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Ballmer rattles intellectual property saber at Linux


What a surprise! What a shock! Ballmer thinks Linux rips off Microsoft intellectual property.

According to Eric Lai in Computerworld, Ballmer said Microsoft was motivated to sign a deal with SUSE Linux distributor Novell because Linux “uses our intellectual property” and Microsoft wanted to “get the appropriate economic return for our shareholders from our innovation.”

Isn’t “Microsoft innovation” an oxymoron like “military intelligence?” But I digress. Basically, Microsoft is SCOing us again.

SCOing? Mark Webbink, Red Hat’s deputy general counsel, tells me that it’s a verb from the Middle English, which in turn is from the Old English “screw,” that is, to stick it to some one, and in the modern vernacular it means to threaten your customers with IP (intellectual property) infringement.

You would have thought that by now Ballmer would have learned his lesson. After all, it was Microsoft that fueled up the SCO IP rocket, aimed it at Linux, and then watched as SCO’s anti-Linux lawsuits have blown up.

SCO’s IP claims against Linux have been proven time and again to be nothing more than bad jokes. Is there any reason to think that Microsoft’s IP claims wouldn’t be more of the same?

Yes, there is one key difference. Microsoft, if it actually had anything to show, would likely be relying on patents rather than copyrights, against Linux. However, there’s just couple of wee little problems with that approach.

First, let’s assume that Microsoft isn’t filled with morons. So, instead of threatening to sue customers — and we all know how well that worked out for SCO, don’t we? — they’ll have to sue a big Linux vendor. Let’s say, they decide to pick on Red Hat.

Now, as it just so happens, Red Hat isn’t the only company that distributed RHEL (Red Hat Enterprise Linux). There’s this other company named Oracle, which recently got into the RHEL business. Larry Ellison may call his version “Unbreakable Linux,” but Oracle makes no bones about it: Unbreakable Linux is RHEL.

Microsoft might think it could break Red Hat down with a long enough lawsuit, but Oracle? Do the boys in Redmond really want to spend the rest of the next decade locked in battle with Larry Ellison? I don’t think so.

Besides, does Microsoft think IBM will stay on the litigation sidelines, if it decides to play the patent card? IBM makes a lot of its billions from Linux, and I can’t see Big Blue paying Microsoft off to continue using its favorite operating system.

Now, I have no doubt that some way or another, Microsoft can find some kind of way to attack Linux with patents. After all, OSRM (Open Source Risk Management) back in 2004 found in a study that 283 issued, but not yet court-validated, software patents could conceivably be used in patent claims against Linux.

The patent law in this country is completely and totally broken. Earlier this year, a patent troll company named NTP squeezed $612.5 million out of Blackberry maker RIM using patents that had been rejected!

NTP, like the other patent trolls, however, doesn’t produce anything. Its only purpose is to leech onto successful businesses and drain them of cash. NTP, in short, could care less about what people think about them, they just want the money. Microsoft, on the other hand, does have to care that if it attacks Linux, it will also be attacking a lot of its own customers and partners.

Finally, leaving aside all of this, open-source software like Linux has one trump card against patent violations. If Linux violates a patent, Microsoft, unlike SCO, will have to spell out exactly what it is that Linux has violated. That being done, the Linux developers can simply rewrite around the patent problem.

So, from where I sit, if Microsoft really wants to try to slug it out with Linux in the courts, it will first have to deal with other industry heavyweights. It will also have to deal with all the negative PR that will result from taking on a much smaller company. And, after all that, Microsoft will still have the problem that trying to hit Linux on patents will be like trying to give the north wind a good punch in the jaw — it simply can’t be done.

A version of this story was first published in Linux-Watch.

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