In comments confirming the open-source community's suspicions, Microsoft CEO Steve Ballmer has now declared his belief that the Linux operating system infringes on Microsoft's intellectual property.
In a question-and-answer session after his keynote speech at the Professional Association for SQL Server (PASS) conference in Seattle, Ballmer said Microsoft was motivated to sign a deal with SUSE Linux distributor Novell earlier this month because Linux "uses our intellectual property" and Microsoft wanted to "get the appropriate economic return for our shareholders from our innovation."
The Nov. 2 deal involves an agreement by Novell and Microsoft to boost the interoperability of their competing software products. It also calls for Microsoft to pay Novell US$440 million for coupons entitling users to a year's worth of maintenance and support on SUSE Linux to its customers. In addition, Microsoft agreed to recommend SUSE software for Windows users looking to use Linux as well.
A key element of the agreement now appears to be Novell's $40 million payment to Microsoft in exchange for the latter company's pledge not to sue SUSE Linux users over possible patent violations. Also protected are individuals and noncommercial open-source developers who create code and contribute to the SUSE Linux distribution, as well as developers who are paid to create code that goes into the distribution.
Many open-source advocates criticized the deal, nevertheless. They argued that it was tantamount to an admission of patent violations by a key Linux supporter that bolstered Microsoft's case if it decided press its patent claims.
At the time, Microsoft officials, including Ballmer, were mum on whether the Linux kernel, which is governed by the General Public License and takes contributions from programmers all around the world, violated Microsoft's patents.
Ballmer was more open on Thursday.
"Novell pays us some money for the right to tell customers that anybody who uses SUSE Linux is appropriately covered," Ballmer said. This "is important to us, because [otherwise] we believe every Linux customer basically has an undisclosed balance-sheet liability."
"My reaction is that so far, what he [Ballmer] said is just more FUD [fear, uncertainty and doubt]," said Pamela Jones, editor of the Groklaw.net blog, which tracks legal issues in the open-source community. "Let him sue if he thinks he has a valid claim, and we'll see how well his customers like it."
Officials at Red Hat, the leading Linux distributor, also dismissed Ballmer's comments. "We do not believe there is a need for or basis for the type of relationship defined in the Microsoft/Novell announcement," said Mark Webbink, deputy general counsel.
Red Hat has called Microsoft's legal threat a looming "innovation tax." It also said that it can protect its customers against patent claims.
Jones noted that after the Nov. 2 deal was announced, Novell said on its Web site that "the agreement had nothing to do with any known infringement. So which is true?"
Jones also challenged Ballmer to "put his money where his mouth is" and detail exactly what part of the Linux kernel source code allegedly infringes upon Microsoft patents, so that "folks will strip out the code and work around it or prove his patent invalid."
Ballmer did not provide details during his comments Thursday. But he was adamant that Linux users, apart from those using SUSE, are taking advantage of Microsoft innovation, and that someone -- either Linux vendors or users -- would eventually have to pay up.
"Only customers that use SUSE have paid properly for intellectual property from Microsoft," he said. "We are willing to do a deal with Red Hat and other Linux distributors." The deal with SUSE Linux "is not exclusive," Ballmer added.
Robert McMillan, of the IDG News Service, contributed to this report.