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Author of Ballmer-Cited Report Refutes Microsoft’s FUD

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.