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FOSS Research Assignment Essay

FOSS (Free and Open Source Software) had some trouble in 2006 when Microsoft submitted 235 patents that were allegedly violated by FOSS. Microsoft created these patents in order to collect royalties from companies in the “free world” (companies/people using free software). Eben Moglen of the Free Software Foundation contended that software is a mathematical algorithm and is not patentable. Moglen wrote, “It’s a tinderbox. As the commercial confrontation between free software and software-that’s-a-product becomes more fierce, patent law’s going to be the terrain on which a big piece of the war’s going to be fought.” FOSS has powerful corporate patrons and allies. So if Microsoft ever tried to sue Linux distributor Red Hat for patent infringement, for instance, OIN might sue Microsoft in retaliation, trying to enjoin distribution of Windows.

In the 1970s and 1980s, software companies relied mainly on “trade secrets” doctrine and copyright law to protect their products. But everything changed in the 1990s. The copyright law was providing less protection to software than companies hoped for and the “trade secrets” doctrine was becoming unworkable because the secret itself (the source code) had to be revealed to an unlimited number of other people/companies. With the internet, Microsoft applied for 1,411 patents in 2002. By 2004 they submitted 3,780 patents. After that Microsoft had three choices. First they could do nothing and donate the patents to the development community. Second they could start suing other companies that were using their patents. Or third, they could begin licensing its patents to other companies for either royalties or access to their patents, which would be a cross-licensing deal. So they took the third option.

Microsoft later made a deal with Novell. They agreed not to sue each other’s customers for patent infringement, which is okay because it’s something that Richard Stallman’s GPL doesn’t address. Novell then agreed to give MS a percentage of all its Linux revenue through 2011. Microsoft decided it would pay Novell $240 million for “coupons” that could sell to customers, who would then trade in the coupons for subscriptions to Novell’s Linux server software. They also paid a “balancing payment” for the patent part of the deal.

So now all of the FOSS developers are in fear because “the big boys” aka MS could purchase their version of Linux through a vendor such as Novell while getting protection from lawsuits and letting the “little guys” to fend for themselves. But without the little guy developers, the future of high-quality FOSS is undetermined. So the Free Software Foundation drafted a new version of the GPL that would prevent anyone else from using the original copy’s loophole that MS exploited.

But Moglen had another thought. The fact that MS was selling coupons that people/companies could trade in for Novell subscriptions meant that MS was now a Linux distributer and went against the terms of the GPL, and was in fact in violation themselves. So Moglen wrote that if MS continued to issue these coupons after the new GPL takes effect, it would be waiving its right to bring patent suits against all Linux users. Moglen kept his promise and the new version of the GPL was released that July.

Microsoft and Novell proceeded with their deal. But Moglen’s revisions will prevent other companies from making any more deals like the Novell one. Microsoft hoped that the deal with Novell would be a model it could use it to collect royalties with other companies of free software. So the bridge from MS to FOSS failed, but we are now closer than ever to “patent Armageddon.” The bridge with MS needs to be burned and the patent system needs to be shut down. Moglen says “The free world says that software is the embodiment of knowledge about technology, which needs to be free in the same way that mathematics is free. Everybody is allowed to know as much of it as he wants, regardless of whether he can pay for it, and everybody can contribute and everybody can share.”

Works Cited

Article: “Microsoft takes on the free world”

Link: http://money.cnn.com/magazines/fortune/fortune_archive/2007/05/28/100033867/index2.htm


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