Linus Torvalds, the creator of the Linux kernel, keeps insisting that Microsoft, by failing to compete based on technical merits, resorts to fear, uncertainty and doubt techniques — sometimes going as far as intimidation. More recently, Torvalds said he was becoming concerned about what he described as “external issues — especially patents.”
This makes a classic case where legacy products are unable to compete, so laws and/or technical policies are being modified using sources of great influence while psychological games are being played. This alters the rules of the competition, creating a “moving goalposts” scenario which seeks to reverse the tipping point.
The discussion we present here takes a look at subversive tactics and shows what makes them possible in the first place. Such tactics can give existing software (notably Microsoft products, in this context) a competitive advantage. Especially in a crowded market where software development, as opposed to support, gets more commoditized.
Proponents of Free software are encouraged to be aware of these factors because ignoring risk does not make it magically go away.
Patents
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Patents were introduced under the premise that they would protect the ‘small guy’, whose invention can be stolen by ‘the big boys’, who would then commercialize and market it too quickly for anybody else to keep up.
The invention was of course a physical one. It was tangible. At the time, the patent office was somewhat of an ‘anti-ripoff’ system. Its purpose was not to stifle competition by sheltering monopolization but very much the opposite. The system was also selective and restrictive in terms of scope.
Over the years, under increased pressure and lenience inside what had evolved to become an application-litigation ecosystem, patents became more fuzzy. Their original role was misplaced and they were incorrectly classified alongside intangible pillars such as trademarks and copyrights.
It is hardly surprising that their new ‘umbrella’ — typically referred to as “intellectual property” — comes under a lot of ridicule nowadays. Some even consider this mixed bag a set of “intellectual monopolies,” because grossly generalized ideas — even thought — can be owned by a company or an individual, who can lawfully charge a fee for sharing these. The ideas refer not to specific work but to general broad ideas, no matter how they are applied or implemented.
More recently, since some time in the ’90s and only in few parts of the world, even knowledge pertaining to mathematics (think about software patents and business methods) could be owned by a person. It creates many unknown barriers and stifles development in science and technology. It makes programming, for example, a luxury of the wealthy. It has a chilling effect on opportunities for startups.
Just under a year ago, Microsoft began using vague patent claims as a means of scaring away prospective users of GNU/Linux. It did so more aggressively than ever before. The company’s strategy relied on the assumption that revenue can be maintained, restored or increased by imposing a ‘tax’ on revenue made by competitors. It may also repel customers from levied products. Overall, it seems rather absurd.
Ownership of generic knowledge, rather than specific development work, has been a controversial subject for quite some time, not to mention the passing (or purchasing) of that knowledge by those wishing only to use it litigiously. These operators are commonly referred to as “patent trolls.”
One could reach the point of discussing another logical possibility. Might we be seeing the whole patent system implode, primarily due to self-inflicted damage and serious deficiencies? Familiarize yourself with the work of the open invention network for example. It is one possible solution, but it is worth considering ways of working around patents also.
There have been efforts to create algorithms which sidestep patent issues, such as the efforts which produced the Ogg format for encoding media files. Another barrier then merges because making these formats a standard, let alone a de facto standard, can be difficult.
Many parties have vested interests in proprietary formats and patents, as the big controversy which involved Apple, Nokia, Ogg Vorbis and HTML 5 has probably taught us.
Non-standards
There is actually a fine intersection between the issue of patents and the issue of standards. Universal standards exist to accommodate the need for free interoperability which mitigates patent issues or eliminates them altogether.
Without standards, there is typically ownership of protocols — a proprietary entanglement that leads to one vendor controlling many others. It is a question of decentralization.
In a perfect world, open and free methodologies exist to facilitate a royalty-free exchange of information, such as the ones which made the Internet a wonderful thing based upon low entry barriers. In reality, however, there is a resistance to this, which is sometimes the result of selfishness, even greed.
Buzzwords like ‘innovation’ may be used as an excuse to deviate from standards and obtain greater control over means of communication. It creates dependency. Examples include the use of Adobe Flash and Microsoft’s ActiveX in public Web sites. This undermines the raison d’etre and fundamental principles that made the Web accessible, indexable, portable and simplified enough for archival purposes.
Lobbying
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To an extent, lobbying is related to the first and second points, namely standards and patents, at least in the sense that it sometimes brings them together.
When governments do not prescribe standards, companies can take advantage and introduce patent-encumbered, vendor-specific, and sometimes DRM-laden ones as ‘standard’. Government-imposed restrictions and policies often stand in the way of new disruptive technologies and those who write and rewrite the law serve as gatekeepers in the face of change. They essentially serve as ‘agents of status quo’.
Lending a hand to issues around patents and standards, lobbyists are also involved in the process of making patent law and restrictions (e.g. requiring secret code for media playback). Watered-down bills and procurement which are not open for bidding are another serious issue. We saw plenty of this even in the ODF/OOXML debate, which ceased to be technical though it should have been all along.
Lobbyists sometimes use a personal perspective, which is seen as self-serving (serving those whom they are paid by). There is plenty of evidence out there about DRM disinformation. For example, when it gets used to pass laws around the world, disguising the need for stubborn vendor lock-in as an elixir to copyrights infringement.
Competing Free Software Projects
Competition, of course, always plays a role. Although GNU/Linux came under the most legal scrutiny in the past year — no matter how imaginary or spurious this scrutiny has been — other similar projects such as Hurd (part of the GNU operating system), OpenSolaris and BSD do exist to serve similar needs.
They needn’t be seen as a threat because there is a great deal of intersection between the projects and their licensing terms permit a fair deal of exchange in terms of code. Hostility between the projects remains a danger. It’s a social barrier to be avoided because the projects can share space while there is plenty of market up for grabs.
Recently, Microsoft’s CEO reluctantly admitted that Linux is the biggest competitor to Microsoft. Not Sun Microsystems, not Google, not IBM and not even Apple was the primary concern in Steve Ballmer’s mind. It seems to be the great momentum enabled by free software licenses such as the GPL that Microsoft is most allergic to (i.e. afraid of).
Looking ahead, GNU/Linux will continue to evolve very fast. No other highly-distributed programming project thrives in development by a group so large and so highly motivated. It has become apparent, however, that some of the challenges to address along the way are more than just technical.
It is important to be aware of them and respond to them appropriately. Embrace standards, favor Free software, antagonize software patents and keep a close eye on attempts to change the law. No battle is won without a fight and those who lose to GNU/Linux never rest on their laurels. They only make it seem that way in order to create apathy and unawareness of looming response. Secrecy can sometimes be predatory.
