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.
Since the announcement that Best Buy started carrying the ASUS Eee PC 900A in their stores at a new US$299 price point (down to US$280 just yesterday), I’ve been keeping my eye on the market’s reaction. Whilst researching, I ran across several interesting posts that tie into the “Linux will void my warranty” FUD pattern. Apparently, there have been two concerns over the warranty for this line of netbooks.
The first has to do with a sticker that appeared on the bottom of some units indicating that opening the unit will void the warranty. This is unthinkable – even a simple RAM upgrade, which many folks do immediately upon purchasing an Eee PC, requires opening the access panel on the bottom. Indeed, ASUS agrees and has publically clarified that this is not the case.
The second concern, and one that I find more interesting with respect to the FUD pattern, is that ASUS will only support the default Xandros flavor of Linux. Reportedly, “Asus is not responsible for software misconfiguration, such as troubleshooting an alternative operating system.” It does not state that running another Linux flavor or MS Windows will void the warranty (in fact, the posting makes that explicitly clear), but it does show that ASUS is limited in the service they can provide if the OS is replaced. This is not much different than what HP’s warranty conditions state.
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.
As Microsoft is chided by the media and in the blogosphere about its decision to hire comedian Jerry Seinfeld as the new Vista spokesperson, I ponder just who the Linux community would hire as their representative. Assume for a moment that the community (a) actually had an interest in hiring a celebrity to “sell” the OS in the mass market and (b) could raise the money to pay the bill, who who it be?
Smart alec as I tend to be, the first comedian that comes to mind is Rodney Dangerfield, whose “No Respect” humor may speak to the feelings of current Linux users. There’s one small logistical problem to overcome – Dangerfield died in 2004.
I think I’ve decided that comedians were not the way to go afterall. A more serious actor may work out better.
Ah, Jack Nicholson! Now there’s a prospect! Just think of the taglines. “You can’t handle the truth!” “Where does he get those wonderful toys?” “You make me want to be a better man.” (Ok, not so sure about that last one.)
Well, enough pondering…time to get back to reality. If you have any suggestions, we’d love to hear them.