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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  • identicon
    Anonymous Coward, 18 Oct 2018 @ 1:39pm

    It looks like anyone can join OIN. Though its purpose is limited to release of Linux-related software that's a pretty big batch of patents anyone can avoid worrying about infringing. And they're basically available to anyone already.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Oct 2018 @ 2:02pm

      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?

      reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 18 Oct 2018 @ 2:27pm

        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.

        reply to this | link to this | view in chronology ]

    • identicon
      alternatives(), 19 Oct 2018 @ 2:06am

      So not ANYONE..... WAS Re:

      "It looks like anyone can join OIN. Though its purpose is limited to release of Linux-related software"

      So FreeBSD, OpenBSD, NetBSD lack the ability to join? Because they AIN'T Linux and don't want to be.

      reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 18 Oct 2018 @ 2:10pm

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Kevin Hayden, 18 Oct 2018 @ 2:18pm

    I'll take this news with a grain of salt

    I still remember what happened in the 1990s when Microsoft agreed to work together with IBM on OS/2.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Oct 2018 @ 7:36pm

      Re: I'll take this news with a grain of salt

      Speaking of MS in the 1990s: "If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today." —— Bill Gates, Challenges and Strategy Memo. 16 May 1991

      reply to this | link to this | view in chronology ]

  • identicon
    Lawrence D’Oliveiro, 18 Oct 2018 @ 2:21pm

    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.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 18 Oct 2018 @ 2:35pm

      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.

      reply to this | link to this | view in chronology ]

      • identicon
        Lawrence D’Oliveiro, 18 Oct 2018 @ 2:40pm

        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.

        reply to this | link to this | view in chronology ]

        • icon
          James Burkhardt (profile), 18 Oct 2018 @ 2:57pm

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

          Except I don't think anyone is. I think people see this as a sign that management is coming around to the idea that prior strategies were not working, and are looking at new philosophical approaches.

          reply to this | link to this | view in chronology ]

          • identicon
            Lawrence D’Oliveiro, 18 Oct 2018 @ 3:00pm

            Re: looking at new philosophical approaches

            Sure. They will try. But they will always be blinkered by their existing corporate culture, because they are trying to get to the new place from where they are now, and they can’t.

            reply to this | link to this | view in chronology ]

        • icon
          Thad (profile), 18 Oct 2018 @ 3:14pm

          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.

          reply to this | link to this | view in chronology ]

          • identicon
            Lawrence D’Oliveiro, 18 Oct 2018 @ 3:35pm

            Re: Microsoft continues to dominate the desktop/business markets

            Which have been shrinking for years, in case you hadn’t noticed. As well as being taken over more and more by Linux.

            reply to this | link to this | view in chronology ]

            • icon
              Thad (profile), 18 Oct 2018 @ 4:18pm

              Re: tl;dr

              I'm not sure what "which" is in your post. If you explained it in the subject line, I can't see it; my script cuts off subjects longer than 50 characters, because putting essays in the subject line is something OOTB likes to do. Don't be like OOTB.

              reply to this | link to this | view in chronology ]

      • icon
        techflaws (profile), 18 Oct 2018 @ 9:37pm

        Re: Re: tl;dr

        > Nadella clearly has a far different approach than Gates or Ballmer.

        Right, he's trying to make money by selling customer's telemetry data. Doesn't fit too well with "a company that is listening to customers" unless of course you count advertisers as customers.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Oct 2018 @ 2:58am

          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'.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Oct 2018 @ 3:31pm

    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.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 18 Oct 2018 @ 5:29pm

    2 out comes..

    1. MS joins into the Mac ideal of Linux, and locking it up..
    2. Ideas shared, ideas stolen...happened before and many times..

    reply to this | link to this | view in chronology ]

    • identicon
      Lawrence D’Oliveiro, 18 Oct 2018 @ 5:51pm

      Re: and locking it up.

      That’s the one thing they can’t do. Unlike Mac, Linux is not proprietary -- nobody can own it.

      They can embrace and they can extend, but they cannot extinguish.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Oct 2018 @ 8:17pm

        Re: Re: and locking it up.

        There is no law or license against someone forking the Linux kernel. The moment there ever is, I'll smell Microsoft's fingerprints all over it. :P

        reply to this | link to this | view in chronology ]

  • icon
    Atkray (profile), 18 Oct 2018 @ 6:28pm

    Somebody wake up Blue.

    Blue needs to know that since the GDPR killed Google, Mike has switched and is now a shill for Microsoft.

    reply to this | link to this | view in chronology ]

  • identicon
    Band Leader, 18 Oct 2018 @ 8:10pm

    "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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Oct 2018 @ 8:43pm

      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.

      reply to this | link to this | view in chronology ]

    • identicon
      Lawrence D’Oliveiro, 18 Oct 2018 @ 9:19pm

      Re: There are a hundred different "distros" to waste your time t

      You make a free, competitive market sound like a bad thing. Do you prefer a centrally-planned economy instead?

      reply to this | link to this | view in chronology ]

    • icon
      techflaws (profile), 18 Oct 2018 @ 9:40pm

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

      Are really you saying Windows 8 had an improved GUI over Win 7? Really?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Oct 2018 @ 1:31am

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

      Go, blue, go! Support those large corporations! Rah, rah, rah!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Oct 2018 @ 3:29pm

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    peter, 19 Oct 2018 @ 3:47am

    So.......

    Nothing to with them realising that they are being out-competed and falling behind on the patents race then.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Oct 2018 @ 4:59am

    my understanding (based on the below post) is that you need to join OIN (for free) to be protected from MS patents. and you are only protected for OIN's specific definition of 'linux' (not beyond that).

    https://hackernoon.com/did-microsoft-really-just-open-source-all-its-patents-3e419ae1a439

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Oct 2018 @ 9:42am

    Later they will discover all the patents they spent on are invalidated.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Oct 2018 @ 12:03pm

    Microsoft doesn't give a shit about free software.

    reply to this | link to this | view in chronology ]


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