Open Source Blog

If Microsoft won’t sue, maybe Red Hat should
November 20, 2006

Back in July 2003 I wrote: “It is in the interests of Linux vendors and users to challenge SCO's claims of copyright infringement and to seek to force it to prove its claims in a court of law. While SCO's licensing scheme is designed to keep the alleged Linux copyright infringements out of court, it may well be that Linux supporters will prefer to argue their case in front of a judge.”

Twelve days later Red Hat filed its court case against SCO seeking a declaratory judgment that its Linux distribution does not infringe SCO’s copyright or trade secrets.

I was reminded of this when reading a number of responses to Steve Ballmer’s claim that Linux contains Microsoft’s patented intellectual property.

“If there is any truth to this, Microsoft, do us all a favor and just sue,” responded Matt Asay.

“I'm with Matt on this one: if you've got rights to assert here, then assert them. This passive/aggressive behavior is not terribly becoming,” added Stephen O’Grady.

It is not necessarily in Microsoft’s best interests to sue, however - it might as well drop a patent bomb on IBM instead. The same could be said for Red Hat, but given its willingness to stand up to SCO in the face of similar public comments (with IBM in its corner), a pre-emptive strike against Microsoft might not be completely out of the question.

Could Red Hat afford it? Well it had cash and investments of $1.0bn as of August 31, and if the FUD continues Red Hat might consider that it can’t afford not to do something.

The concept of mutually-assured destruction was supposed to maintain a patent cold war in the software industry, but even the cold war had its missile crisis. Sometimes a decent crisis is just what is needed to remind everyone there was a reason why equilibrium was the preferred option.

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