The open source patent war

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In 2003, SCO distributed a letter to high-profile Linux customers among the chief executives of the top 1500 companies and demanded license payments on the basis that Linux included code, allegedly donated by IBM, that infringed SCO's claims to Unix IP. Despite the availability of the source code, SCO has yet to produce any evidence that Linux does any such thing. Red Hat still has a suit outstanding against SCO, pending the outcome of the IBM case, asking for a "declaratory judgement based on the public statements that SCO had made that Linux infringed their copyright." Webbink notes that "in all likelihood by the time the IBM case is over SCO will be nothing more than a carcass, something to pick over, and not of great interest to us any longer."

Microsoft may feel it has better evidence to substantiate Steve Ballmer's claim that Linux "uses our intellectual property" - but suing or charging its own customers because they use Linux would send out all the wrong messages, and isn't going to happen. Webbink observes that "suing a customer would be a very dangerous move on their part because all those customers of Linux are also going to be customers of Microsoft. If they start down that path the market reaction will be the same as the market reaction to the SCO letter, in that no customer is likely to buy software from a company that is likely to do this." Linux vendors indemnify their customers against such an eventuality.

Plucking out individual developers and charging them with patent infringement might seem to be an easier option, but would destroy the credibility that Microsoft has been trying to gain within the developer communities, and there is also the danger that "customers and the public would react negatively" to such an outrageous act.

Suing the distributors would be the equivalent of shooting Archduke Ferdinand in 1914. All kinds of alliances might come into play, the battlefields could be far flung, and there would be no assurances that Microsoft would end the war a winner. Too many vendors have too many vested interests in Linux. "I think its highly unlikely that they would sue anybody," says Webbink, "because they have no history of launching patent infringement claims. One significant consideration they would have to have is that any claim they made against any party in the software industry, at least in the US, they would have to be aware that they might face counterclaims based on competition, in anti-competitive actions."

From the point of view of Red Hat "the surprising aspect of the Microsoft/Novell agreement is that Novell was foolish enough to fall into the trap that Microsoft set for it, to induce somebody involved with Linux to take a license, so that Steve Ballmer could then go off to the press, and say 'See I told you there were concerns. Why else would they have taken this license?'"

The developers can only look on and muse at these strange goings on, and not everybody takes the threat of patent infringement too seriously. Back in 2002, Linus Torvalds told the Linux Kernel mailing list: "I do not look up any patents on principle, because (a) it's a horrible waste of time and (b) I don't want to know. The fact is, technical people are better off not looking at patents. If you don't know what they cover and where they are, you won't be knowingly infringing on them. If somebody sues you, you change the algorithm or you just hire a hit-man to whack the stupid git."

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