At the Microsoft's Asian Government Leaders Forum in Singapore, Microsoft chief executive Steve Ballmer said that Linux violates more than 228 patents and that companies will be at risk of legal action if they use Linux, according to Reuters.
"Someday, for all countries that are entering the WTO [World Trade Organisation], somebody will come and look for money owing to the rights for that intellectual property," said Ballmer, according to the Reuters report.
A Microsoft spokesperson said that in the presentation Ballmer had merely passed on the information from a study carried out by a pro-Linux third party.
"The reporter got it wrong. This was not a Microsoft report nor is this a Microsoft 'warning'," said the spokesperson. "Steve [Ballmer] was referring to a study done by the Linux community group Open Source Risk Management (OSRM), a pro-free and open-source software organisation."
But Dan Ravicher, the author of the OSRM study and the executive director of the Public Patent Foundation, criticised Microsoft for using soundbites from the report.
"Balmer makes a very bold statement by saying 'Linux infringes X patents', which is much different than saying 'Linux potentially infringes X patents', as the requirement to prove infringement is much stiffer and more difficult than the requirement to simply file a case claiming infringement," said Ravicher. "As the SCO saga shows, filing a case based on an allegation is one thing, proving the merits of the allegation in court is something completely different."
Ravicher added that he feels Microsoft's customers are more at risk of being sued for patent infringement than those who use open-source.
"Not a single open-source software program has ever been sued for patent infringement, much less be found to infringe, while proprietary software, like Windows, is sued and found guilty of patent infringement quite frequently," said Ravicher.
"For examples, we have Eolas' patent being infringed by Windows and Kodak's patent being infringed by Java. If one believes the proof is in the pudding, that stark contrast shows how open-source software has much less to worry about from patents than proprietary software."
The Microsoft spokesperson was unable to confirm that Ballmer said that Linux does infringe patents and companies will be at risk of lawsuit, but said that it could infringe patents.
"According to its 2 August announcement, OSRM states that Linux could be in violation of 283 patents and, as such, could expose customers to undetermined licensing costs," said the spokesperson.
Ravicher claimed that Microsoft's decision to back down on its initial statement is simply a marketing tactic.
"Saying something one day that is fearful and scaremongering, and then backtracking is Microsoft's tried and tested PR tactic," said Ravicher. "As they said it the first time people believe it. It's a psychology trick."
Talkback
"Ravicher added that he feels Microsoft's customers are more at risk of being sued for patent infringement than those who use open-source."
That is a wrong feeling because Microsoft gives them unlimited indeminifcation and so any MS customer sued for a MS product will have the full legal capacitiy of Microsoft at hand.
"Not a single open-source software program has ever been sued for patent infringement, much less be found to infringe, while proprietary software, like Windows, is sued and found guilty of patent infringement quite frequently," said Ravicher.
The software is never sued, only companies can be sued. And that there was no court case so far does not mean that there has been no litigation or that no developer was threatened because of possible patent infringement. Just to cite one, the Author of the VirtualDub Software was threatened by Microsoft to remove the reverse-engineered ability for read Microsoft .asf files directly.
Also, as long as open source companies are small, the probility that one of them is willing to go to court in defense it low. It's more likely that small open source companies will try to find another way to get rid of the problem, so there will not be much public info on that.
Don't fall for FUD.
"That is a wrong feeling because Microsoft gives them unlimited indeminifcation and so any MS customer sued for a MS product will have the full legal capacitiy of Microsoft at hand."
Do read the very fine print involved before saying that again. There's a world of difference between what Microsoft says and what it actually does in the end. As history has shown time and time again.
"The software is never sued, only companies can be sued. And that there was no court case so far does not mean that there has been no litigation or that no developer was threatened because of possible patent infringement. Just to cite one, the Author of the VirtualDub Software was threatened by Microsoft to remove the reverse-engineered ability for read Microsoft .asf files directly."
Microsoft does not need patents or even laws to threaten (or destroy) people or companies. Also something history has proven time and time again. You may also recall that Microsoft has been convicted of abusing their monopolistic powers more then once. One more reason to get rid of software patents.
"Also, as long as open source companies are small, the probility that one of them is willing to go to court in defense it low. It's more likely that small open source companies will try to find another way to get rid of the problem, so there will not be much public info on that."
Last time I checked companies like IBM, Novell and HP aren't considered to be small. Also, various pro Open Source organization have said that they will counterstrike any company trying to use patents to stop Open Source. Mutual Assured Destruction, if you will. Yes, MAD.
But indeed, it's more then likely that Open Source programmers will find ways to work around a problem rather then wasting too much time and effort on keeping things non flexibel. That's not to say how various companies with invested interests will react. As such the whole software patent thing is something like a small group of dealers starting a war because they happen to deal in arms. Never mind the victims.