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The Be Very Afraid Tour and a Word About that Patent Study
Thursday, May 17 2007 @ 11:30 AM EDT

When SCO started threatening to sue over Linux, it offered Linux users protection from lawsuits if they'd buy a SCOsource license. Some did, despite having other viable protective options. A smattering did accept SCO's SCOsource offer.

If you can call it an offer. "Nice restaurant you've got here. It'd be a shame if anything happened to it."

Ask those companies today if they'd buy a SCOsource license again, if they had a chance to relive it. What did they get for their money? Other companies put off switching to GNU/Linux systems, because of SCO's threats. Think of the savings lost to them because of letting themselves be intimidated. So who were the smart ones, the companies that caved in to the threats or those who saw through them?

Now Linux users are being offered a "patent peace" with Microsoft in a very similar way, only this time, it's supposedly patents backing up the threat. Or is it? Let's see if we can quantify. First, on the patent study Microsoft misquotes, here's what it actually found:

No court-validated software patent is infringed by the Linux kernel.

None. That may be why there has never been a patent infringement lawsuit against Linux. That means that to date, Linux doesn't infringe anybody's court-validated patents.

One thing we have learned from the SCO litigation, aside from the folly of suing your own customers, is that Linux is the cleanest, most pure code on the planet. Also probably the most examined and picked over by enemies looking to find fault. Novell has just reiterated that it knows of no patents that Linux infringes, and that's after long discussions with Microsoft on the subject, with specificity, according to Microsoft. What does that tell you? [Update: I see Novell's general counsel Joseph La Sala appears to directly confirm it to BusinessWeek:

But Joe LaSala, senior vice-president and general counsel at Novell, says none of his company's software violated Microsoft's patents, and that the agreement was about technical compatibility between the companies' products. "We're quite explicit about that," he says. "We've heard their arguments."

So, what exactly is Microsoft selling?]

The study also found that a third of the 200+ non-validated patents that could conceivably be used to threaten Linux are owned by companies friendly to Linux. Only 10% belonged to Microsoft, and they just told us they're not litigating. In any case, Red Hat indemnifies its customers, among other options, if you are in a panic.

Dan Ravicher did that patent study three years ago. The threat today is actually smaller than it was then, thanks to two recent Supreme Court rulings. That might explain the New York Stock Exchange switching to AIX and Linux, starting today, now that I think of it:

The New York Stock Exchange is migrating off a 1,600 millions of instructions per second (MIPS) mainframe to IBM System p servers running AIX and x86 Hewlett-Packard Co. servers running Linux, with the first part of the move going live today.

Francis Feldman, the vice president of the shared data center for Securities Industry Automation Corp. (SIAC), the NYSE's technology arm, said the bottom line for the migration was the bottom line. He estimates the move will halve the cost of transactions, and though he wouldn't detail how much that would mean on a yearly basis, he said it is "serious financial savings, very serious."

People aren't as dumb as Microsoft needs them to be. One more thing: it's important to realize that there is a threat if you DO enter into such a deal.

Thanks to a patent system that went overboard issuing patents, which the Supreme Court in its recent KSR ruling brings to a screeching halt, many previously issued patents aren't worth the paper they are printed on. Nearly half of all patents that were brought to trial under the old patent system's definition of obviousness were thrown out. If you apply KSR's standard of nonobviousness, as the highest court says you must, how many patents would survive? What, you think Microsoft's patent on IS NOT is not obvious? So the threat isn't as big as it might appear.

To help you understand the actual purpose of the latest threats from Microsoft, there's a transcript on Wikisource of Eben Moglen's break-out session at Red Hat Summit 2007, from the video on YouTube. Moglen talks about Microsoft's annual "Be Very Afraid Tour" in answer to a question from the audience asking Moglen to explain the threat posed to GPL’d software’s freedom by the Microsoft-Novell agreement. I thought it would be worthwhile to make the transcript part of our permanent collection here also, because I don't know if Novell reads Wikisource. Also, I thought it worthwhile to inform CEOs thinking that safety lies in such deals that in fact it puts their future software supply in danger, as Moglen explains.

Ask yourself this: do I want to be forced to use someone's product under threat? To pay them even if I don't want their product? If you buy an HP printer, do you also pay Xerox and Dell a tax because you didn't buy a printer from them? Deeper, do you want to help Microsoft destroy Linux and FOSS?

