A Decade After Trying To Block Open Source Patent Pool From Buying Its Patents, Microsoft Joins The Pool Entirely

from the times-change dept

Almost exactly a decade ago, for reasons I still don’t quite understand, Microsoft invited me to sit down one-on-one with their then Deputy General Counsel for intellectual property, Horacio Gutierrez (who is now General Counsel at Spotify). It was, to say the least, a bizarre conversation in which he repeatedly tried to justify Microsoft’s position on software patents, with us getting into a spirited debate over Microsoft’s ridiculous FUD campaign about Linux. Suffice it to say, while the conversation was fun, we agreed on almost nothing. For a few years, Microsoft had been trotting out claims that Linux violated over 200 of its patents, and kept making these vague threats about it. It never named the patents in question. It never sued. It just kept obliquely warning that those who used Linux might somehow eventually face some patent infringement suits from Microsoft. Some might call this a patent chilling effect. Or FUD. Or a shakedown. No matter what you call it, I stand by the claim that it was despicable.

Partly in response to all this nonsense saber rattling by Microsoft, in 2005 a group of companies who relied heavily on Linux got together to create the Open Invention Network (OIN), which was designed as a giant patent pool, mainly to protect Linux. Basically, all the companies who join agree to license their patents freely for use in Linux (and Linux offshoots) to other members of the network. A large part of the reason for this was to allow various companies working on Linux to freely share patents among each other and protect them from Microsoft-style shakedowns. In 2009, OIN ended up buying a bunch of Microsoft patents for itself to help with its mission — but here’s part of what was amazing about that: Microsoft tried to block the sale, refusing to let OIN be a part of the bidding on those patents. Instead, OIN had to use a third party as a shell bidder so that Microsoft didn’t know that OIN was trying to get those patents.

That’s why the news last week that Microsoft had joined OIN and agreed to freely license all of its patents to every other member in the pool is so shocking. Microsoft’s Erich Andersen, who now holds the role that Gutierrez held a decade ago, admitted quite frankly in his blog post about this decision that many will be surprised, but it represents a real “evolution” in the way Microsoft thinks about Linux. I would say that’s an understatement.

We know Microsoft?s decision to join OIN may be viewed as surprising to some; it is no secret that there has been friction in the past between Microsoft and the open source community over the issue of patents. For others who have followed our evolution, we hope this announcement will be viewed as the next logical step for a company that is listening to customers and developers and is firmly committed to Linux and other open source programs.

Andersen notes that Microsoft has been making a number of moves along these lines lately, which is really good to see:

Joining OIN reflects Microsoft?s patent practice evolving in lock-step with the company?s views on Linux and open source more generally. We began this journey over two years ago through programs like Azure IP Advantage, which extended Microsoft?s indemnification pledge to open source software powering Azure services. We doubled down on this new approach when we stood with Red Hat and others to apply GPL v. 3 ?cure? principles to GPL v. 2 code, and when we recently joined the LOT Network, an organization dedicated to addressing patent abuse by companies in the business of assertion.

I had missed that Microsoft also joined the LOT Network — which is another creative attempt at stopping operating company patents from ending up with patent trolls (by enabling an automatic “license” should those patents be “transferred” to companies outside the network). This is another good step by Microsoft in rehabilitating some of the FUD and trolling activities that it had done in the past. Obviously, much of this is driven by the business realities of the the cloud market and Microsoft’s relative position in these markets these days — rather than some grand enlightenment about how abusive the company was with its patents in the past.

However, it should be recognized and applauded for what it is, which is an absolute step in the right direction. Maybe in another decade we’ll be talking about how Microsoft is going even further and doing an Elon Musk style announcement that all its patents are available to anyone. Wouldn’t that be something?

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Companies: microsoft, oin, open invention network

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Comments on “A Decade After Trying To Block Open Source Patent Pool From Buying Its Patents, Microsoft Joins The Pool Entirely”

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Anonymous Coward says:

Re: Re:

So are any of these groups willing to back up the pool with a nuclear option? That is, if some outside company sues one of the members, this will be responded to with a lawsuit including any of the patents that other company may infringe? Or has that been recognized as fruitless in today’s economy, and it’s more a case of “you don’t have to worry about these patents” instead?

Thad (profile) says:

Re: Re: Re:

Near as I can tell, OIN itself does not engage in any kind of retaliatory patent lawsuits, but doesn’t prevent its individual members from doing so.

Given that Windows now includes the Windows Subsystem for Linux*, patent suits against programs included in WSL would necessarily attract Microsoft’s attention. Whether MS would retaliate with its own patent suit(s), who can say, but it’s certainly possible.

* I don’t want to open the “GNU/Linux” can of worms, but this is something of a misnomer, as the WSL includes userland programs, not the Linux kernel; it’s no more Linux than GNU Hurd or Debian GNU/kFreeBSD are.

Thad (profile) says:

Reactions from the FSF and Software Freedom Conservancy are worth reading.

The general view is that this is a step in the right direction, but it doesn’t go far enough, still leaves MS with some wiggle room to sue free software developers for patent infringement, and of course doesn’t guarantee that the next Microsoft CEO will be as friendly toward Linux as Nadella is.

