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Author of Ballmer-Cited Report Refutes Microsoft's FUD

Nov 19, 2004, 13:45 (5 Talkback[s])
(Other stories by Brian Proffitt)

By Brian Proffitt
Managing Editor

The author of a report alledgedly cited by Microsoft CEO Steve Ballmer has his own thoughts on Ballmer's use of his material.

In a report filed by Reuters, Ballmer was quoted from a speech in Singapore at Microsoft's Asian Government Leaders Forum as stating that Linux violated more than 228 patents, and hinting that someday any government that might use Linux would face intellectual property litigation.

"Someday, for all countries that are entering the WTO (World Trade Organization), somebody will come and look for money owing to the rights for that intellectual property," Ballmer was quoted in the Reuters report.

Later in the day, Microsoft began to try and moderate what many perceived as a not-really-veiled threat to Linux and its ongoing adoption by world governments. Ballmer was not making threats on behalf of Microsoft, it seemed, but rather was citing a report created by Open Source Risk Management (OSRM) earlier this year.

In a statement to the online publication Microsoft Watch, a Microsoft spokesperson said "Steve (Ballmer) was speaking at the Asia Government Leaders Forum (in Singapore) and noted the recent OSRM report in answer to a question he was asked on Linux and licensing costs. It wasn't in the context or perspective of 'Microsoft saying this,' but rather 'here's what the industry is saying and it is a factor to consider.'"

This study, issued by OSRM in August, citing 283 non-court validated patents out there that could directly effect the contents of the Linux kernel. Non-court validated, according to Daniel Ravicher, Senior Counsel of the Free Software Foundation, and author of the OSRM report, means that the patents have been filed but they have never been tested in a court of law as being valid. 27 of those patents are held by Microsoft.

If Ballmer was quoting the study, then his numbers were off (his 228 vs. the study's 283). And the author of the study has his own interpretation of Ballmer's remarks.

"Microsoft is up to its usual FUD. Open source faces no more (if not less) legal risk than proprietary software. The market needs to understand that the study Microsoft is citing actually proves the opposite of what they claim it does," Ravicher said in a statement issued after business hours yesterday.

"There is no reason to believe that GNU/Linux has any greater risk of infringing patents than Windows, Unix-based or any other functionally similar operating system. Why? Because patents are infringed by specific structures that accomplishes specific functionality. Patents don't care how the infringing article is distributed, be it under an open source license, a proprietary license, or not at all. Therefore, if a patent infringes on Linux, it probably also infringes on Unix, Windows, etc.," he continued.

Ravicher also challenged Ballmer's choice of words in the Microsoft exec's Singapore speech.

"Ballmer makes a very bold statement by saying 'Linux infringes hundreds of patents,' Ravicher stated. "That is extremely different than saying 'Linux potentially infringes X patent,' because the requirement to prove infringement is much more difficult than the requirement to simply file a case claiming infringement. As the SCO saga shows, filing a case based on an allegation is one thing; proving the merits of the allegation in court is something completely different."

Ballmer's use of the study as a source was completely off the mark, according to its author, since it was not meant to be a negative threat to Linux at all but, rather, a constructive warning.

"He also miscontrues the point of the OSRM study, which found that Linux potentially (not definitely) infringes 283 un-tested patents, while not infringing a single court-validated patent. The point of the study was actually to eliminate the FUD about Linux' alleged legal problems by attaching a quantifiable measure vs. the speculation. And the number we found, to anyone familiar with this issue, is so average as to be boring; almost any piece of software potentially infringes at least that many patents.

"Our intent was (1) confirm what everyone in the open source community already knew, that open source software is not immune from the perils of the patent system in which common software can be potentially infringed by hundreds of patents (while most pharmaceuticals are only potentially infringed by a few); and, (2) to reinforce the fact that the patent system allows patent holders to harass open source software with claims of patent infringement, just as they harass proprietary software," Ravicher explained.

Whatever Ballmer meant to say in his speech, Ravicher firmly believes that the whole notion of open source software being somehow more dangerous to use than proprietary software is entirely incorrect. And he cites history to prove his point.

"If one believes the proof is in the pudding, open source software has much less to worry about from patents than proprietary software. Consider this--not a single open source software program has ever been sued for patent infringement, much less be found to infringe. On the contrary, proprietary software, like Windows, is sued and found guilty of patent infringement quite frequently (e.g., Eolas' patent being infringed by Windows, Kodak's patent being infringed by Java)," he concluded.

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