Microsoft is not the real threat

Monday, May 21st, 2007

Much has been written about Microsoft’s allegation of patent infringements in Linux (by which I’m sure they mean GNU/Linux ;-)). I don’t think Microsoft is the real threat, and in fact, I think Microsoft and the Linux community will actually end up fighting on the same side of this issue.

I’m in favour of patents in general, but not software or business method patents. I’ll blog separately some day about why that’s the case, but for the moment I’ll just state for the record my view that software patents hinder, rather than help, innovation in the software industry.

And I’m pretty certain that, within a few years, Microsoft themselves will be strong advocates against software patents. Why? Because Microsoft is irrevocably committed to shipping new software every year, and software patents represent landmines in their roadmap which they are going to step on, like it or not, with increasing regularity. They can’t sit on the sidelines of the software game – they actually have to ship new products. And every time they do that, they risk stepping on a patent landmine.

They are a perfect target – they have deep pockets, and they have no option but to negotiate a settlement, or go to court, when confronted with a patent suit.

Microsoft already spends a huge amount of money on patent settlements (far, far more than they could hope to realise through patent licensing of their own portfolio). That number will creep upwards until it’s abundantly clear to them that they would be better off if software patents were history.

In short, Microsoft will lose a patent trench war if they start one, and I’m sure that cooler heads in Redmond know that.

But let’s step back from the coal-face for a second. I have high regard for Microsoft. They produce some amazing software, and they made software much cheaper than it ever was before they were around. Many people at Microsoft are motivated by a similar ideal to one we have in Ubuntu: to empower people for the digital era. Of course, we differ widely on many aspects of the implementation of that ideal, but my point is that Microsoft is actually committed to the same game that we free software people are committed to: building things which people use every day.

So, Microsoft is not the real patent threat to Linux. The real threat to Linux is the same as the real threat to Microsoft, and that is a patent suit from a person or company that is NOT actually building software, but has filed patents on ideas that the GNU project and Microsoft are equally likely to be implementing.

Yes, Nathan, I’m looking at you!

As they say in Hollywood, where there’s a hit there’s a writ. And Linux is a hit. We should expect a patent lawsuit against Linux, some time in the next decade.

There are three legs to IP law: copyright, trademark and patents. I expect a definitive suit associated with each of them. SCO stepped up on the copyright front, and that’s nearly dealt with now. A trademark-based suit is harder to envisage, because Linus and others did the smart thing and established clear ownership of the “Linux” trademark a while ago. The best-practice trademark framework for free software is still evolving, and there will probably be a suit or two, but none that could threaten the continued development of free software. And the third leg is patent law. I’m certain someone will sue somebody else about Linux on patent grounds, but it’s less likely to be Microsoft (starting a trench war) and more likely to be a litigant who only holds IP and doesn’t actually get involved in the business of software.

It will be a small company, possibly just a holding company, that has a single patent or small portfolio, and goes after people selling Linux-based devices.

Now, the wrong response to this problem is to label pure IP holders as “patent trolls”. While I dislike software patents, I deeply dislike the characterisation of pure IP holders as “patent trolls”. They are only following the rules laid out in law, and making the most of a bad system; they are not intrinsically bad themselves. Yes, Nathan, all is forgiven ;-). One of the high ideals of the patent system is to provide a way for eccentric genius inventors to have brilliant insights in industries where they don’t have any market power, but where their outsider-perspective leads them to some important innovation that escaped the insiders. Ask anyone on the street if they think patents are good, and they will say, in pretty much any language, “yes, inventors should be compensated for their insights”. The so-called “trolls” are nothing more than inventors with VC funding. Good for them. The people who call them trolls are usually large, incumbent players who cross-license their patent portfolios with other incumbents to form a nice, cosy oligopoly. “Trolling” is the practice of interrupting that comfortable and predictably profitable arrangement. It’s hard to feel any sympathy for the incumbents at all when you look at it that way.

So it’s not the patent-holders who are the problem, it’s the patent system.

What to do about it?

