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."
Copyright 2002