FUD as a planning factor

That's Fear, Uncertainty, and Doubt, for those of you who hadn't encountered the acronym before (which is a TLA--Three Letter Acronym--yes, we love acronyms in this industry so much we invent acronyms for acronyms. What's the acronym for a four-letter acronym? ETLA--Extended Three Letter Acronym. No, it never does get easy to decipher). FUD is largely a marketing concept--it's what you want to spread in your customer's mind about the competition... fear that using a competing product will result in legal action, uncertainty that it's a wise choice, doubt that it will work.

Some people are saying that Steve Ballmer's quotes from last week's PASS (Professional Association for SQL Server [no, I'm not going to explain what SQL stands for]) Summit are just that. Specifically, the point where he refers to Linux by saying "...the fact that that product uses our patented intellectual property is a problem for our shareholders."

Now, in conventional business terminology, them's fighting words--if a competitor is using technology that you have patented, you'll be unholstering your patent attorneys and opening up with large-caliber subpoenas. But there isn't really a corporate entity suitable for legal action when it comes to Linux--it's free, not owned by anyone, created largely by the uncompensated contributions of volunteers. So what is one to think when the chief executive of the largest software company in the world suggests that Linux infringes on their patents?

Fortunately, Ballmer tells you exactly what to think: "...we believe every Linux customer basically has an undisclosed balance-sheet liability."

Ah! It's the users of Linux who are liable for the infringement! You don't want to be a low-down, filthy Linux user, now, do you, son?

A lot of people see this as the other shoe dropping from the Microsoft/Novell marketing and patent indemnification agreement signed earlier this month. And there are some who doubt the legality of that deal in the first place.

But as a practical matter, what is the typical IT Manager or CTO to think of the situation? It is, after all, crystal clear in the wake of the SCO lawsuits that individual users (companies, in this context) can be sued for uses violating registered patents. None of the SCO lawsuits have been successful nor are they likely to be, but the simple fact of legal action is costly and damaging to the target businesses. And Microsoft, in the guise of the BSA (Business Software Alliance) has shown no qualms about suing its customers--even small ones--in the past.

(If you were really thinking about this objectively, it might occur to you to wonder why you would want to do business with a vendor so suspicious of and litigious towards its customers in the first place.)

So there is some cause for legitimate concern for the rational IT decision-maker. But how much credence do you give it in your planning decisions?

Antone Gonsalves at Information Week has an article up suggesting that "not much" is the appropriate answer.

I tend to agree. Linux, and any alleged patent violations, have been around for a long time. And with this sort of accusation, the proof is in the pudding--executives can point fingers and sling innuendo all day long, but if there were truly anything actionable, you'd see less talking and more legal wrangling. Moreover, from a strategic perspective, the time for solid legal action on Microsoft's part was several years ago, before Linux began to penetrate so heavily into its core customer base. They might have sued businesses that were never likely to adopt Microsoft products in the first place (thus removing themselves from the awkward public relations stance of suing their own customers) and given those that were a demonstrable reason to avoid deploying Linux at all.

But they didn't, and now Linux has significant penetration even among companies who rely on Microsoft products heavily.

This doesn't necessarily mean their won't be suits--but they are likely to be very carefully directed, and given the examples from the SCO cases, they are likely to be very carefully chosen. SCO had a great deal of difficulty making their case even when all the patented code in question was freely available (and thus, easily appropriated)--Microsoft, with a closed source-base, would have that much harder a time demonstrating infringement. Open-source developers have been forced to blindly reverse engineer solutions compatible with Microsoft processes, and last I heard, reverse-engineering is a perfectly legitimate way to create code.

So, I'd give Ballmer a condescending chuckle and move on with adopting the best possible solution for my business without being swayed by unsubstantiated allegation or vague threats.