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.
There has been a lot of buzz around the recent post by Brandon LeBlanc, Microsoft employee, who has claimed that Microsoft has dominated the Netbook market. Thankfully, Chris Kenyon of Canonical Steven J. Vaughan-Nichols of ComputerWorld and others have helped to expose the FUD here.
Since this has become such a hot topic, I thought I’d add my two cents regarding Netbooks in general. They are affordable, low-powered and highly-portable computers that are good for simple tasks such as writing e-mail and documents and surfing the Web. I’ve done a substantial amount of reading on Netbooks over the past year, and while many folks have high hopes for their Netbooks, most of the product reviews state very plainly that these are not good replacements for desktops and laptops. I’ve also played with the various models available in stores and I cannot imagine attempting to design and write even a moderately-sized application using such small keys and screens. (Of course, I’m a bit spoiled with two 19″ LCDs in front of me at work all day long, each providing 1280 X 1024 of on-screen real estate.)
Based on the assumption that simple tasks are indeed the focus, I find myself questioning why the default interface on, say, the Eee PC is found to be so insufficient by so many people. To me, the simple interface is part of the netbook’s charm. I guess it boils down to personal preference and what you want the machine to do for you. Maybe most people don’t do simple things anymore. Maybe the computer-literati have finally succumbed to unhealthy levels of multitasking, possibly resulting in cases of chronic distraction. Maybe, in the future, the finger movements associated with the Control-Tab motion will become an innate reflex.
I was cleaning out some old e-mails this morning when I came across a link to an article I had saved last November. Katherine Noyes of LinuxInsider reported the release of 64-bit Adobe Flash for Linux. In her article, she cites a post by blogger Julian Saraceni titled “Stop pirating Adobe Software, Use Free Software Instead”. Both are quick reads and I recommend them.
Commercial software can be expensive, but in my experience, the old adage “you get what you pay for” holds true more often than not. As you might expect me to say, the price of software is driven not only by what people want to pay, but also by what authors are willing to charge. The cost of developing, testing and maintaining software must be recouped and an adequate profit margin added on top of that to keep software companies interested. That’s an economic reality.
Many people feel that software prices in general are unreasonably high. I’ve found that the justification for this belief is usually relative to the specific person’s financial situation at the time, but in many cases I agree that software is overpriced with respect to what you get for your money. Really good software is worth every penny. The perception that software prices are not fair is one of the main reasons people commit piracy.
Piracy does have serious, far-reaching consequences. The most direct economic effect is felt by the authors and sellers, but economic imbalance has a way of rippling through an entire economy, through the product and labor markets in many sectors – the problem is not isolated. As piracy becomes more acceptable, a skewed sense of property rights develops. Society’s standards change and the peoples’ sense of right and wrong dulls. Theft, of which piracy is just one type, is more easily justified and thus, committed more frequently and even casually. Respect for the rights of others, and therefore respect for others themselves, is abandoned and the social contract decays.
OK, I’ll get off my soapbox now. Where’s the FUD? “Everyone” knows that the Linux community was started by a “bunch of hackers” and the negative connotation that accompanies that statement is well-understood. “You Linux people want everything for free!” This perception unjustly deposits the Linux community in the same class as pirates. I occasionally come across the accusation that Linux egregiously promotes piracy, though this is most often made in the context of copyright violations in the entertainment industry.
The truth is, (intellectually) Free Software is available to those who disagree with the concept and/or laws of intellectual property. Usually, Free Software is also (gratis) free or low-cost software, because intellectual protection is often what permits software price gouging. The authors are usually the first users of a Free software package, so overall quality is generally higher than one might expect. As expressed in the articles above, the availability of Free Software should reduce or eliminate the perceived “need” for piracy. Free Software is not limited to the Linux platform, but the Linux community supports and fosters this mentality explicitly.
Perhaps we can solve the problem of piracy at the root. (pun intended)
Linux FUD Pattern #8: Linux will void your warranty
Will the use of Linux void the manufacturer’s warranty of your computer hardware? This is one fear that prevents some people from making the leap to Linux, which is why it is on my Top 10 List of Linux FUD Patterns. The short answer is, it depends; however, there are steps that you can take to increase your probability of receiving service under a warranty.
What Is A Warranty?
A warranty is a seller’s obligation to provide a remedy when a product fails to meet the conditions of the warranty. The conditions and the remedies are specific to the warranty for a product, though some warranties are legally implied and need not be explicitly expressed. The Federal Trade Commisison provides a very informative page describing warranties.
Conditions under which a buyer may exercise the right to receive a remedy usually concern attributes of product quality. Express warranties are an incentive to the buyer, because it shows that the seller is willing to stand behind its products and protect the consumer from unintended defects that arise during manufacturing or during normal use. The definition of normal (or “intended”) use may be specified in the conditions.