Well, there are lots of groups that are actively engaged in education and policy discussion around patent reform. Get involved! I recently joined the FFII: Foundation for a Free Information Infrastructure, which is doing excellent work in Europe in this regard. Canonical sponsored the EUPACO II conference, which brought together folks from across the spectrum to discuss patent reform. And Canonical also recently joined the Open Invention Network, which establishes a Linux patent pool as a defensive measure against an attack from an incumbent player. You can find a way to become part of the conversation, too. Help to build better understanding about the real dynamics of software innovation and competition. We need to get consensus from the industry – including Microsoft, though it may be a bit soon for them – that software patents are a bad thing for society.

133 Responses to “Microsoft is not the real threat”

  1. Pinguini al contrattacco! « Appunti di Ubuntu Says:

    […] E’ ragionevole pensare che Redmond non intraprenderà mai azioni legali contro Linux. Lo scenario che si va delineando è quello già descritto giorni addietro da Mark Shuttleworth in questo interessante post del suo blog. Il buon Mark, forse per temperamento, e anche per necessità “diplomatiche”, riesce ad avere uno sguardo posato e lungimirante sulla questione. […]

  2. Bizfriz » Blog Archive » Shuttleworth Says:

    […] Microsoft is not the real threat May 21st, 2007 – Mark Shuttleworth – créateur d’Ubuntu […]

  3. Noticias y artículos interesantes del 2007-05-28 | hombrelobo, una mente dispersa Says:

    […] 1 – Mark Shuttleworth » Blog Archive » Microsoft is not the real threat So it’s not the patent-holders who are the problem, it’s the patent system. […]

  4. David Mackey Says:

    I hate software patents. I’m glad you are bringing some more public recognition to the topic and agree that it is not Microsoft who will be the patent enemy, but the pure IP holders, against whom there can be no cross-licensing. Thankfully, the late Supreme Court decision should be significantly helpful in reducing the number of successful litigation suits.

  5. Weber Ress Says:

    Great article ! Microsoft and Linux are different concepts and business. One not threat another.

  6. Cristian Miceli Says:

    Mark

    Although I think you are right to focus on the economics of a patent war for Microsoft, I wonder to what extent Microsoft would be willing to allow its patent portfolio to be a loss leader given that having large patent thickets also acts as a control mechanism. As you may have heard Roger Burt (IBM) say in the past, IBM does not obtain software patents for revenue reasons but in order to obtain ‘freedom of action’ (which kind of defeats the ‘innovation’ argument also….). For ‘freedom of action’. you can also substitute ‘control of others’. It is a ‘freedom’ for IBM and others who have large patent pools but not for the SMEs and individual inventors who can’t or won’t play the software patenting game.

    I am sure the ‘control’ factor has an economic value (although hard to quantify) which one may need to factor in when considering the value to Microsoft of software patents. Clearly, the freedom of action argument makes a mockery of the purpose of the patent system and exposes it for what it is when applied to software, a control mechanism. As we both know, that the system can be played in this way is the fault of the system – incumbents can be expected to exploit a system which gives them a legally sanctioned means of controlling new market entrants.

    Now, on another note, I thought I would try a two-pronged attack 😉 and whilst leaving a comment on your blog remind you of our conversation outside the Metropole. I sent an e-mail to Ms Newman on 18 May after EUPACO 2 regarding the business roadshows idea I discussed with you. In case my e-mail gets lost in cyberspace I thought I would jog your memory with this blog posting. I am not going to push this one any further and I am quite happy to carry on doing what I can on my own steam, but if you are interested let me know,

    Also, if you do ever get the time, before posting as to your views on why software patents are bad, you might want to take a look at the piece I wrote on the CII Directive for Groklaw last year (http://www.groklaw.net/article.php?story=20060115145429444).

    Regards

    Cristian Miceli
    LASP
    http://www.lasporg.info

  7. tecosystems » Discussing Patents: Two Approaches Says:

    […] One need look no further, in fact, than Microsoft itself for this proof of this love/hate relationship with patents. Whether he’s right or wrong, Mark’s argument that Microsoft will soon be strong advocates against software patents is reflective of the paradox that they represent for large software makers. The economics are troubling. […]

  8. cajondesastre.net » Blog Archive » Microsoft no es el mayor problema Says:

    […] http://www.markshuttleworth.com/archives/118  […]

  9. cantormath Says:

    I still think, if Microsoft had its way, FOSS would not exist and Microsoft would patent linux if they could.

