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Ballmer's Email - Indemnification Comes Full Circle
Wednesday, October 27 2004 @ 05:38 PM EDT

Just 6 easy steps, and we come full circle on the indemnification story:

1. First, we had SCO announcing it was suing IBM and threatening Linux users for contributory copyright infringement.

2. Then the chorus broke out in song about how Linux has no indemnification.

3. Then we found out from BayStar's lips that Microsoft inspired them to invest in SCO, an investment that made all the lawsuits financially possible. Thanks for nothing, BayStar.

4. Meanwhile, the Linux world began setting up indemnification and legal funds for Linux users and developers.

5. SCO sued everybody else. Terror ensued, sorta, briefly.

6. Now, today, there are reports about a Steve Ballmer email, which he just sent to subscribers to executive emails from Microsoft "and to other business decision makers and IT professionals, to share some of the data around these key issues - and to provide examples of customers who opted to go with the Windows platform rather than Linux or UNIX, and how that's playing out for them in the real world."

So now we see what it was all for, all the frogs in the SCO pond singing about indemnification. Of course, Yankee Group's study is given a prominent place, and Ballmer brazenly claims their products are more secure than Linux, ha ha, and then lo and behold, in one section he suggests that indemnification is another fine reason to choose Microsoft over Linux. Obviously, they think we all just fell off a turnip truck and can't connect the dots. Is it legal, I wonder, to help create IP legal issues for your chief competitor, and then use that trouble as a marketing ploy? If it is, somebody pass a law quick, will ya?

Here's a reaction from Mandrakesoft:

"Gael Duval, co-founder of Mandrakesoft, believes that Ballmer's email is indicative of a change of strategy from Microsoft.

"'We think that Microsoft is trying a new strategy to fight against Linux by spreading much FUD [Fear Uncertainty and Doubt] about Linux strongest points,' Duval told ZDNet UK.

"'In particular, the TCO argument can easily be modelled to fit their communication, but many studies -- in general the ones that aren't financed by Microsoft -- show that Linux' TCO is much lower than Windows', in particular because administering Linux is really a peaceful activity that doesn't require as many sysadmins as does Windows,' Duval continued, adding that big organisations such as governments are getting increasingly tempted by Linux."

I like that phrase, "a peaceful activity". That's truly what using GNU/Linux is like for me. Peaceful.

Here's the section on indemnification. I think I discern more than just FUD:

"INDEMNIFICATION

"Increasingly, we're hearing from customers that another factor in their consideration of computing platforms is indemnification. In 2003, we looked at our volume licensing contracts to see what we could do to increase customer satisfaction, and a top issue we heard about was patent indemnification, which then was capped at the amount the customer had paid for the software. So later that year, we lifted that cap for our volume licensing customers, who are most likely to be the target of an intellectual property lawsuit.

"Today, when a volume licensing customer - a business or organization ranging from as few as five computers to many thousands - licenses a Microsoft product, we provide uncapped protection for legal costs associated with a patent, copyright, trademark or trade secret claim alleging infringement by a Microsoft product. We do this because we are proud to stand behind our products, and because we understand that being on the wrong end of a software patent lawsuit could cost a customer millions of dollars, and massively disrupt their business.

"No vendor today stands behind Linux with full IP indemnification. In fact, it is rare for open source software to provide customers with any indemnification at all. We think Microsoft's indemnification already is one of the best offered by the leading players in the industry for volume licensing customers, and we're looking at ways to expand it to an even broader set of our customers. It's definitely something businesses want to think about as they're building or expanding their IT infrastructure.

"It was certainly a factor for Regal Entertainment Group, the largest movie theatre chain in the world. In 2001, they moved to Red Hat Linux. After evaluating Linux in their business for several months, however, they migrated to the Microsoft platform - not only because of lower TCO, stronger support and services, and greater reliability and manageability, but because they were more fully indemnified on IP. J.E. Henry, CIO of Regal Entertainment, told me that "reduced risk was a decision factor in selecting Windows over Linux. We needed to minimize our exposure to the distraction of potential IP infringement claims, and we had a big enough open source presence to be concerned. With the way that Microsoft stands behind its products, it's one less thing that I have to worry about."

So, there you have it, the full cynical circle. They offer their customers IP protection. And it's "rare" for Linux vendors to offer any indemnification at all? Which of them isn't doing that? And then there is the OSDL fund and OSRM and tools to prevent such issues in the first place, like Black Duck's offerings. How can he make such a statement? Oh. I get it. FUD. Meanwhile Microsoft is building up its patent portfolio and ups its patent indemnification, and I believe we can all fill in the blanks as to what comes next. This email would seem to be the clearest expression to date of their strategy. And is it not . . . what is the word? Soooo totally "Microsoft". Le mot juste, as I live and breathe. Never mind. Forewarned is forearmed. OSDL is doing some thinking and I know OSRM are having some deep thoughts on this subject of patents, too. OSRM's Daniel Egger puts it well: "When it comes to competing against Microsoft, hope is not a plan." Novell has done its part, so has IBM, and the wagons are circling. But to those of you in Europe, are you connecting some dots? If you wish to continue to use GNU/Linux, now would seem the ideal time to make sure you can.

If I got that email, I believe I'd ask Microsoft for indemnification for viruses and malware. No? They don't offer that? Zounds. That seems like a more common threat than patent infringement, don't you think? I believe they should offer that right away. Yes, definitely. I suggest you all ask for that, those of you stuck in the Windows world, right away. Virus indemnification. That's the ticket. After all, such troubles do affect your total cost of ownership to a significant degree, don't they? Then there's the worry that you might get sued after one of your employees unwittingly sends a virus to another company. For sure, we need some studies on the true total cost of using Windows.

Sender ID has been raised from the dead, like Frankenstein, with some new parts. Techweb says nothing has changed about the license though, but the patent has been narrowed, enough so AOL has happily hopped on board. Evidently, they don't care if we can't use Sender ID and still use our operating system.And if you were wondering how well those who make friends with Microsoft fare, I suggest this article by Bob Mims on SCO's current plight. I hear they are back in Brazil to try to stir up some business there. Either that, or they're planning a getaway to Rio. Joke, joke. That is a choice of venue that reflects their usual astuteness, don't you think?


  


Ballmer's Email - Indemnification Comes Full Circle | 420 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Trolls to line up here
Authored by: mhoyes on Wednesday, October 27 2004 @ 08:07 PM EDT
Here there be trolls

[ Reply to This | # ]

Corrections here Please - so PJ can find them
Authored by: mhoyes on Wednesday, October 27 2004 @ 08:09 PM EDT
Please put your corrections below.

[ Reply to This | # ]

OT stuff to go here
Authored by: mhoyes on Wednesday, October 27 2004 @ 08:10 PM EDT
Here is the place for OT items.

[ Reply to This | # ]

Indemnification for virii and other maware
Authored by: Woad_Warrior on Wednesday, October 27 2004 @ 08:20 PM EDT
ROTFLMAO! ! ! ! ! !
Doing that would bankrupt them in mere hours!

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: inode_buddha on Wednesday, October 27 2004 @ 08:21 PM EDT
Peaceful activities indeed, I will strongly second that. Actually, just IMHO one reason why all this lawsuit and business flap has been so unsettling and non-peaceful for me: these are organizations and people who cannot win without the other side losing, and the classic ploy is to put the onus on the other guy. For me, that is the great affront.

ISTR RedHat's VP in India said something similar a little while ago (paraphrased) "Linux does not need someone else to lose in order to win." I thought those were good words.

---
"When we speak of free software, we are referring to freedom, not price." -- Richard M. Stallman

[ Reply to This | # ]

They use FUD, but practice FIC
Authored by: dodger on Wednesday, October 27 2004 @ 08:26 PM EDT
Fear.
Insecurity.
Cowardice.

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: PM on Wednesday, October 27 2004 @ 08:28 PM EDT
What is so hilarious about the indemnification issue is that Microsoft does not
indemnify the 'shrink wrap' customer i.e. the one who pays most for the
software. So it seems that the level of indemnity offered by Microsoft is
inversely proportional to the price tag for the software.

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: Anonymous on Wednesday, October 27 2004 @ 08:33 PM EDT
You would think that with all that money that Ballmer makes, he could buy a
clue. Attention Mr. Ballmer - While your spreading generous helpings of FUD,
the local script kiddies are finding the holes in your OS that a Mack truck can
drive through. Obviously Microsoft, with the money and resources available to
make an OS that could be great, is more concerned with the bottom line - $$$$$ -
while Linux, with the countless numbers of people that are working on the
various flavors of it, make it more secure and more user friendly, and the
bottom line is security, not $$$.

