Microsoft takes on the free world II

(a follow up to this post) As was expected, nearly everyone is commenting on the recent Fortune article about Microsoft and Patents. Even Linus has weighed in:

“It’s certainly a lot more likely that Microsoft violates patents than Linux does,” said Torvalds, holder of the Linux trademark. If the source code for Windows could be subjected to the same critical review that Linux has been, Microsoft would find itself in violation of patents held by other companies, said Torvalds.

“Basic operating system theory was pretty much done by the end of the 1960s. IBM probably owned thousands of really ‘fundamental’ patents,” Torvalds said in a response to questions submitted by InformationWeek. But he doesn’t like any form of patent saber rattling. “The fundamental stuff was done about half a century ago and has long, long since lost any patent protection,” he wrote.

“So the whole, ‘We have a list and we’re not telling you,’ itself should tell you something,” Torvalds said of Microsoft’s stance in the Fortune story. And for good measure, he added: “Don’t you think that if Microsoft actually had some really foolproof patent, they’d just tell us and go, ‘nyaah, nyaah, nyaah!'”

There’s so much good commentary on this this it’s not possible to link to everything, but I’d like to highlight a few. The OIN has posted a press release that contains some “facts to provide clarity around Linux and patents” and also points out that “In less than a year, OIN has accumulated more than 100 strategic, worldwide patents and patent applications that span Web / Internet, e-commerce, mobile and communications technologies. These patents are available to all as part of the free Linux ecosystem that OIN is creating around, and in support of Linux. We stand ready to leverage our IP portfolio to maintain the open patent environment OIN has helped create.”

Sun CEO Jonathan gives an extremely apropos summary of what Sun did when faced with adversity and pressure in its market:

So what’s my view on this interview in Fortune – in which one of Sun’s business partners claims the open source community is trampling their patent portfolio?

You would be wise to listen to the customers you’re threatening to sue – they can leave you, especially if you give them motivation. Remember, they wouldn’t be motivated unless your products were somehow missing the mark.

All of which is to say – no amount of fear can stop the rise of free media, or free software (they are the same, after all). The community is vastly more innovative and powerful than a single company. And you will never turn back the clock on elementary school students and developing economies and aid agencies and fledgling universities – or the Fortune 500 – that have found value in the wisdom of the open source community. Open standards and open source software are literally changing the face of the planet – creating opportunity wherever the network can reach.

That’s not a genie any litigator I know can put back in a bottle.

There’s one recurring theme that you’ll see in most of the commentary. This action is fairly definitive proof that Microsoft sees clear and imminent danger. They, for the first time in a long time, see something they can’t kill. It’s starting to show that they don’t know exactly what to do next. Stephe, a former Microsoftie, has the following advice:

Microsoft needs to get back in the business of building exceptional solutions to customer problems, instead of chasing a 1990s dream of IBM’s secondary revenues from hardware patent licensing, or worse yet threatening those same customers.

[Disclaimer: Microsoft is a client. But I swear I’m reconsidering that decision. It’s unclear to me that the mortgage payment is worth this much aggravation.]

What Microsoft will do remains to be seen. It seems the current near-universal consensus is that they won’t sue anyone, but will continue to try to squeeze money out of those willing to pay or partner, while figuring out the next strategic move. That may have an unintended consequence though. I’ve heard Don Marti say many times that much of the software industry is really a recruiting contest. You need look no further than Google for proof of this. The really smart engineers though, like to build cool software… not win by (or even have to deal with) litigation. Now sure, Microsoft has a lot of money to throw at the problem, but with a fairly stagnant stock price and plenty of companies doing really interesting things, money is no longer going to be enough to keep the very best. The long term implications of that should not be underestimated. Neither should the disruptive force of Open Source. Will either lesson be learned?


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