Novell document dump makes it look like a scandal

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If by "OSS" you mean "Microsoft", that's true.

At least, it's "as true". The difference is that Microsoft also charges you for the use of software that they don't own.

Software patents themselves are questionable, as Microsoft knows, having argued against them repeatedly. Software is properly covered under copyright law, not patent law. To the list of viable remedies we can therefore add, get rid of software patents.

It is clear through experience that the mistake of software patents works contrary to the Constitutional charter of the US patent system, which is "to promote the progress of science and useful arts". They are also arguably at odds with the statutes limiting patents to "processes, machines, articles of manufacture, and compositions of matter". Our present quagmire results from (again, arguably) a mistake of the Supreme Court that confuses the software computer algorithm used to control a process (for processing rubber) with the rubber curing process itself. The two are not identical, but that's what you get when lawyers who are ignorant of the technical nuances are allowed to place themselves in charge of them.

Microsoft is as vulnerable to patent litigation as anyone else. The fact that they make a lot of money simply means they have more to lose in the event of a failure in court. This is one reason they dread the prospect of actually naming any of the 235 patents allegedly violated by Linux. Actually, should it go to court, the failure to name these patents does not work in Microsoft's favor, as there is ample evidence that the Linux community is acting in good faith to remove any inadvertent infringement if there is evidence that it exists. By failing to provide evidence allegedly known to them, Microsoft deliberately contributes to continued infringement. Thus they'll have a tough task proving actual damages when it's so blatantly simple to stop infringement... all they have to do is say what's infringed.

The point here isn't that only Microsoft infringes: it's that this is clearly a situation that Microsoft wants to go to court, unless they want to see a Cold War-style M.A.D. scenario come to life. If this move is in any way clever on Microsoft's part, it may be that it provides impetus for patent system reform that most developers want, proprietary and OSS alike.

(IANAL. This is my opinion. However, it's clear that being a lawyer doesn't give anyone much authority on this subject. You'd be hard-pressed to find two who exactly agree on it.)

Posted by: dave.leigh@...   Posted on: 05/27/07 You are currently: a Guest | Members login | Terms of Use

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