Microsoft Patents Linux Impact: Red Hat vs. Novell

Rob Enderle

Now whether you believe the patent claims from Microsoft (or whether the number is accurate) or not, they clearly are having an impact on the market. But I'm not sure it is the impact that Microsoft intended. Let's take a minute to look at the situation and the mistake that Microsoft may have made, why it made it, and whether, short term, Red Hat or Novell will best benefit. This is a follow up to my earlier piece on covering your butt.


First, one thing now appears clear, and that is Microsoft really doesn't want to litigate. The cause probably goes to how much litigation it has been involved in to date and that the overall experience isn't a great deal of fun, or at least hasn't been. Even Sun is warning Microsoft not to enforce.


Pre-SCO Thinking


Pre-SCO, if Microsoft or any large software vendor made a claim that another company was infringing, it could have a chilling impact on sales. IBM often used its own patent portfolio very effectively and it, along with HP, has recently been much more aggressive with its own patent portfolios of late. At least with hardware, it still seems to work. But SCO made a lot of claims which are now perceived to have been baseless (whether or not they are, or were, isn't important -- it's perception that counts). The end result is that folks in the software business, and the Linux foundation in particular, don't take this stuff that seriously anymore.


Now large corporations, at least those who probably are already under a Microsoft license of some type, have to take this kind of thing seriously because being in violation of license has near-immediate financial implications with regard to what Microsoft charges them. But they are more likely to ask for proof of the infringement, and here Microsoft is already using Stallman's own comments with regard to infringing code along with the patents under NDA as proof (suggesting they may actually work).


For company to company fights, it is one firm against the other and the user/buyer of the technology is generally, at least somewhat, impartial. With OSS, the user takes the place of the challenged company and is anything but impartial. That adds a unique political aspect in the Post-SCO world that I don't think a lot of folks, including Microsoft, fully get. This would suggest that a much more subtle approach would be vastly more effective. But Microsoft doesn't do subtle well; the Fortune piece where they were trying to make, but clearly didn't, a subtle point is proof of that.


So the Microsoft statement showcases pre-SCO thinking, and while it is likely somewhat successful with IT, it also likely has unintended consequences which are counter strategic to Microsoft.


Linux-OpenOffice Impact


The product that is likely the most vulnerable is OpenOffice. While it is likely that many of the operating system patents cannot be enforced -- probably because they haven't been adequately protected or because the patented idea is in common use with a number of operating systems -- productivity software has largely been contained by Microsoft and Corel (which is cross-licensed). The end result is that the same defenses that work with Linux may not work with OpenOffice, and since Linux and OpenOffice go together on the desktop, Microsoft's claims may have an impact here. This may be why Sun is trying to warn Microsoft off (given it is/was the force behind OpenOffice).


On Linux in general, however, the initial impact shouldn't be that great, and Microsoft's actions did result in massive media coverage which allows folks to present Linux in a favorable light. I would argue Linux, as a class of product, may actually be benefiting from positive market coverage. How much is hard to tell, but Linux doesn't have a marketing department and seems often to benefit more from claims like this than be hurt by them.


Any time advocates for a product are given the podium, assuming they don't say stupid things, that's free publicity, and Microsoft gives more of this to Linux than Linux gets from any of its supporting companies, including IBM. This has to be frustrating to Microsoft -- it must seem like the harder it pushes, the further it falls behind.


Given most are focusing on Linux and not Open Office, I believe the impact (at least initially) of Microsoft's claims are positive for Linux. Long-term, it will depend on the strength of Microsoft's patents which could, in fact, be enforceable. (Just because you believe something, one way or another, doesn't mean it is true). For now, since the assumption is they are not, this is simply working to make Linux more visible, and viable, as a Microsoft alternative. I doubt that is Microsoft's goal.


Who Benefits: Novell or Red Hat?


Both may, but in different ways. For Novell, it is once again affirmed as the safe vendor, regardless of whether the patents are real or not. A Novell customer can affectively step away from the entire mess (as can an HP customer) and focus on the business. This is appealing to business buyers who would rather focus on their business and not on any controversy, and particularly for mixed Microsoft/Novell sites who don't want to worry about what Microsoft may do next to enforce its rights.


Red Hat has historically been poorly regarded by the OSS community and this does a lot to turn it from marginal villain to outright hero. You can't buy this kind of positive press, and even if Microsoft does take Red Hat to court, that would only make them more attractive to OSS supporters who might now flock to their defense.


