When will Microsoft sue Google over Linux?

Microsoft once made the mistake of broad-brushing Linux as an intellectual property quagmire. It made Microsoft headlines, but few friends: lawyers didn't believe it, customers didn't want to hear it, and competitors dared it to sue.

This week, Microsoft made its boldest move to date, signing yet another patent cross-licensing agreement with Amazon, calling out that this agreement allows Amazon to use Linux. Yes, Amazon sells its Linux-based Kindle device, but the agreement also covers Amazon's use of Linux (presumably for the Amazon.com service, EC2, etc.), representing, as ZDNet's Adrian Kingsley-Hughes writes, "the clearest indication so far from Microsoft that if you use Linux-based servers...you ow[e] them money."

Oh, really?

If Microsoft has such an ironclad case in this matter, there's just one thing to do:

Sue Google.

Google, after all, is the killer bee in Microsoft's bonnet, one that Microsoft has been at pains to repel, and one that depends heavily on Linux. Google Search, Apps, Chrome OS, Android, etc. make heavy use of Linux, and threaten to topple the Redmond giant.

So if anyone should be paying Microsoft for Linux, and if anyone has everything to lose from a lawsuit, it's Google.

Yet Microsoft has said nothing about Google. Why?

Perhaps it's because the strength of Microsoft's claims have never been tested, and may be quite weak. Linux kernel founder Linus Torvalds has suggested, "It's certainly a lot more likely that Microsoft violates patents than Linux does."

Maybe Microsoft fears daylight shining on its Linux claims, a privilege that the Linux developers don't reserve for themselves, with 100 percent of the Linux code completely open for review (and modification if Microsoft could actually point to concrete violations in the code).

As Groklaw surmises (See sidebar):

I gather Microsoft's [modus operandi] is to make any company signing up with them in a patent cross licensing deal sign an NDA, so only Microsoft speaks in public, then they put out a press release which makes claims no one can check or verify, wave their arms about Linux, then go on to the next victim. Unless they show some details, it means absolutely nothing to me, except that Microsoft is very good at marketing FUD.

Indeed. Microsoft doesn't seem keen on providing details, because innuendo apparently serves it much better.

Microsoft's "respect our IP" please would be more credible if they weren't so nakedly anti-Linux. As Linux Foundation executive director Jim Zemlin opines, "[It's a]mazing how despite the 'broad range of products and technology' covered in their cross license, Microsoft chose to focus on Linux and open source - distinctly calling it out from 'proprietary software' and wasn't specific about any patents."

It's clear that Microsoft wants to make much ado about its Linux claims. What isn't clear is why Microsoft doesn't put a lawsuit where it's mouth is. That would, after all, allow an independent judicial body to evaluate its claims.

Why not pit its supposedly strong patent portfolio against IBM, Red Hat, Google, or someone else with significant skin in the Linux game?

Perhaps because Microsoft fears the response. Amazon, Microsoft's backdoor neighbor in Seattle, isn't going to fight tooth and nail to defend the integrity of Linux. But Google would. And so would Canonical (Ubuntu), Red Hat, IBM, etc.

Microsoft can't afford to take on a party with a big vested interest in Linux, just as it can't afford to sue the entire planet, which has moved to Linux en masse, from the U.S. government to every single company in the Fortune 500. Microsoft has lost the war. It's trying to pick up pennies at the edge of a few battles, and hoping to raise the price of Linux above $0.00.

Microsoft can't afford to compete with free, because its old-school business model can't process it. But this is Microsoft's failure, not Linux's.

Gartner Research Vice President Brian Prentice thinks that Microsoft might actually be making good-faith attempts to broker a conversation with the open-source world through such patent agreements. I don't, as there are much more productive ways to accomplish this end, ways that Microsoft has studiously avoided.

Instead, Microsoft seems to want to pay lip service to patent reform and open source while engaging in activities that undermine both. The global patent system is a morass, one that costs the technology economy far more than it contributes.

Microsoft could do much to improve things. Microsoft needs to do much to improve things, because Microsoft's next three decades of growth depend as much on open source as its last three decades have depended on proprietary licensing. That's the lesson that Google and other next-generation technology companies have shown. Is Microsoft listening?