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?
Filed Under: erich andersen, horacio gutierrez, linux, open source, patent pools, patents
Companies: microsoft, oin, open invention network
Comments on “A Decade After Trying To Block Open Source Patent Pool From Buying Its Patents, Microsoft Joins The Pool Entirely”
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.
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?
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.
Re: 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.
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.
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.
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
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.
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.
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.
Re: 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.
Re: Re: Re:2 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.
Re: Re: Re: Microsoft isn't a guy, it's a corporation
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.
Re: Re: Re:2 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.
Re: Re: Re:3 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.
Re: Re: tl;dr
Re: Re: Re: tl;dr
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.
Re: they do everything they can to make customers happy.
Oh, really?
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..
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.
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. 😛
Somebody wake up Blue.
Blue needs to know that since the GDPR killed Google, Mike has switched and is now a shill for Microsoft.
Re: Somebody wake up Blue.
Jesus Christ, you guys spend all day feeding the troll even when he’s not here.
"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.
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.
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?
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?
Re: "Microsoft's ridiculous FUD campaign about Linux" turns out true
Go, blue, go! Support those large corporations! Rah, rah, rah!
Re: "Microsoft's ridiculous FUD campaign about Linux" turns out true
So.......
Nothing to with them realising that they are being out-competed and falling behind on the patents race then.
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
Later they will discover all the patents they spent on are invalidated.
Microsoft doesn’t give a shit about free software.