. Heck, unix had a multiuser system a friggin' QUARTER CENTURY before MS had one! And I just read the other day that MS didn't even have subdirectories until around 1985, and they used the "\" character as a delimiter in a pitiful attempt to be different from unix (which uses "/", of course).
I already gave you a link to opensolaris, what's wrong, your memory is so weak you already forgot? I also recommend Apple if you don't like Windows, but appparently you're just not happy unless you're running Stallman's software.
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:
http://lists.freebsd.org/pipermail/freebsd-newbies/2003-September/000808.html
Q: Is it true that Microsoft uses BSD's Stack?
A: No, it's not true. For a while we thought it was, but we proved to be incorrect. Microsoft's network stack was written by a Scottish company called Spider.
Have you walked into a kmart and looked at where the clothing was made? same place as Wal-Mart
"The BSD license basically allows anyone to copy and use the code without restriction, with the only condition being that they maintain the original headers (which MS apparently did in this case). I don't begrudge MS one bit for doing that."
Not saying MS did anything illegal--they crossed their t's and dotted their i's.
"
But the idea that MS was on the cutting edge in OS design is just a pathetic joke. Heck, unix had a multiuser system a friggin' QUARTER CENTURY before MS had one! And I just read the other day that MS didn't even have subdirectories until around 1985, and they used the "\" character as a delimiter in a pitiful attempt to be different from unix (which uses "/", of course)."
IMHO, you'd think that if MS was going to be the big innovator, that they wouldn't obviously try to copy or emulate things from other OS's...
Heck, even my little brother could tell the sidebar in Vista was virtually ripped from Mac OS X.
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