Microsoft Wants to Have Its Cake and Eat It Too

by on June 1, 2007 · 12 comments

Horacio Gutierrez, vice president of intellectual property and licensing at Microsoft, says that interoperability requires licensing agreements like the Novell-Microsoft deal:

“In fact, one makes the other possible, especially at a time like this, when interoperability is so important. Microsoft recognizes the importance of interoperability, which is why we are doing the things we are in our products, why we created the Interoperability Executive Customer Council, and why we are listening to customers,” said Horacio Gutierrez, Microsoft’s vice president of intellectual property and licensing.

Customers did not want to have to solve this problem themselves, they wanted industry leaders, their vendors, to solve the interoperability problem for them, he said.

“The only way that’s possible is for companies to really be open to licensing arrangements and building these bridges that people thought were impossible before, among different providers and among different software development models,” he said…

He felt it “unfortunate that while Microsoft is trying to build bridges wherever possible between the commercial and open-source software industries, some seem intent on tearing down those bridges. We are in the bridge building business, not in the bridge burning business.”

This is, as Luis points out, complete and utter nonsense:

Or, you know, you could agree not to assert the IP against your customers, open source, or standards-based projects, and actually benefit your customers like you claim to want to. Wouldn’t that be a wild idea. I think everyone is in favor of bridges, but some of us don’t assume that all bridges have toll booths.

Luis is being a little bit cryptic, so let me unpack this a bit. The free software community is built on strong norms of reciprocity and cooperation. The bargain that drives free software is that you’re free to use free software however you like provided that you respect the equal freedom of other users to do likewise–and not to assert proprietary rights over software that was developed by other users. Morally speaking, using free software while asserting proprietary rights over it is stealing just as much as it’s stealing to use Microsoft software you haven’t paid for.

Now, the fundamental problem that allegedly needs solving is that consumers are afraid Microsoft might sue them for patent infringement. There are two ways that this problem could be solved. One way is the one Microsoft has chosen: use legal uncertainty fear as a way to extort money from “partners” who are unlucky enough not to have significant patent portfolios. This has the disadvantage of being blatantly contrary to the spirit of GPL v. 2 and the letter of GPL v. 3, and risks turning the firm on the open source end of the bargain into a pariah in the open source community.

The other is the approach that IBM, Red Hat, and a lot of other firms have taken: simply promise not to sue users of open source software. That doesn’t require any legal trickery, it doesn’t piss anyone off, and it solves the supposed “problem” Gutierrez has identified of IP issues getting in the way of interoperability.

Gutierrez has artfully phrased things so as to give the impression that there are complicated legal issues that need to be resolved before Microsoft can work with open source companies. But in reality, there’s only one obstacle to interoperability between Microsoft products and free software: Microsoft wants to use free software, but it doesn’t want to respect the associated quid pro quo of agreeing not to assert proprietary rights over it. Which is fine–patent law entitles patent holders to demand license fees. But it takes a lot of chutzpah for Microsoft to then act surprised or hurt when the free software community wants nothing to do with a company that demands access to its software while flouting its norms.

  • http://linuxworld.com/community/ Don Marti

    Don’t forget the more common approach taken by, for example, companies that hold MPEG-related patents. The normal approach is actually to let people know what the patent portfolio is, so that those who want to license the patents, or figure out how to interoperate with the patents from open source software, can do so (see fluendo.com for how to make patented codecs work in open source media apps).

    The current Microsoft approach goes beyond what other patent holders typically do in two ways: first, threatening customers; and second, licensing “intellectual property safety” instead of a patent portfolio.

  • http://tieguy.org/blog/ Luis Villa

    Well said, Tim. I might add that this is a big business opportunity for Microsoft, if it actually wanted to compete. Sales of Exchange on a Linux server backend, or Office on a Linux client, would easily exceed their meager licensing revenue. They have the choice to do that sort of thing- we’re not forcing them to isolate themselves.

  • http://www.techliberation.com/ Tim Lee

    Don, wouldn’t licensing a patent portfolio be a violation of the GPL? I know you can offer a proprietary MP3 player that runs on Linux, but if you had a GPLed MP3 player, wouldn’t the GPL preclude the kind of per-copy license that patent holders most often demand?

  • http://linuxworld.com/community/ Don Marti

    Don’t forget the more common approach taken by, for example, companies that hold MPEG-related patents. The normal approach is actually to let people know what the patent portfolio is, so that those who want to license the patents, or figure out how to interoperate with the patents from open source software, can do so (see fluendo.com for how to make patented codecs work in open source media apps).

