July 20, 2004

HP memo forecasts MS patent attacks on free software

Author: Joe Barr

A two-year old memo from HP executive Gary Campbell to other HP execs has been wending its way around the backrooms of the Internet this past weekend. One of the places it showed up was in the NewsForge submission bin. We held off publishing the memo until we verified its authenticity and gave HP a chance to respond.

The memo -- its full text is provided later in the story, along with HP's response -- briefly explains a patent cross-licensing deal between HP and Microsoft. By itself, that's not a big deal, especially since it was sent two years ago. But the memo asserts that "Microsoft will soon be launching a patent-based legal offensive against Linux and other free software projects." Leaders in the open source community have been warning of such attacks for some time. The memo reveals there may be very good reason for the worry.

According to Campbell's memo, the GPL itself invites such an attack. He wrote:

But it probably doesn't matter, because the GPL license has a mutually
assured destruction clause in section 7, if anyone is sued over a patent
infringement, no one is licensed under the GPL to ship GPL-ed products.
This is probably what Microsoft intends to do.

Basically Microsoft is going to use the legal system to shut down open
source software, and for all of its cleverness, the GPL makes it fairly
easy unless a white knight steps in.

Although the patent attacks have still not been launched, some speculate that it is only a matter of time. One well-known figure in the open source community, speaking on the condition of anonymity, told us:

MS had to hold off due to anti-trust prosecution in the EU and US, and also they didn't want to create bad news for new European software patenting laws before they got what they wanted. Now they have the prospect of being able to prosecute the same patents in Europe. My suspicion is that we could see this start very soon, or hold off for up to three years while MS establishes its commercial licensing program. If they wait to get about 10,000 licensees in their commercial program, they will be able to show in court that they license the patents "reasonably" and that will make them more difficult to fight.

As to Campbell's interpretation of Section 7 of the GPL, we asked Professor Eben Moglen of the Columbia Law School -- he also acts as the Free Software Foundation's general counsel -- if he felt Campbell was reading the GPL correctly. He replied:

The interpretation of section 7 presented in the
supposed memo is not correct. The filing of a lawsuit alleging patent
infringement places obligations on no one under section 7. The
license says that "if restrictions imposed on you" mean that you
cannot afford others all the freedoms apparently conveyed by GPL, you
can't use the license. The examples given in section 7 are judgments,
interim relief (preliminary injunctions, etc), or accepted licenses.
Someone's allegations of infringement, whether made judicially or
otherwise, do not "impose conditions" and do not trigger section 7.

Mistaken about the GPL or not, Campbell was obviously alarmed at what he had learned of Microsoft's intentions. Perhaps he was victim of FUD. Or perhaps the issue will resurface later, after we all figure it has gone away

Full text of the 'Campbell Memo'

From: Campbell, Gary [mailto:gary.campbell@hp.com]
Sent: Monday, June 03, 2002 7:27 PM
To: Stallard, Scott J; CTO Office Directs; Chaffin, Janice; Denzel,
Nora; McDowell, Mary; Elias, Howard; Fink, Martin R; Becker, Rick (ISS);
Beyers, Joe
Cc: Blackmore, Peter; Robison, Shane
Subject: Microsoft Patent Cross License - Open Source Software Impact

Microsoft Patent Cross License - Open Source Software Impact

Today we agreed on a new patent cross license with Microsoft that protects
HP in the short term, but it has significant impact on HP's use of Open
Source software in the long term.

More importantly, we now understand that Microsoft is about to launch
legal action against the industry for shipping Open Source software that
may force us out of using certain popular Open Source products.

We need to create a cross-HP staffed program to understand the implication
by product group and to provide the short term and long term steerage.
I'll hook up with Martin tomorrow and start planning next steps for a
cross-HP planning team.

Background:

HP is we believe, protected by our previous cross license for patents
filed by Microsoft up to June of 2001, to ship open source software that
violates Microsoft patents that was developed or shipped prior to today.
This means that we can freeze on today's open source functionality and we
are protected.

The new cross license does not protect us against new Microsoft patents
filed after June 2001 against new open source product functionality
shipped or created after today. So we have a two year window before HP
has exposure on new Microsoft patents against new open source
functionality, but we have exposure because of the MAD
clause in the GPL
if Microsoft attacks another entity with existing patents. See next
section.

Open Source Software is described as a license that follows the intent and
process of GPL or GPL lite. Additionally several major products are
explicitly called out as not protected by the cross license, such as
Samba, Wine, KDE, Gnome, Apache, Sendmail, and Linux.

Microsoft's Intentions:

Microsoft could attack Open Source Software for patent infringements
against OEMs, Linux distributors, and least likely open source developers.
They are specifically upset about Samba, Apache and Sendmail. We believe
Samba is first, and they will attempt to prove it isn't covered by prior
patent cross as a so called "clone" product carve out in the previous
agreement.

OEMs that don't have a cross(like SUN), or OEMs like HP that they force a
change in their cross license to exclude open source software are probably
the first target.
Intel, Red Hat, SuSE, UBL, Oracle are probably in the first wave as well.

IBM we don't know what the status of termination of their Microsoft cross
license is. They could be protected by their previous OS/2 deals?

Mutually Assured Destruction Clause:

But it probably doesn't matter, because the GPL license has a mutually
assured destruction clause in section 7, if anyone is sued over a patent
infringement, no one is licensed under the GPL to ship GPL-ed products.
This is probably what Microsoft intends to do.

Basically Microsoft is going to use the legal system to shut down open
source software, and for all of its cleverness, the GPL makes it fairly
easy unless a white knight steps in.

Best guess on the timing, this fall when they are finished settling with
DOJ and the states.

Industry Reaction:

At this point we have no information on who would defend open source with
another patent portfolio. 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( I guess
that they figured this out before, possibly from a new patent cross
license activity!!!).

Short Term Action:

We need to create a cross HP action plan with a staffed team. We don't
have to exit selling to the open source market, but we need to plan
smartly where to reduce our exposure.

1 - Embedded Linux/Open source in HP products and devices

Open source technology is today in embedded printers, our storage NAS
product, HP-UX with Gnome, Linux affinity, Apache in multiple products.

We need a cross company planning team to address this, we are protected
for 2 years, longer if we freeze on today's functionality, or possibly
only until fall if MSFT triggers the GPL MAD clause.

2 - Non-Embedded Linux/Open Source on top of HP products

Microsoft intends to sue companies shipping Open Source products that
potentially violate their patents. Even though we have short term
protection, we need to lower our profile while still shipping products.
We need to examine reducing our exposure on pre-loading Linux by off
loading it to the channels exclusively.

Again we need a cross company plan.

3 - Donating Software to the Open Source

We will need to change how we donate software to the open source, probably
the type of license we use, lower the profile of our opensource portal,
etc.

4 - Legal Plan

We need to explore how to better protect our products in the court and be
prepared with a plan that we are willing to execute against."

HP's response

Monday, July 19, we received an email from HP spokesperon Elizabeth Phillips that said:

As this memo was created over
2 years ago, we believe it is not relevant today. That said, HP has a
proven history of taking measured steps to put its customers first and
provide them with the functionality and benefits of open source
software. Demonstrating unwavering commitment to meet the needs of its
customers, HP was the first major Linux vendor to offer indemnification
protection against SCO-related lawsuits, thus enabling HP's customers to
continue their Linux deployment plans with confidence.

Microsoft continues to be one of HP's strongest partners. HP is
committed to delivering choice for its customers and this is done
through a multi-OS strategy of Windows, Linux and HP-UX on
industry-standard platforms.

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