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Saturday, March 29, 2008

MAD

Microsoft takes on the free world (Roger Parloff, Fortune)

[N]ow there's a shadow hanging over Linux and other free software, and it's being cast by Microsoft. The Redmond behemoth asserts that one reason free software is of such high quality is that it violates more than 200 of Microsoft's patents. And as a mature company facing unfavorable market trends and fearsome competitors like Google, Microsoft is pulling no punches: It wants royalties. If the company gets its way, free software won't be free anymore. (...) Revealing the precise figure for the first time, they state that FOSS infringes on no fewer than 235 Microsoft patents. It's a breathtaking number. (...)

The free world appears to be uncowed by Microsoft's claims. Its master legal strategist is Eben Moglen, longtime counsel to the Free Software Foundation and the head of the Software Freedom Law Center, which counsels FOSS projects on how to protect themselves from patent aggression. Moglen contends that software is a mathematical algorithm and, as such, not patentable. (The Supreme Court has never expressly ruled on the question.) In any case, the fact that Microsoft might possess many relevant patents doesn't impress him. "Numbers aren't where the action is," he says. "The action is in very tight qualitative analysis of individual situations." Patents can be invalidated in court on numerous grounds, he observes. Others can easily be "invented around." Still others might be valid, yet not infringed under the particular circumstances. (...)

Furthermore, FOSS has powerful corporate patrons and allies. In 2005, six of them - IBM, Sony, Philips, Novell, Red Hat and NEC - set up the Open Invention Network to acquire a portfolio of patents that might pose problems for companies like Microsoft, which are known to pose a patent threat to Linux. So if Microsoft ever sued Linux distributor Red Hat for patent infringement, for instance, OIN might sue Microsoft in retaliation, trying to enjoin distribution of Windows. It's a cold war, and what keeps the peace is the threat of mutually assured destruction: patent Armageddon - an unending series of suits and countersuits that would hobble the industry and its customers.

"It's a tinderbox," Moglen says. "As the commercial confrontation between [free software] and software-that's-a-product becomes more fierce, patent law's going to be the terrain on which a big piece of the war's going to be fought. Waterloo is here somewhere."
Leitura complementar: The Total Growth of Open Source
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