May 14th, 2007

GPLv3 the impetus for Microsoft's latest Linux attack campaign

Posted by Mary Jo Foley @ 4:35 am

Categories: Corporate strategy, Legal, Linux, Novell

Tags: Novell Inc., Linux, Patent, Open Source, Customer, Microsoft Corp., GPLv3, Attack, Mary Jo Foley

With one stroke, Microsoft has ended any illusion that it planned to try to build bridges with the open-source community. And it appears the primary reason for Microsoft's decision to go back on the public attack against Linux and other open-source software is the looming Version 3 of the Free Software Foundation's General Public License (GPL).

In a newly published interview with Fortune magazine, Microsoft licensing officials go on the record claiming that the company believes free and open-source software infringes on 235 of Microsoft's patents. At the same time, Bill Hilf, Microsoft director of platform strategy — and the company's main liaision to the open-source community — was quoted on a tour in Southeast Asia as saying that "the Free Software movement is dead," and "Linux doesn't exist in 2007."

What's changed Microsoft's tune? Here is the explanation for Microsoft's actions that the company's public relations agency began circulating among the press on May 14:

"In a just-published article, Microsoft has publicly acknowledged that is has 235 patents that read on open source technology. As you know, Microsoft has had a long, public discussion about intellectual property issues. The company’s longstanding preference is to license rather than litigate and Microsoft’s work over the past three years to build a bridge with open source is a result of that commitment. The November agreement with Novell addresses the IP issues in open source while meeting both the distributor’s needs and, more importantly, the needs of the customer.

"Customers have asked industry leaders in both proprietary and open source to address these issues and over 90% of customers support the Novell agreement as addressing this need for vendor interoperability and cooperation ( http://www.microsoft.com/presspass/press/2006/dec06/12-11SurveyResultsPR.mspx ).

"Microsoft has made other efforts, as well, to advance open source interoperability and encourage pragmatic open source development with our intellectual property . These include the Covenant not to Sue open source hobbyist developers as part of the Novell agreement ( http://www.microsoft.com/presspass/press/2006/nov06/11-02MSNovellPR.mspx ) and the Open Specification Promise ( http://www.microsoft.com/interop/osp/default.mspx ).

"The patent issue with open source has been in discussion for some time, first raised by various leaders in the free and open source community. According to its August 2004 announcement, the Open Source Risk Management group stated that Linux could be in violation of 283 patents and, as such, could expose customers to undetermined licensing costs ( http://www.osriskmanagement.com/press_releases/press_release_080204.pdf ). Richard Stallman further validated this in late November where he noted that “a thorough study found that the kernel Linux infringed 283 different software patents, and that's just in the US. Of course, by now the number is probably different and might be higher.” ( http://www.fsfeurope.org/projects/gplv3/tokyo-rms-transcript.en.html#patents )

"The latest draft of the GPLv3 attempts to tear down the bridge between proprietary and open source technology that Microsoft has worked to build with the industry and customers. Customers in multiple industries have already called for and endorsed the bridge as a positive move in their favor. AIG, Credit Suisse, Dell, HSBC, Nationwide, and Wal-Mart are just a few of the customers who have already signed on and Microsoft has announced Samsung and Fuji-Xerox as the second and third distributors of Linux who are providing their customers with IP rights.

"Microsoft is discussing the patent issue even more directly now, with specifics about patent numbers and areas of infringement, in response to continued industry question and concern over the GPLv3’s adoption. Unfortunately, for customers, the Free Software Foundation’s efforts with GPLv3 while not harming existing contracts can harm the desired interoperability and open exchange that we have increasingly seen between proprietary and open source over the past several years."

For those who prefer the short version of the statement, Microsoft suggests the press use this quote, attributable to Horacio Gutierrez, Microsoft Vice President of Intellectual Property and Licensing:

“Even the founder of the Free Software Foundation, Richard Stallman, noted last year that Linux infringes well over 200 patents from multiple companies. The real question is not whether there exist substantial patent infringement issues, but what to do about them. Microsoft and Novell already developed a solution that meets the needs of customers, furthers interoperability, and advances the interests of the industry as a whole. Any customer that is concerned about Linux IP issues needs only to obtain their open source subscriptions from Novell.”

What's got Microsoft so spoooked? As the Fortune article noted, the GPL v3's provisions regarding the Microsoft-Novell deal suggest that Microsoft itself could be considered a "Linux distributor," and thus beholden to the GPL v3 terms. And even if that doesn't happen, under the GPL v3, other Linux distributors would be barred from doing deals like the one struck by Novell and Microsoft.

For the past few months, Microsoft publicly has pooh-poohed these arguments. But the company's latest decision to go public with claimed patent infringement numbers and other inflammatory statements, to me, shows Microsoft must think the GPL v3 has teeth.

What's your read on Microsoft's public statements in this matter?