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Red Hat is wrong to insist Microsoft disavow litigation

Red Hat wants Microsoft to disavow use of its patents against open source forever. Nice idea, but wrong-headed policy.

Red Hat's legal team has given a half-hearted pat on the back to Microsoft's open sourcing of Linux device drivers this week.

The observation of the Bible's James came to mind: "Out of the same mouth proceedeth blessing and cursing."

But it was Red Hat's parting shot on patents that I found bewildering, not to mention irresponsible:

Over the years, the individual and corporate members of the community have through formal and informal steps made clear that they will not pursue or threaten patent litigation in the Linux area. Patent threats are irreconcilable with the norms and values that are at the heart of Linux. To win the respect and trust of the Linux community, Microsoft should unequivocally disavow such conduct and pledge that its patents will never be used against Linux or other open source developers and users.

First of all, I'm not sure this is true. I don't remember IBM, Hewlett-Packard, Oracle, or even Red Hat declaring once and for all that they will never, ever sue open-source developers over patent infringements.

Second of all, why would they? Why would you ever conclusively close the door on actions that might well be required to legitimately defend your interests? This seems like the height of fiduciary irresponsibility in the hopes of scoring political points.

What if I were to rip off every line of code Red Hat writes tomorrow? What if I persisted in doing so, willfully violating its patents? Or what if Oracle did? Has Red Hat essentially given me a writ of indulgence to allow me or Oracle to do so?

No, it hasn't. And no, it shouldn't. The spirit of Red Hat's comment--compete on the basis of technology and execution, not patent threats--is absolutely correct. But the course of action suggested by Red Hat's legal team for Microsoft is a double standard that no company or individual should follow.

Follow me on Twitter @mjasay.