Posted on 11/17/2006 8:06:18 AM PST by Señor Zorro
In a question-and-answer session after his keynote speech at the Professional Association for SQL Server (PASS) conference in Seattle, Ballmer said Microsoft was motivated to sign a deal with SUSE Linux distributor Novell Inc. earlier this month because Linux "uses our intellectual property" and Microsoft wanted to "get the appropriate economic return for our shareholders from our innovation."
The Nov. 2 deal involves an agreement by Novell and Microsoft to boost the interoperability of their competing software products. It also calls for Microsoft to pay Novell $440 million for coupons entitling users to a year's worth of maintenance and support on SUSE Linux to its customers. In addition, Microsoft agreed to recommend SUSE software for Windows users looking to use Linux as well.
A key element of the agreement now appears to be Novell's $40 million payment to Microsoft in exchange for the latter company's pledge not to sue SUSE Linux users over possible patent violations. Also protected are individuals and noncommercial open-source developers who create code and contribute to the SUSE Linux distribution, as well as developers who are paid to create code that goes into the distribution.
Many open-source advocates criticized the deal, nevertheless. They argued that it was tantamount to an admission of patent violations by a key Linux supporter that bolstered Microsoft's case if it decided press its patent claims.
At the time, Microsoft officials, including Ballmer, were mum on whether the Linux kernel, which is governed by the General Public License and takes contributions from programmers all around the world, violated Microsoft's patents.
Ballmer was more open today.
"Novell pays us some money for the right to tell customers that anybody who uses SUSE Linux is appropriately covered," Ballmer said. This "is important to us, because [otherwise] we believe every Linux customer basically has an undisclosed balance-sheet liability."
"My reaction is that so far, what he [Ballmer] said is just more FUD [fear, uncertainty and doubt]," said Pamela Jones, editor of the Groklaw.net blog, which tracks legal issues in the open-source community. "Let him sue if he thinks he has a valid claim, and we'll see how well his customers like it."
Officials at Red Hat Inc., the leading Linux distributor, also dismissed Ballmer's comments. "We do not believe there is a need for or basis for the type of relationship defined in the Microsoft/Novell announcement," said Mark Webbink, deputy general counsel.
Red Hat has called Microsoft's legal threat a looming "innovation tax." It also said that it can protect its customers against patent claims.
Jones noted that after the Nov. 2 deal was announced, Novell said on its Web site that "the agreement had nothing to do with any known infringement. So which is true?"
Jones also challenged Ballmer to "put his money where his mouth is" and detail exactly what part of the Linux kernel source code allegedly infringes upon Microsoft patents, so that "folks will strip out the code and work around it or prove his patent invalid."
Ballmer did not provide details during his comments today. But he was adamant that Linux users, apart from those using SUSE, are taking advantage of Microsoft innovation, and that someone -- either Linux vendors or users -- would eventually have to pay up.
"Only customers that use SUSE have paid properly for intellectual property from Microsoft," he said. "We are willing to do a deal with Red Hat and other Linux distributors." The deal with SUSE Linux "is not exclusive," Ballmer added.
Robert McMillan, of the IDG News Service, contributed to this report.
I wonder what the odds are of Microsoft actually attempting to bring a lawsuit.
Just the threat of such a lawsuit would sent a lot of upper management types I've worked for into a tizzy. It's really fun to hear the non-technical folks proclaim Micro$oft's technical superiority and then watch them back pedal when you show them the cost of switching from Linux/BSD to their faveorite. ;-)
Pay up! =)
I'm sure that comes as a surprise to Novell.
This kind of stuff will stay in the news until a Linux distributor takes the offense and tries for a prelimary summary judgement that their Linux distribution does not infringe any issued MS patents.
The hand behind the SCO lawsuits reveals itself?
I would really like to see what this "innovation" is. There's a list out there somewhere that tracks Microsoft innovations. A possible innovation is posted, people look for prior art, and the decision is made. Out of many, I believe only a few were declared innovative -- like Microsoft Bob and Clippy.
Our patent system is so hosed right now. They'll grant a software patent on anything, even stuff that's been in open source for years.
"They'll grant a software patent on anything, even stuff that's been in open source for years."
I remember a Paul Harvey story about two guys who bet each other a case of their favorite beer who could get a patent first. Long-story-short, the guy who won patented the wheel.
I must admit this stuff confuses the hell out of me.
But it looks like MS agrees to pay Novell $440 mil, Novell pays MS $40 mil (couldn't have MS just agreed to pay Novell an even $400 mil?) all in exchange for MS agreeing not to sue Novell?
In short MS pays Novell money and in return MS agrees not to sue Novell?
Beam me up, Scotty.
Ballmer is probably correct, since the executive director of the Public Patent Foundation and senior counsel to the Free Software Foundation already admitted back in 2004 that Linux appears to violate many software patents, he claimed 283 likely infringements in the Linux kernel alone.
http://www.infoworld.com/article/04/08/02/HNmspatentsthreat_1.html
Doubtful that will happen, with one of senior counsels of the FSF already admitting it appears there are hundreds of likely infringements in the kernel of Linux alone.
Yeah, yeah, yeah, we know. Also notice he said nothing about the validity of those patents. From the software patents I've seen, probably over 90% of software patents are junk (and that's not counting that software patents shouldn't even exist according to the USPTO).
As I said before, my program, conceived, designed and written by me using no "inspiration" from other sources aside from standard programming techniques I've learned ("here's how you normally save an XML file"), probably violates at least one software patent. I doubt there is even one large piece of software out there that doesn't violate several software patents.
Did you know there's a guy out there who got a patent in '98 based on what others were already doing using free software? Yep, then as they improve their free products he amends the '98 patent to include what they've done. Now he's suing them for patent infringement on things they did recently, saying it violates a patent issued in 1998.
Microsoft is also paying so that Novell won't sue Microsoft over any infringements in Windows. Hear that GE? Even your beloved Windows infringes.
They didn't say likely, they said possibly covered. You could drive your cat crazy with a laser pointer and it would be covered by a patent (yes, it's true, that patent was issued), and thus that would be included in the list of patents you are infringing on, along with whenever you make a wheel or swing on a swing set (yes, those were issued too). Do you think the patent owners would prevail in court?
Microsoft is also paying .....
I was reffering to the commercial linux distro companies, not the FSF. For example, RedHat might have grounds, based on what is being reported, to file.
Sure they can file, but when the existing studies including those from Linux proponents show hundreds of likely violations, and not a lack of violations, what is their chance of winning?
Yes, referred to as a "patent cross license agreement". I'm pretty sure Microsoft already had one with IBM and Sun, and now have one with Novell. If Red Hat doesn't have enough patents to enter into such an agreement, nor is willing to purchase the right to use Microsoft's patented technology, Microsoft could sue if they thought the reward was worth it, just as IBM is suing Amazon.com now for patent violation. I don't expect it though, at least not anytime soon, Microsoft doesn't have a history of "agressive" patent lawsuits, I expect smaller more agressive companies will eventually start suing Red Hat for patent infringement instead, like Firestar recently did over their Jboss middleware.
I would not venture to guess. Some suggest that MS put up or shut up. But the same can be said for the commerical linux distributors... if the code base does not infringe any issued MS patents then go for PSJ..... Otherwise do the later.
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