Microsoft's Fake Patent Attack: Should You Care?

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A few days ago Fortune ran a story which has been getting broad coverage on the 235 patents that they, and others, believe Open Source infringes. The coverage is, as should have been expected, the typical “Microsoft is evil, put up or shut-up,” kind of thing that typically happens after a statement like this.

What I’d like to suggest is that just maybe this initial article’s tone was more Fortune than Microsoft and that the purpose was not to scare folks away from Open Source but to increase page views. I also write provocative pieces so I understand the need to do this, but people seem to be getting rather worked up for nothing.

This isn’t the only thing out of Microsoft that is causing a lot of excitement. In another piece, Bill Hilf, Microsoft was reported to have said that Free Software is dead, which had a very similar response. That, too, seemed to have a purpose that was less accuracy and more traffic. Given that, in the current world, revenue is tied to traffic, neither should be a surprise.

In short let’s take this opportunity to see if there is really something to be concerned about, and particularly whether Microsoft has some form of Mad Cow disease.

Microsoft’s Patents

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In reading through the initial Fortune piece, and because I’ve been working with Microsoft for a number of years, my general sense is they were trying to convey the message that they were aggressively licensing, and not using patents to keep people from entering, or competing, in the market. I don’t think they intended to go to war with Open Source and Foss. But that now does seem to be the outcome, regardless of the intent.

The reason I believe this wasn’t their intent is because Microsoft has been going out of its way, of late, to try not to attack Linux, largely because the attacks not only didn’t do them any good, they provide a huge free marketing push for Linux. In short, I think Microsoft now understands that they have largely been the marketing push behind Linux and, as a result, didn’t want to do that anymore. Can’t say I blame them.

In addition, they are still under review by the European Union, who wants them to more aggressively cooperate, and share, their technology with competitors, and Microsoft is trying to showcase they are doing exactly that. Finally, Microsoft has been trying to get the Novell partnership to work and they had to know Novell would not support any aggressive patent move. Popping up talking about enforcing patents would seem just slightly counter-strategic right now, regardless of motive and (with some exceptions) Microsoft does seem to try and not do stupid things.

However, talking about Microsoft wanting to license to others is kind of dull but Microsoft taking on the Free Software World is vastly more interesting. Now Steve Ballmer may, from time to time, take a swipe at Linux (which makes the Linux folks just love him to death) just as Stallman may do foolish things (which the Microsoft people like to see him as visible as possible). But the rank and file, at least at Microsoft, really appear to have learned their lesson and aren’t trying to stir up the hornets’ nest.

Death of Free Software

Of course flying against this was the a reported statement by Bill Hilf that Linux was dead. Of course, when you actually read the piece, (I’m not sure most got past the headline) what he was actually saying was that most who work on the core parts of a Linux distribution are paid to do so. He clearly could have worded what he is reported to have said better.

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Whether true or not, paying people to develop Linux would have virtually nothing to do with killing Linux, and it doesn’t even mean there is no free software. Microsoft pays its developers and there are a number of free Microsoft products, so getting paid really doesn’t mean the product doesn’t exist or can’t be free.

This was helped by the fact that Bill weighed in personally on the subject, and while purists that think folks shouldn’t be paid to work on software might disagree, most of us who have to pay bills probably have no real problem with people getting paid to do work.

From a Linux perspective, far from making the product appear dead, the implication is actually that it is maturing, and credible organizations can pay folks to work on core aspects of any application that should result in a better product, or at least a more consistent one.

But outside of a few folks who are likely a few beers short of a six-pack, and of course the people doing the work, I doubt many really care if folks are paid to work on Linux or not, and that most who use Linux today in IT shops probably think that paid developers are a good thing. Probably because most are paid and like being paid themselves.

So, even here, Microsoft wasn’t really trying to scare anyone. Bill Hilf was simply addressing what he thought was a misconception that is important to him as a paid programmer, and that is that folks doing good work on products, open source or otherwise, are being paid. And seriously, I doubt even he thinks that is a bad thing.

Adverse Impact

The problem we are increasingly faced with is getting all of this stuff to work together. Whether you like the Novell/Microsoft deal or not, at least it had one clear benefit: the promise that at least one Linux distribution would work seamlessly with Windows.

Let’s be real here, Linux isn’t going away and neither is Microsoft, and increasingly both find themselves in mixed shops. Highlighting adversity is one thing but allowing artificial adversity to distract you from the goal that most buyers of technology have always wanted – seamless interoperability – is counterproductive for all parties. Kind of helps provide another perspective to the whole Microsoft/Novell thing huh?

How Could Microsoft Kill Linux, How Could Linux Kill Microsoft?

Now, having said all of this, what if Microsoft wanted to kill Linux, or FOSS wanted to kill Microsoft, how could they do it successfully?

Well. taking everyone that uses or develops the product to court is not only not practical, even if you could do it, it simply wouldn’t work. And flaming emails and comments are so high school. Look at the RIAA and piracy, that is a cake walk compared to what Microsoft would have to do and, at least to me, the RIAA’s (and the related MPAA’s) efforts so far have effectively increased piracy and made both organization’s members less profitable.

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Netscape died not because Microsoft used their monopoly power (they tried, it backfired) but because Netscape screwed up Netscape screwed up on a massive scale and Microsoft executed reasonably well. PlayStation 3 wasn’t killed by Microsoft, it was jointly killed by Sony screwing up and both Nintendo and Microsoft executing. Microsoft beat Novell as a result of Novell’s announcing, and then failing to build, a Windows NT clone (SuperNOS) and then failing to actually ship it.

Microsoft didn’t beat IBM by being bigger, stronger or more underhanded, Microsoft built what the market wanted and IBM didn’t. And Google isn’t winning because they are the nastiest guys out there, at least not yet (but that may be changing), they are winning because they figured out who the customer was and focused like a laser on them (watch them, they really don’t care what Microsoft does that much), and then executed. iPod vs. Creative Labs and S3 was a similar lesson, and Zune showcased what happens when your forget who the customer actually is.

Sun and Netscape are both examples of what happens when Microsoft competitors focus on Microsoft and not their customers. The massive number of Linux distributions and the GPL3.0 draft is what happens when you don’t even seem to remember who the customer is (and seem to think it is you).

For either side to win decisively against the other, they have to identify and focus on their customers and not each other. The GPL3 is just as stupid as Get the Facts was and neither is what the customer wants. We all need to remember that the cost of software is a trivial part of the entire solution and that free crap is still crap no matter who sells it or how trendy the name.

Happy Microsoft customers don’t replace Microsoft products with open source offerings and if Linux is scarier than Microsoft only idiots will move from the frying pan into the fire. Of course this is an incredibly selfish position, because if both sides focused on building great products most of us would win regardless of the outcome of this fight, and I could stop talking about this BS and focus back on having fun with technology. In the end, however, the only way to win decisively is to build the best solution from the customer’s perspective.

It is my view, whichever side gets this first wins and the other side goes home looking like fools.