Dear Microsoft, from FLOSS
p2pnet.net News:- People will have read by now that Microsoft is alleging that Linux is infringing some undisclosed “intellectual property” from Microsoft.
This is part of their larger rhetoric against FLOSS, and it’s important for people to realize there’s little substance to what Microsoft is claiming.
This is based entirely on Microsoft’s ideological belief in marginal-cost based business models for knowledge.
LXer, a Linux news site, sent an Open Letter to Microsoft. In it there were a number of questions.
I believe the community already knows the answers, and I’m publishing my own.
1) We are only talking about “software patents”
2) These software patents would not be enforceable in Europe as well as many other countries. Even in countries like the USA, which don’t exclude software from patentability, they’re of questionable value. It’s likely that any patents Linux infringes, if they exist at all, wouldn’t stand up to court scrutiny. Patent quality is a problem in countries like the USA with lessez-fair attitudes toward innovation, market stability and patentability.
3) Each of the options are plausible: Microsoft may not actually know of any infringements, the patents may turn out to be invalid and would be thrown out if they went to court, and they may be using the term “intellectual property” on purpose to confuse people into thinking we’re talking about copyright infringement. With copyright infringement the problems are very different, and any software copyright is far more likely to be valid.
4) Microsoft won’t have tried to collect royalties on patents in Free/Libre and Open Source Software (FLOSS) because it knows this is impossible to do. Being FLOSS means you can “run, copy, distribute, study, change and improve the software” without additional permission or payment. FLOSS recognizes the nature of knowledge, which is that the marginal cost of knowledge to the producer is zero, with FLOSS setting the marginal cost to the software user also at zero.
Software patents, which work great for tangible things like hardware and pharmaceuticals, create an artificial “marginal cost” for the software which is incompatible with FLOSS. The only options for FLOSS companies are to go to court and have the patent invalidated (expensive, but highly likely to succeed) or innovate-around the patent by not using the claimed methods. Just obtaining a license as would be done if the patent were on hardware (which naturally has a marginal cost) is not possible.
Russell McOrmond – p2pnet contributing editor
[McOrmond is an independent author (software and non-software) who uses modern business models and licensing (Free/Libre and Open Source Software, Creative Commons). He's also the CLUE policy coordinator.]
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