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: Groklaw Lurker on Wednesday, October 27 2004 @ 08:43 PM EDT
"...Obviously, they think we all just fell off a turnip truck and can't
connect the dots..."

Well, actually it was a rutabaga truck when I was six and visiting my
Grandfather's farm, but I can still connect the dots, especially when they are
glowing as brightly as these.

"...After all, such troubles do affect your total cost of ownership to a
significant degree, don't they?..."

Well, if sending as many as five people around to as many as 3,500 Windows PCs
to remediate each virus outbreak could be said to affect our TCO, then yes, I
guess viruses, worms and trojans do tend to add substantially to the cost of
doing business. At approximately $25.00/hour per person, that must come to...
Well, enough to make it cost effective to begin a desktop Linux pilot
program...

Great article PJ!

---
(GL) Groklaw Lurker
End the tyranny, abolish software patents.

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: Anonymous on Wednesday, October 27 2004 @ 08:46 PM EDT
>Meanwhile Microsoft is building up its patent
>portfolio and ups its patent indemnification,
>and I believe we can all fill in the blanks
>as to what comes next.

I am not so sure.

Two things that even MS should have learned
from SCO vs IBM are:
1) War is fun, till the other side starts
to shoot back.
2) IBM has plenty of patents.

If MS will sue, and IBM will counter-sue
using its patents, then MS will have a serious
danger of losing, *BIG*. Unlike SCO, MS has
very deep pockets.

My guess is that MS will find another SCO-like
company to file some junk patents and drag anti-
Linux cases in court for several years.

[ Reply to This | # ]

Am I missing something here?
Authored by: Anonymous on Wednesday, October 27 2004 @ 08:49 PM EDT
1) Couldn't this article have just as easily come out a year ago, or more?
That's when the msft shills were really screaming about indemnification.

2) Isn't PJ working for a company that does that sort of indemnifiction. If the
"need for indemnification" chant is just a scare tactic. . . well
isn't that sort of like PJ working for scox?

[ Reply to This | # ]

Two Questions ...
Authored by: AntiFUD on Wednesday, October 27 2004 @ 08:49 PM EDT
1. Does this mean that Microsoft is going to pay _all_ legal costs for, and any
awards granted in favor of Timeline, a 'volume licencing customer' of MS SQL
Server?

2. Who has been playing with my Groklaw membership account - I just got an email
asking if I really wanted to change my password?

---
IANAL - But IAAAMotFSF - Free to Fight FUD

[ Reply to This | # ]

Hmm...where have I heard this before?
Authored by: Nick on Wednesday, October 27 2004 @ 08:53 PM EDT
A person walks into a business, looks around, and says, "Nice place you got here. Would be a shame if anything were to happen to it. You know what I'm saying? Now as it happens, I can help you out there, buddy."

Microsoft builds up its patent portfolio, walks into our lives, looks around and says, "Nice OS you got here. Would be a shame if anything were to happen to it. You know what I'm saying? Now as it happens..."

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: tredman on Wednesday, October 27 2004 @ 08:54 PM EDT
Actually, PJ, I'd have to disagree. Based on the goofiness of the last couple
of years, I don't think Microsoft has nearly as much to do with the SCOX
shenanigans as you believe. Microsoft has a history of coming late to any
party. They're not coaching this dysfunctional team. They're merely cheering
it on from the stands, allowing for the occasional opportunistic move that seems
to be their MO. (SCOX's motivations coming from cousin Ralphie at Canopy would
be something I have absolutely no problem buying.)

The great Redmondian Empire were even the last one to the dance with Sender ID.
Other solutions--and one might opine much superior solutions--were being
proposed long before MSFT wanted a piece of that pie.

They act as if whoever screams loudest is right, and that certainly explains why
90% of all pictures I've ever seen of Steve Ballmer have him with his mouth wide
open, like he's trying to be heard in the cheap seats.

Tim

[ Reply to This | # ]

Has MS changed their tune about Timeline patent?
Authored by: Larry West on Wednesday, October 27 2004 @ 08:58 PM EDT

MS lost badly in a patent dispute with Timeline Inc. and offered no indemnification to its users despite sworn testimony on their part that their users would be liable for large damage suits:

I haven't seen much since then, though Timeline is still issuing financial reports and so forth.

I don't mean to endorse Timeline's position nor that of software-only patents in general; I present this because I have seen no indication that Microsoft has considered indemnifying against this patent.

I wonder how that qualifies their customers as being "more fully indemnified on IP". I guess it has about as much value as Windows being "more secure".

The sad thing is that this kind of FUD works fairly well (as we in the U.S. can see with voters' lack of awareness): people like CEOs and CIOs don't take/have the time to research issues, are used to getting pre-digested summaries, and (like all of us) are much more receptive to information that confirms their view of the world, rather than spending the time to wade through the thicket of complex realities.

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: Spaceon on Wednesday, October 27 2004 @ 09:25 PM EDT
Hmmm... if I went around breaking people's windows then offered them
indemnification from having their windows broken wouldn't that be classed as
extortion?

What's the difference?

[ Reply to This | # ]

I do not think premeditation was involved...
Authored by: eamacnaghten on Wednesday, October 27 2004 @ 09:34 PM EDT
I do not think premeditation was involved on Microsoft's part. I think they saw an opportunity for themselves in what SCO were doing and jumped on it.

Open Source, not just Linux, is a major problem for Microsoft. It is a big mistake thinking they do not understand it, or it's mechanics. They understand that all too well, and they do not like it - not one little bit!

The problem Microsoft has with it is that Open Source benefits the customer directly, not the software IP holders. The ways to make money from Open Source are to use it (Google, Amazon etc) or to service the guys using it (RedHat, IBM, SuSE etc) or to include it as part of your product (Linksys etc). If you look at Microsoft their two biggest cash cows are selling licenses for Ms-Windows and licenses for MS-Office - there is no room for that model in a FLOSS world. Not only do Microsoft need to kill FOSS to expand, I believe they need to kill it to survive!

Looking at their marketing their approach seems to be to attack Linux from all sides using all opportunities. We can expect patent attacks on FOSS soon, either directly from Microsoft or from them financing surrogate companies to do the dirty work, though if past record is to go by, they will not premeditate an attack through a surrogate company, just finance that company when it "has a go", then unceremoniously drop it afterwards.

Microsoft do not need to encourage analysts to write for them, there is a long queue waiting to do so in order to try and get a slice of the pie. There are lots of people like Enderle around. There so-called "get the facts" figures may well not have been pre-ordered by Microsoft (despite the funding questions of them), those so called "independant evaluators" could well have produced the figures all by themselves! (That campaign has been stopped in the UK by the way, link) .

Microsoft are also very poerful. I live in the UK university town of Cambridge. Not only have Microsoft got the University IT department well and truly sewn up they have also contributed several hundred million UKP to the "William Gates Building" here. The member of parliament here is simply not interested in breaking the Microsoft monopoly citing how much charity donations Billy makes. (For those of you in the US who think you have the daftest politicians - think again).

Software Patents are not implemented here in Europe yet, but it is going to be very difficult to stop it. Us FOSSS advocates are trying hard here, but it is like trying to stop a runaway train.

I am sure in the long term the Microsoft model will lose, but a lot of damage can be caused in the meantime if we do not stop the nonsense now. But getting back to the point. Do not think Microsoft are stupid, or Microsoft do not understand FOSS. They are clever, and devious. They are using whatever opportunity anyhow to stop the advancement of FOSS, planned or not. They will make sure they are not directly involved in dodgy lawsuits, though they will more than happily finance them. Any "cross platform" ventures are solely written to transfer people to the Microsoft fold (like SFU). Civil servants are dined. Politicians are petitioned. Statistics are made up. Advertisments and FUD are prolificated. Microsoft will stop at nothing because they have nothing to lose.

One effect I am beginning to see is that their behaviour is beginning to be noticed, and people (here in Europe) are beginning to look elsewhere than Microsoft for solutions. Not because of TCO or any other acronym, but simply because people do not like them.

Web Sig: Eddy Currents

[ Reply to This | # ]

Global Thermopatent War
Authored by: SaveDrury on Wednesday, October 27 2004 @ 10:14 PM EDT
Two things that even MS should have learned from SCO vs IBM are: 1) War is fun, till the other side starts to shoot back. 2) IBM has plenty of patents.
I have often said, and i will continue to be fond of saying... someday, within the next 10 years.. there will be only one job left in the world, and that will be that of barrister/lawyer.