In the United States, Article 2 of the Uniform Commercial Code governs warranties, both express and implied. Sellers are legally limited in the extent to which they can disclaim warranties. Specific statutes are established at the state level. Moreover, the Magnuson-Moss Act of 1975 was enacted to make warranties more readily understood, but its application is limited to consumer (read: household) products.
Why Not Honor Warranty Claims?
Why would a company not want to honor a claim made against its product warranty? In a word: cost.
Warranties are considered to be contingent liabilities for financial accounting purposes. At the time of sale, a reasonable estimate of warranty costs can often be made. This also means that until the costs either are realized (e.g. warranty work is performed) or expire (e.g. at the end of the warranty period), the obligation to replace or repair the product in question impacts the financial health of the seller or manufacturer. Depending on the product, such obligations can be significant. Financially, expiration is much better than realization because it does not impact cash.
Moreover, the cost of troubleshooting and repairing a system with a nonstandard OS installed is higher than that for a standard configuration because time must be spent either learning to work within the unfamiliar operating environment or time is spent working around that environment. It’s also much easier to determine when a problem is not a result of manufacturing or normal use when the technician is working within a known environment as it has been (pre)installed by the seller. If you replaced the software used by your automobile’s internal computer with a variety of your own, do you really think a dealership or even an independent mechanic is prepared (much less willing) to assist?
What’s worse, if a component of a product that provides some sort of control over the use of the product for the purpose of maintaining or extending its useful life, then the replacement or modification of that component may cause hard to the product as a whole. This is obviously not a manufacturing defect and is unlikely to be considered “normal use”. The extent to which an OS fits this description depends on what functions the OS provides (e.g. teperature control).
Read Your Warranty!
Ultimately, the answer to the question lies in the language of the warranty itself. A statement of warranty is a legal document and the one shipped with your new PC was probably written with or by a lawyer. The specific conditions and remedies are contained therein. READ YOUR WARRANTY! This will be the primary source of coverage information should you decide to take a dishonored claim to the courts. If it is that important to you, read the warranty before you buy the computer and only buy a computer with a favorable warranty.
Rest assured, the company will probably steer clear of violations of implied warranty, which means that they will probably not refuse to replace items that pose grave safety hazards, such as exploding laptop batteries. Dealing with your non-standard OS is much less costly than a court settlement with your home insurance company or your estate. A motherboard or power supply that stops working altogether is not a grave safety issue and claims regarding these issues are subject to more scrutiny.
HP Case Study
An exegesis of each and every warranty provided by every PC manufacturer over time is far beyond what I can do here. But, since a Web search for ‘Linux’ and ‘warranty’ readily retrieves stories about Hewlett-Packard, and since my family has two HP laptops in the household currently, I decided to do a little research on their warranty specifically. Here’s what I found, followed by an account of my own experience with HP support.
The HP warranty is published online, so rather than quote what is on my warranty card, I thought it might be more useful for the reader to have access to the warranty disclosed publically. In the first paragraph of the “Limited Warranty” section, the application of the warranty conditions is expressly limited to hardware products and specifically excludes software and non-branded peripherals. The section continues to explain the HP guarantee, the customer’s entitlement to receive hardware warranty service, and the conditions for repair or replacement.
The “Software Limited Warranty” section near the bottom of the warranty page explains that HP’s obligations are limited to defects in the removable media (i.e. floppies, CDs, DVDs, etc.) shipped with the product, and then, for only a period of 90 days. Of course, the chance that an average PC customer is actually going to use the recovery or installation CDs for a preloaded PC within 90 days, especially for the express purpose of testing the media for defects, is pretty remote – good thing the expectations weren’t set too high for software.
That section also explicitly disclaims support for “freeware operating systems and applications.” Yes, Linux is Open Source and not freeware, but then, the actual verbiage of the paragraph refers to “software provided under public license by third parties” and that would include an aftermarket installation of any GPL software.
So far, so good. Hardware is supported and software isn’t. Uh oh…
There is a possible out for HP in the “Customer Responsibilities” section. For “best possible support”, the customer must be able to “run HP diagnostics and utilities” and even allow HP to monitor using “system and network diagnosis and maintenance tools”. No doubt, these are compiled for Windows only. “I’m sorry, we cannot fix a problem that we cannot diagnose. Good bye.”
This doesn’t mean that HP will not support you, but it does provide them with a logical and reasonable excuse not to do so. Indeed, HP reportedly clarified in early 2007 that the installation of Linux does not affect the warranty of the hardware so long as the software is not the cause of the problem being fixed.