This should positively impact any small business or consumer business Red Hat does, but it could also place a cloud over its corporate business and make it less likely that Dell or HP would use it. Neither company wants to enter this fight. IBM is a wild card (it may be motivated to do something similar to what Oracle did and create its own distribution that can be defended under ist own Microsoft cross-license agreement) and what it does could have a material impact on how all of this turns out.


In the end I think Red Hat benefits more because it moves from bad guy to good guy for the Open Source community, which gets a big vote on what products are chosen and used. This will be a halo that could serve them in good stead for anything from acquiring customers to acquiring employees.


Closing Thoughts on Microsoft


At the heart of the Open Source movement is dissatisfaction with and distrust of Microsoft. That fuels much of the fire, and until that is addressed, the risk to Microsoft is likely to increase and its ability to get people to license decrease. This recent coverage isn't helping Microsoft at all. At some point, Microsoft will have to improve its reputation as it defends its IP rights.


They are clearly going to extensive lengths to avoid litigation, but are also moving aggressively to license and assume the folks signing are convinced the Microsoft patents have some validity or they wouldn't sign (the Samsung deal, for instance, would indicate at least some Microsoft patents are valid).


Long-term, the outcome depends on what Microsoft actually does to protect its patents. Some will not sign licenses and, at some point, Microsoft will either have to walk away from these patents or protect them through litigation. When, and if, litigation happens will be sometime in the future.


Red Hat continues to appear the most likely to be hit first, which, eventually, should benefit Novell. But right now, Red Hat seems to be getting most of the visible benefits. I'm guessing Novell is not pleased.