I don't think it will happen like a WWIII scenario, but the patent wars will ramp up slowly, then steadily, then within 6 months, an all out "i've got my 10,000 software patents against your 10,000 software patents"... and then i will go and be an IT guy for some IP lawyers and make a crapload of money.

[ Reply to This | # ]

Microsoft's defective OS
Authored by: Hygrocybe on Wednesday, October 27 2004 @ 10:20 PM EDT
All of which begs the question: When is some business cartel/group of companies
finally going to lose patience with down time or security problems and commence
legal proceedings against Microsoft for continuing to market a defective
software package ? If anyone needs proof of this statement, look no further
than the flourishing antivirus sofware industry: an industry that is now
essential for any Windows machine to survive uncompromised longer than 16
minutes once plugged into the internet.

I cannot understand the mentality of IT workers under these conditions. If
their new dvd player, car or washing machine fractured as easily as Microsoft's
OS, they would be back to the sales desk demanding a refund and the manufacturer
would either fix it or eventually go out of business. Yet Microsoft seems to be
allowed to do precisely this: sell software that cannot survive if it is
employed to do simply what it has been purchased to do.

Current stats indicate a new worm/trojan/malware for Windows OS hits the
internet every 10 minutes and these stats also suggest that it takes about 16
minutes for an unprotected Windows OS to become infected once it is put onto the
internet...and still, no-one seems willing to actually have the intestinal
fortitude to say to the courts: Stop this company from selling a defective
product.

I know what I have said above will attract flames from Win supporters...but you
can say what you like...what I see about me is occurring: Windows is
haemmorhaging and because of its engineering structure, no-one can prevent it.
And the fact that it is 'closed source' hasn't protected Windows either.

There..I've said me say.

---
Blackbutt, Australia

[ Reply to This | # ]

the ol' "we're hearing it from our customers" line...
Authored by: Anonymous on Wednesday, October 27 2004 @ 10:25 PM EDT
... you wanna hear something Mr. Ballmer? Listen for the sounds of freedom
stirring. Listen for the quiet patter of feet away from your [convicted]
monopoly, away from your monopolistic practices, away your poor quality
products, away from your overpriced office suite, your insecure software, your
meshing of simple applications like a browser and media player into the
operating system that "can't be removed", away from your
"corporate line-du-jour", and yes, away from your grubby tentacles.
Microsoft is an affront to all people who want the freedom to make a better and
more open world.

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: pscottdv on Wednesday, October 27 2004 @ 11:01 PM EDT
This could *so* backfire on them. Can you say "death by a thousand
cuts" boys and girls?

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: Anonymous on Wednesday, October 27 2004 @ 11:06 PM EDT
You know, I don't want to be rude to the guy, but Ballmer really is a gasbag.

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: tbogart on Wednesday, October 27 2004 @ 11:29 PM EDT
Trying to put in typed words something I have discussed with folks from the
start of this whole IP mess....

Does Microsoft qualify as the most sued/successfully sued company in history for
IP violations?

DrDOS? (Hello Baystar/Novell/Caldera)

Apple GUI - unsuccessfull though

built in compression - 300 million or so and had to pull product from the shelf

Origins of NT - out of court settlement with Digital


The aforementioned Timeline case - upheld thru appeal - $?

AT&T speech thingy - out of court settlement $?

Sun/Java - out of court 1 billion?

Lindows, er Linspire (trademark is IP, right?) out of court >20 million?

Sendo - out of court $? >10 million?

TVI - in litigation?

Now, this is just IP, I think. Perhaps a seperate category for the antitrust
billions.

Related issues? Does FUD about being a defender of IP in spite of this history
factor into the antitrust practises at all? How about Microsoft pooh-poohing
UNIX as old technology for years (to be contrasted with their New Technology of
course), then !POOF!, that disappears from their website and they pay millions
for UNIX license from SCO, which goes into the legal fund for the anti-linux
cases? How about just plain truth in advertising?

Hey, Peter Salus - how about a '20 years of Microsoft Suits'? 8-)

Perhaps some of the legal beagles here can suggest a better research method than
Google for this?

[ Reply to This | # ]

One to watch
Authored by: inode_buddha on Thursday, October 28 2004 @ 12:32 AM EDT
Just IMHO anyway, I'm watching this new guy MS has. He seems to be taking a slightly more subtle approach than the old hard-liners. [computerworld.com] Ideas or conclusions on this one, anybody?

---
"When we speak of free software, we are referring to freedom, not price." -- Richard M. Stallman

[ Reply to This | # ]

And Groklaw is funded by IBM
Authored by: Lord Bitman on Thursday, October 28 2004 @ 12:43 AM EDT
I know, people hate me, but it seems like this is the same kind of indirect link
that SCO claims ties Groklaw to IBM, isnt it?
Party A tells Party B to invest in Party C who sues party D, competition for
party A.
vs
Party A donates to party B who offers to host party C, which tends to think
Party A's enemy is full of bunk which is in serious need of de-ing.

I'm only saying that neither seem like enough evidence by themselves to warrant
any comment (if further evidence exists, it should be presented in the comment)

Connecting a handful of dots doesnt always create a circle. Even when they're
part of a circle, I think you need more dots for this one.




---
-- 'The' Lord and Master Bitman On High, Master Of All

[ Reply to This | # ]

UK [Govt] report says Linux is 'viable'
Authored by: eamacnaghten on Thursday, October 28 2004 @ 01:02 AM EDT
Hmm - I do not think Mr. Ballmar's FUD efforts are producing the results he had hoped for....

From the BBC:

UK report says Linux is 'viable'.

To quote from the article...

UK government departments moved a step closer to using open-source operating systems such as Linux after a study found that they are "viable" products.

The software can "generate significant savings", the Office of Government Commerce (OGC) in its report.

The popularity of programs like Linux, which are essentially free, have grown as firms and countries look to limit their dependence on software producers.

Companies such as Microsoft have the most to lose should Linux use spread.

I like the last part the best, ulteria motives beginning to show methinks.

Web Sig: Eddy Currents

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: suckfish on Thursday, October 28 2004 @ 01:22 AM EDT
So how much use is MS idemnification against a patent holder (like the
web-embedding / activeX kerfuffle) that wants an injunction stopping use and
doesn't want to settle for cash?

[ Reply to This | # ]

Microsoft Just Painted A Bullseye On Their Chest
Authored by: jdearl on Thursday, October 28 2004 @ 01:28 AM EDT
If Microsoft really is promising full indemnification for their software stack
then they just painted a huge bullseye on their chest. Microsoft's billions
already make them a juicy target for litigation, but now they are taking on even
more responsibility. This just guarantees that Microsoft will become the target
of even more patent litigation along the lines of Eolas or Timeline.

Everyone always focuses on the Free Software angle to patents, and it certainly
is true that patents have the potential to keep small time developers (whether
they write Free Software or proprietary software) out of the software
development game completely. However, to this point software patents haven't
really been used offensively against Free Software. The reason for this is
simple. Patent prosecution is expensive, and Free Software hackers doesn't
promise much in the way of a cash settlement.

If you want to make money at patent litigation, you need to sue someone like
Microsoft (or IBM, or Sun, etc.). The new way to make money from software is to
take a look at where the market is headed, and file patents. I think that over
the next few years it is going to become clear that Microsoft has far more to
fear from the current patent regime than Free Software does. Eventually
Microsoft and the rest of the software industry might even see reason and
actively campaign against software patents.

[ Reply to This | # ]

Ballmer's Email Indemnification Burst.com
Authored by: Anonymous on Thursday, October 28 2004 @ 01:34 AM EDT
I would like to see companies get it in writing as this would be a way for burst
to get more money! And microsoft take a bigger hit in the wallet; because I
believe that Microsoft is not full of bad people, it is just set up in a way
that brings out the worst of a group.

[ Reply to This | # ]

What about the damage cause by MS viruses
Authored by: Anonymous on Thursday, October 28 2004 @ 03:09 AM EDT
On of the main reason we kicked MS out of the door was the incalculable damage
caused by the tens of thousands of MS virusses which freqeuntly almost paralyzed
our corporate IT network and cost us millions of dollars in lost data and
productivity. How any study can find "MS more secure than Linux"
totally boggles the mind.

