Why Microsoft's legal victory worries open source community

Stacey Quandt

There is concern within some sectors of the open source community that Microsoft will use legal means in the context of patent infringement claims to effectively reduce the sale and use of software licensed under the GNU General Public License (GPL) in the United States. Prior patent and license claim attempts by Microsoft were directed at limiting the use of Samba and OpenGL. Earlier this year, Microsoft released a Royalty-Free Common Internet File System (CIFS) Technical Reference License Agreement for two patents specific to the CIFS protocol, which grants permission to use and exercise these patents in open source software, with the exception of software licensed under the GPL. In addition, Microsoft has disclosed that it believes it may have two patent claims on OpenGL specific to Vertex programming technology and fragment shading. The growing concern within the open source community is whether these legal volleys are only a warm-up to more aggressive action.

Microsoft has 1,800 patents and signs cross-license agreements with key industry partners. The primary fear is that Microsoft will leverage patent lawsuits to not only scare potential open source users but also to curtail the development efforts of open source developers. For example, the significance of Microsoft claiming patent infringement against Red Hat would depend on how broad or narrow the patent claim is. It is possible to not use a specific implementation and to write around code, but a barrage of patent claims would be challenging for a single open source provider to handle.

For now, there is no immediate risk to customers since Microsoft has yet to specify any further patent claims on open source software. While the open source community remains apprehensive, there is an intriguing presumption that the most likely beneficiary of the Microsoft settlement will be Linux initially. This is because distribution providers would gain access to Microsoft information that would help them in the development of competing products. However, it may take time for the process to be defined and possibly years for previously inaccessible Microsoft technology to benefit new products. Although the consent decree requires that Microsoft not retaliate against OEMs, there is nothing to prevent Microsoft from using legal means to decrease the market potential of open source software.

It bears consideration that Microsoft characterizing open source software as "anti-American" and referencing Linux as a "cancer" has backfired and made customers more skeptical of Microsoft’s anti-GPL rhetoric. There will be a risk for Microsoft if it sues Red Hat, Samba or other open source providers – Microsoft will be pitting itself indirectly against its customers. Another mitigating factor that favors Microsoft not pursuing a legal attack on open source software is that the European Union has yet to decide its own case against Microsoft. A worst-case scenario is that Microsoft patent claims could create a technological divide between the US and other countries where Microsoft patents may not be recognized.

The implication is that if companies in the US believed there was a risk in using GPL software, their IT infrastructure could cease to be competitive with companies outside the US. Besides Red Hat and other open source companies, the vendor with the most at stake is clearly IBM, which could lose momentum against Sun in its efforts toward Unix-to-Linux migration and opportunities to close the gap against the Solaris stronghold.

All of this amounts to a "what if," and unlike warning Titanic passengers about icebergs, there is still only an assumption that Microsoft has legitimate patent claims to limit the adoption of open source software. However, Microsoft Shared Source should not be viewed as an alternative to using open source products. With Microsoft Shared Source in most cases the code cannot be modified or freely redistributed, and in some cases customers may be required to sign non-disclosure agreements (NDAs) to see source code. This could create a risk for customers should they build new products that are interpreted as a violation of an NDA agreement with Microsoft. There are considerable economic benefits to the deployment of open source software, and it is recommended that users stay the course with current or pending deployments. At the same time, organizations, particularly those based in the US, should discuss possible contingency plans with vendors in the event that Microsoft launches a full-scale legal attack on open source software.