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Can Microsoft raise lawsuits against Linux projects?

Nov 13, 1998, 15:47 (38 Talkback[s])

On Thu, 12 Nov 1998, Anand Rangarajan wrote:

> You do not seem to realize that Microsoft could legally sue claiming
> possible patent and copyright infringement. SAMBA, Wine, KDE, Gnome and
> other programs are potentially at risk. Only bad PR---M$oft goes after
> unpaid, altruistic programmers---might stop them from taking this step.

Hmm, let's see if we can make this another linuxtoday article, as this is around the tenth time I've made the points below in responses to individuals who still fear (with some justification) Microsoft's immense wealth and power. First, let's address these concerns; then let's look into my crystal ball in more detail and try to divine the Future.

SAMBA and Wine, perhaps yes since they are reverse engineers of published MS specs (talk about the pot calling the kettle...) but this will not really hurt linux and indeed attacking SAMBA, or even (much more likely) messing with the SMB spec to try to break it would probably hurt them more than it helped them -- network managers don't like it when companies break their client/server operations and if anything will be pushed further towards true open standard products.

I don't see how Gnome is at risk, and if they tried to attack it they couldn't get away with just suing linux developers -- COSE, CDE, and a whole slew of related products are being developed by various "open" consortia. Many of these have pockets just as deep as or deeper than MS's. And finally, in the past, courts have been fairly unsympathetic to "look and feel" protection or "published spec" protection -- something that has benefitted Microsoft tremendously as it stole Apple/Xerox-PARC's GUI lock, stock and barrel to turn it into "Windows" and benefitted everybody as the Gnu project cloned Postscript in a carefully documented open development process that resulted in ghostscript.

It is not illegal to develop from published specifications. If one can document that one used NO COPYRIGHTED CODE in the development of your product and leave off precisely duplicating the interface of an interactive product, I believe a judge would simply throw the suit out after a simple review to establish those facts. Patent protection (these days) is a murkier issue -- one can (sometimes) patent something like an ABI or API and then publish it. As I understand it, if a company does this anyone can use the standard for themselves or work with it in the public domain, but commercial implementations of it must pay a license fee. (That is, you legally can (if you are able) go out into your garage and build a better mousetrap from its published patent description, as long as you don't try to sell it without a license. I could be wrong about this, but I think that's how it works.)

I believe that this is what the Halloween document is effectively advocating as a strategy -- subvert the open standards process by modifying an existing open standard with "patented, proprietary modifications", building must-have software that uses the hacks, and freeze out competitors stuck with the open standard. Pretty much what they are trying so hard to do with netscape, email, and Internet standards in general right now, actually. Standards are the Enemy to a company like Microsoft, because it is so easy, really, to craft a product that meets them that competition is high, prices low, and real innovation or added value is necessary to make money, at least compared to the fish-in-a-barrel ease of "competing" with a proprietary product in a closed market.

Anyway, with the DOJ already on their case and occupying a great deal of their legal energy, I don't think they'll find it a really good time to try to quash "competition" with legal suits of dubious merit. I expect their lawyers will limit their "punishment", if any, to getting fined and their wrist slapped, but the knowledge that they are under ongoing scrutiny and getting bad press as it is ought to be enough to keep them out of court fighting what they still perceive of as fleas.

The reason I presented such a humorous view of the Halloween document is that I really don't think that ANY of these possibilities -- legal action against OSS developers, further subversion of the standards process followed by FUD tactics, or painting themselves blue and rubbing mud into their bellies will enable them to avoid their Doom, because this isn't where the Doom is coming from. They've finally gotten the point that linux, freebsd, gnu, and OSS in general are real competitors but it is clear from their document that they don't really understand Why.

In my opinion, the WORST possible outcome for the linux community is that they could actually lose the DOJ case and be broken up like ATT, forced to separate their OS/Compiler division from their consumer software division in separate companies. It is the one thing (other than a fundamental change in Microsoft's corporate strategy that accepts far lower margins) that might save them. Here is Why Microsoft Should Fear The Penguin, by rgb. Remember, folks, you heard it here first.