Here is a case in point. In recent months, HP issued a recall of specific models of the Pavilion laptop due to a BIOS problem. As I understand it, the problem had something to do with the computer’s ability to regulate temperature, so units would overheat. Battery problems and other component failures were extreme symptoms. My wife’s laptop was one of the models listed, so I called tech support to schedule a repair. During the course of the conversation, I told the representative that I would remove the hard drive prior to shipment, primarily because it contained sensitive data (which was true). I also mentioned that Linux was installed and that the hard drive would be of little value in the repair process. The rep said that removal of the hard drive was acceptable. The unit was fixed and returned without incident.
How To Protect Your Warranty
Based on my experience and research, here are a few things that you can do to help ensure warranty service:
Troubleshoot the problem. If you are tech-savvy enough to run Linux, you probably know a thing or two about computers. Troubleshooting problems is a science, not an art, and the more you isolate the problem to a specific component, the more leverage you have with the warranty organization.
Buy a second hard drive. The only evidence of a Linux install is on the hard disk (unless you’ve replaced the Windows case badge with a Linux one, of course). When you buy a new PC, set up the preinstalled system, register it, remove the hard drive and store it in a safe place should you need to run vendor-supplied diagnostics. Buy and install a second hard drive for your Linux install and go to town!
Retain possession of your hard drive. Do what I did and tell them that you will be sending the unit in for repair sans hard drive. Data security is a big deal, even more so if the data in question is your employer’s data! Besides, the worthy repair facilities have their own diagnosis disks to use in lieu of a customer’s drive. You need not mention Linux at all. Of course, you cannot expect them the repair or replace a hard drive if you do not furnish the broken one.
Play it safe. Do not use software or perform other system tweeks that have the potential to harm hardware if you want the warranty honored. It is very unlikely that a standard Linux distro will cause such harm, but Linux does provide much more software access to hardware components than do other consumer operating systems. You may be surprised how easy it can be for the experts to determine how a component burnt out and the probable reasons as to why.
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This article contains information on warranties, but does not contain legal advice. Opinions expressed herein belong solely to the author. If you have a warranty issue that may necessitate legal action, please contact a lawyer.
Yesterday, David Williams posted on ITWire’s Linux Distillery an article about how Linux is keeping Microsoft honest. The real meat begins with a discussion about Windows PowerShell, Microsoft’s newest scripting language. ‘New’ is a relative term, as Williams points out that the scripting concept is not only a very old one, but that the punch cards of computer lore could be considered the first form of scripting. Williams points out that the Windows trend of ‘dumbing it down’, creating GUI tools to replace thousands of keystrokes, may be reversing. The focus of PowerShell, a CLI, is to replace thousands of mouse clicks with scripts. Williams continues with the revelation that PowerShell is becoming ‘entrenched’ in Microsoft’s server offerings, including a headless, GUI-less mode for Windows Server 2008. He attributes this shift in design philosophy to Linux.
I think this is great news for Windows, because as systems grow, especially online offerings, effective system management depends on efficiency. Ultimately, this means automating as many maintenance functions as possible. With Linux and other *nix platforms, this has never been a problem, but the Windows CLI has been fading into obscurity for many years now. The DOS shell sat right on top of the kernel, but beginning with NT, the ‘command prompt’ became just another application that had to operate through various other layers, such as the oppressive NT HAL, diminishing its power. Moreover, the range of CLI utilities remained unimpressive. Thankfully, products such as MKS Toolkit, Cygwin and Sourceforge’s UnxUtils have helped to fill that gap.
Let’s not forget that the CLI is useful for far more than executing OS-related functions. In my experience, all the best software applications offer a CLI interface. I implement systems that help IT managers manage the activities of their staffs, including helpdesk and other customer issue management suites, source code control and software media distribution centers, and project/programme management repositories. I always look for software that provides a Unix release, even if the target platform is Windows. Why? Unix-based applications almost always include a CLI which is almost always ported to the Windows release if one exists. Not only is the CLI of great use to me from a user’s and administrator’s perspective, but I know that the existence of a CLI usually indicates that the software has tested more thoroughly. If an application has been designed well, then the CLI functions call the same underlying subroutines as their GUI counterparts – this allows the vendor to easily write (and more importantly, to execute) scripts for regression and load testing. Nightly smoke tests of new builds are possible without the maintenance of complex GUI-based test harnesses. Don’t misread me – the GUI must be tested, just not to the same extent as when the GUI is the only interface available.
Where’s the FUD? For years, Windows zealots have denounced Linux for being arcane, hard-to-use, and backward. Heavy reliance on the CLI for administration was cited as a failure to progress (through obstinacy, ignorance or both). Now, it appears that Microsoft is admitting that a powerful shell is indeed useful, forcing its fanboys to dine on crow tartare.
