Nice Operating System You’ve Got There, It Would Be a Shame if Anything Happened to It

by on November 17, 2006 · 18 comments

Via Slashdot, here’s more evidence that open source community has reason to be concerned about the Novell/Microsoft agreement. In a question-and-answer session at a SQL Server conference, Microsoft CEO Steve Ballmer said:

Interoperability is always good for the customer, and it’s important. And we know customers want the interoperability that the hands showed between the Windows world and the Linux world.

“We’ve had an issue, a problem that we’ve had to confront, which is because of the way the GPL (General Public License) works, and because open-source Linux does not come from a company–Linux comes from the community–the fact that that product uses our patented intellectual property is a problem for our shareholders. We spend $7 billion a year on R&D, our shareholders expect us to protect or license or get economic benefit from our patented innovations. So how do we somehow get the appropriate economic return for our patented innovation, and how do we do interoperability. The truth is, because of the complex licensing around the GPL, we actually didn’t want to do one without the other.

I think this is a case where language has become a serious impediment to clear thinking about these issues. When Ballmer says that Linux “uses our patented intellectual property,” he almost certainly does not mean that Linux is in any way derived from Microsoft products, or that the people making Linux have somehow been free-riding off of Microsoft’s R & D efforts. Linux developers have repeatedly stated that Microsoft needs only to point out the infringing lines of code, and the Linux team will rip them out and replace them with code they write from scratch.

Rather, when Ballmer talks about protecting his “patented innovation,” he simply means that Microsoft holds patents that describe features that Linux happens to have. This isn’t surprising because as I’ve tried to document over the last few months, software patents have become so broad that it’s virtually impossible to write software without violating them. Every non-trivial piece of software violates dozens of patents.

In practice, then, Microsoft’s position is that no one may sell an operating system without Microsoft’s permission (or unless you’ve amassed enough patents that Microsoft can’t risk a patent war with you). Ballmer seems to be implying that, in effect, Red Hat and other Linux distros need to pay Microsoft for the privilege of participating in the operating system market. It’s hard to see how giving Microsoft the ability to extort money from their competitors promotes the progress of science and the useful arts.

That’s why I think that Braden got it precisely backwards when he said that “the GPL is a zero-sum game–you exploit open source software for your gain to the detriment of others.” The free software movement is perfectly willing to let commercial companies make a profit off of their software. In fact, companies like Red Hat have made millions from Linux, and I don’t think I’ve heard any Linux developers criticize them for it. All the free software movement asks in return is that commercial companies leave them alone. They want the freedom to develop great software without interference from lawyers. Unfortunately, Ballmer’s speech seems to put that freedom in doubt.

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