MS has finally succeeded beyond their wildest dreams in creating a software monopoly any Rockefeller or Vanderbilt would be proud to own by ruthlessly co-opting each and every really successful piece of software invented and developed by somebody else and sold for their operating system. In many cases they have driven the actual inventors right out of business, in others they have just bought them out. We can go down a neat little list of companies that have been driven bankrupt or marginalized while the immense profits that they SHOULD have earned from their innovative products have gone to line Microsoft's already swollen pockets. Remember Borland? It (Phillip Kahn) invented the integrated compiler and failed utterly to keep MS from co-opting it so that Borland has a relatively small share of the total integrated compiler market today. Remember spreadsheets (Visical, Lotus, Borland, the list goes on) before Excel? Remember the many word processors (Wordstar, Word Perfect) before Word? Novell struggles on, but they don't have a chance (heck, even if they manage to hold out against Microsoft, there is linux:-). Who sells more encyclopedia software -- Brittanica or Microsoft? Don't know for sure, but I'd be willing to bet I know the answer. Who has muscled their way directly into the web browser market by giving away "just a little sniff" of their product on the streets, just as at one time they "encouraged" vendors to bundle Works or various elements from their current Office suite to coax folks away from Lotus and WP? Who has a direct challenge to Oracle mounted? Who has somehow mysteriously "broken" Apple's Quick Time multimedia product (making it vulnerable to the usual FUD strategy) by making small, undocumented changes in the Windows protocols while ensuring that their own competing multimedia products continue to work? And I'm sure that the public half of the story is only a tiny bit of the whole story.

Only games remain relatively untouched as the market is too volatile -- Microsoft only buys out games when they've been around for long enough to be considered classics.

Why, then, is this immensely successful strategy self-defeating? Why are they doomed?

Because at this instant in time, there are two strategies realistically available as corporate/marketing plans to software developers writing for windows. If you succeed in coming up with an Idea, invest money, blood and sweat in developing it and creating a market for it, and actually get to the point where your market starts to make you a real profit that, under ordinary circumstances, you could exploit (given your head start) basically unchallenged for 5-10 years, you can:

a) Sell out to Microsoft. No kidding, there are companies out there where this is basically their openly stated business goal. Quite a few of them, even today. What wimps.


b) Accept the fact that when you succeed, Microsoft will clone your software using the talents of its immense farm of programming talent (carefully skirting Look and Feel issues with the aid of the many very expensive lawyers on their staff) and take maybe half your market away in the first year their clone hits the streets. If necessary (because your product is still better), they'll just give it away until your sales are driven down enough to starve you for revenue and reinvestment capital, or perhaps they'll will "need" to make just enough perfectly reasonable changes in their OS/Windowing system that your developers are always behind their developers (who of course, have unparalleled access to OS/Window support) in the development cycle. Eventually their clone product will outperform yours or yours will break, making you vulnerable to FUD.

Don't worry, you can "survive". If you are lucky, they'll let you hang on in some sort of half life for those 5-10 years, and you might even stabilize with a steady market share of 1/4 or so if your product is phenomenal and achieved significant name recognition early enough. Microsoft recognizes your value, after all -- if you innovated once you might do it again and they were never ones to kill off the goose...

Microsoft should abandon the funny looking Windows logo and just hoist the Jolly Roger. Blackbeard was a piker by comparison. The famous tactics of the Roaring 90's robber baron capitalists (the Company Store, the manifold shenanigans associated with the rail lines and oil wells and coal mines) are crude by comparison. Even the moonshiners and gangsters of the prohibition era, with their "protection" schemes and shadow governments are romantic idealists compared to Microsoft and its Business Plan. Even Intel has been directly threatened by Microsoft, and you can bet that if MS were to delay software support for Merced even six short months it could cost them billions in profits, let alone revenues -- they are indeed vulnerable.

From the above, one could easily be tempted to conclude that even though there >>is<< a temptation (to wimps!) to take the mouse's share of a really large number of covered desktops and just give Microsoft the lion's share of your hard work (a mouse can certainly get fat -- for a mouse -- on the crumbs from the PC desktop table) a software developer would have to be brain dead stupid to develop any really GREAT idea for a Microsoft platform. Really smart computer scientists and software developers, the ones who like to work for themselves instead of being a vassal in a feudal corporate structure, the ones who have the Really Great Ideas, will Not Develop for Microsoft's OS or Windows Environment. Period. I think that we've been seeing this trend develop for several years now and that it is a major thing that has fueled the development of linux and freebsd.

