Patent Armageddon is here
The terrific Fortune magazine story about Microsoft threatening free software groups with patent lawsuits has one thing wrong. — Patent Armageddon isn't coming, as the magazine suggests. — It has already begun, and I'm starting to wonder if we should chuck …
Context & Ripple Effects
Dudley's post lands three days after Fortune's report that Microsoft is threatening free software groups with patent lawsuits, and a day after Mark Pilgrim called the company's behavior outrageous. His argument sharpens the framing: where Fortune casts this as an approaching confrontation, Dudley contends the patent war on free software has already started — and the unconfirmed detail circulating alongside it, that Microsoft alleges Linux infringes its patents without naming which ones, is what makes the threat unanswerable.
The story is also riding a wider IP-enforcement wave: on the same day, Ars Technica, CNET and PC World are all covering Attorney General Gonzales' proposed Intellectual Property Protection Act, which would make attempted copyright infringement a crime carrying life-imprisonment proposals. Microsoft's corporate patent saber-rattling and the Justice Department's criminalization push are separate moves, but together they signal an escalation across both private and public enforcement.
First-order effects
- Free software groups and Linux distributors now operate under live lawsuit threats backed by patents Microsoft has reportedly declined to name, meaning they cannot engineer around the alleged infringement or price the legal risk.
Second-order effects
- Commercial Linux vendors face pressure to buy peace through patent cross-licensing or indemnification deals with Microsoft, because unnamed patents turn every enterprise sale into an uninsurable liability.
- Rival platform owners gain a sales argument: Microsoft's own push of Silverlight as its answer to Adobe's Apollo shows the patent threat running alongside product competition for the same developer mindshare.
Third-order effects
- If threatening without filing becomes a workable strategy, software patents harden from legal protection into a standing tax on free-software distribution, and the eventual backlash lands on patent reform and defensive pooling rather than on any single lawsuit.
- Paired with proposals to criminalize even attempted infringement, the enforcement model shifts from civil litigation toward state-backed prosecution, raising the stakes for anyone distributing code at scale.
The trend: Incumbents are converting software patents from defensive shields into offensive weapons against free software, with government proposals to criminalize infringement widening the front.