Microsoft in FUD shocker

It seems Microsoft are at it again. More software patent threats. Yadda yadda yadda. I have an odd relationship with Microsoft – on one side I know, respect and get on well with a number of people who work there, and I have been invited to their Redmond and Reading campuses and liaised with them about Open Source issues. On one side they are doing great work, listening to customers, and creating compelling products. But, then they go and resort to FUD tactics…again. One (unnamed) Microsoft employee once told me that most of the people on the ground, doing development out with customers really do get-it but Microsoft have suffered from a disconnected management clique. I am beginning to see where this person is coming from.

So here were are with another beautifully crafted shitstorm. Should we worry? Well, I am by no means a lawyer, and I only have an approximate grasp of the different issues involved, but I think the risk is minimal for a number of reasons. To save writing swathes of text, I am going to bang through the reasons why we should not worry too much about Microsoft’s noise, all presented in bullet time:

  • The software patents system is on shaky ground – the software patents system has already faced issues in terms of enforcing patents effectively, and recently the Supreme Court stated in a unanimous opinion that patents have been issued too readily for the past two decades, and lots are probably invalid. Lets also not forget that software patents are only enforceable in some countries.
  • SCO case – Microsoft must be looking at the SCO case and making notes. The SCO case has worked out rather bad for SCO with a delisting and the company facing rough waters. Irrespective of the confidence in SCO’s argument, it cannot be denied that the case has brutalised SCO’s business.
  • Microsoft will not want to piss off partners – it is estimated that half of the companies in the Fortune 500 have Linux running in their data-centers. Linux is rallying its way through the corporate world, and many of these companies will not only have agreements with Linux vendors but also with Microsoft. If Microsoft are going bring a legal case against Linux, they are going to cause problems for existing partners. I believe that the value of partners will outweigh this.
  • Free software users are essentially un-traceable – how many free software users are there? Anyone with even half a clue knows that this is an impossible question to answer – the nature of free software means that we cannot track who is using it; it can be freely copied and re-distributed. As such, there is no effective method of contacting people and hammering them for potential license fees or payment. Sure, Microsoft could target large scale companies, but the cost of the case needs to be covered by the potential revenue it could bring in – the Linux distributors are unlikely to cover a huge amount in damages, so a successful win needs to ensure that a revenue stream is created.
  • Linux has big-business behind it – I am not going to reel off a list of companies, but a number of large organisations have a vested interest in Linux, and these companies are ploughing in huge amounts of money and investment into Linux-based products. These companies will be as keen to protect their own business interests as Microsoft are.
  • Could they actually win? – I have not even covered the potential of them winning and whether they have a solid legal argument. Every case needs to have the right balance of circumstances to make it happen, and I have been merely looking at the issues around the edge of the core case. If they have a somewhat ropey case, it makes things even more uncertain for Microsoft.

Let us also not forget that Microsoft are a convicted monopolist. Microsoft have already been through the legal machine and come out with burned fingers. Any large-scale legal assault will need to be carefully considered, and if they are going to step into the fire again, they need to have a pretty strong case, and I would guess that many of the above issues are going to stand in the way of such a case.

Three or four years ago I would have worried about such a threat, but these days I am less worried as I think the Linux machine has built to such a point where it is a serious industry force that will take more than one company to derail. Sure, its complacency, and sure, we should never rest on our laurels and indeed continue to fight against software patents, but I am not exactly loosing sleep over this.

  • RubenV

    Nicely spoken Jono, this once again proves why we should be proud to have you around. Keep doing your magic :-)

  • Nermal

    I wouldn’t be surprised if this is partly in response to Dell finally starting to ship PCs with a Desktop Linux Solution available.

  • Alan Pope


  • erik

    Best summary sofar, because of the fairness. :smile: Indeed, the whole thing is barely worth the attention it has got in the last few days.

  • ssam

    If only i had a patent on Jokosher 0.9 not being released yet.

    then you’d be in trouble mr bacon


  • Karl Lattimer

    I agree completely with all that is said above apart from one vital point;

    “the Linux distributors are unlikely to cover a huge amount in damages, so a successful win needs to ensure that a revenue stream is created [for microsoft].”

    I would counter this point by contributing, a successful win needs to ensure that a revenue stream is created for microsoft, or is cut off for an open source distributer. That being the major motivating factor in this kind of FUD, if microsoft can scare corporations into not choosing to pay a Linux company then ‘by default’ microsoft would inherit that revenue stream.