  10. UbuntuOS » Blog Archive » Podcast #36 Says:

    […] Shuttleworth: “Microsoft not the real threat” […]

  11. paolo del bene Says:

    e poi si dice che mi arrabbio, ma come e’ possible quando c’e’ gente
    che sviluppa distribuzioni gnu/linux su base debian ed appoggiano il patent ?

    in netto contrasto con la politica
    della fsf.org e di rms, invito a
    boicottare ubuntu fintantoche’ mark shuttleworth non cambia idea sul patent please boycot ubuntu until mark shuttleworth don’t change idea on patent he can’t develop a distribution based on gnu/linux debian and to in contrast with the policy of fsf.org and rms.

    Mark Shuttleworth says:

    Paolo, I think you may have misunderstood my comments, I am almost perfectly in agreement with RMS and the FSF on the subject of software patents.

  12. Tech Untangled » Blog Archive » Is Microsoft’s patent claims a real threat to open source? Says:

    […] And of course, Mark Shuttleworth points out that Microsoft is not the real threat, but that the real threat may be from a small company, possibly a patent holding company, that has a single patent or small portfolio, and goes after those who manufacture, use, or sell open source based products. […]

  13. Dando la chapa » Microsoft, Linux y patentes Says:

    […] Y me ha parecido interesante el post de Mark Shuttleworth (el capo de Ubuntu)Microsoft is not the real threat. Viene a decir no sólo que MS no es el enemigo en esto de las patentes, sino que en relativamente poco tiempo encabezará un grupo de presión para que se eliminen. ¿Coooooooooooomo? Lo que oyes: And I’m pretty certain that, within a few years, Microsoft themselves will be strong advocates against software patents. Why? Because Microsoft is irrevocably committed to shipping new software every year, and software patents represent landmines in their roadmap which they are going to step on, like it or not, with increasing regularity. They can’t sit on the sidelines of the software game – they actually have to ship new products. And every time they do that, they risk stepping on a patent landmine. […]

  14. Mattiesworld » Blog Archive » It’s the system! Says:

    […] Today, I had a short discussion with a colleague about patents which reminded me about this very interesting post by Mark Shuttleworth: “Microsoft is not the real threat”. So I thought I’d post it here too to help spread the message a bit. […]

  15. Harsha Says:

    You said so much about patents and M$, do they realise this right now? if they, then why are they not joining hands to stop it immediately, which they won;t they are finding profit with the current setup and they want to make/collect as much as possible and pretend in later years once they know nothing can be done from then onwards;

    what you are saying might be true in later years. what about now (it is like now or never concept)?

    tell me why ice is melting in polar regions now; can the melting be stopped right now?

  16. Just Blogging… » Fundador de Ubuntu não considera Microsoft maior ameaça Says:

    […] No seu blogue, Shuttleworth abordou a recente polémica de patentes que envolve a Microsoft e o Linux. Segundo ele, a Microsoft não é a maior ameaça. «Tenho certeza de que, em poucos anos, a Microsoft será contra as patentes de software», disse. […]

  17. Technology Untangled » Blog Archive » Is Microsoft’s patent claims a real threat to open source? Says:

    […] And of course, Mark Shuttleworth points out that Microsoft is not the real threat, but that the real threat may be from a small company, possibly a patent holding company, that has a single patent or small portfolio, and goes after those who manufacture, use, or sell open source based products. Sphere: Related Content Category: Open Source, Patents  |  Comment (RSS)  |  Trackback […]

  18. Mark Shuttleworth gets quote mined « Limulus Says:

    […] “I’m in favour of patents in general, but not software or business method patents.“ […]

  19. Ubuntu64 | Ubuntu and the MS Patent Claims Says:

    […] On June 14 I decided that I had enough and wanted to ask Canonical about their position on the MS Patent Claim Issue. I sent an email to pr@canonical.com (Ubuntu Public Relations) and on June 15, 2007 1:43:18 AM Gerry Carr sent me a reply. Gerry stated that: thing I can do is point you to Mark Shuttleworth’s blog on this http://www.markshuttleworth.com/archives/118 […]

  20. thinkingtom Says:

    His father has a law firm and he has preferred building his business buy law and trade rather than technology. He uses marketing more than innovation. He is most likely to have worked his way well into the system this way or that. He will, most likely, win, if at all he does keep silent.
    Or, it is the IBM story repeating after 25 years. That sounds a bit too simplistic to repeat since his people are really good legal hawks.