    The current Microsoft approach goes beyond what other patent holders typically do in two ways: first, threatening customers; and second, licensing “intellectual property safety” instead of a patent portfolio.

  • http://tieguy.org/blog/ Luis Villa

    Well said, Tim. I might add that this is a big business opportunity for Microsoft, if it actually wanted to compete. Sales of Exchange on a Linux server backend, or Office on a Linux client, would easily exceed their meager licensing revenue. They have the choice to do that sort of thing- we’re not forcing them to isolate themselves.

  • http://www.techliberation.com/ Tim Lee

    Don, wouldn’t licensing a patent portfolio be a violation of the GPL? I know you can offer a proprietary MP3 player that runs on Linux, but if you had a GPLed MP3 player, wouldn’t the GPL preclude the kind of per-copy license that patent holders most often demand?

  • http://linuxworld.com/community/ Don Marti

    Tim, look at the Gstreamer/Fluendo interface. The patented stuff is broken out into plugins and the framework is LGPL. Some applications that use Gstreamer are GPL.

    Open source developers tend to be good at working out the necessary interfaces to integrate with the patented stuff. Another good example: the “Personal Security Manager” for Mozilla, before the RSA patent expired.

  • http://linuxworld.com/community/ Don Marti

    Tim, look at the Gstreamer/Fluendo interface. The patented stuff is broken out into plugins and the framework is LGPL. Some applications that use Gstreamer are GPL.

    Open source developers tend to be good at working out the necessary interfaces to integrate with the patented stuff. Another good example: the “Personal Security Manager” for Mozilla, before the RSA patent expired.

  • http://tieguy.org/blog/ Luis Villa

    GPL apps cannot link against the Fluendo plugins; they have to be GPL + a special exception which allows the linking to the binary plugins (which are binary because of the patents.)

  • http://tieguy.org/blog/ Luis Villa

    GPL apps cannot link against the Fluendo plugins; they have to be GPL + a special exception which allows the linking to the binary plugins (which are binary because of the patents.)

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    Now, the fundamental problem that allegedly needs solving is that consumers are afraid Microsoft might sue them for patent infringement. There are two ways that this problem could be solved. One way is the one Microsoft has chosen: use legal uncertainty fear as a way to extort money from “partners” who are unlucky enough not to have significant patent portfolios. This has the disadvantage of being blatantly contrary to the spirit of GPL v. 2 and the letter of GPL v. 3, and risks turning the firm on the open source end of the bargain into a pariah in the open source community.

    The other is the approach that IBM, Red Hat, and a lot of other firms have taken: simply promise not to sue users of open source software. That doesn’t require any legal trickery, it doesn’t piss anyone off, and it solves the supposed “problem” Gutierrez has identified of IP issues getting in the way of interoperability.

    Well here’s a hypothetical that Microsoft should have considered, before it embarked on this strategy: if you are a big company that uses a lot of software, who would you like to come out on top, open source or Microsoft?

    It is the consistent inability to see itself as an agent supplying something that a customer actually wants, rather than as the owner of a mine from which to extract monopoly rents, that will eventually do-in MS.

  • http://enigmafoundry.wordpress.com eee_eff

    Now, the fundamental problem that allegedly needs solving is that consumers are afraid Microsoft might sue them for patent infringement. There are two ways that this problem could be solved. One way is the one Microsoft has chosen: use legal uncertainty fear as a way to extort money from “partners” who are unlucky enough not to have significant patent portfolios. This has the disadvantage of being blatantly contrary to the spirit of GPL v. 2 and the letter of GPL v. 3, and risks turning the firm on the open source end of the bargain into a pariah in the open source community.
    The other is the approach that IBM, Red Hat, and a lot of other firms have taken: simply promise not to sue users of open source software. That doesn’t require any legal trickery, it doesn’t piss anyone off, and it solves the supposed “problem” Gutierrez has identified of IP issues getting in the way of interoperability.

    Well here’s a hypothetical that Microsoft should have considered, before it embarked on this strategy: if you are a big company that uses a lot of software, who would you like to come out on top, open source or Microsoft?

    It is the consistent inability to see itself as an agent supplying something that a customer actually wants, rather than as the owner of a mine from which to extract monopoly rents, that will eventually do-in MS.

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