Earlier today, Microsoft announced it will begin actively seeking reparations for patent infringement by Linux and the Open Source Community in general. Larry Augustin posted his thoughts on the matter, expressing his opinion that it’s fear of having these IP-infringement claims debunked or challenged that’s keeping Microsoft from publishing these 235 alleged infringements to the public – and instead waiting until the OS community comes to the bargaining table. But let’s be realistic, shall we?
If Microsoft Corporation doesn’t have the biggest and baddest team of
lawyers law firms, who does? It’s probably safe to assume that more than half of these patent infringements really are just that. Put aside the legitimacy of software patents in the first place and just look at the facts as they stand. Open source software gets its code from millions of developers and no amount of auditing or quadruple-checking will ensure clean-code. Despite Microsoft’s claims of “openly and knowingly” engaging in patent-violations, that’s most probably not the case.
But the real reason Microsoft does fear revealing the actual numbers and patents behind the IP-violation claims is that they can be worked around. 235 patents. 235 different issues, components, technologies, programs, and ideas. Most likely somewhere between 30-50% are extremely vague and fringe-cases that can disputed either way from here to kingdom-come and as such aren’t of any real significance.
But the remaining 150 or so issues – they’re the real meat, and that’s where Microsoft is afraid – most rightly so. US patent laws – despite all their ridiculous demands and restrictions – do provide for time to rectify errors/transgressions assuming they weren’t knowingly committed. Now if you told every single open-source contributor, every avid Linux programmer, every commercial entity whose entire existence depends on the free availability of open source software exactly what was wrong, to what extent, and how it needed to be changed to no longer be an issue – how long do you think it would take for all these violations to vanish into thin air?
It is much more in Microsoft’s benefit to have the open source community in “its debt,” so to speak, paying “royalty fees” and constantly under fear of being shut-down than it is for Linux and other open source projects to be 100% clean and out of legal quagmires. It makes too, in a twisted sort of way. If you can’t get everyone to buy your products, why not make money off of those that don’t as well?
The fact of the matter is, no matter how serious these patent violations are, any patent clearly-worded and not vague in purpose is addressable. It may take some time, effort, and tons of money to make it work; but chances are, it’s doable. So long as Microsoft hasn’t patented the right-mouse context menus, the concept of a desktop, or the word “Office,” the open source can – if the need arises – clear all these issues up and move on ahead.