Open Sources | Rodrigues & Urlocker » Microsoft doesn't want to sue, but is the alternative any better?

May 17, 2007 | Comments: (0)

Microsoft doesn't want to sue, but is the alternative any better?

TAGS: Microsoft

I feel Bill Hilf's pain. He went on the record with Infoworld to counter some of the criticism that has erupted from Microsoft's incendiary comments in Fortune Magazine about patent violations in open source software.

Bill is a good guy, and I know from talking with him that the maelstrom isn't what Microsoft was trying to accomplish. Unfortunately for Bill, what he says is Microsoft's intent may well be worse than the lawsuits he suggests Microsoft isn't interested in.

Microsoft's goal is to tax open source. Period.

the Fortune article does not correctly represent our strategy. That's what has people so inflamed. It looks like our strategy changed and we are moving in a new direction, but it hasn't. In the Novell deal, we said we had to figure out a way to solve these IP issues and we needed to figure out a way for better interoperability with open-source products. The Fortune article makes it look like we are going out on this litigation path.

Our strategy from everyone in the company -- from [Steve] Ballmer to Brad Smith to me and everyone in between -- has always been to license and not litigate as it relates to our intellectual property.

Microsoft has every right to its intellectual property, and to earn a fair return on it. But given the way the company has gone about this, I just don't believe that is the end goal. Nor do I believe that Microsoft views open source in the same was as it does its potential proprietary licensees, though Bill disputes this:

We are very much calling out to commercial companies to license this stuff and resolve these issues. This isn't like a trivial invention. There are a couple hundred significant patents here.

IBM makes over $1B each year licensing its patent portfolio, and obviously cares about getting paid for value. Yet no saber rattling. Yes, it has much to gain from open source, but it also has a tremendous amount to lose. (It's the second largest software company in the world.) Same with Oracle, HP, etc. All have significant patent portfolios.

Yet no one except Microsoft has set up a toll booth or, rather, a poll tax. You want to vote? Pay the tax. You want to participate in IT? Pay the Microsoft tax. Make free software (that doesn't necessarily violate any Microsoft patents but which violates Microsoft's business model) not so free. Kill the allure of free as in beer.

If there are patents being infringed, it's time to own up to them. But no one can with Microsoft's charade, as Tim O'Reilly noted. Microsoft wants to do it on a quiet, company-by-company basis. But that doesn't work in open source, because it's, well, open. More than one company to deal with. FUD works on an individual basis, but not in the open.

It's likely that Microsoft is violating patents underlying key open source software. I suspect that some open source projects are unwittingly violating patents, too. It's a minefield of spurious (and some substantive) patents.

But the way to resolve the mess isn't through closed-door meetings. It's through an open process. Microsoft would do well to set up the process before someone else does it for them.

Posted by Matt Asay on May 17, 2007 02:35 PM

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