Microsoft's Peace Treaty With the 'Linux System'

It's now about as official as it's going to get. If you're running Linux in your data center (or more specifically what the Open Invention Network (OIN) calls the "Linux System," which includes Linux and other open source systems and middleware-level packages), you no longer have to worry about getting sued by Microsoft for any of its patents that system might infringe.

OIN is a defensive patent pool with over 2,000 members that seeks to protect Linux from patent infringement actions, both with patents held by member organizations cross-licensed to other members and with a non-aggression agreement between members to do away with the Sue Me Sue You Blues. Members also get free licenses to OIN's portfolio of about 1,300 patents for use even outside the Linux system.

"No one's made a longer journey from being a self-proclaimed antagonist to Linux and open source to now being a company that recognizes its reliance on others and the need for access to code and interoperability," Keith Bergelt, OIN's CEO, told Data Center Knowledge in an interview.

Not surprisingly, some folks in the open source community are finding this development a bit hard to swallow. After all, not so long ago Redmond was threatening to sue enterprise Linux users over 228 patents the company's former CEO Steve Ballmer claimed Linux infringed.

"We know Microsoft’s decision to join OIN may be viewed as surprising to some; it is no secret that there has been friction in the past between Microsoft and the open source community over the issue of patents," Erich Andersen, a Microsoft corporate VP and deputy general council, wrote in his blog post about joining OIN. "For others who have followed our evolution, we hope this announcement will be viewed as the next logical step for a company that is listening to customers and developers and is firmly committed to Linux and other open source programs."

All that's true, including the part implying that Microsoft has changed its ways.

Since the day when then newly minted CEO, Sattya Nadella, famously uttered the phrase "Microsoft loves Linux," Redmond has been on a tear seeking to prove that its affection for Linux and open source is real. In 2016 it began writing annual checks of $500,000 to the Linux Foundation for a top-tier platinum membership. It has taken additional memberships in about every foundation project with which it shares common interests. Along the way, it's become a top code contributor to the operating system.

On the patent front, a number of years back it entered into a patent non-aggression agreement with Red Hat, in which it and the world's top Linux company agreed not to sue each other's customers over patent issues. Earlier this month, it joined the LOT Network, which protects members against patent trolls by making sure any patents it sells exempt member organizations from needing a license to use the patent.

And now, Microsoft has joined the flagship organization for protecting Linux from patent aggressors.

"They're participating in the cross-licensing, and they're pledging at the same time not to file litigation," Bergelt explained. "In the event they did that, they would lose the perceptual high ground that, through their behaviors, they deserve. They would also lose access to the cross-license patents and access to the 1,300 patents and applications to which we provide a free license for zero dollars."

A shrinking but vocal minority of open sourcers still aren't buying the narrative of Microsoft's recently ignited love affair with Linux. They claim that this, along with the rest of Redmond's pro-Linux moves, are all part of the company's "embrace, extend, and extinguish" philosophy made famous during the 2001 antitrust trial that centered on the Netscape browser. They post vague theories about Microsoft weaseling into Linux to eventually pull some kind of gotcha that will either result in Redmond enriching itself by billions of dollars off the back of Linux, or else will end Linux as we know it.

If it turns out that Microsoft does have nefarious intentions, at least on the patent front, Bergelt would like you to know that OIN has Linux's back.

"We have checks and balances within our structure that insures that if Microsoft's behaviors are not authentic we'll deprive them of the ability to utilize our patents and others that are part of the cross-license," he said.

"I'm very hopeful their behaviors are truly authentic and that we will never have to view them as antagonistic towards open source again. You can only prove your authenticity over time, and I think they've got a good opportunity to build on the things we've seen them do over the last two, three, maybe four years to show they've adopted the values and the code of conduct that's required."

By joining OIN, Microsoft takes all of its 90,000 patents off the table as far as the Linux system is concerned, 60,000 of which have already been determined to be a potential threat to Linux.

Bergelt said that in his opinion, a much bigger threat to the Linux system comes from patent-laden companies that haven't joined OIN.

"The only reason you don't sign the OIN license is because you want to reserve the right to sue on core Linux," he said.

Taking Microsoft on as a member creates something of a public relations problem for OIN, which is not without detractors in the open source community. The opposition primarily centers on the widespread belief in open source circles that software shouldn't be patentable, mostly because software is already covered under copyright law. In a recent article on Microsoft's joining OIN, Roy Schestowitz, publisher of the software patent-focused Techrights website, called OIN "an IBM-centric group that favors software patents" and has said the organization's model works against patent reform because it supports the legitimacy of patents.

"We don't feel that we're legitimizing them," Bergelt said. "We're recognizing that they exist. It's a matter of pragmatism to say that whether we believe they should exist or shouldn't exist doesn't matter -- they do exist. My view is we're recognizing reality and dealing with it in a determined way, and I disagree with those who believe it's a validation."

Like other OIN members, Microsoft does not give up its right to enforce its patents against companies that develop, sell, or use open source solutions designed to run on top of the Linux system.