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May 17, 2007 5:21 PM See Level See Level  says:
This has definitely not been a positive for Linux. While the news has in fact been heard far and wide, and was actually the first exposure many outside the IT world had to "Linux" at all, it was not a positive endorsement of the alternative O/S by any means. How could it be, what could Linux possibly take from this that is a plus for them? It is already known to be a clone of other products, and this was just someone putting a finer point on it. The question is not whether Microsoft will actually ever sue, but whether if Linux wants to become something more than an cheap O/S driven mostly by a vocal underground. Can they actually take center stage, or will they always have the appearance of a rag tag bunch of nonconformists who would rather upset the applecart than actually push it higher up the hill? So far it doesn't look like they're capable of ever being held to the same high standard as current market leaders Apple and Microsoft. Reply
May 17, 2007 5:34 PM Rob Enderle Rob Enderle  says:
Hmmm, in terms of market leadership on the desktop you'd be right but on servers Linux is mature even though some do argue it is basically a UNIX clone. A few years back at a Linux desktop conference I watched Geoffrey A. Moore (Crossing the Chasm), an avid Linux fan, make a similar statement. His view was that if Linux wanted to stand out it needed to step out of the shadow of UNIX and Windows and do something amazing and different. I've become somewhat fascinated by project Beryl http://www.beryl-project.org/features.php which makes Apple Tiger look old (realize Tiger is shipping and Beryl is Alpha software). What makes Linux unique is the collaboration that surrounds it, the question remains whether a collaborative product like this can be inovative (certainly the people can, but getting agreement is a bitch for anything truly different). It is one thing to play the underdog but anther to truly challenge for the lead, I too wonder if the folks who support Linux have the willingness to do what it would take to truly make Apple and Microsoft chase them for real as opposed to just rhetorically. Reply
May 17, 2007 6:03 PM See Level See Level  says:
Exactly, the only real place Linux has excelled is with supercomputers, but how many of those even exist? Most people, even in tech heavy countries really don't even know what it is. All they ever hear about is about it being involved in some other lawsuit, and this just added more of a negative impression on top of that. The Beryl you mention is actually mostly just a copy of freeware that was first available for Apple as well. What O/S vendor do you really think video card manuafucturers deal with first when they come out with a new device? Microsoft? Apple? Or RH/Novell/IBM/OSDL? Linux has to make a significant name for itself somehow if it ever wants to reach the heights of companies like Apple or Microsoft, and right now all most ever hear is something negative. Not only do we have these constant lawsuits or threats going on, next we have the GPL3 nightmare upcoming. If Linux wants to rise above the endless controversy, they need to show some character and try to end it themselves, show they are a mature technology that can overcome obstacles, like others above them have to reach their position. Microsoft isn't the only company whose patents Linux is infringing on. They probably won't even be the first ones to sue. Who will the Linux people blame then? Anyone but themselves. Reply
May 17, 2007 6:18 PM Rob Enderle Rob Enderle  says:
Part of the difficulty in even discussing this is the terms. You are comparing Linux to Apple and Microsoft. Linux really only refers to the Linux Kernel, the other two are companies. This just makes the Linux folks crazy. I work with the video card manufacturers; Linux is clearly on the list these days. The issue hasnt been a willingness to do drivers its been issues surrounding how they can protect the drivers once they do them. The card folks like proprietary drivers but the Linux purists wont use them. The card guys are coming around, sort of, but they arent happy. One of the big issues with Linux is politics and a kind of religion that keeps the advocates, often, from allowing what otherwise would be right for the users. Linux has made a name for itself; it is woven through most large companies in one form or another. HP, IBM, and even Dell support it widely. It is cheap UNIX, but it isnt on the desktop in volume yet, though Dell (and others) is trying to change that. Agree Microsoft wont be first, SCO was first, that didnt work out that well. But, I also agree that the controversy that continues to surround who owns the IP underneath Linux is a problem that will need to be definitively resolved and that Linux will need to step out from under the shadows of others, including IBM, if it is to find its own space and blaze its own trail. Reply
May 17, 2007 7:09 PM Mike Mike  says:
My toughts are Red Hat would love to give their customers (many more than Novell) the same Linux immunity Novell was able to acquire through its deal with Microsoft. But Red Hat's biggest problem in making a deal like Novell's is Red Hat has no IP or patents of their own to bring to the table. A straight cash for protection deal would have forever destroyed Red Hat in the open source community.There is no doubt Novell's deal with Microsoft has hurt itself amoung the open source community. The Microsoft- Novell deal is much more ambiguous though, and interesting for that matter, when you factor in Novell's IP. The timing of the Novell deal should also be considered. The Novell deal was struck about the same time the SCO litigation proxy's demise was assured. Judge Kimball had affrimed Novell's ownership of Unix V. Novell also owns the Netware IP which predates Microsoft's full entry into networking. So maybe Baller saw an undisclosed Novell liability on his balance sheet. We'll see how it all plays out but Moglen and Stallman are on their won when it comes to not wanting to be paid for the work they do. But than again, Moglen and Stallman have money and the many of the independent contributors feed the code don't. How long would any of you work for free, the community is no where near as cohesive as FOSS would have you beleive. Reply
May 17, 2007 7:16 PM Rob Enderle Rob Enderle  says:
