patents

Yesterday Steve Ballmer announced “a significant change in how we share information about our products and technologies.” Apparently, Microsoft doesn’t appear to see Linux as the “cancer” it once did; or at least they seem confident it’s not contagious through their APIs. The publication (hopefully without any restriction) of protocol documentation and APIs should help open source developers. Just last year, for instance, the Samba team had to pay a significant fee to view those same documents; most open source developers would not have had the resources (financial, legal or otherwise) to navigate those waters. If those restrictions are gone, that is a good thing.

Throughout its history, Microsoft has operated as an island, cloistering
itself away from the competition and using its market position to
isolate competing technologies. As we’ve said before, many corporations making $12b a year in net profit would operate in a similar way. But the landscape is changing. An interconnected pangea – not geographic isolation – has already arrived.

With the rising demand from customers and their governments (and courts) for greater transparency and interoperability, Microsoft has to listen. The scales have been tipped toward “open.” I hope the execution of this announcement will match its message and that the result will be truly greater access and interoperability for open source developers and their products. The only concrete thing to say is: the devil’s in the details.

There are some good things discussed in the announcement, but Microsoft could certainly go farther:

1. The RAND patent provision terms discussed in the announcement are incompatible with most widely used open source licenses; we hope Microsoft can find terms that are compatible with a broad set of open source technology.

2. Offering a patent covenant not to sue to “non-commercial” open
source developers is not a significant change or offer, in my (admittedly non-legal) opinion. It sounds good at first glance but in practice I don’t think will change anything.

3. If Microsoft really wants to take a stand for open standards and open
source, take OOXML off the table at the upcoming ISO meeting in Geneva
and support the existing, ISO ratified document standard ODF. Then I would agree the announcement was significant.

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Monday morning started out well — a continuation of the sunny day we had Sunday, a few hours to concentrate on my actual work — until the phone rang. Microsoft had unleashed a FUD storm with more vague patent threats. While a few articles have been published with Linux Foundation statements, I wanted to elaborate on our public comments so far.

First of all, customers we talk to know Microsoft is too smart of a company to take a page out of the SCO handbook and sue their own business partners and customers. Before believing the Microsoft saber rattling machine ask yourself two questions: would Microsoft sue its own customers? Is Microsoft certain they have not infringed upon the patents of the companies who represent the entire open source ecosystem?

There is just as much potential patent infringement in Windows than there is in open source, or any other operating system. Microsoft is certainly not the only owner of patents in this area, and perhaps not even the owner of the largest number of patents, in these areas. Microsoft will need to be careful what it starts, given that it cannot know where this will end. I think most knowledgeable software users see this posturing for what it is: empty threats from a scared giant whose monopoly is being challenged.

Granted, if you were making $1billion in profit *per month,* how would you react? Because that’s precisely how much Microsoft makes per month on its Windows and Office monopolies, both of which are directly and substaintially threatened by Linux and Open Office.

Second, let’s ask ourselves why Linux is being singled out here, and not AIX or Solaris or any other operating system. I’m not a lawyer, but patents cover functionality, not the way the technology is distributed. Their focus on Linux and OpenOffice shows two things: 1. how much Linux and Open Office threatens them and 2. that this is an aggressive PR campaign and nothing else. In fact, we think of this as merely an extension of their advertising campaigns. I’ve worked at large public relations agencies for large clients: I know how the Microsoft PR machine works. It’s incredibly well funded and well run. They have generated a lot of clips with this PR blitz, but fortunately for us, more reporters and journalists are seeing through these tactics.

Microsoft, our members and software users know that a patent war guarantees only one sure outcome: mutually assured destruction for all involved. By leveling vague threats against open source, Microsoft hopes to extend their monopoly a little longer. Given that every day Microsoft makes $34,000,000 in profit, it’s not surprising Microsoft resorts to a well-orchestrated, well-funded PR campaign to scare software users, especially when those software users are recognizing that open source is simply a better way to develop software.

I urge everyone to see this for what it is: a FUD campaign. Don’t let Microsoft or anyone else get away it it.

~ Amanda McPherson

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