Microsoft & Linux Vendors Trading in Patent Fool's Gold

LXer Feature: 07-Jun-2007 Well what do you know? Microsoft seems to be gaining ground with their "patent protection" scheme. But what if they discover they've only bought a few bricks of fool's gold?

Getting to the Root Problem

This whole Microsoft-Novell-GPL-who-gets-what-for-how-much-and-for-whose-3rd-child deal has many people confused, stumped, and scratching their heads. And did I mention that some people find this whole thing confusing? Highly educated people - even people with legal backgrounds - get headaches thinking about it. On the surface, it seems fairly simple. Microsoft claims a fair amount of FOSS code infringes their patents. This scares business users who are generally interested in the idea of deploying GNU/Linux in their enterprises. Microsoft and Novell reach an agreement that, without violating the specific terms of the GPL, offers patent infringement protection, similar to what users might experience in a normal cross-licensing deal. Problem solved, right? It ain't that simple.

For reasons many (most?) cannot even articulate, the FOSS community has reacted fairly negatively to the deal. Then Dell and another company sign up. Now Xandros. People are scratching their heads, wandering what Xandros' executives must be thinking, given the reaction against Novell - and many people wander if they are even thinking at all. It seems to me the larger part of the community actually has mixed feelings about the whole idea. People understand why businesses might go for a deal with Microsoft. On the other hand, people also feel betrayed by companies they have come to trust (to some extent) as good citizens and defenders of the faith (for lack of better words).

Like most in our community, it has taken me some time to come to grips with this issue - and I could still have it all wrong. The real problem I have with the patent protection deals is that we are essentially sweeping the dirt up under the carpet. We are not solving the real problem. Microsoft is not the real problem, even though they are using the real problem to their advantage. The real problem is the mess our patent system is in right now. That is the first thing that needs to be fixed. The problem is, we cannot fix it if we do not address it in the proper place - the hallowed halls of Congress. And worse, these patent protection deals remove the incentive from all of us to solve the root problem.

Try to imagine a surgeon attempting to remove your lung cancer by amputating your big toe. Well, that's about all the good patent protection agreements are. We might think we're better off, but the problem still exists, and continues to proliferate. I oppose these deals because refusing such agreements would force Microsoft to reckon with the issue of patents in a different way. With Microsoft so reluctant to sue, they would be more likely to see the problem as it really is, and work to help rectify it. Instead, Novell, Samsung, Dell, Xandros and Microsoft have all looked at each other and said, "I don't see any patent problems. Do you see any patent problems?" Congress? Patent reform? Naw! We don't need no stinking patent reform! The system is great! (Hint: it really is, if you're a patent attorney.)

Settling for Fool's Gold

What does Microsoft get out of the deals? They get to shamelessly accuse our community of wrongdoing without ever having to prove it in court. They get to advertise that they are working to enforce their patents - you know, the ones that should never have been granted to begin with. They will likely even use the deals to claim all manner of "victories" over our community. And worse, they'll get to go on submitting more applications for utterly useless patents. And what can Microsoft accomplish? Let's assume - as a worst case - they manage to gain control over Linux. What will Microsoft really have? They will have fool's gold.

Microsoft will still not own the copyrights, patent rights or any other rights to GNU/Linux. They will still face legal challenges with respect to copyrights and patents. They will still face problems like prior art. But worse, they will still lack freedom. Microsoft will be horribly entangled in a patent mess of their own making and we'll still be free. We will still write and use Free Software. They can have their patent agreements, but they won't be truly free. We already are.

Don't you see? What Microsoft really wants, even if they cannot articulate it themselves, is the same freedoms we now enjoy (at least within our own community). But instead of solving the root problem, they have fallen for the fool's gold. They have settled for the appearance of freedom, without the experience and value that genuine freedom offers.

Genuine Gold

The solution to the problem is at once simple and difficult. The simple answer is to reform our patent system. The difficulty should be obvious. What will it take to convince IBM, a company that continues to submit software patents at an astounding rate, to work toward patent reform? What will it take to convince Microsoft, a company that suffers from patent litigation, yet seeks to use the fear of patent litigation to its own advantage, to work toward patent reform?

I think it takes rejecting these patent protection deals. Rejecting these deals will force the big guys, the bullies - everyone - to step back and take a second look at the problem. That means being willing to say "no" to the fool's gold of patent protection agreements. That means being willing to hold out for the real thing - for patent reform.

I think it takes IBM, Microsoft and thousands of business users being willing to take the time to call up their congressional representatives and speaking up for patent reform. I think it will take you and me, as individuals, calling up our congressional representatives and asking for patent reform. In fact, you and had better get to cracking, before Microsoft and the megacorps get all the influence.

Look, maybe you're o.k. with patent protection fool's gold. Fine. Feel free to ignore me. But let me ask you one last question. How many of you have ever tried to impress your lover with fool's gold? Even those of you who bought the cubic zirconium probably didn't try to pass it off as a real diamond. So why settle for patent protection when we really need patent reform? Hey, I'm just asking.