Microsoft Patents and Linux – Digital McCarthyism

Read a nice piece on the Microsoft patent war again Linux – coins the best term to describe the issue:  Digital McCarthyism.  Way back in 2002, when I was CTO at Merrill Lynch, I got my first exposure to the Microsoft patent battle with Linux.  It was a strange experience for me.  Here I was, a major Wall Street customer of Microsoft, and an early user of Microsoft server and database products, suddenly sitting across from a very senior Microsoft executive who was on a road tour to major clients testing the trial balloon about Microsoft’s beliefs that there were serious IP issues with Linux, and their view that corporate users were at risk (unspecified risk) if they continued to use Linux.

Now, at the time, I was also rolling out another big wave of Linux-based servers, and had become a pretty huge fan of the LAMP stack.  I didn’t want to be irresponsible, so I asked if Microsoft could give me more details on the specific patents, to allow me to make a practical determination about the claims and what we might do as a Linux user.  When I got the response that they weren’t going to provide customers that information, the fact they weren’t going to be transparent about the issue got me more than a little wound up.

I mentioned that, in my mind, Microsoft had always historically competed based in the merits of their products, and that their use of FUD (fear, uncertainty and doubt), was, in my mind, a sad moment in their engineering history.   Well, subsequently, we stayed our course, and never looked back – no regrets.

Well, it is 5 years later (having now run AOL on 22,000+ Linux servers), and I read the latest and greatest feedback about Steve Ballmer’s quote  earlier this week on Linus and its IP infringement, and we haven’t moved the ball forward at all, in my opinion.  Five years where the cloud of doubt, versus a straightforward dialog, prevents the open source community to:

  • Respond through remediation of any infringing code
  • Challenge patents through prior art analysis, or
  • Address legitimate claims through negotiation.

The challenge for Microsoft is pretty simple:  if all this IP infringement is going on, who are they going to sue?  The end customers?  That is a path to ruin, especially for the one new material area of profitability (server software) for the company.  The open source community?  There’s no single enemy out there.  Red Hat?  That is a potential move, but the Linux community can navigate that one pretty quickly.

I still love things Microsoft does (Silverlight as an example of new things I like that represents the goodness of Microsoft), but this tactic bugs me to no end.  For me, it’s simple: Stop the rear guard action about Linux, and focus on things like making Vista SP1 something strategic, and not just a bug-fix release.

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