Good point on RedHat and Novell IP, I hadn't thought of that. The whole not getting paid thing has never really made sense to me, always sounded like a bunch of rich kids not understanding the rest of us don't have trust funds... Reply
May 19, 2007 9:52 AM Rob Enderle Rob Enderle  says:
Yes StarOffice (Sun's product) is based on Open Office (its basically OpenOffice with Sun Support and a price tag). And yes there is a cross license agreement between MS and Sun, not sure if it would protect OpenOffice or not but, I think, Sun is implying that they (Sun) thinks it does. Reply
May 19, 2007 12:10 PM AB AB  says:
You mentioned openoffice in your article, referring to it as being more vulnerable to patent claims.I believe that SUN already had an office suite of its own, Star office - possibly still in development. (please correct me if I am wrong)Also, I would like to ask, is there a cross licensing agreement between Sun and MS? If yes, how will this impact on openoffice, since sun is still behind it? Reply
May 19, 2007 4:39 PM Napoleon A. Courtney Napoleon A. Courtney  says:
Considering that earlier this week Red Hat turned down an API deal with Microsoft issuing the the following statement.Red Hat will only sign an interoperability agreement with Microsoft if it is based entirely on open standards, the company's executive vice president of engineering Paul Cormier told vnunet.com."Interoperability done on closed APIs isn't interoperability,' Cormier said. 'We'll never do interoperability based on closed APIs.Microsoft general counsel Brad Smith told Fortune that open source software violates 235 Microsoft patents, it sent tremors through the tech industry.It's ironic that Microsoft is making these statements, considering how they've benefited from a ruling by the Supreme Court last week that stated U.S. companies could not sue other U.S. companies in U.S. courts for patents infringed upon in other countries. Is Microsoft really going to seek royalties from every company in the world that is using some version of Linux or open source software? Reply
May 22, 2007 10:11 AM fmcgowan fmcgowan  says:
Every step that MS takes down the road already traveled by SCO reduces the credibility of their claims. So far, MS have made infringement claims (but only under NDA, just like like SCO), they have threatened their own customers to get some of them to pay license fees (just like SCO) and blustered to whomever in the press would listen (just like SCO). Maybe they'll follow through and have a Federal judge tell them they have no real case (just like SCO). The only things they have not done like SCO are allege contract violations (the original claim SCO made against IBM) and begin to visibly die before our eyes.The only way to *fully* resolve this is for MS to publish their source code so independent researchers can freely compare theirs to the FOSS code already available. All of the code we need to compare is already copyrighted, so it would be illegal to copy from one to the other. By the way, that would also allow the FOSS community to see how much code MS have "borrowed" from the community... Is that more than *none*?Even they can't survive forever pumping up their detractors and alienating their supporters. Unless they publish and compare code (and I believe this will never happen), MS needs to sue or shut up. Reply
May 22, 2007 10:26 AM Rob Enderle Rob Enderle  says:
Actually these are patents so they don't have to Open Source anything they just have to show infringement. Copyright is a different process and there you would need to show the source. Since Stallman himself has sited 285 patents he thinks are infringed you would thing time would be best spent either invalidating those patents or correcting the problem. Microsoft's own number was only 235.If both sides have a number and the FOSS guys have the bigger number you would think they had the Super Set right?Seems kind of silly to wait around for Microsoft to answer a question you already know the answer to unless, of course, you don't like the answer. This is way different than SCO. Reply
May 22, 2007 11:07 AM fmcgowan fmcgowan  says:
It doesn't look all that different from where I sit. SCO didn't want to identify any infringing code, either, and *still* had not when last I checked GrokLaw. All they wanted to do was say that Linux contained X lines of infringing code in Y files (where X and Y varied from press release to press release). MS want to allege that Linux and other FOSS projects infringe Z patents where Z varies from press release to press release but they refuse to say *which* patents.MS must still identify the patents and they refuse to do so unless an NDA is signed. It's like the old joke line: "I could *tell* ya, but - then I'd have ta *kill* ya..." By the way, I think that the descriptions of patents granted are public documents so I fail to see the harm in saying which patents are allegedly infringed.Demonstration code would also be helpful.I don't think Richard Stallman qualifies as "guys" unless he hears voices or something but I don't think that's the case, either. As far as I know, he is only FOSS spokesman to make such a claim.I would guess that the FOSS community (I'm more of an observer than participant, so I do not even pretend to speak for "the community"...) is waiting for MS to say *anything* definitive. MS refuses to do so. Why do you suppose that is?I have a *very* hard time believing that a company with a well practiced legal division *and* outside counsel are whinging away from court if they have anything they can prove. Sounds like SCO with some sense; bluster *much* but *file* nothing in court because you can't lose a court battle until you get to court... Darl should have done more blustering and less filing... Is Bill wise enough to learn from the mistakes of another? Reply
May 22, 2007 2:40 PM Rob Enderle Rob Enderle  says:
Big differences: Patents not Copyrights: Patents are already publicMicrosoft ($40B reserve) vs. SCO $50M at peak more like $5M- now.Gates= Richest Guy in World McBride: HomeownerMicrosoft: History of killing Competitors SCO: History of trying to be a competitor Reply
May 22, 2007 6:38 PM Sam Sam  says:
MicroSoft should consider this: if they consider OpenOffice or Linux in breach - how about MicroSoft being in breach with Apple Macintosh, which it so succesfully copied in terms of look and feel for office tools, and the core idea of the operating system?Since if MS goes on its way - they'll also open Pandora's box with their past sins shining bright. Reply
May 22, 2007 7:18 PM Rob Enderle Rob Enderle  says:
