News

'The List': Open Source Advocates Unleash Fury at Microsoft

• By Keith Ward
• May 23, 2007

The list was started by Digital Tipping Point, an online Web site dedicated to the open source movement. It blogs about open source and is producing a number of films about how open source "will empower average people to create an immense wave of new literature, art, and science," according to the Web site.

Just after midnight on May 20, a post went up on the wiki, or informational, page of the Web site. The author, Christian Einfeldt, is also the producer of the video project. He started the list, he stated, "…to be a place where people would like to join together to invite a Microsoft patent infringement lawsuit." The page's title is "Sue me first, Microsoft." Readers are encouraged to add their names to the list, along with their e-mail address, version of Linux they are using and why they are using that particular distribution.

As of Tuesday afternoon at 6:20 p.m. ET, the list was 494 names long, and new names were being added almost every minute. It's clear that a very sensitive nerve has been struck in the Linux and open source community, and whether Microsoft can heal the damage may be an important factor in its stated desire to build bridges to the free software crowd. Microsoft had not responded to a request for comment on this story by press time.

The impetus for the list was the now-famous Fortune magazine article from May 14 in which Microsoft General Counsel Brad Smith and Horacio Gutierrez, vice president of intellectual property and licensing, claimed that Linux and other open source software infringe on 235 Microsoft patents.

Microsoft has since backed away from those comments to a degree.

Bill Hilf, general manager of platform strategy and director of Microsoft's work with open source projects, said that "We have no plans to litigate" in an interview with IDG News Service. "Our strategy from everyone in the company -- from [Steve] Ballmer to Brad Smith to me and everyone in between -- has always been to license and not litigate as it relates to our intellectual property."

However, "We have no plans to litigate" is not the same as "We will not litigate," and those statements have hit the open source community like a hydrogen bomb. Einfeldt, an attorney by trade, stated his own theories on why Microsoft has chosen this tack:

"Some people have asserted that Microsoft is making these threats now because Windows Vista is not selling well. Others are saying that free open source software is growing too fast and becoming too much of a threat. I personally think that Microsoft has a history of being aggressive with its customers early in the revenue cycle of its Windows operating systems' life-cycles, because rapid adoption is the key to standardizing on Windows."

Whatever the reason, anger at Microsoft from the free software populace appears to be at an all-time peak, highlighted by the "Sue me" list. It even caught Einfeldt off guard. "I am surprised. I did not anticipate this level of reaction. I'm very happy that it does seem to have struck a chord with the free, open source software community," he said in an interview.

Linux developer Linus Torvalds, an icon of that community, also entered the fray, and took aim at Microsoft. Torvalds stated publicly that "It's certainly a lot more likely that Microsoft violates patents than Linux does." However correct that statement, it is true that Microsoft has, so far, declined to give specifics on the alleged patent violations. That, in turn, has led to questions about the validity of its infringement claims.

Andy Updegrove, a noted patent attorney who also represents the Linux Foundation and sits on its Board of Directors, asked some of those questions on his blog:

"What does one make of the fact that Microsoft wants royalties, but doesn't want to sue anyone to get them? And if Microsoft really believes that it has so many patents that are being infringed by Linux, why has it waited so long to assert them? And given the differences between Linux and Windows, why has it never asserted any of its patents against the many other operating systems -- including Unix -- that have existed over the years, each of which presumably infringed upon some subset (presumably major) of those same patents?"

A sampling of the posts on the list gives a taste of the anger directed at Microsoft, and the international flavor of the open source community (note that these comments below are unedited).

From Italy: "I used Suse, Ubuntu, Kubuntu, Sabayon, Mandrake (then Mandriva) and I've installed Edubuntu on hundreds of PC's. I will use and install GNU/Linux OS until I die, and no one will stop me."

From the United States: "Now that I've seen what Vista has to offer I'm so glad I moved back to open source, so sue me... Also, Open Office is on these same machines as well. Its a fine product that works perfectly & doesn't cost $300."

From Canada: "PLEASE Sue me and make sure you mention which patents you're suing about, starting with the newest patent. You're suing your former customers, it's one more step to the end. DO it NOW Microsoft, just DO IT!"

Einfeldt says he doesn't share these emotions, and has no axe to grind. He also says that he's not worried about being hauled into court.

"I'm personally not afraid. I have no emotion regarding this; I'm not a Microsoft hater. Microsoft has produced some very popular software, and I have used Microsoft software in the past."

But that doesn't mean he thinks Microsoft is in the right, however, and he's joined by hundreds of others on the list. He believes the reason the list has taken off is because the stakes are so high. The list, he says, "Addresses a very serious issue. Billions of dollars are at stake, and people's freedom is at stake -- people's freedom to share code, modify code, and improve code is at stake."