HP memo: Microsoft planned open-source patent fight

"Basically, Microsoft is going to use the legal system to shut down open-source software," said Gary Campbell, then vice president of strategic architecture in HP's office of the chief technology officer, in a memo to several HP executives. "Microsoft could attack open-source software for patent infringements against (computer makers), Linux distributors, and, least likely, open-source developers."

The memo was written as Linux began to emerge from relative obscurity to become an increasingly popular alternative to Microsoft's proprietary operating system. Among the advantages cited for Linux: It offered lower setup costs and greater participation in how the software was written. HP, a supporter of open-source software, also has been one of Microsoft's closest allies.

Campbell said Microsoft was "specifically upset about" three widely used software packages: Samba, used for sharing files between Windows, Linux and other systems by emulating Windows file and print software; Apache; used to host Web sites; and Sendmail, used to route e-mail around the Internet and internal networks.

The memo, first reported by open-source news site Newsforge, is authentic but "not relevant today" for both HP customers and open-source software users in general, said HP spokeswoman Elizabeth Phillips. "Since the memo is over two years old, we believe today's situation is different for the industry in general."

"HP is not aware of any patent infringement" regarding Samba, Apache and Sendmail, Phillips said. She declined to say whether Campbell's opinions were based on information from Microsoft.

Top Linux seller Red Hat--which includes Samba, Apache and Sendmail in its products--was reassuring in a statement. "We feel confident that our open-source solutions do not infringe on the valid intellectual property rights of others," spokeswoman Leigh Day said. Representatives of Novell, the No. 2 Linux seller, weren't immediately available for comment.

So far, Microsoft apparently hasn't sued anyone over open-source software patent infringements, but it has begun a more aggressive intellectual property licensing program. Microsoft didn't immediately respond to requests for comment.

Microsoft has called open-source software viral because of a provision in the widely used General Public License (GPL). That provision requires a programmer who wants to include GPL-covered software as part of a larger program to release the larger program under the GPL as well. Microsoft executives also have called the GPL "Pac-Man-like" and a "cancer."

Microsoft says it has now changed tactics, switching to a more pragmatic "Get the Facts" campaign that argues that Linux is more expensive to run than Windows. Microsoft has funded several studies on comparative costs.

Intellectual property issues of open-source software have come to the fore with the legal claims made by the SCO Group, a company that argues that Linux infringes copyrights of Unix, the operating system on which it's based. SCO's claims don't include any patent infringement accusations.

In response to SCO's actions, including a demand that Linux users pay for SCO intellectual property licenses or face the threat of legal actions, HP launched an indemnification program to protect Linux users. That program doesn't protect customers from legal attacks from Microsoft, Phillips said, and HP refused to say whether any current patent cross-licensing agreement does.

Campbell, currently vice president and CTO of HP's Enterprise Servers and Storage group, said in the memo that HP needed to reduce its legal "exposure" from open-source software. He suggested "lowering the profile" of open-source products--one method being to stop installing Linux on computers and letting sales partners handle that task.

He painted a bleak picture of protecting against a Microsoft patent attack. "At this point we have no information on who would defend open source with another patent portfolio," Campbell said. "IBM does not appear to have a plan. Dell backed out of a lot of Linux activity and laid off their Linux marketing group, and Intel went radio silent on Linux publicity in March."

But some in the open-source world now have begun a more active patent defense. Red Hat, for example, doesn't like patents but has an official policy of trying to obtain them to ward off potential legal actions.

"Contrary to the picture some folks paint of the open-source community, we've got folks who are very innovative," said Mark Webbink, Red Hat's general counsel for intellectual property, in a recent interview. The Linux seller shares the patents with those with a similar open-source philosophy: "We obtain patents, and we share the benefit of those patents with parties who use a variety of open-source licenses," he said.

Webbink said that many companies amass patents to build a shield against other companies, but that it's unusual for companies to use their patents as a sword.

ZDNet UK's Rupert Goodwins contributed to this report.