Speculating (or hoping?) that things would be the same "if Linux becomes
popular" is not good enough and is not a scientific point of view. Lots of
IT experts have described the Windows architecture to be vastly inferior to *nix
type of design. Futher *nix type servers are far from being a "new kid on
the block" -on the contrary - almost the entire Internet has been powered
for decades by free software like Apache, sendmail, bind,the fast majority
running on *nix kind of platforms etc. exposed to the *wild* Internet 24x7x52.

Balmer may impress and appeal to non-technical IT managers or people who know
nothing about IT. Afterall - the sorry state of IT technology - being by far the
most unreliable technology ever developed - can be attributed to managers making
decisions about things they don't understand blinded by the kind of marketing
hype and nonsense as propogated by Balmer's email.

[ Reply to This | # ]

Microsoft's Internet land grab
Authored by: Larry Blunk on Thursday, October 28 2004 @ 03:20 AM EDT

Microsoft seems to be claiming that it may have rights to many basic Internet protocols. These include the grand-daddy of them all, TCP/IP, as well as other essential protocols, such as ICMP, HTTP, FTP, Telnet, SNMPv2, etc.

In sum total, Microsoft lists some 130 protocols on which it believes it has rights. The complete list can be found in it's Royalty Free License Protocol License agreement here. As a side note, they are claiming rights to a protocol I authored in the mid-90's -- the PPP Extensible Authentication Protocol (PPP EAP). My initial draft of this RFC was submitted on Apr 13, 1995.

A number of these protocols, such as TCP/IP, date to the late 70's and early 80's. An era when Microsoft seems to have little to no patent activity. Further, a patent dating to that era would have most likely expired at this point.

While they may be offering a royalty free license, an examination of the terms of the agreement reveal some rather onerous conditions. Including,

1) You can only implement them as part of "Server Software" products. Note, many of the protocols, such as Telnet, also have a client component. If one signs this agreement, are they forbidden from writing such client implementations?

2) Your client must be compliant "with the relevant Technical Documentation". Many of the documents they reference have bugs and errors. In a number cases, if one were to solely follow the technical documents listed, they would either perform poorly in today's Internet, or not interoperate at well.

There's alot of other disturbing language in the agreement. For example, "Microsoft, at its option, may list You as a licensee on a website or in other public communications." So much for privacy and confidentiality.

The agreement seems to stem from a promise made back in January 2004 as part of the DOJ antitrust settlement. At the time, Microsoft promised to provide royalty free licenses for "two dozen" protocols. How two dozen suddenly morphed into 130 is unclear. It would seem they initially may have identified two dozen open Internet protocols which may have infringed on their patents, but then decided to throw in every open protocol they have ever implemented. Irregardless of whether they actually had any rights to those protocols. It's possible this was done at the DOJ's urging. At any rate, I find the final result to be extremely disturbing.

[ Reply to This | # ]

Ballmer Timeline Inc Problem
Authored by: NZheretic on Thursday, October 28 2004 @ 03:24 AM EDT
Microsoft licensed Database/Datawarehouse technology from Timeline Inc, but unlike Oracle and other database vendors, Microsoft chose a license that did not grant Microsoft's customers the right to fully use that technology. Timeline has extended it's patent claims to cover many featured widely used by developers, both ISV and in house.

Timeline Inc has won a US Washington Court of Appeal judgment against Microsoft for the right to sue Microsoft's customers, and subsequently sued Cognos. On February 13, 2004, Cognos settled at cost to Cognos totaling $1.75 million.

Microsoft's default EULAs are pretty uniform when it come to exluding themselves from liability

ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE PRODUCT.
Analysis
....
Also, Microsoft disclaims that this software will not infringe on the intellectual property rights of others. This is a potentially serious issue, as has been recently shown through the legal dispute between Timeline Inc. and Microsoft. Timeline has won a recent ruling which exposes all Microsoft SQL Server developers to a serious patent encumbrance.
Sometimes Microsoft's exclusion clause is more explicit
NO WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MICROSOFT AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE PRODUCT
Even Microsoft's May 27th changes which apply only to customers under enterprise licensing contracts, which Microsoft claims grants greater immunity, contains loop holes which greatly negate Microsoft's liability.

The new section 6 clause contain exceptions

Our obligations will not apply to the extent that the claim or adverse final judgment is based on (i) specifications you provide to us for the service deliverables; (ii) code or materials provided by you as part of service deliverables; (iii) your running of the product, fix or service deliverables after we notify you to discontinue running due to such a claim; (iv) your combining the product, fix or service deliverables with a non-Microsoft product, data or business process; (v) damages attributable to the value of the use of a non-Microsoft product, data or business process; (vi) your altering the product, fix or service deliverables; (vii) your distribution of the product, fix or services deliverable to, or its use for the benefit of, any third party; (viii) your use of our trademark(s) without express written consent to do so; or (ix) for any trade secret claim, your acquiring a trade secret (a) through improper means; (b) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (c) from a person (other than us or our affiliates) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret. You will reimburse us for any costs or damages that result from these actions.
Loophole #1 "(ii) code or materials provided by you as part of service deliverables" This would effectively still indemnify Microsoft against most of the Timeline Inc patent claims, as it is the developer/end user's code ( even visual basic code ) which would be in violation of Timeline's patent claims. Microsoft has a history of licensing third party code and patents in such a manner that still leaves developers and users exposed to IP threats. Even going back to the LZH/GIF Unisys patents
"Microsoft Corporation obtained a license under the above Unisys LZW patents in September, 1996. Microsoft's license does NOT extend to software developers or third parties who use Microsoft toolkit, language, development or operating system products to provide GIF read/write and/or any other LZW capabilities in their own products(e.g., by way of DLLs and APIs)."
How many other cases exist where Microsoft has included third party technology in it products, but has also taken the cheaper licensing option and left developers and even users exposed to the threat of lawsuit? Due to the closed nature of the proprietary business model, how can third party developers even check?

[ Reply to This | # ]

About Brazil
Authored by: Anonymous on Thursday, October 28 2004 @ 04:33 AM EDT
> That is a choice of venue that reflects their usual astuteness, don't you
think?

Absolutely - in a country of 170 million, where pirated MS products are quite
easy to come by, they have 5000 (unhappy) customers, they make a big marketing
effort. It's summer there now, but it would be even more suspicious if their
trip concided with the February flesh-festival. Maybe they need to book their
flights before the end of low season.

MH

[ Reply to This | # ]

Europeans and Software Patents
Authored by: Anonymous on Thursday, October 28 2004 @ 04:41 AM EDT
Please,

Be aware that there is a large and determined movement AGAINST software patents
in Europe.

The EU parlement (which just yesterday showed its teeth to the EU memberstate's
ministerial council by blocking the new commission) rejected SW patents. Last
week, ALL parties in the German parlement voted AGAINST software patents. The
same happened in other EU countries (e.g., the Netherlands). It already caused
the important meetings to be resheduled. Always a sign of problems.

The EU political landscape can be as labyrinthine as the US or Byzantium ones.
However, the relevant groups are perfectly aware of what is at stake.

Google for 'Software Patent Free Europe' and see the results.

Rob

[ Reply to This | # ]

Virus IP
Authored by: Anonymous on Thursday, October 28 2004 @ 05:08 AM EDT
"Then there's the worry that you might get sued after one of your employees
unwittingly sends a virus to another company"

What happens when this virus makes use of patent-protected IP?

Will you get double-sued?

[ Reply to This | # ]

I'm waiting for MS anti-virus and anti-spyware products
Authored by: cheros on Thursday, October 28 2004 @ 07:41 AM EDT
It strikes me as perfect from Microsoft's point of view if they could sell AV
and anti-spyware as extra "security" options: that way their victims,
sorry, clients would finally end up paying MS for leaving those deficiencies in
the design in the first place.

= Ch =

[ Reply to This | # ]

If you repeat a blatant lie often enough ...
Authored by: Anonymous on Thursday, October 28 2004 @ 07:48 AM EDT
MS is more secure than Linux... now x 70000 times.

Might change the behaviour of the 70000 MS virusses to stop attacking the
"more secure" Windows?

No amount of "reseach or studies" will ever convince me that the sky
is pink when I know for a fact and from years of experience that the sky is in
fact *blue*.

[ Reply to This | # ]

That email
Authored by: Anonymous on Thursday, October 28 2004 @ 07:50 AM EDT
I was under the distinct impression that all the reports Ballmer quotes in his email have been rubbished, so why is he still using them???