  • Vincent

    Looks quite accurate for me, but I think you forgot one: Even if Microsoft were to prove that Linux violates some patents, this would mean they would have to show were they were violated, and then in no time the violations will be removed. It’s an empty threat. I think they’re probably only shouting Linux violates some patents to scare of potential Linux users who’d rather not take the risk.

  • Joe Buck

    You forgot one more bullet: Microsoft wants software patents in Europe. Aggressive action now, before they get their wishes, could queer the deal.

  • Thomas K

    I get the feeling that the aim is not to get money out of linux users so much as to scare people off open source software by casting doubt on its legality.

  • Microsoft in FUD shocker »Technology News | Venture Capital, Startups, Silicon Valley, Web 2.0 Tech

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  • Ian MacGregor

    Jono, nice article.. thanks. I worried the first time I heard about the possibility of Microsoft going after Linux users, whihc was years ago, but I don’t even give it any attention anymore because of the facts you have mentioned.

    Keep up the good work :)

  • Boycott Novell » Patents Troll, Bully, or Both? (External Sources)

    […] Jono Bacon has a nice little scoop. “One (unnamed) Microsoft employee once told me that most of the people on the ground, doing development out with customers really do get-it but Microsoft have suffered from a disconnected management clique. I am beginning to see where this person is coming from.” […]

  • fraser

    My name is Pythagoras, and I want a royalty payment for every square corner on Microsoft property. I bet my claim is stronger than theirs.

  • Mario Miyojim

    If Microsoft drags someone to court for software patent violation, it will have to prove that their patents are not obvious (like the FAT file system) and that there is no prior art, before they reach the stage of showing features in the Linux kernel or open-source applications. In the early discovery phase, MS will face very knowledgeable software experts who may invalidate those patents, and weaken the case so much that Microsoft will be the target of international mockery. The German judges already showed that they are smarter than American judges by invalidating the FAT file system patent held by Microsoft.

  • Russ

    👿 It is exactly as you say, they are NOT claiming they will sue, just suggesting it “may be a future option”… This is SOLELY to scare CIOs and other corporate execs into “managing risk” which is their #1 job. If they can avoid a risk, they feel successful. With the pace of today’s business world if corporations pause for even a minute over this, they will use MS in many projects that might otherwise have gone to Linux. If 1 corporation does this, MS wins… (this round) Unfortunately, this is a gorilla war… i.e. American Revolution & Vietnam… Gorilla wars require different tactics and MS just doesn’t get it… The big powerful British may control the cities and major highways, but the rebels control the rest of the country… The more the British kill, the more damage they do to us the more loyalist turn rebel…

    OK, is my age showing… Anyway, MS may win the battle, but with each win they will drive more corporations to Linux as a backlash… Partners, customers, etc. will be offended at the threat, so , though they may pause giving MS a short win, they will aggressively join the rebel cause as soon as the threat is proven invalid… The “risk” dissipates and managers with a bitter taste in their mouths pre-determine to use Linux on their next project… And we all go attack the Death Star with George Lucas leading the way, or something like that…

    I have MS Windows XP on my laptop, but only because Dell Japan isn’t yet offering anything else… Someone tell Michael Dell to get those managers over here off their butts… 👿

  • » Faith Restored in Microsoft

    […] I echo something I read on Jono Bacon’s blog about the recent discussions on Microsoft vs Free Software, that there is a disconnect between Microsoft Senior Executives and employees on the ground. That’s nothing unusual, probably true of most major organisations. I feel calmer now and good again about my relationship with Microsoft. Posted by vijay on Friday, May 18th, 2007 […]

  • Mad Malc

    Hi Jono

    Nicely put.

    For Russ’s benefit leave the British out of this, Britain doesn’t have ‘Software’ Patents.

    So Microsoft scares CIOs whose countries have ‘Software’ Patents forcing Companies (Fortune 500) to continue to pay Microsoft royalties.

    One bullet point that might be added is Microsofts’ tactics aren’t endearing it the the ‘Developing Countries’ which is why some of the biggest economic players of today/tomorrow are embracing open source. Whilst Microsofts’ tactics are helping to make the U.S. of A a yesterday’s power in computing development and software..