Over the last 15 years we’ve seen two
forces
emerge that upset the delicate “mutually assured
destruction” patent
peace between companies. One is the
rise in the “Patent Troll” industry. The
other is the
emergence of the anti-Intellectual Property
community.
[Patent trolls] can be ethical or unethical. The ones
that
are ethical acquire stronger patents and seek
reasonable (relative to the
actual value of the patent to
the infringer) royalties. The unethical ones
acquire and
assert (often) BS patents in the hope that potential
infringers
will find it cheaper to pay royalties than the
legal fees (and bad PR, etc.) of
fighting.
Nathan Myhrvold at Intellectual Ventures [is] an attempt
at
an ethical approach to patent trolling. Patent Trolls can
serve a role in
encouraging innovation.
The other force at work is the
anti-Intellectual Property
community lead by the Free Software Foundation (FSF)
and
it’s GNU General Public License (GPL). The problem here is
actually
two-fold. There are those who really disdain
patents and other forms of IP
protection and those who
support the idea of Intellectual Property for their
own work
but are willing to look the other way on theft of other’s
property as
long as it provides them sufficient economic
gain. Those who turn a blind eye
to the theft of another’s
Intellectual Property while benefiting from it
economically
are pond scum.
Many of you are going to realize you are
in the category
I have just labeled “pond scum”. Yes, I know that is harsh.
And that (most of) you aren’t really pond scum. And you
certainly don’t
consider yourself pond scum. But I am trying
to make a point here, and it’s a
point best made with a
large hammer.
I may consider the FSF and it’s
followers wrong (and I’m
being kind) but at least they are intellectually
honest.
Those who turn a blind eye to the theft of another’s
Intellectual
Property while benefiting from it economically
are pond scum.
What I
believe is the crux of Microsoft’s patent strategy
with regard to Linux and
it’s Android variant, go after the
pond scum. It is actually rather hard to
figure out how to
effectively go after the original authors of the infringing
code.
Let’s say you went after Red Hat and they removed the
offending
code. CentOS is already out in the wild and it
wouldn’t change availability of
that. In fact you’d have to
go after all the Linux distributions, and then any
site
hosting a distribution, and even if you win it wouldn’t stop
Amdocs et al
from shipping servers with an offending Linux
Kernel. So you’d have to go
after the Amdocs of the world.
Or the end-users who are “receiving stolen
property” and
will continue to use the infringing product for their own
economic gain. In other words, you’ll have to go after the
pond scum even
after you’ve spent years fighting those who
stole the property in the first
place. And since the pond
scum actually have more to lose economically, why
not simply
go after them in the first place? So that’s what Microsoft
has been
doing, with both Android and (more quietly until
now) Linux
itself.
Infringing on Microsoft’s IP, and then giving it away for
free,
is no different from if you engaged directly in
software piracy by stealing
copies of Windows. There is
nothing wrong with free software itself, but if
you steal
Microsoft’s intellectual property and give it away for free
that is
unfair competition. And so Microsoft (and Apple,
just to make it clear this
isn’t purely a Microsoft
viewpoint) is fighting back against that unfair
competition
by demanding compensation for use of its intellectual
property.
Information is power, and in any negotiation the party
with
more information has the advantage. Releasing the list
of patents Microsoft
thinks Linux is infringing on reduces
Microsoft’s negotiating power. Why would
it want to do
that?
How does releasing the list of 237 patents help
Microsoft’s primary cause? What Microsoft wants is for a
user of Linux to
make the Linux vs Windows decision on some
basis other than “Linux is Free”.
Releasing the list makes
Linux no less free.
The only way [is to] go
after those who are getting the
most economic benefit from infringing on the
patents. With
Android that was the phone manufacturers. With Linux that
is
large IT shops and those who incorporate Linux into their
own offerings such as
Amdocs.
The companies [Microsoft] targets are more likely to
settle
than fight because Android/Linux is not their primary
business. Samsung makes
money selling phones and tablets,
just how much money do they want to spend
defending Android
itself? And Microsoft (unlike Apple) isn’t trying to stop
them from shipping Android-based phones, it just wants to be
compensated for
its IP. Amdocs makes CRM systems for the
telecommunications industry. It uses
Linux, but Linux is
not its business. Fighting over Linux makes no sense for
them (and as a long-term Amdocs shareholder I support
management for avoiding
this becoming a major legal
distraction). And a large IT shop? Do they really
want to
spend a dime on lawyers to defend their use of Linux? Will
their CEO,
or particularly their Board of Directors, really
want the company distracted
from their actual business (like
making and selling shoes or cars or operating
restaurants)
over an IP issue? No.
So that’s it, Microsoft is simply
following a strategy
that makes large users of Android and Linux stop thinking
of
them as free. I think it’s the right thing to do, though I
don’t think it
will change the market dynamics much at this
point.