It's rather amusing, as the more noise they make about Linux and FOSS, the more people's attention is being drawn to it as a viable alternative to Microsoft's monopolyware... I mean, if Microsoft are sending out emails to executives etc. telling them that Linux & FOSS is rubbish, then Microsoft must be scared that Linux & FOSS must be coming to eat up their lunch...

There were two articles and an editorial mentioning Linux and FOSS favourably in the October issue of IEE review... things are looking up

here they are, enjoy them... I did :) Paul Cooke, from work, not logged in.

[ Reply to This | # ]

Virus indemnification.
Authored by: tielman on Thursday, October 28 2004 @ 08:25 AM EDT
"Virus indemnification. That's the ticket."

Actually, what I'd like is Spyware/Adware indeminfication. Seems to be the most
common issue from Businesses with virus protection to home users that are just
"surfing".

My company has had several incidents where PCs have been infected with spyware
and had popups of a pornographic nature come on the screen. How about
indeminification from the potential HR lawsuits from someone who's had
porographic pop-ups in our company?? What about stealing someone's credit card
number? Oh, I forgot, Microsoft uses a "AS-IS" license and there is
no indemnification.

I don't see those things happening on GNU/Linux with Firefox (course I'm the
only one using it at the moment :).

Since the PHBs havn't gotten patch managment quite down yet it is an issue that
will come back again and again (the latest twist is to lock down the PC with
policies - let's see if that'll work :)

[ Reply to This | # ]

I received Ballmer's Email ... here's a copy
Authored by: miniver on Thursday, October 28 2004 @ 09:22 AM EDT
Subject: Customer Focus: Comparing Windows with Linux and UNIX
From: "Steve Ballmer" <steveballmer@ceo.microsoft.com>
Date: Wed, October 27, 2004 22:04
Mailer: Microsoft CDO for Windows 2000

In the thousands of meetings that Microsoft employees have with customers
around the world every day, many of the same questions consistently
surface: Does an open source platform really provide a long-term cost
advantage compared with Windows? Which platform offers the most secure
computing environment? Given the growing concern among customers about
intellectual property indemnification, what's the best way to minimize
risk? In moving from an expensive UNIX platform, what's the best
alternative in terms of migration?

Customers want factual information to help them make the best decisions
about these issues. About a year ago, a senior Microsoft team led by
General Manager Martin Taylor was created to figure out how we could do a
better job helping customers evaluate our products against alternatives
such as Linux/open source and proprietary UNIX. This team has worked with
a number of top analyst firms that have generated independent, third-party
reports on cost of acquisition, total cost of ownership, security and
indemnification. Some of the studies were commissioned by Microsoft, while
others were initiated and funded by the analysts. In each case, the
research methodology, findings and conclusions were the sole domain of the
analyst firms. This was essential: we wanted truly independent, factual
information.

At the same time, our worldwide sales organization is going even deeper
with customers to understand their needs and create a feedback loop with
our product development teams that enables us to deliver integrated
solutions that support real-world customer scenarios, and comprehensively
address issues such as manageability, ease of use and reliability.

I'm writing to you and other business decision makers and IT professionals
today to share some of the data around these key issues - and to provide
examples of customers who opted to go with the Windows platform rather
than Linux or UNIX, and how that's playing out for them in the real world.
Much more information on this is at www.microsoft.com/getthefacts.

This email is one in an occasional series of emails from Microsoft
executives about technology and public-policy issues important to computer
users, our industry, and anyone who cares about the future of high
technology. If you would like to receive these emails in the future,
please go to
http://register.microsoft.com/subscription/subscribeMe.asp?lcid=1033&id=155
to subscribe.

TOTAL COST OF OWNERSHIP AND ACQUISITION COSTS

In the past few years, you haven't been able to open a computing magazine
or visit a technology Web site without running into an article about Linux
and open source. Not surprising: who doesn't like the idea of a
"free"
operating system that just about anyone can tinker with?

But as the Yankee Group commented in an independent, non-sponsored global
study of 1,000 IT administrators and executives, Linux, UNIX and Windows
TCO Comparison, things aren't always as they seem: "All of the major Linux
vendors and distributors (including Hewlett-Packard, IBM, Novell [SUSE and
Ximian] and Red Hat) have begun charging hefty premiums for must-have
items such as technical service and support, product warranties and
licensing indemnification."

Yankee's study concluded that, in large enterprises, a significant Linux
deployment or total switch from Windows to Linux would be three to four
times more expensive - and take three times as long to deploy - as an
upgrade from one version of Windows to a newer release. And nine out of 10
enterprise customers said that such a change wouldn't provide any tangible
business gains.

Yankee also noted that, for larger organizations with complex computer
networks, it's important to look beyond Linux's initial low investment
cost and consider all of the TCO and ROI factors.

This is exactly what one of our large enterprise customers, Equifax, did
recently. Equifax, a $1.2 billion U.S.-based enterprise with 4,600
employees in 13 countries, needed more computing power than its mainframe
systems could deliver for rapidly searching the company's vast marketing
database. They spent several months conducting an internal analysis, which
proved that, compared with Linux, Windows would realize a 14% cost savings
and shorten their time to market by six months. (Equifax Case Study -
http://www.microsoft.com/windowsserversystem/facts/casestudies/CaseStudy.aspx?Ca
seStudyID=15528)

Another comprehensive, non-sponsored study by Forrester, entitled The
Costs and Risks of Open Source, drew a similar conclusion: "The allure of
free software is accelerating the deployment of open source platforms, but
open source is not free and may actually increase financial and business
risks."

In early 2004, Forrester conducted in-depth discussions with 14 companies
that had been running Linux platforms for longer than one year to see what
the costs really were. Several key themes emerged:

- Few companies know what they're really spending. Only five of the 14
kept detailed metrics - and each of those five found Linux more expensive
(5% to 20%) than their current Microsoft environments.

- Preparation and planning activities took 5% to 25% longer for Linux than
Windows.

- Training for IT employees was significantly higher for Linux than for
Windows - on average, 15% more expensive. The reasons: training materials
were less readily available, and customers spent more on training to
compensate for the lack of internal knowledge about Linux.

- All 14 companies said it was difficult finding qualified Linux personnel
in the marketplace to support their Linux projects. When they did find
third-party help, they had less leverage negotiating hourly rates than
with Windows consulting resources.

One of our mid-market customers, Computer Builders Warehouse (CBW), came
to a similar conclusion. CBW builds computers to order for education,
government, and corporate customers. Several years ago, it deployed Red
Hat and Mandrake versions of Linux to support its corporate, retail and
e-commerce applications. Challenged with high costs, CBW subsequently
migrated to Microsoft Windows Server System, and reduced its total cost of
ownership by 25 percent. It also consolidated its server population by 50
percent, reduced maintenance time by 50 percent, and boosted developer
productivity by 200 percent. These benefits - totaling $650,000 in savings
- are dwarfed by the millions of dollars in new revenue that CBW expects
as a result of bringing a key security and monitoring product to market
more than two years faster than it could have done using Linux. (CBW Case
Study -
http://www.microsoft.com/windowsserversystem/facts/casestudies/CaseStudy.aspx?Ca
seStudyID=15131)

SECURITY

About three years ago, we made software security a top priority, and since
then we've invested heavily in a multi-pronged effort to improve software
quality and development processes, and to reduce risks for customers
through education and guidance, industry collaboration and enforcement. I
think it's fair to say that no other software platform has invested as
much in security R&D, process improvements and customer education as we
have at Microsoft.

Still, Linux has often been touted as a more secure platform. In part,
this is because of the "many eyeballs" maxim of open source software
that
claims a correlation between the number of developers looking at code and
the number of bugs found and resolved. While this has some validity, it is
not necessarily the best way to develop secure software. We believe in the
effectiveness of a structured software engineering process that includes a
deep focus on quality, technology advances, and vigorous testing to make
software more secure.

A number of third-party reports have questioned how safe the Linux
platform really is. For example, a recent independent study by Forrester,
Is Linux More Secure than Windows?, highlighted that the four major Linux
distributions have a higher incidence and severity of vulnerabilities, and
are slower than Microsoft to provide security updates.

According to Forrester, Microsoft had the lowest elapsed time between
disclosure of a vulnerability and the release of a fix. They found that
Microsoft addressed all of the 128 publicly disclosed security flaws in
Windows over the 12-month period studied, and that its security updates
predated major outbreaks by an average of 305 days.

