Microsoft patents and OSS: Tempest in a tea cup

Posted on May 15, 2007

The buzz May 14 was all about the Microsoft/OSS “patent happening.” According to Fortune, Microsoft claims that open source software (OSS) as a group violates over 200 Microsoft patents. There is a breathless sense that this claim and all the background and forward looking that derive from it is new news. Thank the mainstream business media for that (Business Week followed with a story). The IT tabloids and blogosphere piled on.

Why?

This is not new news. In fact, if I were a cynic, I’d almost say the vaunted Microsoft PR machine purposely planned the timing of the Brad Smith interview with Fortune so the story would break on top of—and “push down”—news out of last week’s Red Hat Summit and JavaOne. But the Microsoft PR machine is not as good as the Microhaters always give it credit for. And I’m trying not to be a cynic now that I am a “senior analyst.” Since Microsoft has thousands of patents and it won’t say which 200 of them are involved in its claim, all bloggers and opinion makers can do at this time is wax philosophical. They’d be better off waiting until something new happened.

Here are five reasons why this is not new news:

First of all, the left-wing of the OSS movement, the Free Software Foundation (FSF), has been planning for this for years. It believes software is a math equation and therefore is—in FSF’s most extreme analogy—as free as air. The FSF earnestly hopes that the Microsoft patent assertions will lead to defining legal cases that will confirm its position. That’s the only real philosophical aspect of this discussion. But there are no cases filed anywhere yet. Even if decided in FSF’s favor at some point long in the future, the software-legality ball will just be thrown back into the copyright category for further litigation. Remember, in 1985 before all the patent ballyhoo began, the U.S. Supreme Court ruled against hearing Data General’s copyright-based appeal on a split vote in which the dissenting justices took the rare step of issuing opinions on a certiorari motion. Lawyers are lined up from here to Christchurch to get that issue back in front of an English-common-law-based judicial system.

Second, as for “free” as in “at no cost,” which is what both the tabloid IT press and mainstream business media like Fortune tend to latch onto whenever they write about OSS, FSF (”not free beer”) and everyone else to the right of it in the OSS movement explicitly recognizes that software has costs associated with it. In fact under various business models and contractual arrangements, those costs are no different for users—comparatively—then when they got their software bundled in “mainframes” by IBM and the seven dwarves in the 60’s and 70s, preloaded on minis by DEC, DG, HP and Wang VARs in the 70s and 80s, burned into CDs by ISVs in the 80s and 90s, or downloaded “for free” today.

Users still need to hire people to analyze their computing needs by understanding or creating business processes, “program” those business processes so as to be understood by the software, integrate various brands of software to operate as a unit, run the software (and the network that goes with it), and update and maintain the code that came “at no cost.” It doesn’t matter if the whole bundle was rented, the preloaded minis were leased, the CD’s were acquired under a perpetual right to use license with annual subscription maintenance, or the download was acquired as a service. Actually Microsoft is doing more to change those cost dynamics than the OSS movement but that’s another blog post.

Third, dismiss the entire mainstream-media-created aura about community that gets trotted out by outlets such as Business Week whenever they write about OSS. Community was important when the OSS movement began with IBM COMMON, Share and Digital Equipment’s Decus in the 1960s (not with Richard Stallman of the FSF in the 1980s as Fortune tells it). In general, OSS development is done today by employees of the same corporations (or their legal successors) that gave us CICS, VAX VMS, the relational database, the word processor, integrated office automation, and so forth: IBM, HP, Oracle, Kodak, EMC, and so forth respectively. Even where the corporations’ employees are not doing the actual software engineering, the companies are funding those that are with real money and in-kind contributions of horsepower and underlying development software.

Fourth, there’s the FSF license canard. It says that the FSF’s GNU General Public License (GPL) is keeping Microsoft from aggressively pursuing its patents. According to InfoWorld, OpenOffice.org is already asking why Microsoft is picking on it; it doesn’t use the GPL (it does use the Lesser GPL, which is being merged into GPL with version 3). But there are dozens of other OSS licensing structures without the FSF’s patent limitations. And the major users of OSS—like the major creators of OSS, the leading IT companies—have nothing against patents because that’s the way they run their enterprises. Ditto for academic institutions that want to set up future revenue flows based on intellectual property. As for the pure happenstance that Linux works under the GPL v.2, watch for the fireworks when the Linux Foundation comes out against GPL v.3. It will make the Red Sox vs. the Yankees look like a company picnic softball game.

Fifth and most important, the mainstream media glosses over a lot of product subtleties. Even the FSF highlights this issue with its insistence in calling typical OSS operating-software distributions “GNU/Linux.” I go into a lot more detail over at ebizQ.net but for investment research purposes, just remember:

So put the Microsoft “patent happening” in context rather than reading too much into the mainstream business media blast and its fallout. Microsoft is taking it slow on this issue; the markets should also. — Dennis Byron

Tags: , , ,

Comments

Leave a Comment

If you would like to make a comment, please fill out the form below.

Name (required)

Email (required)

Website

Comments