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Software industry setting the stage for mutually assured destruction

“We live in a world where we honor, and support the honoring of, intellectual property [they are going to have to] play by the same rules as the rest of the business[.] What’s fair is fair.”

Who does that sound like? Wrong. Incredibly, those are the words of Microsoft CEO Steve Ballmer, speaking about the use of free and open source software (FOSS). According to Fortune senior editor Roger Parloff, Microsoft is increasingly feeling the pinch from open source software systems like Linux. FOSS evangelists tout open source software as cheaper, more reliable and just all around better than privately owned software programs, such as those produced by Microsoft.

In the past, FOSS has not been such a problem for behemoths like Microsoft. Installation and use of FOSS on a personal computer required a little more information technology acumen and flexibility than the average consumer possessed. Now, however, FOSS has become much more powerful and user friendly. This increasing market power may have resulted in Microsoft’s most recent round of patent infringement allegations.

In response to Microsoft’s allegations, Linus Torvalds, lead developer of the main Linux software code (the “kernel”), has challenged Microsoft to name the particular patents Linux and other FOSS allegedly infringe. This new found bravado, combined with an increasing consumer affinity for FOSS now threatens to bring the entire issue to a quickening, from which there can be only one.

Microsoft argues that FOSS infringes 235 of its patents, but has been reticent to instigate a patent infringement lawsuit. The arguments Microsoft would have to make in alleging patent infringement would be the arguments third parties would use to take down Microsoft in their own patent infringement suits. As it stands now, if Microsoft has the option of arguing software patents are not valid if it gets sued and that software patents are rock solid if it chooses to sue a third party.

The problem is that Microsoft cannot have it both ways, once it selects a strategy, the result is a foregone conclusion. If Microsoft pursues the first option, it will likely not be able to stop FOSS from continuing to eclipse privately produced operating systems. If it pursues the second option, the software industry will proceed toward mutually assured destruction, with only the patent attorneys getting wealthy. Ceteris paribus, I prefer the second option.

Actually, like most other consumers, I prefer the status quo. Unfortunately, given the steadily increasing popularity of FOSS, it appears the ultimate conclusion to this Mexican standoff is preordained. The penultimate scene from the movie Reservoir Dogs offers a pretty accurate glimpse into the near future of the software industry.

Not to throw in any spoilers, but you, as the software consuming public, are being played by Mr. Orange. Microsoft and third party software patent holders are Joe and Eddie. Although it will be interesting to see which is which, the outcome is the same.

Brett Trout

Posted in Internet Law, Patent Law. Tagged with , , , , .