12.12.06

Windows Users Undisclosed Balance Sheet Liability

Posted in Microsoft, Windows, GNU/Linux, Apple, Steve Ballmer, FUD, Deals, Intellectual Property, Patents, GPL, Courtroom, Patent Covenant at 1:43 pm by Shane Coyle

And Mac, BSD, and Solaris Undisclosed Balance Sheet Liabilities for that matter…

John Carroll had called for an end to the bashing of Microvell, I just assumed he didn’t mean us and went about my business. His argument was somehow that Microsoft cannot grant the patent covenant to any Free Software projects because it would not protect them from suits from distributors such as Novell and Red Hat.

Some have suggested that the right thing to do would be for Microsoft to create a blanket “promise not to sue” vis a vis open source technology, much as IBM has done with a slate of patents it owns. To be sure, the community that develops and maintains Linux is not a patent threat. They don’t own patents, and to their credit, take a strong line against the hindrances that software patents can pose to the software development process.

The threat, however, is not from the Linux development community, but the companies that either distribute the products that the development community produces or else makes money from services related to the same. Those companies include Novell, RedHat, and, of course, IBM…owner of more software patents than any other company in existence.

In other words, Microsoft merely gains more risk by issuing a blanket patent moratorium for Linux. As a fierce competitor to many companies that stand to benefit from Linux’ success, they can be expected to be a target.

Firstly, there is a term, subject to reciprocity I believe, which you will see in various verbiage in all of those Patent Covenants that the software companies have been granting. Basically, they always say that we will grant you free use of our patents, unless of course you bring a patent action against us, then we revoke that right and will sue you back. I’m sure Groklaw has a much better explanation somewhere, I will look for that and post an update.

Secondly, the Patent Covenant is to not sue each others end users, remember? The companies still have reserved the right to sue each other, so really Microsoft gains no protection from any of those competitive companies from such deals and no one gets protection from patent trolls.

Ed Burnette uses a play on Ballmer’s own words to drive home a point about software patents and the likelyhood that there are numerous patent violations in Microsoft’s own offerings (a fact that has been proven in court before).

I’m making this point not because I seriously think Windows users are at risk of getting sued, any more than I think Linux users are at risk of getting sued. I’m making it because I think we’re painting ourselves into a corner here. Who can tell what infringes what any more? Also, I wonder if we should even care. Patents were originally created to protect the little guy who invents a gizmo, tries to sell it, but sees another company come along, copy the gizmo, and make all the money selling their version. But today’s application of patents to software is completely warped and twisted from that noble idea of fairness and reward for hard work.

John says that “getting rid of [software] patents is not a solution”. In my opinion, that is pretty sad. I believe we’re wasting our time and talents on paper problems that we invented ourselves. It’s like all the obscure tax rules we have to deal with every year - a whole industry of tax accountants and lawyers and preparation software and books and classes has grown up around addressing a problem that doesn’t have to exist. Billions of hours of productivity could be regained by going to a simple tax code, possibly an automatic flat tax. Likewise, billions could be saved by dumping this self-induced group nightmare of a patent system.

As Bruce Perens wrote in his Open Letter to Novell Petition, "there can be no non-trivial computer program, either proprietary or Free, that does not use methods that are claimed in software patents currently in force and unlicensed for use in that program."

Software patents are inhibitive to innovation, and deals such as Microsoft-Novell only serve to cartelize the industry by creating a junta of software companies using their massive patent portfolios and cross licensing agreements as a barrier to entry for competitors. We need to move past the idea of Patent Detente, and get into Patent Disarmament.

If we can achieve Patent Disarmament, then perhaps one day as Burnett wrote, [we] "…will be free to let developers develop, collaborate, and innovate in peace like God and Richard Stallman intended. "

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