Moving at the Speed of Creativity by Wesley Fryer

Rather than innovate, Microsoft may litigate against open source

On May 14, 2007, senior editor of Fortune magazine, Roger Parloff, published the article “Microsoft takes on the free world.” According to the article:

More than half the companies in the Fortune 500 are thought to be using the free operating system Linux in their data centers. But now there’s a shadow hanging over Linux and other free software, and it’s being cast by Microsoft. The Redmond behemoth asserts that one reason free software is of such high quality is that it violates more than 200 of Microsoft’s patents. And as a mature company facing unfavorable market trends and fearsome competitors like Google, Microsoft is pulling no punches: It wants royalties. If the company gets its way, free software won’t be free anymore.

I learned about this article via Steve Gibson and Leo Laport’s Security Now Podcast #93, “Microsoft Patent Wars,” from May 24th. In the podcast, Steve relates some history for U.S. patent law as it concerns computer software. In “the early days” (really not that long ago) the U.S. Patent Office wouldn’t grant software developers patents for their code because prevailing views held that like mathematics, software code “existed” and could be discovered but not invented. That perspective underwent drastic transformation at least ten years ago, and now the U.S. Patent Office issues software patents for a dizzying array of software code. According to Gibson, the issuance of software patents in the U.S. has gotten completely out of control in the past decade. Rather than issue patents for things which are truly novel and useful, Gibson maintains the software office now issues patents for very generic, broad software code which simply invites more litigation. The entire situation is a big mess, and this latest article about Microsoft and the ways they want to use their software patents to kill FOSS (the free and open source software movement) is both instructive and disturbing. As with many legal issues, it appears the only clear winners in this morass are the lawyers.

A Technorati search for “microsoft” and “patents” reveals a sizeable buzz in the blogosphere over these issues and their implications. Some are saying Microsoft should specify WHICH of its patents are among the 235 which are allegedly infringed upon by FOSS, others point out that is not how U.S. patent law operates, people should figure that out on their own. Steve Gibson asserts it is virtually impossible today to write any software code that doesn’t infringe on someone’s software patent ludicrously issued by the U.S. patent office, especially since prior knowledge of the existence of a patent can result in a legal judgement which is three times as harsh. That creates a disincentive for software developers to research existing patents and become knowledgeable about them, since ignorance can be used as a viable defense in a patent lawsuit.

I’m not a lawyer, and I don’t understand all the issues completely, but a few observations seem reasonable based on the information I’ve read to date:

  1. Open source operating systems are amazingly capable and robust today, and offer a genuine threat to Microsoft’s dominance of the operating system and office productivity software markets. The ones I have played with the most to date are Ubuntu and Edubuntu. If you haven’t used one of these, spend some time working with a system. Live CDs are available, so you can try the system out without even installing code on your hard drive. AMAZING this level of functionality is available today and FREE. With such robust operating system and software alternatives available, it’s no wonder a company like Microsoft appears to at least be contemplating litigation as an alternative to innovation when it comes to Linux. How do you compete against something that works great and is free? It’s quite difficult. You have to truly INNOVATE, something Apple does consistently well, but Microsoft seems quite challenged to do by itself.
  2. Novell and Microsoft’s “settlement” at the end of 2006 indemnifying SUSE Linux users from PERSONAL LIABILITY for theoretical infringement of Microsoft’s patents, along with the subsequent resignation of several Novell employees involved in their Linux project, smells more than a little funny. We cannot be certain, but these events and pronouncements suggest a sinister agenda for Microsoft when it comes to Linux and open source software solutions. Rather than innovate, it appears Microsoft will opt to litigate.
  3. Even if Microsoft does not formally litigate to protect all of the alleged 235 patent infringements mentioned in the Fortune magazine article, the THREAT of this litigation could likely have a chilling effect on the adoption of open source technologies by businesses as well as school districts. That, indeed, may explictly be part of Microsoft’s strategy. Consider the string of lawsuits initiated by the RIAA against file sharers. While those lawsuits have ostensibly been launched to punish those using file sharing networks to break copyright law, the demonstration effect and PERCEPTION OF FEAR created by those lawsuits is undoubtedly another goal of these actions. FEAR is a powerful motivator, for action as well as inaction. If Microsoft can create the perception that individuals, businesses, and even school districts will be subject to costly litigation if they use and adopt open source technologies, then one of their major goals will likely be achieved. In the security now podcast (#93) about these issues, Leo Laporte asserts that Microsoft wants to kill Linux. That may be impossible, since the Linux software project is so far along and so globally distributed. It seems unlikely any company (even one with the clout and resources of Microsoft) could completely kill it. If Microsoft can create a perception that Linux users stand an even small chance of being sued in U.S. court, however, it is likely they could succeed in substantially and broadly chilling the adoption of open source software solutions. Last fall at an Oklahoma technology conference, rumors spread based on the presentation of a single educator that blogs were illegal and any Oklahoma schools using blogs would lose their eRate funding. Irrational fear spread quickly! It seems likely Microsoft would like school leaders to believe that open source operating systems are illegal, and therefore reject out-of-hand altogether reasonable suggestions that many of the school’s desktop computers run free versions of Linux.

