Last week you may have read a number of articles quoting Jim Zemlin, the Executive Director of the Linux Foundation, responding to a Fortune article appropriately titled Microsoft Takes on the Free World. The big news in that article was to be found in the gnomic statements by Microsoft's General Counsel, Brad Smith, in which he articulated (after a fashion) its current patent intentions in relation to Linux, OpenOffice, and other important open source software.
As you might expect, a formal response takes a bit longer to move into the media in the right way – you want a placement in a venue that commands respect and has a large business readership, and you want to be sure you use your 700 words to maximum effect. We've been working on that response over the last week, and it was posted at the BusinessWeek.com site at Noon EDT today (disclosure: I'm legal counsel to LF, and also a member of its Board of Directors). You can find Jim's statement on behalf of LF here, and it opens like this:
Last week, Microsoft (MSFT) initiated what can only be described as a rather bizarre public-relations campaign in which they alleged that Linux and Open Office may violate hundreds of the software maker's patents. While some of the mainstream press reported Microsoft's statements as news, many journalists and bloggers keenly identified the most intriguing aspect of this aggressive maneuver: a glimpse of a threatened giant struggling to keep a grasp on its empire. What most people don't realize is that the story really isn't about patents at all—it's about a rational actor trying to protect its privileged position.
If you read the article in full (I’m biased, but I think you should), you’ll see that Jim takes a pragmatic and business-oriented approach to the situation:
Given the high stakes involved, it’s not surprising that Microsoft would take steps to protect its turf. In fact, it makes perfect sense. Let’s face it: If you were making $1 billion a month, what would you do?
Well, ask yourself – what would you do? Your tactics might vary, but the goal would not: hang on for as long and as successfully as you can to what you’ve got. In the case of Microsoft, I believe that the majority of the media and the community have already concluded that while Microsoft may indeed want to sign up more cross licenses, the likelihood of it’s suing anyone for patent infringement is, at best, negligible.
But…as Jim goes on to point out, the open source community, and the increasing number of proprietary companies and the legion of end users that have bought into open source software are also pragmatic. As Jim puts it:
That said, we are also rational actors working within an existing system. Touch one member of the Linux community, and you will have to deal with all of us. Microsoft is not the only—perhaps not even the largest—owner of patents in this area. Individual members of the Linux ecosystem have significant patent portfolios. Industry groups, such as the Open Innovation Network and our own legal programs at the Linux Foundation, aggregate our membership’s patents into an arsenal with which to deter predatory patent attacks. With our members’ backing, the Linux Foundation also has created a legal fund to defend developers and users of open-source software against malicious attack. We don’t expect to but, if needed, we will use this fund to defend Linux.
The Linux Foundation was formed to perform a number of roles: one is to speak out on issues of concern to the Linux ecosystem in particular, and open source in general. Another is what we refer to internally by the shorthand handle as "the Legal Protect" function. That means that we launch internally as well support externally a variety of initiatives that legally strengthen the Linux ecosystem. We also try to coordinate, articulate and educate, in order to make sure that the straight story reaches the marketplace.
Needless to say, you’ll be hearing more from us in the weeks and months ahead.
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If you think someone holds a patent that you might want to use, then it’s fairly fundamental to want to know the patent number. Then you can look at it, and make a commercial choice between
1) Ignore it as not relevant
2) Ignore it and hope they never find out you are using it
3) Cross-licence a patent you hold
4) Invent a different way of doing what you want to do
5) Decide to pursue a different line of business
6) Buy a licence to the patent
But for someone to say ‘I hold a patent you may need, I am not going to tell you which one’ is rather pointless. It doesn’t enable any kind of progress.