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The Linux Nuclear Option

© March 2009 Anthony Lawrence

Let loose the hounds of war,
The whirling swords!
Send them leaping afar,
Red in their thirst for war;
Odin laughs in his car
At the screaming of the swords!
Far let the white-ones fly,
The whirling swords!
Afar off the ravens spy
Death-shadows cloud the sky.
Let the wolves of the Gael die
Neath the screaming swords!
The Shining Ones yonder
High in Valhalla
Shout now, with thunder:
Drive the Gaels under,
Cleave them asunder --
Swords of Valhalla!

("The War-Song of the Vikings", Fiona Macleod)

At his blog, www.linux-foundation.org/weblogs/jzemlin/2009/02/26/note-on-microsoft-tomtom-suit-calm-down-hope-for-the-best-plan-for-the-worst/ (link dead, sorry) Jim Zemlin, the executive director of the Linux Foundation asks us all to calm down about Microsoft suing TomTom. He says:

Right now the Microsoft claim against Tom Tom is a private dispute between those two entities concerning GPS mapping software. We do not feel assumptions should be made about the scope or facts of this case and its inclusion, if any, of Linux-related technology.

He goes on to point out that Microsoft itself assures that this has nothing to do with Linux.

Let's pretend we buy that. I don't know why anyone with a working brain would ever trust Microsoft, but maybe Jim Zemlin knows something we don't. We'll take them at their word: this case has nothing to do with Linux.

As long as we're engaging in fantasy, let me also note that the economy will be turning around within six months. Yay!

Jim does say that if Microsoft proves to be less than trustworthy (which has never, ever happened in the past!), the Linux Foundation is ready to meet the threat:

The Linux Foundation is working closely with our partner the Open Invention Network, and our members, and is well prepared for any claims against Linux. We have great confidence in the foundation they have laid. Unfortunately, claims like these are a by-product of our business and legal system today. For now, we are closely watching the situation and will remain ready to mount Linux's defense, should the need arise.

This is the so-called "Nuclear Option". The Open Invention Network supposedly holds a lot of patents that could frustrate and damage Microsoft. If Microsoft attacks Linux, we attack Microsoft. By holding this threat open, we hope to achieve detente.

Where's the carnage?

Let me just ask a question here. If this really could be equated to a "Nuclear Option", shouldn't there be mutual destruction? If OIN and the Linux Foundation did mount an all-out patent war against Microsoft, I can only see two possible outcomes: Microsoft destroys Linux or OIN destroys software patents.

If Microsoft really thought it could destroy Linux, they'd have already pushed the Big Red button. Yeah, yeah, they have to worry a little bit about anti-trust, but between Apple and the deals that Novell and RedHat will trip all over themselves to make, they'd be fine. They wouldn't really kill Linux - they'd only kill free, unlicensed, unencumbered Linux. They'd leave the shell safely contained in Novell, RedHat and anyone else willing to pony up for the chance to be a Microsoft vassal. But apparently they don't have the firepower to do that.

Does OIN really have the nukes? I don't know. My gut feeling is that they do not, but for our purposes here let's assume I'm wrong. Let's say OIN really does have patents that will cause the blood to drain from Ballmer's ruddy cheeks. Let's say that a boardroom packed with Microsoft lawyers will sit in stunned silence if that gambit is played, no advice coming from their shark-like jaws. If that is anything close to reality, why wouldn't we do it now?

Why wait? Why let Microsoft continue to harry our flanks, whisper lies into the ears of legislators, steal markets with predatory pricing? Why not strike now, let loose the hounds of hell?

Wouldn't it be good for the entire world if we could nullify a lot of the ridiculous patents that clog innovation and progress? Might not an all out patent war possibly hasten badly needed reforms? Do we really have anything to lose?

I certainly don't know. Maybe OIN's portfolio is actually too weak. Maybe both OIN and Microsoft are rattling wooden swords. Maybe the hounds of hell are just madly yapping Chihuahua's. Maybe it's all total B.S.?

This was settled: Microsoft, TomTom settle patent dispute

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Mon Mar 2 21:58:34 2009: 5580   BrettLegree

Nuclear Vikings - sign me up.

Does anyone really need to "nuke" Microsoft, though? They seem to be doing a good job of killing themselves already.

Wed Mar 4 16:34:31 2009: 5597   JohnMc

Well if FOSS wanted to go nuclear they could. However it would require a very deep scan of the whole UNIX landscape from back in the days of Mini's/PDP-11. There were a whole slew of Motif/X11 metaphors that were developed that could be brought forward as a prior art assault.

Just saying.

Wed Mar 4 19:46:10 2009: 5600   TonyLawrence

If that's true, then the question becomes "Why not?". Aren't we all sick of Microsoft's FUD? Aren't we all sick of software patents? Why wouldn't we want to try to blow it all up?

Thu Mar 5 18:50:18 2009: 5610   drag

It would be nice to blow it up.

It's all really turned into a huge pile of crap. Nowadays people spend much more on patent litigation the anybody actually profits from them. It's turned into a huge racket for lawyers.

What we are witnessing now is nothing less then a wholesale corruption of our legal system. Now we have companies; created, managed, by nothing other then groups of lawyer; whose sole purpose in life is to go out and sue other corporations. That's it. That's all they do. They have no products, they produce no software, they produce nothing at all. They have zero contribution to the economy or technology... All they do is simply go out and purchase patents from failing companies and then proceed to sue anybody with enough money to make it worth their time.

That's the ultimate problem. Companies like Microsoft are easy to deal with because they produce products. Since it's virtually impossible to avoid software patents if your a programmer then Microsoft, by default, is liable to all sorts of different patent lawsuits. So they can be kept in check. So that even though they say "linux" violates "hundreds" of their patents (which is as likely to be true as not) for years this is the first time they've actually gone after a company that uses Linux and they are making sure to tell everybody "we are suing a company, not open source". They are doing this because they are scared and are trying to see how far they can push it before getting nailed to the wall.

However these 'patent troll' companies don't produce any software. They have zero products they produce and the only income they receive is from patent lawsuits and licensing. The 'nuclear option' doesn't affect them... they produce nothing, they do nothing, they sell nothing, so therefore are invulnerable to patents.

The only weapon against those companies we have is the ability to invalidate patents. Invalidating patents is very hard, very expensive, and so far very unlikely to work out. So these patent troll companies just charge less for licensing then what it would cost to defeat them.

Right now. As it stands; The system is just broken and is being gamed.

Thu Mar 5 22:31:28 2009: 5614   drag

Here is your chance to make a difference.

In one corner there is a bill in congress to introduce some reforms into the patent system. On there side there is a huge number of technology companies.

In the other corner is the pharmaceutical and biomedical companies as well as 'Non-Practicing Entities' (aka Patent trolls). They want to fight the reform because the current state of affairs is very profitable for them.

Keep in mind that most corporations loose money on patent litigation... both sides the winners and the losers. The 3 major groups of people that still find patents profitable are:
1. pharmaceutical and biomedical companies
2. patent trolls
3. the U.S. patent office.

Yes that is right. The Patent office is the ONLY part of our government that is actually turning a profit. Bizarre as that may sound...

Now I don't know the details of the bill and I may have my facts wrong, but this is your chance to have a say in it.


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