This is what I REALLY think will cause Microsoft to change or die. Because right now, developing software for Microsoft is like brushing the teeth of a Great White Shark with a piece of raw steak.

Microsoft, contrary to their public press, is not much of an innovative company -- they don't have to be. They simply engulf amoeba style all the real innovations as fast as they appear. Like any big, amorphous predatory blob, they need a steady diet of Ideas just to maintain their existing overgrown body mass. But they've destroyed the symbiotic relationship they once had with their food supply and are WAY out on the predator-heavy part of the predator-prey cycle. If you know this particular set of couple ODE's, the inevitable outcome is starvation and death for the predator. linux and freebsd represent an additional dimension in the predator-prey landscape into which the smarter prey can "escape" without being eaten, and has what I believe to be a healthier and more stable ecology. And of course, the better/smarter prey are doing just that; it's just (market) evolution in action.

From this analysis, one doesn't have to have too much imagination to see why Intel, Oracle, and basically ALL the big software houses that haven't been absorbed by Microsoft (yet) are backing linux in a big way. They have finally realized what years of dithering and pointless squabbling over proprietary advantage in the OSF and Unix International communities didn't teach them -- it isn't just hype: they NEED to have an open standard, open source operating system as the basis for their software to be even moderately assured of actually reaping the full benefit of their development efforts and making a fair profit on their innovations. The transient benefits of being the setter of a proprietary standard are not worth the long term costs of competing against a whole raft of companies who are ALSO trying to set a proprietary standard.

Unfortunately, Microsoft has forgotten that it was the software written and sold by OTHER people that made them the company that they are today. As of right now, a whole lot of the same KIND of folks that were writing software for the early PC's (gimme ROM basic and I'll make a Million) are now writing software to run under linux or freebsd. There is the same sort of gold-rush, can make a fortune fast feel to it.

I give Microsoft at most two years of free running before they really start to feel the burn.

Pass the Crystal Ball, please. Thank you. I see it, what the spirits reveal -- Aha!

Linux will be the first (or possibly tied for first with freebsd) to provide >>absolutely transparent<< migration to Merced when it comes out and Intel realizes this. (So, by the way, does Sun. In the latest version of Sun Expert Sun Experts crow about the fact that there is expected to be a 6-12 lag porting "popular 32 bit Microsoft software" to the new 64 bit environment, and that folks might be understandably miffed at spending top dollar for a 64 bit cat's meow system to get Pentium performance from an emulator -- if the emulator works. They view this as an opportunity for their Sparc/Solaris migration pathway to make up lost ground.). With linux (or, to be fair, any other properly written Unix code), all that will be required to enable "instant" ports is for the kernel itself and the compiler itself to work. I forsee that Intel will simply ensure that Linus et. al. have whatever resources they might require (including early release merced systems) to make this happen. Intel of course, has precisely the resources required -- they are undoubtedly writing the reference compiler for the CPU, for example -- imagine what will happen when they provide their reference compiler, in spec or in source, to Gnu -- gcc will be THE premier compiler for the platform.

With kernel, compiler, and device drivers ported, any linux developer, using gcc and their existing 32 bit sources, can have "64 bit applications" on the market THE DAY MERCED IS RELEASED with a few simple modifications and a single recompile. I'll bet you a nickel that on that day, Red Hat Linux (among others) stands ready to deliver the canned operating system and the entire suite of commercial linux software ready to run. If Intel times it just right, linux software developers can actually start distributing merced-ready binaries six months before the actual release date on their non-merced CD's, so that one doesn't even have to "upgrade" (although the temptation to gouge just a leetle bit from their customers for the upgrade will probably prove irresistable to some).

History has shown us just how fickle and volatile the computer marketplace is, and how much it has become and is continuing to become a commodity, low margin operation. Microsoft's ascent has been rapid, their position is unbelievably high -- they stand on a peak far above where any have gone before -- but they abandoned their climbing pitons below in the rock face in their rush to reach the top.

The top crumbles, their footing is looser than they think, and it is a LONG way down. And scrabbling around underfoot, tripping them up, there is a penguin...


Robert G. Brown                        http://www.phy.duke.edu/~rgb/
Duke University Dept. of Physics, Box 90305
Durham, N.C. 27708-0305
Phone: 1-919-660-2567  Fax: 919-660-2525     email:rgb@phy.duke.edu