Is it the worst kept secret in technology? For months now industry watchers have been speculating that software titan Microsoft may be about to unleash legal action in a bid to claim royalties it believes it is owed from the inclusion of patent-infringing code that has been incorporated into open source software. Now, Microsoft has made specific accusations of intellectual property infringement against the open source operating system Linux. But who would be the target of such legal action?

Microsoft is bullish about its claims. “The real question is not whether there exist substantial patent infringement issues, but what to do about them,” says Horacio Gutierrez, Microsoft vice president of intellectual property and licensing.

The company’s antipathy towards open source software is well known, and the idea that community written software could unwittingly include patent-
infringing elements is not new either. However, many within the open source community dispute the claim.

Nevertheless, after months of behind-the-scene negotiations between Microsoft and various Linux distributors, progress appears to have stalled and Microsoft appears more intent than ever on claiming licence fees it believes it is owed.

Microsoft thought that it had found a mechanism to recoup that money with its agreement with one Linux distributor Novell. The deal was aimed at bypassing provisions within the General Public Licence (GPL) terms that prevent Linux distributors paying royalties in exchange for patent infringement protection.

However, supporters of the GPL have moved to close such loopholes, and new terms expressly forbidding such agreements will come in to force in July 2007.

Software companies are now trapped in a Mexican standoff over patents. Much of today’s software could contain patent-infringing elements, starting legal action would likely result in years of expensive litigation where both sides come out as losers. (One notable exception is the SCO Group, whose attempts to get IBM to pay up over Linux patents have effectively killed the company, while IBM is unscathed.)

Consequently, if Microsoft wishes to reclaim the royalties it believes it owns, it has two realistic options: persuade end users to pay royalties; or sue them.

Microsoft is understood to have already approached some blue chip businesses to see if a mutually agreeable solution can be reached. But if it cannot, would it dare to take Linux users – many of whom are also big Microsoft customers – to court?

The experts' response…

Jonathan Schwartz, CEO of systems and software giant Sun Microsystems, says suing customers will only alienate them.

Microsoft would be wise to listen to the customers it’s threatening to sue – customers can leave. No amount of fear can stop the rise of free software. The community is vastly more innovative and powerful than a single company. You will never turn back the clock on elementary school students and developing economies and aid agencies and fledgling universities that have found value in the open source community.

Mark Driver, research VP at Gartner says that Microsoft is simply strengthening its negotiating position but is unlikely to sue end-user organisations.

We do not believe Microsoft intends to pursue end-user IT organisations. Instead, we believe it will use the fear of legal compliance to pressure IT providers to enter into individual IP agreements. If suppliers balk or challenge Microsoft, this could escalate into a broader conflict as large-scale commercial open-source vendors (such as HP, IBM and Sun) are pulled into the conflict when their customers and partners turn to them for protection and support.