A call to action against Microsoft's open source threats

Once again, Microsoft has hoisted the canard that there are 235 Microsoft patents that open source products, largely Linux and OpenOffice, are in ostensible violation of patent rights.

In a recent interview published in Fortune, Microsoft execs put repeated the demand that distributors and users of open source software start paying royalties.

Microsoft has since backtracked a bit. The company now says the article overstated its position, which is that the company has no intention of launching litigation, at least for now.

But Microsoft is no stranger to patent litigation, both as plaintiff and defendant. With a renowned army of attorneys and law firms, Microsoft is capable of generating litigation that would make the RIAA look like gentlemen.

Microsoft’s recent deal with Novell now makes Microsoft a reseller of Novell’s SUSE Enterprise Linux distribution. While the late Microsoft rival, Ray Noorda, is spinning in his grave, Novell enjoys subsequent ostensible immunity from patent litigation. Red Hat, another Linux distributor (according to lore) told Microsoft lay down their cards, and that didn’t happen.

Microsoft’s legal war chest is greater than the gross national products of numerous nations. They can, at will, become the RIAA of the operating system and user software worlds. No one begrudges Microsoft for its intellectual property, and clearly piracy of Microsoft products is both illegal and morally unjustified.

There was a time when Microsoft listened to their customers and developed legendary software. It’s still difficult to purchase PC or notebook software that doesn’t have many of Microsoft’s current best offerings conveniently loaded.

Microsoft made it a habit to listen to their customers, and then tenaciously, often over iterations/generations of hard work, develop best-of-breed applications. But the disingenuousness of Microsoft’s patent sword rattling can be double-edged. You can participate in a response to the sabre rattling.

If Microsoft exposes the patents in question, a storm of activity will likely result in the open source community to devolve, then legally skirt the patent issues. More onerous, Microsoft also exposes itself to what Amazon recently experienced when its hallowed One-Click patent was found to be "obvious" and therefore not patentable. The One-Click patent action is on appeal.

My strong suggestion is a very easy one, if you believe that it’s time for Microsoft to put up or shut up: Make your own Linux distro and publish it. If there’s a million distributions on the Internet, then there have to be a million lawsuits. We’ll be either the country with the richest lawyers in the world (arguably, we are now), or we’ll be on the way to more open exposure on the software patent process, and how those legitimately seeking to write and use open code can do so without Damocles’ sword hanging over their heads.

It takes literally less than five minutes for anyone who can use a text editor to make a distribution. Add a line of code into the kernel of your favorite release (pick an easy one, like Ubunto or Fedora Core, if you’d like) that says this:

/* My name is <your name here> and I’m a Linux Distribution Maker. Sue me.

Then publish it; send the info to distrowatch.com. You’ll get no money for it, but you’ll be one of a few million people for Microsoft to sue. Since they’ll be forced to stop making innovative software and spend money on litigation, quality will suffer for a little while. Then it will get better again.

Henderson is principal researcher for ExtremeLabs in Indianapolis. He can be reached at thenderson@extremelabs.com.

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