The recent
proclamation by Microsoft that open-source software violates 235 of their patents has caused a considerable stir within the Linux community, particularly since Microsoft has declined to reveal just which patents are being violated. (These break down as follows: the Linux kernel violates 42 patents; Linux GUIs violate 65; Open Office violates 45; various open source e-mail applications violate 15; other open-source software programs violate an additional 68.)
Microsoft’s Horacio Gutierrez “refuses to identify specific patents or explain how they're being infringed, lest open-source advocates start filing challenges to them.” He also seems to have no plans to sue Linux vendors directly; instead, it looks like Microsoft’s customers themselves might be the targets since they are much less likely to counter-sue or challenge the validity of Microsoft’s patents.
A Linux vendor, on the other hand, would have no option but to fight to the death if they are sued in a big way by Microsoft, since business death, quite literally, is the alternative for the smaller vendors. The larger vendors (e.g. Sun, IBM), on the other hand, have enough patents of their own that they could mount a serious counter-attack.
Without debating the merits of open-source and software patents, let’s consider this problem from a warfare perspective – as a purely intellectual exercise. In this model, a patent could represent a devastating (nuclear?) weapon, since it could potentially wipe out another company (witness the problems faced by Vonage as a consequence of violating just two of Verizon’s patents). If our comparison is apt, it follows that the greatest utility of a patent likes in its potential to frighten your adversaries, since the actual use of a terrifying weapon invariably has unexpected consequences.
If patents are nuclear weapons, there is clearly more than one superpower since nearly all the large tech companies have amassed literally thousands of patents over the years. None of these superpowers have sued each other for patent infringements except in the most egregious cases, since no superpower really wants to trigger an all-out patent war that could rapidly spin out of control.
Instead, you can have proxy wars, where one side arms and encourages a third-party country to make a limited attack on the adversary, such as Microsoft’s encouragement of SCO to sue IBM for Linux’s alleged violation of SCO’s UNIX patents.
The great thing about proxy wars is that they are (a) deniable, (b) cheaper than the real thing, (c) irritating and distracting, if not altogether enfeebling, for the adversary, and (d) there is only collateral damage, borne by the proxy. Case in point: SCO, which is now a weaker company than it was before it sued IBM.
But in the post-Cold War era, can the so-called “Global War on Terror” (GWOT), where one superpower, backed by an uncertain and dwindling coalition of allies, fights a global insurgency, offer a model for a “Global War on Open Source” (GWOOS)?
The ideal response might be to avoid the war in the first place: either because it is bad karma (
Jonathan Schwartz), because it is irrelevant (
Mark Shuttleworth), or because it is pointless (
Linus Torvalds).
But if Microsoft were to launch a GWOOS, how might the adversary react?
Perhaps with bravado: the folks at
Digital Tipping Point have created a
“Sue Me First” Wiki page where people can sign up, confess to Linux usage, and dare Microsoft to sue them for their sins. The goal here, obviously, is to flush out Microsoft’s patents so that they can be examined by others, and consequently challenged on the basis of prior art. This is the equivalent of burning an American flag in some town square in a distant land: you get some media coverage, cursory attention from your adversary, and become a temporary local hero.
A more intriguing scenario would be a “global distributed insurgency”, where a large number of individuals and groups, acting with only loose coordination between them, decide to launch a number of simultaneous attacks upon Microsoft’s patent portfolio. Here’s how this could play out:
- Open-source advocates could create a simple set of Wiki pages for tracking a large number of Microsoft’s patents: perhaps one page per patent. Any individual could choose to create a page for a patent that he/she finds of interest.
- Patent filings are frequently written in impenetrable jargon, so the person who creates a patent page would need to provide a good summary of the filing, highlighting its particular claims to novelty. Within a Wiki model the initial patent summary need only be good enough to attract other people to get involved; subsequent visitors to the page could provide improve the summary if needed.
- Once a patent page has been set up, visitors could start adding references to prior art for that particular invention. Just as with the real Wikipedia, some patent pages are going to end up in better shape than others as people gravitate towards topics that are more mainstream.
Eventually, a core set of Wiki pages might be built that provide enough arguments for a lawyer involved with the open source movement to file a challenge against particular patents. The hard work of researching a particular technical subject would have been done by dozens (hundreds? thousands?) of visitors who could collectively prove that “given enough eyeballs, all patents have prior art.”
To take our GWOT analogy further, the particular patents that get targeted need not be directly related to the open-source conflict: the insurgents in a GWOOS could succeed simply if the technological superpower becomes hugely distracted by having to fight on so many fronts at the same time.
In the GWOT, various "interested parties" find it convenient to aid the insurgents in deniable ways, not necessarily because they they want the insurgents to win a particular battle, but simply because they want to hobble a shared adversary. Similarly, in a GWOOS we might find that among the many anonymous (or pseudonymous) contributors to the Wiki pages are agents of other tech companies that are competing with the superpower.
The GWOOS, once started, would be difficult to contain or terminate if enough open-source fans join in the battle. Faced with hundreds or thousands of individual combatants, with whom could the superpower negotiate a comprehensive peace?
If Mark Shuttleworth is correct in arguing that both Microsoft and Linux face a common enemy in “patent trolls”, the smarter strategy for Microsoft might be to avoid launching a GWOOS and instead join forces with the open-source community against a common enemy.
Caveat lector: the above discussion is intended to be an intellectual exercise; I am not taking sides on either the GWOT or the GWOOS. At Kerika we have a neutral attitude towards operating systems: our product runs on
Macs, Windows and Linux.