Other independent sources of data show similar conclusions. According to
statistics posted on the security Web site Secunia
(http://secunia.com/product/2535#statistics_month), Red Hat Enterprise
Linux 3 has averaged 7.4 security advisories per month, compared with 1.7
advisories for Windows Server 2003.

And as Yankee Group noted in its Linux, UNIX and Windows TCO Comparison
study, "Linux-specific worms and viruses are every bit as pernicious as
their UNIX and Windows counterparts - and in many cases they are much more
stealthy."

This was a deciding factor in farmaCity's selection of Windows over Linux.
Headquartered in Buenos Aires, farmaCity is a rapidly growing Argentinian
drugstore chain with 50 outlets and 1,200 employees. Although farmaCity's
growth in recent years was a testament to its success, the company's aging
technology infrastructure had become a hindrance to further expansion.
After careful analysis, farmaCity concluded that Windows would reduce
network administration by 30 percent compared with Linux, and would also
simplify identity and desktop management. But the core reason for
selecting Microsoft was the increase in network security, complemented by
the ability to reduce patch-deployment time by 50 percent while cutting
unsolicited e-mail by half. (farmaCity Case Study -
http://www.microsoft.com/windowsserversystem/facts/casestudies/CaseStudy.aspx?Ca
seStudyID=15269)

INDEMNIFICATION

Increasingly, we're hearing from customers that another factor in their
consideration of computing platforms is indemnification. In 2003, we
looked at our volume licensing contracts to see what we could do to
increase customer satisfaction, and a top issue we heard about was patent
indemnification, which then was capped at the amount the customer had paid
for the software. So later that year, we lifted that cap for our volume
licensing customers, who are most likely to be the target of an
intellectual property lawsuit.

Today, when a volume licensing customer - a business or organization
ranging from as few as five computers to many thousands - licenses a
Microsoft product, we provide uncapped protection for legal costs
associated with a patent, copyright, trademark or trade secret claim
alleging infringement by a Microsoft product. We do this because we are
proud to stand behind our products, and because we understand that being
on the wrong end of a software patent lawsuit could cost a customer
millions of dollars, and massively disrupt their business.

No vendor today stands behind Linux with full IP indemnification. In fact,
it is rare for open source software to provide customers with any
indemnification at all. We think Microsoft's indemnification already is
one of the best offered by the leading players in the industry for volume
licensing customers, and we're looking at ways to expand it to an even
broader set of our customers. It's definitely something businesses want to
think about as they're building or expanding their IT infrastructure.

It was certainly a factor for Regal Entertainment Group, the largest movie
theatre chain in the world. In 2001, they moved to Red Hat Linux. After
evaluating Linux in their business for several months, however, they
migrated to the Microsoft platform - not only because of lower TCO,
stronger support and services, and greater reliability and manageability,
but because they were more fully indemnified on IP. J.E. Henry, CIO of
Regal Entertainment, told me that "reduced risk was a decision factor in
selecting Windows over Linux. We needed to minimize our exposure to the
distraction of potential IP infringement claims, and we had a big enough
open source presence to be concerned. With the way that Microsoft stands
behind its products, it's one less thing that I have to worry about."

UNIX MIGRATION

One of the hot topics among enterprise IT and business decision makers
today is the costs and benefits of migrating enterprise resource planning
systems (ERP) from costly, proprietary UNIX environments to Windows or
other platforms. ERP integrates various company functions such as human
resources, inventories and financials, and links a company to its vendors
and customers.

An independent, qualitative survey of organizations that recently
completed a migration of their SAP or PeopleSoft ERP system from a UNIX
environment to the Microsoft Windows Server platform found a more than 20%
reduction in the number of servers required compared with UNIX. The
survey, by META Group, found that in one large telecommunications company,
consolidation on Windows allowed a greater than 50 percent reduction in
the number of required servers.

The survey also found a more than 50 percent improvement in areas such as
reliability, accessibility and scalability; significant savings in cost
management, IT staffing, performance monitoring and vendor management; and
measurable savings in technical support and training. More than half of
business function decision makers also saw significant improvements in
areas such as consistency, accuracy, reporting enhancement and
performance.

"Windows is now a mainstream option for the vast majority of ERP
projects," META Group concluded.

A great case study is the Raiffeisen Bank Group, the largest private bank
group in Austria with about 2,600 branches. It wanted to reduce costs and
provide better customer service by consolidating the number of servers in
its branches by 50 percent. Raiffeisen investigated migrating from UNIX to
either Linux or Windows. After evaluating the possible solutions, the
company found that Windows Server 2003 would provide the most economical
solution along with better performance, while giving bank employees an
integrated view of customer information that they needed to improve
customer service. (Raiffeisen Bank Group Case Study -
http://www.microsoft.com/windowsserversystem/facts/casestudies/CaseStudy.aspx?Ca
seStudyID=15519)

One of our mid-market customers had a similar experience. Grand
Expeditions is a consortium of luxury travel companies that significantly
reduced its Web development and hosting costs, and improved site
reliability and performance, by moving from a combination of Linux- and
UNIX-based servers to Windows Server 2003 and the Windows Server System.
The new system was up and running in just 60 days, and is saving Grand
Expeditions $200,000 a year. (Grand Expeditions Case Study -
http://www.microsoft.com/windowsserversystem/facts/casestudies/CaseStudy.aspx?Ca
seStudyID=15397)

IN CLOSING...

There is no question that customers are benefiting today from a healthy,
competitive IT industry. Competition requires companies to really focus in
on what customers want and need. At the same time, customers have a
clearer opportunity than ever before to evaluate choices.

For example, BET.com, the Internet portal created by Viacom subsidiary BET
Networks, did an in-depth comparison of Red Hat Linux and Windows Server
System. They found that Windows offered 30% lower TCO, was more secure and
reliable, and enabled quicker time to market. As BET.com's CTO, Navarrow
Wright, said: "When I looked at all the costs - not just the straight
price of software - a Windows Server System-based solution made better
financial sense than sticking with our Sun and Oracle environment or
switching to Linux. We decided to migrate the whole enterprise from
various software vendors to standardize all of our software on Microsoft."

By implementing Windows Server 2003, Windows XP Professional, Office
Professional Edition 2003, Exchange Server 2003, Content Management Server
2003 and Visual Studio .NET 2003, BET.com conservatively estimated that
its workforce will increase productivity by 25-30%, while saving
significantly in licensing and redevelopment costs.

As organizations increasingly rely on IT to perform mission-critical
functions, and with complexity a growing challenge, choosing the right
computing platform for the long term can make the difference between
profit and loss, and between future success and failure. And it's pretty
clear that the facts show that Windows provides a lower total cost of
ownership than Linux; the number of security vulnerabilities is lower on
Windows, and Windows responsiveness on security is better than Linux; and
Microsoft provides uncapped IP indemnification of their products, while no
such comprehensive offering is available for Linux or open source.

The vision and benefits of an integrated platform are what distinguish
Microsoft's approach to software. The Windows platform today offers an
unmatched level of value, applications availability, simplicity, security
and productivity. For Microsoft, this is truly a cross-company effort that
requires the server and client operating systems to seamlessly deliver
great usability and manageability features, applications that deliver
compelling scenarios, and tools that enable developers and ISVs to easily
and quickly build new applications on the platform.

It's important that customers have all the information they need when
making critical and expensive IT decisions. If the evidence at our
www.microsoft.com/getthefacts Web site doesn't sufficiently convey the
benefits and value of the Microsoft platform, we want to hear from you so
we can work even harder to get that information to you. If you would like
to have a more detailed discussion about your company's IT needs, email
Martin Taylor at martinta@microsoft.com.

Steve Ballmer

To contact Microsoft, write to us at One Microsoft Way, Redmond, Wash,
98052. To manage your Microsoft.com subscriptions, please sign in at the
Microsoft Profile Center here: http://g.microsoft.com/mh_mshp/48. To see
the Microsoft.com Privacy Statement, please go to
http://www.microsoft.com/info/privacy.mspx.

[ Reply to This | # ]

We already knew this was coming.
Authored by: Anonymous on Thursday, October 28 2004 @ 09:22 AM EDT
Forgive me if I sound a little negative - but we already knew this was the part of
their strategy from the Halloween documents. Look at Halloween II for a little
refresher.

I don't understand how we recoil in shock and horror when this came from the
bowels of Microsoft long before the SCO vs. IBM thing was even a blip on the
radar.

Chris

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: Anonymous on Thursday, October 28 2004 @ 10:01 AM EDT
I guess you could argue indemnification against unlikely legal action against
the costs of Adminstering the licenses for proprietary software.

