Microsoft is resorting to a Cold War on Open Source and Linux, using fear and uncertainty as it primary weapons — even as key blogs within the organization are telling developers not to worry and be happy. According to Mary Jo Foley in All About Microsoft, Microsoft’s public relations agency began circulating the patent infringement story among the press on May 14, timing it with the release of a Fortune magazine interview with Microsoft’s head top lawyer Brad Smith. In the article, Smith alleges that the Linux kernel violates 42 Microsoft patents, while its user interface and other design elements infringe on a further 65. OpenOffice.org is accused of infringing 45, along with 83 more in other free and open-source programs. News stories like this one from CNET News.com fanned the flames of fear, uncertainty, and doubt (FUD).

What’s happening is really of no concern to users who buy computers, though it may concern large companies that customize Open Source software for their own use. Microsoft is using this threat to bring Open Source developers and Linux suppliers — and their large clients — to the bargaining table to pay licenses. The large clients have no political reasons to fight and will pay up to avoid costly legal bills.

Show Me the Patents!

Microsoft’s patents should be challenged, because many of them are probably suspect. Microsoft is not known for innovation but for adapting other inventions into products (such as the Windows interface). The only patents that might carry weight would be in the realm of Microsoft Office, especially Word and Excel, which were developed a long time ago by Microsoft; yet even Excel is based on Lotus 1-2-3. Check out Mike Masnick’s analysis in Overhype, “Microsoft’s Claims About Linux Patent Infringement Are Old News And Old FUD“:

…this really is all meaningless unless Microsoft actually is willing to point out the 235 patents, say where they believe the infringement occurs and is willing to defend itself in court and at the Patent Office on those points. So far, we haven’t seen that. Perhaps that’s because Microsoft recognizes how badly that would backfire. If there ever were a high profile case that might get the Supreme Court’s attention on whether or not software patents are legal, Microsoft trying to knock down the success of Linux seems like just such a case. [Emphasis mine.]

But these patents probably won’t be challenged in court, because Microsoft does not want a public legal fight. With its monopoly on operating systems, Microsoft can’t afford the bad publicity of opening a can of worms with the Justice Department over whether or not the company is using patent laws to maintain or expand that monopoly — which would likely violate antitrust laws. Besides, Microsoft does not want these patents studied, disputed, or worked-around. It is likely that of the 235 patents, half are vague enough to be disputed. U.S. patent laws allow for time to rectify errors or transgressions (assuming they weren’t knowingly committed), and the Open Source community would probably jump on the opportunity to devise work-arounds for the rest of so-called infringements. That would leave Microsoft with a dwindling supply of patent infringements to claim. Microsoft would rather keep the Open Source community muttering underneath its breath, and reveal nothing.

So no, Microsoft really doesn’t want to make each patent infringement a federal case. Even the claims are not new, except perhaps to Fortune magazine, which is pretending that Microsoft is making the claim now for the first time to drum up publicity (and of course the story is all over the blogosphere as a result). So why do it? It turns out that Microsoft’s campaign falls right in line with its past efforts to scare people out of using Open Source software and in particular Linux.

Remember the SCO

We all should remember the Santa Cruz Operation (SCO) story — the company that couldn’t kill Linux with lawyers (although the SCO fight is still not over). Once a fun-loving group of programmers in Santa Cruz, Calif., the original SCO epitomized the image of a company run by long-haired, bearded hackers rooted in counterculture values — and more inclined to use Elmer Fudd as a marketing tool than FUD (fear, uncertainty, and doubt). Alas, by 1995, the market for Unix had dwindled, and Novell, which had bought the Unix source code from AT&T, sold its Unix business to SCO. As the original SCO programmers faded back into the labyrinth of nearby Silicon Valley or moved to other companies, SCO was taken over by lawyers who had probably never seen the beach at Santa Cruz. The mission of what is called The SCO Group is as remote from Santa Cruz culture as you could imagine. The company exists to sue anyone who uses Linux or develops products or solutions using Linux.

Microsoft knows a good disruptive effect when it sees one, so it jumped on this bandwagon and helped ensure that SCO could mount this fight by providing major financial help. In early 2003, Microsoft started paying SCO what eventually grew to $16.6 million for a Unix license, according to regulatory filings. Microsoft provided a second, though indirect, boost later in 2003 when it referred SCO to BayStar Capital, a fund that arranged a $50 million investment. The two moves demonstrate Microsoft’s ulterior motive — after all, why would Microsoft want to help prop up a company that is demanding millions in royalty fees from it? “Microsoft obviously has an interest in this,” Larry Goldfarb of BayStar Capital told CNET in 2004, “and their interest is obviously in keeping their operating system on top.” While SCO’s plan to raise revenue from licensing largely failed, the company succeeded in spreading clouds of doubt over Linux, even though a Michigan judge threw out all of SCO’s claims against DaimlerChrysler, and SCO’s lawsuit against Novell was dismissed. But large customers such as General Motors started demanding indemnification from any lawsuits concerning the origins of Linux. As a result, companies that distribute Linux, including industry leader Red Hat, now routinely indemnify their customers.

Undermining the GPL

So, FUD works… for a while. Microsoft is simply at it again, and the timing has a lot to do with the impending release of Version 3 of the Free Software Foundation’s General Public License (GPL). So says Mary Jo Foley in “GPLv3 the impetus for Microsoft’s latest Linux attack campaign” (ZDnet’s All About Microsoft). “The company’s latest decision to go public with claimed patent infringement numbers and other inflammatory statements, to me, shows Microsoft must think the GPL v3 has teeth.”

And as the Fortune article noted, the GPL v3’s provisions regarding the Microsoft-Novell deal suggest that Microsoft itself could be considered a “Linux distributor,” and thus beholden to the GPL v3 terms. And even if that doesn’t happen, under the GPL v3, other Linux distributors would be barred from doing deals like the one struck by Novell and Microsoft. Unless some company stands up to the patent challenge, Microsoft’s campaign of fear might cause problems for the adoption of Version 3 of the GPL.

What’s really happening? Why is Microsoft overhyping the patent issue again? Companies have stopped paying these licensing fees now that the SCO legal fight is winding down. Version 3 of the GPL is a threat to Microsoft’s ability to partner up with companies like Novell. And the lawyers need something to do, as there are still vast amounts of money sitting in Microsoft’s coffers waiting to be spent on pummelling the Open Source movement in public.