The return of a powerful shell is a step in the right direction for Windows! Is this really due to Linux? I wouldn’t be surprised.
Linux FUD Pattern #7: Linux software is always behind the curve
For those in the United States, I wish many happy returns to you on this Tax Day, April 15th, 2008. I finished compiling my tax return about a week ago…on paper. It’s not all that painful, really, and I actually prefer doing it on paper. I’ve tried tax software in the past, but going through the motions of reading the rules each year to see what’s changed and performing the calculations by hand give me a sense of control over what I am reporting and more confidence in the results. I do not do it as some form of corporal mortification nor does it have anything to do with the lack of tax software for Linux…ah, and that last point is a great segway into the next item on my Top 10 List, Linux software is always behind the curve.
The lack of personal tax software, like the lack of commercial games, is sometimes cited as a clear indication that Linux is not yet ready for ‘prime time’. To be honest, I haven’t the foggiest idea as to why this is such a ‘tell-tale’ sign. I mean, look at what is being asked for. Given the relative number of Linux users out there, writers of commercial tax software are unwilling to incur the costs of writing, testing, packaging and shipping their programs to office-supply stores nationwide – the demand is just too low.
An Open Source alternative is possible, but there are several reasons why this will probably not occur. First, programmers are usually not tax lawyers, and tax lawyers aren’t cheap. Second, U.S. tax laws are not like the laws of physics – they change every year and can involve unintuitive calculations. Third – and this is directly related to the previous two – if you get it wrong and cause other people to lose money, it is likely that these people will be very upset with you and they may do bad things to you – the risk is just too high.
I’ve considered writing a basic tax-prep script in Perl, not for distribution but for my own use. However, I figure that the time spent on the initial version alone would far exceed the amount of time I’d spend doing my taxes by hand from now until retirement age. There’s really no payoff.
Regarding Everything Else…
The perception that Linux is behind the times, always playing catch-up, spawns from the fact that the development of Linux as a mainstream desktop environment has been, by and large, reactionary. Open Source programmers have spent the last decade or so making sure that the average user has a nice user interface, a productivity suite, a feature-rich art program, a powerful web browser, wireless networking, digital camera connectivity, and at least a couple of games – in other words, nothing new. Is this really a surprise? After all, many people have developed many programs for other operating systems for many years. Linux is young by comparison and there have been plenty of growing pains in its childhood. Moreover, if developers don’t address these basic needs first, it won’t matter what awesome software they do develop, people won’t want to use the platform.
So where is the proactivity? For a start, there are the distros. The emphasis has shifted in the last few years from providing the distro with the most to providing the distro with the least. Trends in PC recycling and ultra-small and/or ultra-cheap hardware show that small footprint is in. Live CDs, Linux on a (USB) stick, virtualization and embedded systems are also hot areas of development. All of these efforts share a common goal: proving that Linux is effective in a variety of situations, that it is not a one-size-fits-all solution. Flexibility is good. And don’t forget about non-desktop applications, such as clustering, and the use of Linux in process-intensive scientific research and graphics-rendering.
Finally, I’ll mention another hot topic, media formats. Linux always seems to lag in this department. The primary reason is that most of these formats are proprietary, and the format designers do not have an incentive to open the specifications; indeed, there is a much stronger incentive not to open them. This is a very complicated topic which I would like to explore in more detail in the future, so stay tuned.
Show Me The FUD!
Where’s the FUD in all this? Obviously, there is some truth to this perception, no? Until Open Source developers use the Linux platform to completely change the way people approach a problem or to provide a solution to a problem never solved before, the perception will not (and logically should not) change.
On the flip side, I think that the “behind-the-curve” card is grossly overplayed. Sometimes, the FUDster doesn’t realize or completely ignores the existence of viable Open Source alternatives that bridge the alleged “gaps”. This may show up in print but more often occurs in online articles when there is either no reader commentary allowed or the author is hoping for a good flame war to help increase readership.
In some cases, the “gaps” are warranted, such as when a given function is becoming obsolete or is not demanded from the start, yet the gaps are exploited to spread fear and uncertainty. For example, a FUDster could cite a lack of virus protection as a Linux weakness and the uninformed masses could accept it as reality despite the true demand for virus protection on Linux. The impact need not be direct either. The lack of tax-prep software may cause some to question the usefulness of Linux as an “everyday” desktop environment, even if they do not purchase such software themselves. And, for the sake of asking, do we really need to reinvent every wheel? Some software concepts were bad to begin with, but do we really want to perpetuate them?
Linux is behind in some areas and ahead in others. That’s life. Before you are convinced that Linux is completely useless just because it can’t replicate something (like your paper tax forms), determine why the gap exists and if that gap is really a problem. As always, be suspicious of generalizations and do your homework!
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