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.
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.
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.
I’m soooooo glad that the PC Weenies have taken the time to explain the Microsoft commercial! The Shoe Circus is a Mac Store slam and Microsoft’s future is a fried snack.
P.S. You probably know by now that I believe in supporting artists, and revelations like this don’t come along everyday, so please commemorate this occasion by ordering a copy of this cartoon on card stock today!
The new Microsoft commercial featuring Jerry Seinfeld and Bill Gates aired for the first time late last week. I caught it yesterday morning, but was on a treadmill at the gym and couldn’t hear what they were saying, so I had to catch up on YouTube.
I usually try to link some good references for you, but there are just too many articles and ‘blog posts to cite on this one! Most claim that the ad was too expensive for so little content. I agree and would like to add that it was too long…a minute and a half! Throw in some commercial breaks and some yada-yada-yada and you have a full-legnth Seinfeld episode!
I actually got more out of the ad without sound. It appeared that Jerry was going the extra mile to provide good, personal customer service to Bill in the shoe store, explaining in great detail how a particular brand of shoe, the “Conquistador”, is quality-tested for ruggedness. I could see the gears in Bill’s head turning as he absorbed Jerry’s message and pondered how he could reap the benefits of quality-testing at Microsoft. Once I heard the commercial, however, I felt the urge to buy a pair of Conquistidor shoes and was suddenly hungry for a churro. Upgrading my OS or office productivity software was the last thing on my mind.
If subsequent commercials don’t send a clearer message, I may have to start a FUD ‘blog to warn consumers about the fear, uncertainty and doubt campaign Microsoft is waging against itself. You know, just to be fair, right?
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.