A cheneyian view of software patents

Call me pessimistic if you wish: Bad habits take a long time to die. Sometimes, they don’t even disappear at all. They keep on surviving. This time, it seems that Microsoft has decided to roam around and privateer against anything that looks even remotely like a company that could use patents on software. This is how Microsoft announced an agreement on “Intellectual Property” with Brother, focused on printing technology. Now, as Matt Asay has rightfully pointed out, Microsoft does not manufacture nor design printers, but the hell with it! Printers are like the rest, a whole bunch of patentable paraphenalia anyone with capital should invest into. Note: The point is not to invest in printers themselves, it is to patent everything you can imagine is patentable.

You can then turn what you patented into a weapon against any challenger, or you can even use your patents -even by alluding to their sole existence- to create a legal and competitive environment where some of your competitor’s technologies are portrayed into something legally uncertain nobody should use. To be fair, these practices are not new and there are many out there who play some sort of oddball with patents. But Microsoft is now actively playing that game with Linux. They did try to taint the intellectual property of the whole GNU/Linux system, but also the one of OpenOffice.org by signing the now infamous agreement with Novell. This strategy, however, did not stop there. Microsoft has indeed signed similar or more limited agreements with the now defunct Linspire, Turbolinux, and the Canadian Xandros distributions, while entering into broad agreements with Samsung, LG Electronics and now Brother. Microsoft has been going around the industry trying to sign these agreements with mixed results. The funny thing here is that this kind of agreements rest on nothing, not even on a specific set of identifiable patents. They are, just like subprimes, immaterial assets, and are being wildly speculated on. The issue goes even deeper, and bears this unmistakeable flavor area: patents are now used to spread fear, uncertainty and doubt about Free and Open Source Software in general. A bit like former Vice-President Cheney still argues these days, it’s all about fear and freewheeling libel of one’s opponent, this particular case being President Obama but ours being FOSS in general.

This behavior, however, begs one simple question in return. Just like some have wanted to ask Dick Cheney to disclose any information he would have about any impending terrorist attack on the U.S soil based on his recent threatening claims, there is one question Microsoft should be answering: What patent(s) does GNU/Linux and a couple of other Free Software exactly infringe? Which patent you are in possession of is being violated by your most serious competitor ever? Just disclose this information in an accurate and formal way, not just by puffing steam in the air but by pointedly disclosing which patent(s) is being infringed by which portion of code.

My personal take on this is actually quite simple: I don’t think Microsoft would ever disclose anything of that kind. First, they entered the software patenting game a bit too late compared to others, which leaves them in an uncomfortable position. Second, they have nothing that cannot be fixed in a few weeks inside the kernel or elsewhere, otherwise they would have published the exact nature of infringement a while ago. It would have been so simple, but when you are not a wolf, you have to work your way out just like a fox, I guess.

Of course, if you take an european perspective at all this, you might point out that the real problem lies in the very existence and practice of software patenting: I fully agree with that. But software patents do exist in the U.S and some of our largest companies, (championing european patriotism until you reach the right price to buy them out and bend them your way) are trying to do their best to make software patenting a reality in the European Union. Yet, I believe the only way out to these despicable connivings against Free and Open Source Software have to be treated the same way former Vice President Cheney handles some issues: I thereby call for a massive waterboarding of software patents in a new Guantanamo for intellectual property. Torture you say? Here’s the way I’m thinking of it: Extortion of innovation extorters…