    So, what we all can do is either
    [1] unite and work together or
    [2] pray isolated.
    And yes, if we unite and work together, start ASAP at http://osapa.org

    @Mark: keep this last line at least. thanks.

    My $0.02
    /ttom

  21. WRA Gestão em T.I. » Blog Archive » Microsoft não é ameaça, diz criador do Ubuntu Says:

    […] Em seu blog, Shuttleworth abordou a recente polêmica de patentes que envolve a Microsoft e o Linux. Segundo ele, a Microsoft não é a maior ameaça. “Tenho certeza de que, em poucos anos, a Microsoft será contra as patentes de software”, disse. […]

  22. Byte Into It 23rd May 2007 Says:

    […] Mark Shuttleworth » Blog Archive » Microsoft is not the real threat […]

  23. » Shuttleworth grasps open source political message | Open Source | ZDNet.com Says:

    […] a massive departure from his own blog post in May, when he called corporate “patent trolls” the main threat to open source, rather than […]

  24. cantormath Says:

    If this is true mark, the why would you say this

    Linux & Open Source Header

    “Microsoft has succeeded in fracturing the Linux and open-source community with the patent indemnity agreements it has entered into with several prominent vendors” – Ubuntu leader and Canonical CEO Mark Shuttleworth told eWEEK.

    source:http://www.eweek.com/article2/0,1895,2167193,00.asp

  25. Kel Says:

    Nice article, but I would disagree with the definition of a patent troll. Personally, I feel that patent trolls are those people who have a patent and sit on it for years, watching as another company, knowingly or not, uses that patent, then strikes when the company is a financial success, only because they can make more money off the infringement case than they can from licensing the patent.

    To each, their own, though.

  26. The Inquirer DE : Shuttleworth: Microsoft ist „keine Gefahr für Linux“ Says:

    […] Mark Shuttleworths Blog // […]

  27. Ubuntu Kids - » You Can’t Patent Poetry Says:

    […] Shuttleworth on why MS is not the enemy […]

  28. Top Unix News » Blog Archive » Mark Shuttleworth: Microsoft is not the real threat Says:

    […] read more | digg story […]

  29. Microsoft Denies It’s Attacking Open Source Says:

    […] this week, Mark Shuttleworth, the founder of the Ubuntu version of Linux, said http://www.markshuttleworth.com/archives/118 that Microsoft was not “the real threat” to the Linux […]

  30. Thiago Avelino » Blog Archive » Microsoft não é ameaça, diz criador do Ubuntu Says:

    […] Shuttleworth, fundador do projeto Ubuntu, afirmou que a Microsoft não é a maior ameaça ao Linux. Em seu blog, Shuttleworth abordou a recente polêmica de patentes que envolve a Microsoft e o Linux. Segundo […]

  31. Technology latest news » Blog Archive » Ubuntu: Microsoft is Patent Pal (PC World) Says:

    […] themselves will be strong advocates against software patents,” Shuttleworth wrote on his blog. “Microsoft is irrevocably committed to shipping new software every year, and software […]

  32. 451 CAOS Theory » 451 CAOS Links - 2007.05.21 Says:

    […] Microsoft is not the real threat, here be dragons, Mark Shuttleworth (Blog) […]

  33. E o quico? Parte II: A MS não é a Ameaça Real e Imediata « Graffiti Says:

    […] o que diz Mark Shuttleworth, criador do Ubuntu, em seu blog. E explica: “A cada novo lançamento de software, a Microsoft se arrisca a pisar nessas minas […]