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Sturm und Drang: Open Source Edition

Microsoft's war with Linux and open source software has run hot and cold for years. The company has see-sawed between outright hostility and warm-minded cooperation. Whether it's Steve Ballmer threatening to crack kneecaps or Ray Ozzie offering olive branches, the signals coming out of Redmond have been decidedly mixed.

Well, they're not so mixed any more. On Monday, Fortune magazine reported that Microsoft claims 235 software patent violations by open source software products and that companies using Linux could face the prospect of paying up for their use of infringing technologies. See our coverage here. Given that Linux accounts for a sizable percent of enterprise servers, the statement was a nuclear FUD strike that seemed designed to chill any corporate interest in Linux in specific and open source solutions in general.

Microsoft's tough stance is hardly a slam dunk -- far from it. The company seems to be on shaky ground, at least legally, when it comes to the stage of actually enforcing its claims. For one thing, the U.S. Supreme Court recently weakened the case for software patents -- a recognition that many software patents are absurdly broad or based on flawed premise. Experts say that the vast majority of patent claims Microsoft might make will simply prove unactionable. More telling is the fact that Microsoft isn't revealing the specific cases of infringement or even the patents being infringed. Instead, it's throwing impressive-looking numbers into the media and leaving well-intentioned OSS developers to guess at the problem.

Why? It's a good question. On the one hand, perception is definitely reality when it comes to corporate software acquisition, and Microsoft's statements could chill Linux uptake. Just days after leveling a legal threat at companies using Linux, Microsoft promised not to sue them. But the threat is now out there. The analogy I'd use is a masked man with a gun pointing the weapon at your head and then saying earnestly: "I promise not to shoot you with this gun." Can you afford to take him at his word? A lot of large corporations will no doubt say no.

On the other hand, Microsoft faces a pinch from the open source General Public License 3 (GPLv3) currently in the works, and this could simply be an effort to fight back. GPLv3 would essentially prohibit deals like the Microsoft mixed marriage with SuSE Linux distributor Novell, in which Microsoft indemnified Novell of any patent infringement while taking a cut of Novell's revenue. With GPLv3 in effect, such an agreement would be impossible.

Most experts think there's little chance of a RIAA-like scorched-earth, sue-and-screw campaign against Linux customers (many of whom, after all, are profligate users of Microsoft products). But after this latest broadside, it's clear that we are now entering a period of business as unusual. In short: A lot can happen.

What do you think Microsoft is trying to accomplish with its broad threats? And what should open source developers and customers be doing in response? E-mail me at [email protected].

Posted by Michael Desmond on 05/16/2007

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