Latest Microsoft Linux Deal Less Than Meets The Eye
from the give-'em-a-lucky-goldstar dept
On Monday, Microsoft announced a deal with Linux distributor Xandros, the details of which were similar to a previously announced deal with Novell. As a result of these deals, both Xandros and Novell (and their customers) are immune from any IP infringement threats that Microsoft might make. Although it’s really an old story, Microsoft has once again been making vague threats about wanting to collect royalties from users of open source software. Today the company announced yet another Linux-related deal, as electronics maker LG will license some IP from Microsoft in exchange for its ability to use Linux in its products. At first glance, this deal would appear to be the fruit of Microsoft’s intimidation tactics, and some will assume that this is just LG paying Microsoft “protection money” for the right to operate its own business. But as part of the deal, Microsoft gets to license some IP from LG and one of its partners, and in fact, Microsoft is paying more money to LG than the other way around. The most likely explanation is that neither side really needs the other side’s IP to continue doing business, but, rather, Microsoft is simply buying itself a licensee of its patents. In this respect, the move looks fairly similar to what NTP did during its battle with Research In Motion, when it took equity stakes in two companies while simultaneously getting them to license the relevant patents. Later on, if this actually becomes a contentious issue, Microsoft will point to LG as an example of a company that recognized the need to license its IP in order to keep using Linux.
Comments on “Latest Microsoft Linux Deal Less Than Meets The Eye”
question
I guess I’m not familiar enough with US law, but what I never have been able to understand is:
even if Linux would infringe on patents, how is Micro$oft able to sue customers (directly) for royalties, and not just the distributor(s)? Or is this part of the FUD?
Re: question
In the US, you can infringe on a patent just by using it. So if Linux infringes on a MS patent then anyone who uses it is also infringing.
Microsoft is not likely to ever actually sue for this though since if they do, it will bring retaliatory suits against their customers (I am talking Fortune 500 companies and large universities).
All it takes is one patent that Windows infringes on (and there are almost certainly many of them) to make running Windows illegal if the patent holder so chooses.
Re: Re: question
(don’t get me wrong, I am not arguing you are wrong)
That is just plain retarded…I know the ***As always (incorrectly) like to compare copyright/patent infringement with theft, so let’s for once use it against them…
(Again, I’m not sure about the US, although I am pretty sure it’s the same as in Europe:) if you buy something stolen, you can never get in any legal trouble, unless it would be obvious that you should have known or been extremely suspicious (like when buying a brand new TV for 10% of retail price out of the trunk of a car, then the “I didn’t know it was stolen” defense wouldn’t fly). As long as you bought something stolen “in good faith”, you can’t get in any trouble for it.
On the other hand, I wouldn’t be surprised if even that would be different in the US
Re: Re: Re: question
They wouldn’t have to sue for damages. It is infringement even if you don’t know about it. If you, in good faith, did not know that you were using a patent without permission then the penalty is far less severe (probably to the point of only giving out an injunction on the use of it). But you don’t have to sue to get money, you can just sue to have them stop using the patent.
So, if a large company is informed/sued about a patent that they are infringing upon, you could still do damage to Microsoft by making it impossible to legally use their product, even if you get no monetary damages from it.
Getting back to the analogy…
You generally don’t get to keep the stolen TV, even if you got it in the mistaken belief that it was not stolen. And you certainly wouldn’t get off the hook again if you went and bought another TV from the same guy later in the week (analogous to continuing to use the patented software after you are aware it is infringing).
Re: Re: Re:2 question
true…
you wouldn’t get to keep the TV (continue to use the software) and you would get into trouble if you got another TV from the same guy (re-install/continue to use the software)
but, the way it sounds (or Microsoft makes it sound) is: sure, Microsoft might just sue so the company would stop using the product, without demanding any monetary compensation (which, granted would still cost the company money, because now they have to install/use other software (preferably Microsofts, at least from their point of view), migrate data, employees would have to spend time getting familiar with the new software, etc…)
however, Microsoft makes it sound they could also sue (companies of) end-users for monetary compensation.
(as where the previous owner of the TV, or the store or manifacturer would not be able to sue the unsuspecting “owner” for anything)
That’s my main question: would Microsoft be able to sue a company for monetary compensation because the company used (unknowingly) software that infringed patents (or copyright)?
I can totally understand Microsoft suing the distributor and making them:
1) take the product off the market
2) pay compensation for each sold copy of the software (comparable to what they would have paid for a license on the patent, possibly multiplied by a factor)
That would make sense: 1) would prevent further (new) use by people/companies of the infringing software and 2) would compensate Microsoft for the loss in sales
and 3) Microsoft would just have to sue the distributor/manufacturer, not each company/user
This suing the end-user is just plain ridiculous (as the analogy with real theft nicely illustrates)
Re: Re: Re:3 question
I doubt that Microsoft would get much if any money from suing an end user for patent infringement.
The point I was trying to make though was that Microsoft is not likely to sue anybody over patents in Linux, not even the distributors.
It’s a bit of Mutually Assured Destruction with the patents. They can’t sue Linux users/distributors because of the very real threat that their product infringes on a patent that they do not have a license for. And if that is the case, and the patent holder is sympathetic to Linux, Microsoft would have traded a victory against Linux for the price of the utter destruction of their own business.
do not sue customers ..
“how is Micro$oft able to sue customers (directly) for royalties, and not just the distributor(s)? Or is this part of the FUD?”
That’s a good point, it’s a do_not_sue deal for the customers rather then the company, who were never in any danger in the first place. In exchange, the company gives MS IP patent claims on their own technology. But it does not get a do_not_sue plege for itself.
The article is right if it does become a contentious issue and MS goes into court with another company it can point to this and other leals as legitimizing it’s patent claims.
You got it exactly right, Mike. The goal is to establish the “legitimacy” of their patents, and point to all these “paying customers”, when in reality, they actually bribed people into “recognizing” these patents. This whole LG thing is so transparent. Yet another reason Microsoft is and remains the epitome of EVIL.
MORE than it seems
I agree MS is certainly cross-licensing with everyone
However— “But as part of the deal, Microsoft gets to license some IP from LG and one of its partners, and in fact, Microsoft is paying more money to LG than the other way around.”
I disagree there. MS also paid more to Novell in a ONE SHOT DEAL.
Yet, LG and Novell are paying royalties on _each and every Linux product_ to Microsoft. I’d say that’s quite a good deal for MS as Monopoly Linux snowballs. Open source is projected to grow wildly by 2012.
And Who Said Microsoft "ISN'T" Using Linux Source
Microsoft can see the source code of Linux, but if Microsoft’s Source Code (for ALL of their products) was made available to the PUBLIC, how much Linux source code would MS be using? Plus, doesn’t MS use technologies created by Open Source.
Paying Microsoft
How’s this: I pay Microsoft 10% of the purchase price of the version of Linux that I’m using. “I’m using OpenSUSE. Here’s nothing. Keep the change.” 🙂
There is also the distinct possibility that thorugh these deals, Microsoft will tie up the high level portion of the organization and keep them from creating work arounds with the patents when Microsoft unleashes its brigade of patent lawyers. Then it is a matter of money and desperation to keep the courts to rule that Microsoft is not a distribution vendor by the wording of the GPL v3. Corporate crimes, which would lead to that kind of ruling, are the most violent and well planned of all forms of organized crime.