Linux FUD Pattern #9: Microsoft will sue you if you use Linux
Warning! Using Linux will expose you to legal action by Microsoft! At least that’s what some would like for you to believe. Many months of news articles have focused on this issue, which is why it is on my Top 10 List of Linux FUD Patterns. Users beware!
I’ll See You In Court!
Nothing instills fear like a lawsuit, and nothing prevents Microsoft from filing one against Linux contributors, distributors and users. The fact is, in the United States, you can file a civil suit against anyone for just about anything. Of course, court cases must have some basis in reality or they will never see a day court and there is also the risk of the plaintiff being counter-sued for bringing a frivolous lawsuit.
The legal threat posed by Microsoft is not so open-ended. Barring specific actions such as breach of contract, the legal issue that worries (potential) Linux users the most is patent infringement. This isn’t your run-of-the-mill negligence case either, this is a Federal offense.
Patent law is codified in Title 35 of the United States Code. §271(a) begins by setting a broad scope of application for infringement: making, using, offering or selling a patented invention without authority. That pretty much covers all contributing programmers, users and both commercial and non-profit distributors.
Of course, there are conditions that nullify the infringement claim. The most obvious and most important is Prior Art, also known as novelty. §100-§105 describe the patentability of inventions and §102 specifies some of the conditions under which a patent is not valid including prior use of an invention by another party. Also, a defendant named in an infringement case may be able to prove that he is actually an “earlier inventor” of a method as described in §273(b), which renders the patent unenforcible against that defendant.
Microsoft vs. Linux
Microsoft has claimed that Linux violates approximately 235 patents. The company has reportedly “chosen” to not sue, and the rationale for this choice has been the topic of much speculation. Microsoft has not revealed the details of the violations, including the identifying numbers of the violated patents.
Lack of merit in the claim is probably the reason most people believe Microsoft has not filed – in other words, Microsoft is bluffing. Perhaps Microsoft knows that the patents are not enforcible for one reason or another, but it also knows fully that it retains power derived from fear so long as it can make threats that sound credible. If the claim does lack merit, that power would diminish rapidly once a case is brought against the first defendant. Either the patents would be found to be unenforcible (e.g. prior art would be proven), or legal action against one defendant would prompt the Linux community as a whole to adapt quickly. Details of the suit would provide the vital information required to ensure that Linux complies with all patents going forward.
Besides using fear as a way to dissuade conversion to Linux or to encourage conversion away from it, another possible strategy might be to besiege Linux. By presenting a constant threat and keeping the Linux Community guessing, Microsoft may be trying to drain the time and other resources of the Linux community. Court cost aside, doing patent research and verifying that no rights were violated takes time and can be expensive. Also, Linux developers may spin their wheels fixing problems that might not actually exist, giving Microsoft more time to improve competitive features on its own OS.
Even if no action is planned, Microsoft cannot allow itself to gain a reputation for not defending its own patents. I have heard in the past that a failure to defend a patent may be considered abandonment or an implied license, but I cannot find any information in the legal literature to support this claim. Some may be confusing patents with trademarks in this regard – failure to use or defend a trademark against infringement may result in the loss of trademark registration. Nonetheless, it would not behoove Microsoft strategically to allow the abuse of legitimate patents.
Don’t Worry, Use Linux
Here are some good reasons why Linux users should not worry too much about being sued.
Cost-Benefit. The decision for a company to file suit is ultimately a business decision, which means that the benefits of any legal action would have to outweigh the costs. Lawsuits are not cheap and the payoff for suing individuals for a few hundred dollars each for lost profits would probably not be worth the trouble. Defendants must be named, which means Microsoft would have to specifically identify Linux users, requiring a lot of paid hours of research.
Damage to brand. Suing those who you wish to be your customers is probably a very bad idea. Not only does it alienate those being sued, but it looks very bad in the eyes of other customers. Ultimately, it might cost Microsoft more in lost profits than what it was able to recover through lawsuits. Apple, IBM and Sun on the other hand, may be very happy with this outcome indeed!
Prior art. As mentioned above, the use of an invention prior to the grant of patent exempts the defendant. Much of Linux is based on other Unix variants and I’m certain the code looks very similar. DOS appeared on the scene in 1980-1981 and Windows became available for the first time around 1985. The first Unix was written in 1969. Don’t forget that Microsoft did release an x86 Unix variant called Xenix in the 1970s and 1980s, but eventually sold the rights to this OS to the ne’er-do-well SCO Group.
Of course, contributors and distributors are much easier targets on all of these points, but if it were just that easy, I’d think we’d have seen some major court action by now.