Lawrence D’Oliveiro says:

Ignore The Feel-Good Factor, Focus On The Business Reality

Face it, Microsoft isn’t in this because of any sense of fairness or justice; it’s been dragged, kicking and screaming, into a reality where Linux is king of the computing world, and Open Source is the non-negotiable foundation of collaborative software development.

It would have been a big deal if Microsoft had done this, say, as recently as ten years ago. But now, it is just another replay of the usual sad story of a once-dominant company desperately trying to remain relevant in a changing world.

Thad (profile) says:

Re: tl;dr

There’s some truth to that, but you’re anthropomorphizing a bit. Microsoft isn’t a guy, it’s a corporation, and its leadership now is not the same as it was ten years ago. Nadella clearly has a far different approach than Gates or Ballmer.

Some folks say this is just one more step in the old “Embrace, Extend, Extinguish” strategy. Others say Microsoft really is adapting with the times. I’m with you that the company is adapting to deal with a vastly changed marketplace — but I think individual personalities are a part of it, too.

And it’s important to note that Nadella won’t be CEO forever, and we don’t know what Microsoft’s direction will be ten years from now, any more than we knew where it was going ten years ago.

Lawrence D’Oliveiro says:

Re: Re: Microsoft isn't a guy, it's a corporation

Precisely my point: like any corporation, it has no feelings, no conscience, no humanity; it exists purely to return a profit to its shareholders. So to respond to this action as though the company is doing it out of the goodness of its heart is … not wise.

To Microsoft, Linux and the whole idea of Open Source are a “disruptive technology”: they are a new way of doing things that is completely inimical to its business model, yet which is rendering that business model obsolete.

Thad (profile) says:

Re: Re: Re: Microsoft isn't a guy, it's a corporation

To Microsoft, Linux and the whole idea of Open Source are a “disruptive technology”: they are a new way of doing things that is completely inimical to its business model, yet which is rendering that business model obsolete.

I think "obsolete" is an exaggeration. Microsoft continues to dominate the desktop and business markets, much as it always has, and while it’s not top dog in the server market, it has a fairly large role there.

It’s been completely trounced in the phone market, and Google is nipping at its heels in the education and small-business markets. Those things certainly caught Ballmer napping.

The mobile and server markets have certainly forced Microsoft to embrace Linux and FOSS in ways it was recalcitrant to do in the past. That explains some of Microsoft’s more FOSS-friendly behavior these past few years. But not all of it. Different leadership would probably have made different decisions. Every leader is motivated by profit and success, but different leaders have different ideas of what the best path is to those things.

Anonymous Coward says:

Re: Re: Re: tl;dr

Doesn’t fit too well with “a company that is listening to customers”

Oh, I don’t know about that, when the listening is intended to gather as much sellable data about the customers as is possible; and involves as much spyware as they can get the customer to run as ‘performance monitoring’.

Anonymous Coward says:

Ten years ago Microsoft lived and died by the whims of their shareholders. If one stood up and said “you’d make more money by sticking your dick in a pencil sharpener” Ballmer would have his pants around his ankles within seconds. This meant almost all effort went into corporate Office licensing and Microsoft focused on buying (then killing) various small companies.

Now though they do everything they can to make customers happy. I’m not sure if this is part of a long term goal or just their profits plateauing. Whatever the case, it’s pretty nice.

Band Leader says:

"Microsoft's ridiculous FUD campaign about Linux" turns out true

Have you tried a Linux lately? There are a hundred different “distros” to waste your time trying, all with just enough differences that are incompatible. They’ve proven that the anarchy of “open source” is own worst enemy. Now I’m talking desktop and all ordinary uses. Sure, the major efforts put into Android and Red Hat make them usable, and yes, X% of teh internets runs on “Linux”. It’s mostly the GUIs that are awful, so unuseable that are major topics on the forums. And they won’t quit changing them: some add “features”, and Gnome specializes in taking away “features”. Meanwhile, the core is being neglected. In my own survey of 9 distros, only 3 got to a useable desktop, most wouldn’t even boot!

My opinion is that corporations slyly sabotaged Linux by encouraging the always flaky “programmers” to go wild and experiment. At least Windows works. It has to. You get what you pay for in Linux. “Free” just doesn’t work anywhere. Don’t waste your time on Linux, it’s only for severe nerds.

Anonymous Coward says:

Re: "Microsoft's ridiculous FUD campaign about Linux" turns out true

The KDE Plasma desktop environment (a GUI) could fool a Mac user into thinking they were still on a Mac… on an integrated graphics only system with desktop effects enabled.

I try “a Linux” “lately” for the last ten years with no stopping. It keeps getting easier to do everything I like, especially video games.

Go back to the FUD farm, troll.

Anonymous Coward says:

Re: "Microsoft's ridiculous FUD campaign about Linux" turns out true

In my own survey of 9 distros, only 3 got to a useable desktop,

What were you trying to run, as distros Like Arch and Gentoo are difficult to get going if you do not know what you are doing, and Slackware boots to command line environment by default.

Also, some of the more obscure distros will not boot if secure boot is enabled.

Try something sensible for a newbie to Linux, Like Ubuntu, or one of its derivatives, or Linux Mint. Choose a desktop that suites your style of working, as it does not impact which programs from the repos you can use.

Also, after the past couple of attempts, I can see why people fear Microsoft upgrades, while Debian testing has proven reliable with daily updates for the past 7 or so years.

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