Hmmm, Apple did take them to court and lost well over a decade ago. From Wikipedia:In 1988, after the introduction of Windows 2.0, Apple filed a lawsuit against Microsoft and Hewlett-Packard alleging that Microsoft Windows and HP's NewWave violated Apple's copyrights in the Macintosh user interface. Cited, among other things, was the use of overlapping and resizable windows in Windows 2.0. The case was one of the significant "look and feel" copyright lawsuits of the 1980s. After several years in court, Apple's claims against Microsoft were dismissed, primarily due to a license John Sculley had negotiated with Bill Gates for Windows 1.0. The decision was upheld on appeal in 1994, but legal disputes on this topic were still ongoing until 1997 when the two companies came to a a wide-ranging agreement that included Microsoft buying 10% of Apple stocks.[8] [9]http://en.wikipedia.org/wiki/Notable_litigation_of_Apple_Inc. Reply
May 22, 2007 7:45 PM Ron Ricci Ron Ricci  says:
This is just another ploy against something that is so very clearly better because the Redmond giant just can't stand that. They can't stand that something else may be better because they might loose their monopoly on the world of software. LINUX ,very clearly, is better and it is free. Who in the corporate world of paid software would not be afraid of that. You can't blame anyone for that fear.However, here should be the stand of MS, SCO and others intending to sue those who worked so hard for free: Shut up and get to work making something better! If you have a problem with LINUX then make something better. While you're at it, do it for free like the LINUX community did.Here is the first real truth on who should sue who: Apparently Jobs saw the first GUI at Xerox Park then Gates saw the first GUI at Apple. Gates said every car has a steering wheel but this is hardly a good analogy for the GUI concept that got ripped off from Xerox. The steering wheel revolutionized the automotive world in not hardly the same way as the GUI did so for the computing world.Here is the second real truth on who should sue who:Back in 1980 the UNIX /bin had programs like traceroute, ftp, and a host of others that are the foundation of modern IP networking. When NT first came out (MS first crack at good networking) there were the same programs in the system and system32 folders. Now, noone in the UNIX community tried to sue MS for copying the conceptual core of IP networking and VM core of multitasking.UNIX and X-Windows came first. LINUX is an offspring. Let us NOT sue what came first.Ron Ricci Reply
May 22, 2007 7:59 PM Rob Enderle Rob Enderle  says:
I think that most of the patents have to do with things that happened after the mid-80s. Prior art would be a defense clearly. The patent claims have been vetted by experts both inside and outside of Microsoft including the companies who have licensed. I doubt whether or not someone does something for free has any real impact on the theft of IP. If I steal your car but don't sell it to anyone for a profit am I less of a theif?Right now what Microsof is doing is going shop to shop, disclosing the patents they believe are violated and collecting license fees. Were it me I'd make this all a lot more transparent but, as I say, they own the patents and so, at least here, have the rights associated with them. A number of companies have popped up saying they will be the first in line for litigation. This last feels kind of like two kids on the playground, one saying no you hit me first and the other repeating the same thing. I doubt that it is doing anyone any good but this response from the Linux folks isn't doing anything to make folks feel more comfortable (you will find few mature corporations that put themselves at risk this way, it looks foolhardy). In the end, the question remains, can the community respond appropriatly to the threat with something other than neener, neener, neener. It really shouldn't be that hard to guess what the patents are and to find out if they are valid, it would seem to me that this would be the only path that would actually eliminate the threat. Reply
May 23, 2007 9:58 AM Ron Ricci Ron Ricci  says:
Doesn't the GPL say you can have the code but you can't sell it?. You can play all you want but you can't sell the new toy you refashioned from an older toy?If this is true and if it is true that MS itself stole code from the GPL then MS has violated the no sell of the GPL. If the GPL violation is proven then MS would need to back off from their 200-something (number TBD) infringements.OR... do we want to get a bean-counter frame of mind? Do we want to ask MS to reveal all lines of copied GPL code, count them, then ask the GPL community to reveal the lines "stolen" from MS, count them and then do this simple subtraction thing. However, what if either side forgot who originally owned a chunk of code with all of this supposed "stealing" going on. Perhaps they "stole" the same codes from each other a bunch of times. This would be like the same precious gem being stolen and then stolen back but unrecognised as the same rock because noone used a magnifying glass. If this is happening then this whole argument, and the SCO argument, is an insane moot unprovable point. As soon as GPL code was free you had to know there would be violators that take it or even take the concept and resell. So, now the resellers, already the legal guys, want to sue those they may have stolen from. Interesting argument on the car. I just stole your car but, yes, I don't intend to sell it. However, how do I know you didn't steal it from someone else. Unless you can show me your sales invoice I can assume that you are a criminal as well and do not have the standing to accuse me of being one. This is exactly my point on all of this code. Two really big resovoirs just broke. There is water everywhere. Who owns the water laying in my yard. Who really owns the code laying behind my progman.exe (If the main windows VM swapper is still called that)Ron Reply
May 23, 2007 10:19 AM Ron Ricci Ron Ricci  says:
One more comment for today...As a feather in the cap for LINUX (Specifically Knoppix): What other OS can recover any broken or compromised PC or server running any other OS? Knoppix is DVD boot which means a clean boot for a compromised server. Then it has many tools that can recover any file system and even track down the bad guy from the state of the files. Reply
Jun 11, 2007 3:46 PM resizeable form with shadow resizeable form with shadow  says:
thanks! Reply

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