Perhaps more conclusions can be made, but I’ll stop speculating at this point. This is a very important issue to follow, and I will definitely be staying tuned. Back in 2000, Stanford law professor Larry Lessig penned the prophetic article, “In Search of Skeptics: We need to be willing to think about the effects of regulation on the process of innovation.” He wrote seven years ago:

The recent explosion of concern about the effect of patents in cyberspace is a reaction to legal imperialism. Software coders had not lived in a world where their right to write software was regulated by bureaucrats in Washington. The founders of the Internet had not experienced life where every innovation had to be passed by the lawyers’ committee. An unregulated – and extraordinarily creative and innovative – space has begun to balk at the idea that business here will be lawyers’ business as usual.

These issues of creativity and innovation are some of the most important in this landscape of litigation, fear and uncertainty. Patent law was not devised in an era when software coding was possible. Our copyright and patent laws in the United States are in dire need of revision, and this entire situation seems to support that opinion. Hopefully reasoned heads will prevail in this case, rather than only well-heeled heads. Having read Philip Howard’s book “The Death of Common Sense: How Law is Suffocating America” several years ago, however, I will not be optimistic about this outcome if the lawyers are permitted to shape our copyright and patent law future by themselves.

For some interesting reading about FOSS and the philosophies of some of its most ardent supporters, check out the WikiPedia article for Richard Stallman as well as his personal homepage. He’s a radical, and I don’t necessarily endorse all his views, but I think it is illuminating and challenging to consider many of his perspectives.

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7 responses to “Rather than innovate, Microsoft may litigate against open source”

  1. Manny Avatar

    US Patent Law needs revision alright. It should be revised to the point that software cannot be patented at all! Many other countries do not allow software patents at all, although they allow software to be copyrighted. The Philippines is one such enlightened country (benighted as it is in other areas).

    Until the oxymoron of software patents is eliminated, we should fight to erase the fear Microsoft’s ridiculous claims may generate. We should use FOSS, encourage other to use it, and talk about it often and openly.

    Microsoft is itself one of the world’s biggest software patent and copyright violators. We should stand up against this hypocrisy by publicly condemning it and avoid using their flawed software.

    Use FOSS. It’s the right thing to do!

  2. Jill Elfering Avatar

    Why is it that Microsoft in its own fear turns to alienate its customers once again? Why don’t they take it one more step and write some “innovative” code into Vista that prevents the use of open source and free software – that should take care of those customers who are still on the fence. I was a PC person for my whole career before last year… how quickly things have changed. Get thee to an Apple store!

  3. Steve Hargadon Avatar

    It’s worth reading the following article:,1759,1729908,00.asp. The author of the study that Microsoft is using for their patent claims says that the number of potential violations is a story, all right, but because it is so low, not so high. All software has potential patent violations, apparently.

    I’ve collected a list of Free and Open Source Software programs at, in wiki form. I’ve also interviewed Richard Stallman, Eric Raymond, and many others about the use of Free and Open Source software in k-12 education. You can find those interviews at


  4. Alfred Thompson Avatar

    So the biggest problem I have with your post is the suggestion in the title that Microsoft is not interested in innovating. Given the recent announcements of things like PopFly ( and Microsoft Surface ( there is clearly a lot of interest around innovation at Microsoft. I’m not in a position to know more about the patent issues then what I read in the media but it sure seems like if taking FOSS to court was any sort of goal it would have been done years ago.

  5. Wesley Fryer Avatar

    I would agree that Microsoft is continuing to attempt to innovate in other areas, but with respect to the challenge posted by FOSS I’m observing that they appear to be favoring litigation over innovation.

    I briefly saw part of a video on surface computing and hadn’t checked out pop fly at all, so thanks for that link. Pop Fly looks cool and innovative, but it is a web-based service.

    Point well taken, Microsoft IS continuing to innovate. As a corporate strategy to address open source software and the viable threat posed by Linux, however, I think my observation still stands that in the FOSS context Microsoft is opting to litigate rather than innovate.

    To conclude that Microsoft is innovating in response to FOSS, what would we need to see? I’m not honestly sure. An operating system that is lighter weight, more secure, faster, more flexible, graphically impressive, and inter-operable than either Linux or Mac OS X would qualify in my view, I suppose. I don’t think what I’ve heard and seen about Vista meets any of those criteria for “innovative” on the operating system side of things.

    Thanks for the comment and challenge.

  6. Alfred Thompson Avatar

    Which on going litigation are you refereing to? That’s what I would need to convince me Microsoft is more interested in litigation than innovation.