[ Reply to This | # ]

Ballmer's Email - I can't believe I got it.
Authored by: rsteinmetz70112 on Thursday, October 28 2004 @ 10:08 AM EDT
I can't believe I got this thing.

I wonder how many people it was sent to? It must have been millions to make it
to me. They must have sent it to every email address they have ever collected,
or maybe they just used one of those Spammer lists.

---
Rsteinmetz

"I could be wrong now, but I don't think so."

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: Anonymous on Thursday, October 28 2004 @ 11:34 AM EDT
Longhorn is late (as usual - for MS OS releases), companies are not embracing
their Windows 2003 Server OS for the datacenter, instead replacing Unix machines
with Linux machines.

Their server and Office products posted net operating losses over the year(check
out: http://www.microsoft.com/msft/earn.mspx). Windows is still a toy operating
system - and the majority of CIOs will not put mission critical applications on
it.

This is probably why Balmer is putting such emphasis on generating FUD against
Linux. Their strategy hinges on duplicating what they have done in the home, in
the datacenter. I would use an analogy about climbing mountains here - but that
doesn't really count when you are big enough to squash the mountain, and have
enough spare cash laying about to helicopter to the summit in heated comfort.

This time they are playing catch-up ball. My only question is will they go down
kicking and screaming, or will they go quietly? (I am leaning towards 'kicking
and screaming' - eventually they will have to play nice with the rest of the
children or become irrelevant)

[ Reply to This | # ]

You missed a point.
Authored by: Anonymous on Thursday, October 28 2004 @ 11:39 AM EDT
I believe you may have missed a small point, PJ -- there's at least one more dot
to connect.

You've written before about how Sun is going after Red Hat and how they seem to
be working in parallel with Microsoft on that effort. If Microsoft begins
honking about indemnification, what would happen if the Linux vendors (Red Hat)
decided to offer it themselves, equal to the protection that Microsoft is
offering?

If Microsoft then sued a small company that used Linux, Red Hat would be forced
into court, costing them a ton of money. Because the small company would have
(nearly) no assets, one of two things would happen. Either Red Hat would have
to pay to fight the battle, risking their own financial stability, or the small
company would settle, creating a precedent.

Microsoft has a large patent portfolio, as does Sun. This plan of attack may
not be what they started off to accomplish but it would be very effective in
putting Linux distributors out of business (and keeping them out).

Linux is doing just fine without Microsoft-style IP indemnification. This is a
trap. Steer clear of it.

[ Reply to This | # ]

A conspiracy? Not. But Ballmer is fearful.
Authored by: clark_kent on Thursday, October 28 2004 @ 11:59 AM EDT
I think Steve Ballmer is a brilliant man. (That does not speak of his character
however.) His knowledge of marketing a product is unsurpassed.

I think he builds his opportunities through his PR channels, then he strikes
against Linux and Open Source when he has a chance. (I don't hear him talking
bad about Mac OS X.) It is called planning and preparing. But I don't think it
is a really a master plan ecept that there is this common focus to extinguish
Linux and that they will attack it at any given chance. Maybe even create a few
chances along the way.

So what Ballmer afraid of? What he has done to companies in past opposed to
Microsoft, he can't do to Linux and Open Source. I don't see Stacker (Stac
Electronics), Netscape (not Mozilla,) Novell DOS 7, OS/2 Warp, the Amiga, Corel
Worperfect, or Lotus 1-2-3 as threats to Microsoft anymore. However, there are
some threats today; StarOffice, Mozilla, Linux, KDE, and there are many
companies pushing Linux and Open Source such as IBM, Novell, and Linspire.
Microsoft can't shut these projects down like they did past competitors. When
they shutdown competitors, they shut down the development of the product. Now if
they shut down a company, the product lives on (like Netscape) and someone can
pick up where the defeated company left off.

[ Reply to This | # ]

Redmond Hold 'Em Poker
Authored by: TheBlueSkyRanger on Thursday, October 28 2004 @ 12:29 PM EDT
Hey, everybody!

An odd question occurs to me. I'm not sure if this has been mentioned before
(there's a LOT of posts to swim through, so I apologize in advance if I'm being
redundant), but here we go:

Was SCO being set up as a sucker for M$ and patent litigation?

M$ is constantly talking about how Linux infringes on a bunch of patents, most
notably ones M$ owns. Linux is leapfrogging ahead in the server market, killing
the cash cow M$ used to own. Sales of desktop computers are going down, meaning
Longwait is going to miss both the five year business cycle and the tech
purchasing boom. M$ needs to act to stop Linux.

So why are they playing around with the SCO lawsuit instead of just suing over
the patents outright?

What if the SCO case isn't so much about FUD as it is a litmus test. The lawsuit
was a way to test the IP waters in court. If it was successful, even with the
shifty evidence, M$ would have launched a frontal assault on Linux on patent
issues. Instead, not only are the defenders extremely competent, but issues M$
might sue over are also based on iffy merit (one-click on cell phones, for
example, or "windows" on a GUI in general).

Don't get me wrong. I have no sympathy for SCO. They tried bluffing, and they
should pay for it. But I'm wondering if they are a Judas goat and got so blinded
by the $$$ that they don't realize it. It's just that I'm wondering if there is
far more motivation behind the lawsuit than just generating negative publicity
for Linux.

Dobre utka,
The Blue Sky Ranger

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: Anonymous on Thursday, October 28 2004 @ 12:30 PM EDT
Balmer may provide "indemnification" from IP law suits, but what,
exactly are you buying? Here is an excerpt from the "Warranty" for
Windows XP:

LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy
for any breach of this Limited Warranty is as set forth below. Except for any
refund elected by Microsoft, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT
NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Software does not meet Microsoft's
Limited Warranty, and, to the maximum extent allowed by applicable law, even if
any remedy fails of its essential purpose. The terms of Section 17
("Exclusion of Incidental, Consequential and Certain Other Damages")
are also incorporated into this Limited Warranty. Some states /jurisdictions do
not allow the exclusion or limitation of incidental or consequential damages, so
the above limitation or exclusion may not apply to you. This Limited Warranty
gives you specific legal rights. You may have other rights which vary from
state/jurisdiction to state/jurisdiction. YOUR EXCLUSIVE REMEDY. Microsoft's and
its suppliers' entire liability and your exclusive remedy for any breach of this
Limited Warranty or for any other breach of this EULA or for any other liability
relating to the Software shall be, at Microsoft's option from time to time
exercised subject to applicable law, (a) return of the amount paid (if any) for
the Software, or

In otherwords, even if it doesn't work, the best you'll get is your money back
(if you paid any.....).

[ Reply to This | # ]

Steve Ballmer and Joe Isuzu.
Authored by: Jaywalk on Thursday, October 28 2004 @ 01:04 PM EDT
I find it helps when listening to Steve Ballmer -- or any other Microsoft flack -- to keep a mental subtitle running like they did in the old Joe Isuzu ads. Just like those ads, the first subtitle always reads, "He's Lying." The rest run something like this:

In this independent study . . .
[which we paid for]

we find that Linux is more expensive than Windows.
[If you ignore all the costs of Windows and assume every Linux developer gets a new car.]

And for all the IS managers we interviewed . . .
[Excluding the ones who didn't tell us what we wanted to hear.]

We found their main concern was indemnification for IP issues.
[Right afer Windows worms, bloated software and the Blue Screen of Death.]

Linux distributors do not provide indemnification for IP issues.
[Except for the ones who do.]

Microsoft provides indemnification for IP issues.
[Except when we don't.]

As with the Joe Isuzu commercials, the subtitles are both funnier and more informative than what the speaker actually says.

---
===== Murphy's Law is recursive. =====

[ Reply to This | # ]

Sender ID
Authored by: GLJason on Thursday, October 28 2004 @ 01:06 PM EDT
Evidently, they don't care if we can't use Sender ID and still use our operating system.
Sender ID is no reason to stop using Linux. You can run a commercial mail program on Linux if you want. If a company wanted to, they could take the SendMail 8.8 source (BSD-licensed), get a license from MS, implement Microsoft's Sender ID, and distribute the binaries for free. You could have two versions, one with Sender ID (only binaries could be distributed) and one without. The source code for the version without would still be distributable, then when a new version comes out the guy with the license from MS could compile a binary version with Sendcer ID and distribute that also. That's just if someone has to have Sender ID.

