It seems Microsoft are at it again. More software patent threats. Yadda yadda yadda. I have an odd relationship with Microsoft – on one side I know, respect and get on well with a number of people who work there, and I have been invited to their Redmond and Reading campuses and liaised with them about Open Source issues. On one side they are doing great work, listening to customers, and creating compelling products. But, then they go and resort to FUD tactics…again. One (unnamed) Microsoft employee once told me that most of the people on the ground, doing development out with customers really do get-it but Microsoft have suffered from a disconnected management clique. I am beginning to see where this person is coming from.

So here were are with another beautifully crafted shitstorm. Should we worry? Well, I am by no means a lawyer, and I only have an approximate grasp of the different issues involved, but I think the risk is minimal for a number of reasons. To save writing swathes of text, I am going to bang through the reasons why we should not worry too much about Microsoft’s noise, all presented in bullet time:

  • The software patents system is on shaky ground – the software patents system has already faced issues in terms of enforcing patents effectively, and recently the Supreme Court stated in a unanimous opinion that patents have been issued too readily for the past two decades, and lots are probably invalid. Lets also not forget that software patents are only enforceable in some countries.
  • SCO case – Microsoft must be looking at the SCO case and making notes. The SCO case has worked out rather bad for SCO with a delisting and the company facing rough waters. Irrespective of the confidence in SCO’s argument, it cannot be denied that the case has brutalised SCO’s business.
  • Microsoft will not want to piss off partners – it is estimated that half of the companies in the Fortune 500 have Linux running in their data-centers. Linux is rallying its way through the corporate world, and many of these companies will not only have agreements with Linux vendors but also with Microsoft. If Microsoft are going bring a legal case against Linux, they are going to cause problems for existing partners. I believe that the value of partners will outweigh this.
  • Free software users are essentially un-traceable – how many free software users are there? Anyone with even half a clue knows that this is an impossible question to answer – the nature of free software means that we cannot track who is using it; it can be freely copied and re-distributed. As such, there is no effective method of contacting people and hammering them for potential license fees or payment. Sure, Microsoft could target large scale companies, but the cost of the case needs to be covered by the potential revenue it could bring in – the Linux distributors are unlikely to cover a huge amount in damages, so a successful win needs to ensure that a revenue stream is created.
  • Linux has big-business behind it – I am not going to reel off a list of companies, but a number of large organisations have a vested interest in Linux, and these companies are ploughing in huge amounts of money and investment into Linux-based products. These companies will be as keen to protect their own business interests as Microsoft are.
  • Could they actually win? – I have not even covered the potential of them winning and whether they have a solid legal argument. Every case needs to have the right balance of circumstances to make it happen, and I have been merely looking at the issues around the edge of the core case. If they have a somewhat ropey case, it makes things even more uncertain for Microsoft.

Let us also not forget that Microsoft are a convicted monopolist. Microsoft have already been through the legal machine and come out with burned fingers. Any large-scale legal assault will need to be carefully considered, and if they are going to step into the fire again, they need to have a pretty strong case, and I would guess that many of the above issues are going to stand in the way of such a case.

Three or four years ago I would have worried about such a threat, but these days I am less worried as I think the Linux machine has built to such a point where it is a serious industry force that will take more than one company to derail. Sure, its complacency, and sure, we should never rest on our laurels and indeed continue to fight against software patents, but I am not exactly loosing sleep over this.

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