Linux violates patents

“There was a report out this summer by an open source group that highlighted that Linux violates over 228 patents….So the licensing costs are less clear than people think today.”

That’s Microsoft CEO Steve Ballmer doing his level best to scare the bejesus out of corporate buyers who might think Linux looks good.

Of course, Microsoft upped the ante a few weeks ago by expanding its intellectual property indemnification program in an obvious attempt to appeal to customer paranoia and to a greater or lesser extent it will work.

But how big is the risk from open source software? As with much of Microsoft’s spin these days, Ballmer was being, shall we say, “economical with the truth.” The report he was referring to came from a consultancy named Open Source Risk Management (OSRM).

Now you might assume that OSRM is somehow on Microsoft’s side in the open source vs. proprietary software argument, but nothing could be further from the truth.

OSRM describes its mission as being based on a vision “of a world ‘made safe for open source’ – a world in which the unique freedoms and efficiencies of the open source software development model are fully protected through comprehensive, low-cost vendor-neutral open source protection available to end users, developers and vendors.”

So how did Ballmer make fast and loose with OSRM’s findings? Here’s what the report actually says: “While patents certainly do not spell doom for royalty-free distribution of Linux; there is a level of patent infringement risk that Linux users and developers should be mindful of and prepared to address.”

OK, a little disheartening but stick with me here: “More specifically, the study found that not a single software patent fully reviewed and validated by the courts is infringed by the Linux kernel.” Ah-ha!

The report carries on: “Yet, the study also determined that 283 software patents not yet reviewed by the courts could potentially be used to support claims of infringement against Linux. To be clear, this is not a level of potential infringement greater than that of proprietary software; comparable proprietary software faces the same level of potential infringement.”

In other words, Windows is at least open to as much of a challenge over its intellectual property as Linux is. The OSRM report’s author, Dan Ravicher, quoted in Linux Today, pointed out that “not a single open source software program has ever been sued for patent infringement, much less be found to infringe. On the contrary, proprietary software, like Windows, is sued and found guilty of patent infringement quite frequently.”

Ravicher also pointed out that the number of untested patents that Linux violates “is so average as to be boring; almost any piece of software potentially infringes at least that many patents.” But what we have here is a bigger issue than Microsoft’s spin or the risk of end-user liability from using open source. That issue is the dampening effect that market uncertainty causes and the expensive and ugly legal mess that intellectual property suits cause.

The only winners in these cases are lawyers and occasionally one of the flotilla of intellectual property aggregators – the companies that acquire the property to shakedown product manufacturers.

Two things need to happen. First, we need the laws changed to make software patents less easily abused. Second, we need Microsoft to stop with the incessant spin doctoring. Enough is enough, Steve!

I believe there is a chance for the first thing to happen. There’s a lot of pressure from U.S. developers and from the European Union to create a more rational patent system. As for the second, I hold out very little hope.

Pipe dreams to