October 04, 2010, 8:06 AM —
Don't take this the wrong way, but why isn't anybody suing Linux anymore?
Every time I turn around, someone's suing Android directly or by proxy--the latest being Microsoft's patent-infringement lawsuit against Motorola launched this past Friday. In the suit, Microsoft alleges that nine of its patents were violated.
This is the third time software makers have gone after Android or Android-based phones this year. In March, HTC found themselves in Apple's cross hairs as another proxy against Google's Android, with another patent lawsuit. This summer, Oracle went straight at Google, claiming its Java code was being improperly used in Android.
Why the proxy fight between Microsoft and Motorola? A couple of reasons come to mind. Motorola was, until recently, one of the vendors actually pushing Windows Mobile-based phones. Lately, however, they've been shifting over to Android, trying to catch the wave of big sales coming from US carriers like Verizon and Sprint.
Another, rather more telling, reason was put forth by open source analyst Carlo Daffara just this morning on Twitter. Two of the patents in the nine-patent lawsuit brought by Microsoft have an interesting provenance.
"On MS/Motorola lawsuit: As patent 5579517 and 5758352 are covered by [the Open Invention Network], attacking Google would have escalated things," Daffara wrote. "[Motorola] is not [an] OIN [member]."
Daffara asserts that since Motorola is not a member of the OIN, Microsoft picked its target wisely. More than you would initially think, because Daffara continued:
"By the way--these two are the patents that were used against TomTom, and are used as part of the [intellectual property rights] licensing package licensed by HTC [and] others."
So, not only did Microsoft skirt around the OIN, it did so using patents that the OIN helped TomTom fight off when the Redmond software giant sued TomTom in March 2009... and settled a month later.
Of course, the overarching motivation for this lawsuit is money: Microsoft sees a lot of potential revenue walking out the door with the increasing success of Android. (So, as we saw in March, does Apple.) Windows Mobile, to date, has yet to make more than the smallest dent in mobile phone market share, so Microsoft has to try to put the brakes on Google's operating system somehow.
A similar tactic was tried, rather clumsily, by The SCO Group when it sued various Linux vendors when it saw its UNIX-based business evaporating. We all know how that ended up.
But Microsoft, Oracle, and Apple are playing this a lot smarter, from a purely strategic point of view. They're not going after the source of Android, but rather the vendors who need Android to generate sales. (With the exception of Oracle, who thinks it may have a direct shot at Google.) But even Oracle's lawsuit could have a psyops effect on those same phone vendors, making them think twice about adopting Android.
The real strength behind the Microsoft and Apple lawsuits is something very simple: they have these vendors backed into a corner, because the smartphone makers have to use Android for the foreseeable future. What other operating system will they use? Not iOS--Apple isn't sharing. And, as much as Microsoft would like to see it, not Windows Mobile, because the market has already voted and they want Android. Maybe MeeGo will fit the bill, but it is untested in the market to date. Without an alternative to which to jump, the phone vendors must stick with Android and therefore they will very likely pay the Microsoft/Apple piper.
That's bad news for Android fans, but the likely scenario is that HTC and Motorola won't get into protracted battles with their respective challengers. It would simply be less expensive in the long run to just pay off Apple and Microsoft in some sort of Danegeld settlement.
That's too bad, but in the business world it's been demonstrated time and again that when it comes to principle versus money, the bottom line wins nearly every time.