Law in the Internet Society

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  falsely trumpet its good faith by guaranteeing not to sue such developers.
Suing or threatening to sue people is definitely bad publicity and had minimum effect, as this was also demonstrated in the long fight of the music industry against individual P2P? users. Still, the music industry kept fighting and fighting over a battle that was lost even before it began, one of the reasons being that there was no real possibility for recovering the lost profits from the defendants. I think that RIAA was aware of that, and what they did had as its sole purpose to scare P2P? users, since the exponential increase of unauthorized copyrighted material on the net was killing their business at an extremely rapid pace. Their response, I guess was fueled by panic, not by reason. Perhaps the rapid increase in market share for OSS in the future may, in turn, lead Microsoft panic and start suing big developers of OSS.

In the aforementioned analogy, however, there is one major difference between illegal music file sharing and developing OSS. In the first case, a lawsuit has no other impact but to the person being sued. In the case of OSS, a potential threat to an OSS developer means subsequent trouble for all the end users of the program developed by that developer. The effects of such lawsuits therefore are systemic, and even unpredictable, as they usually extend beyond the software industry, into the industries in which the end-users of OSS are active. So the question for Microsoft becomes a matter of figuring out how many enemies would such a lawsuit create, and whether it is in a position to fight such a battle. Considering that OSS is currently being used by major players in sectors ranging from financial services through manufacturing and distribution to the public sector, it seems highly unlikely that Microsoft would like to fight in so many fronts. After all, many of these companies that use OSS may be Microsoft's shareholders!
 This collective exposure to patent hold up represents a stronger incentive for patent trolls to attack OSS users, since this may generate economies of scale in litigation. The SCO v. IBM case is a lucid example of targeting OSS users, even though it is not primarily a patent infringement case. On March 6, 2003, the SCO group filed a $1 billion lawsuit against IBM claiming that IBM has, without authorization, contributed SCO’s IP to the open source codebase, Unix-like Linux operating system. In May 2003, SCO sent a letter to members of large US firms warning them of the possibility of liability if they use Linux. Another series of letters was sent in December 2003 alleging copyright infringement related to 65 files in the Linux code tree. Following a series of lawsuits and counter-lawsuits, the cases are still pending before various courts. IBM has explicitly noted (Section E, paras 22-24) that SCO has engaged in a technique, so as to create a false perception that SCO holds the IPR rights to UNIX which permit it to control not only all UNIX technology, but also Linux. This impression has been further reinforced by various statements of SCO’s chief executive officer, regarding potential liability for Linux users.

This technique of creating uncertainty as to the legality of specific software is usually termed "FUD" – acronym for “Fear Uncertainty and Doubt”. It was first used in the computer hardware industry in 1975, as an attempt to describe IBM’s marketing and public relations policy, as a strategy aiming to influence the public by disseminating unfavourable opinions about a competitor’s product, to overstate the estimation of switching costs if current customers decide to migrate to a rival company’s products or to maintain a leverage over a current business partner who could potentially become a rival. Additionally, when said strategy is combined with the threat of enforcing intellectual property rights (IPRs) that belong to the company, then the specific IPRs are not only used to expose individual companies to legal threats, but also to create a climate of legal ambiguity which can be detrimental not only to the OSS community and the industry as a whole.

Revision 10r10 - 04 Feb 2010 - 04:36:55 - NikolaosVolanis
Revision 9r9 - 03 Feb 2010 - 22:20:04 - NikolaosVolanis
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