Granted, the license stinks. Basically it is a dig at open source software and nothing more. This is not going to destroy Linux, Sendmail isn't even GPL. I do think the government should be looking into this as anti-competitive practices. The "binary-only" license has no other purpose than to exclude MS's main competitor from using it.

[ Reply to This | # ]

Here's A Half-Baked Plan :-)
Authored by: Simon G Best on Thursday, October 28 2004 @ 01:36 PM EDT

So, if I want to make some easy money from my dubious patents (not that I actually have any patents), I could try suing a suitable, indemnified Microsoft customer, and Microsoft will pay the ransom? Nah, it surely can't be that easy.

So, where does my 'plan' fall down?

---
Open Source - open and honest? Not while the political denial continues.

[ Reply to This | # ]

SCOX still in steady, though oscillating, decline...
Authored by: Groklaw Lurker on Thursday, October 28 2004 @ 01:44 PM EDT
As of 1:07pm EDT, SCOX was reported at $2.90/share by Yahoo.

Lets cross our fingers and collectively wish for a continued decline - perhaps a
goal of $0.10/share by Christmas is possible...

---
(GL) Groklaw Lurker
End the tyranny, abolish software patents.

[ Reply to This | # ]

software democracy v. fascism
Authored by: dmac on Thursday, October 28 2004 @ 01:56 PM EDT
What a stimulating place this Groklaw is.

The more I read here about this battle between open source and proprietary
operating systems, the more is seems that the ultimate issue is: can free men
and women cooperate with one another on an open platform and on a civilized
basis and create a useful open environment in the operating system world, al la
Linux

--or--

Do we require the stern hand of a fascist dictator like Microsoft to lead us
into the future of the digital age.

Seems to me that, as always, control is what the battle is all about. I'm
rooting for freedom.

dmac

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: Anonymous on Thursday, October 28 2004 @ 02:16 PM EDT
<blockquote>somebody pass a law quick, will ya?</blockquote>
No offense, but I think we already have enough laws that have been
passsed quickly and without due consideration.

[ Reply to This | # ]

Novell, et al, have replied to the Ballmer email
Authored by: Anonymous on Thursday, October 28 2004 @ 03:00 PM EDT
Nov ell responds to Microsoft email

[ Reply to This | # ]

rebuttal-type thoughts
Authored by: pyrite on Thursday, October 28 2004 @ 03:26 PM EDT
1. While you may be dedicated to getting truly independent, factual information
- if there are situations where Windows is more cost effective, then the
information cannot be entirely factually correct, nor truly independent, unless
it also shows that there are some situations where Linux is more cost-effective.
Common sense would dictate that it is extremely unlikely that Windows is more
cost-effective than Linux in every single situation that may arise in any
corporate, educational, or research computing environment.

2. Individuals and corporations like the idea of a new product with the features
and capabilities of UNIX and the flexibility to run on standard hardware,
whatever the cost. It is the capabilities of the software, and its ability to
leverage existing hardware investments, while allowing flexibility in future
hardware investments, that is the issue. Whether or not that is free of charge
is not the primary concern. Given the capabilities that Linux has, a premium
price tag would not be entirely inappropriate, but then again, you're probably
still not getting truly independent, factual information about various
parameters regarding cost of ownership and return on investment.

3. Moore's law would imply that any time you upgrade an existing infrastructure,
the technological advancements during the time period between the two purchases
will have created a much lower computing-power-per-dollar figure for the newer
hardware. This should not be confused with the switch from one OS to another.

4. An automobile has a lower TCO than a private jet. Do the total number of
Windows security vulnerabilities include vulnerabilities in third-party software
as they do in Linux? Comparing two different parameters does not present
accurate factual data. Is Windows responsiveness to security vulnerabilites
faster because open source software is open to the "public eye"? The
more severe the vulnerability, the more critical it is to reduce the time period
between the vulnerability being made public and the vulnerability being fixed.
Open source developers and software companies don't always have control over
when the vulnerability is made public, due to the nature of open source
software. If a closed source vendor were to discover a critical vulnerablity
in-house, it would be inadvisible for that vendor to disclose that vulnerability
until close to the time that a fix were scheduled to be available. With closed
source, you have absolutely no guarantee that there aren't any copyright, trade
secret, or patent violations or security vulnerabilities, because the source
code is locked away and it can't be seen - neither by you, nor any potential
plaintiffs in any kind of infringement case.

5. It is important to recognize that there are some situations where Linux is a
better choice. As a matter of fact, there are many situations where Linux is a
better choice. Any data claiming to be factual that does not suggest that there
are at least SOME situations where Linux MIGHT be a better choice is most likely
in error.

[ Reply to This | # ]

DiDio parrots Stevie
Authored by: Anonymous on Thursday, October 28 2004 @ 03:34 PM EDT
Our old friend DiDio has parroted these words in an article on LinuxInsider. See her glorious commentary at: http://www.linuxinsider.com/story/Analyst-Red-Hat-Conceding-Defeat-in-US -37655.html

[ Reply to This | # ]

Is Regal for Real?
Authored by: Anonymous on Thursday, October 28 2004 @ 04:40 PM EDT
Would the "largest movie theatre chain in the world" really do a
system migration to Red Hat Linux and then after "evaluating Linux in their
business for several months" they migrated to Windows?

Boy I bet whatever CIO did that got fired!

I would love to see that case study on MS's website: "Hi, I'm Joe from
Regal, we switched to Linux for two months, but once we saw the IP and TCO
issues (of course MS discounted our licensing 90% just because we mentioned the
word 'Linux'). We are peachy keen happy with Windows now!"

[ Reply to This | # ]

Patent wars vs OSS
Authored by: Anonymous on Thursday, October 28 2004 @ 06:22 PM EDT
Its been clear to me for some time that M$ was planning to leverage patents aganst the OSS movement. All corporations keep a porfolio of pattents, usually just to ward off other that would even try to enforce one against them so that some civil agreement might be worked out that is not too financially costly to both parties. Unfortunatly "OSS" has none! Its not a "corporation" and does not have pattent holdings stored up as ammunition to fend off leagal battles from the likes of M$, so it would be vulnerable to such action.

What needs to be done? The "OSS movement" needs a legal body to hold pattents on its behalf, where patents can be donated, consigned, and be archived. Then we need to pattent everything that is not nailed down! That has two benifits, one that it makes more amunition for OSS defense, and the other that it will finally show just how stupid the idea of software pattents are by over loading the pattent office to the extent that they will finally resolve the software pattent issue! Once the porfolio is built up then it will be a lot less likely that any corporation will try to push arround the new 800 pound gorilla (OSS) again.

[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: ikocher on Thursday, October 28 2004 @ 07:12 PM EDT
If Ballmer is so worried about IP indemnification about software patents, and
the problem they represent, is funny to hear that m$ _wants_ software patents to
exists.

If a fear something, I would like that something not to exists, as m$ fears
FOSS, they don't want it to exists at all.

So here we have a m$ that wants the legal/economic problem of software patents,
but doesn't want the "technical problem" (better software) FOSS
represents. In other words: they prefer to pay money than have proper
competition; something we have seen long ago, where they abuse/violate/destroy
someone's rights and end asking "how much?"

What an example of how a company should behave :(



Ivan


[ Reply to This | # ]

I don't think Regal aren't using Windows
Authored by: Anonymous on Thursday, October 28 2004 @ 08:28 PM EDT
Looks to me like Regal cinemas have one web server, and it's running Linux.
They don't appear to have ever been on Windows for their externally-facing
services.

<a href="http://uptime.netcraft.com/up/hosted?netname=REGALCINEMA-
TDSNET,207.1.15.0,207.1.15.255">
http://uptime.netcraft.com/up/hosted?netname=REGALCINEMA-
TDSNET,207.1.15.0,207.1.15.255</a>


[ Reply to This | # ]

Ballmer's Email - Indemnification Comes Full Circle
Authored by: Anonymous on Friday, October 29 2004 @ 03:57 AM EDT
I don't think the point is exactly in the M$ customer being sued, but in M$
being sued for patent infringement. M$ is suggesting that they would keep
supporting their products and business infrastructure in that case, whereas the
FUD suggests that linux development and businesses would go ka-boom and OSDL and
others would run frightened all over the hills yelling "please do not
cross-examine me, I didn't infringe anything."

I think we should patent FUD and monopolistic practices, the most important
things M$ has done through its existence. Without those their portfolio is
worthless and they're soon out of business ;)

[ Reply to This | # ]
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