You may remember what Andrew Orlowski wrote when Microsoft took us on the "Be Very Afraid" tour in 2004:

"Let's remember too that many software patents are thrown out by the judge.... The explosion of patent filing activity at Microsoft doesn't necessarily indicate an explosion of creativity; and many may be even more fatuous than the FAT patent....

And in any case, as Dan Ravicher noted here, the winner doesn't keep all. "It's rare for a patent holder to get an injunction, especially against a smaller competitor, just because of anti-competitive terms."

Thirdly, a frontal assault would likely generate huge retaliation from IBM, which needs Linux -- a nice earner for its consultancy and integration services division. ...

So like Mutually Assured Destruction, the true value of Microsoft's patent arsenal lies in the threat of their use, not their actual use.

Orlowski called this one exactly right. That's what it was about then, and it's what it is still about, with the added wrinkle that today we have Open Invention Network, so IBM doesn't have to retaliate. OIN can. Of course, IBM is a member of OIN.

And that brings us to the Moglen transcript, because his point is that a company wishing to attack Linux and FOSS would want to destroy the Open Source development method, but to do that successfully it would first need to divide enterprise customers from developers:

**********************************

Eben Moglen: Oh, I beg your pardon, certainly, I, the question was so obvious that it needed no repetition: “Could I explain the threat posed to GPL’d software’s freedom by the Microsoft/Novell agreement?”.

And I’m going to speak in slightly more general terms than that, beginning with: Imagine a party which wants to eliminate Free Software’s freedom or at least hobble its developers in serious ways, so as to inhibit their ability to compete. Imagine that such a party has patents of uncertain validity but in large numbers, which it could conceivably use to scare developers and users. Imagine that such a party then begins to make periodic threats in the form, “Gee, we have a lot of patents. Never mind how many. Never mind what they are. Never mind how good they are. We have a lot of patents, and someday something terrible will happen. Don’t use that software.”

Imagine that that’s a strategy that the party adverse to freedom engages in because it’s better than suing. Suing is expensive. Suing is irreversible. And suing might actually cause you to have to explain which patents they are and why they’re any good. [Laughter] So threatening is better than suing, OK? Imagine a party who engages in recurrent threats every summer time, for years on end, on a sort of annual “be very afraid” tour, okay? [Laughter]

I know, it sounds absurd.

Imagine now that what happens is that the annual “Be very afraid” tour starts creating terrible pushback, because people call up who are the CEOs of major banks and financial institutions, and they say, “Those people you’re threatening are us. We’re the largest, richest, most powerful people in capitalism, and we determine the value of your stock. We think you should be quiet now.” OK?

That happens if you do this thing of saying “be very afraid” to people who have lots and lots of money and lots and lots of power and who control the value of your stock. They will push back. The business model of threatening to sue people works if the people are 12-year-olds. It does not work real well if they are the pillars of finance capitalism. So as a party engaged in annual “be very afraid” tours, you’re going to start to get pushback by enterprise customers who say, “That’s *us* you’re threatening.”

Now what if you could reduce their sense of being the people who are made afraid? What if you could find a way to give them quiet and peace -- and make a little money on the side -- so that the only people who are left quaking when you did your annual “Be Very Afraid” tour were the developers themselves? Now you would have given yourself a major ecological boost in swinging your patents around and threatening to hurt people.

Deals for patent safety create the possibility of that risk to my clients, the development community. If enterprise thinks that it can go and buy the software my clients make from some party who gives them peace from the adversary in return for purchasing a license from them, then enterprises may think they have made a separate peace, and if they open the business section one morning and it says “Adversary Makes Trouble for Free Software”, they can think, “Not my problem. I bought the such-and-such distribution, and I’m OK.”

This process of attempting to segregate the enterprise customers, whose insistence on their rights will stop the threatening, from the developers, who are at the end the real object of the threat, is what is wrong with the deals.

So what you ought to do is to say to parties, Please don’t make separate peace at the community’s expense. Please don’t try to make your customers safe, if that’s going to result in the destruction of the upstream rain forest where your goods come from. We’re an ecological system. If you undermine community defenses, you’re undermining the whole ecology. And doing that for the benefit of your customers at the expense of your suppliers is not a good way to stay in business.

So that’s the fundamental discussion about the problem created by such deals.


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