Reading the fine print on Microsoft's new open-source promises

Microsoft's much-balleyhooed promise, unveiled February 21, not to sue open source developers solely applies to developers who are using Microsoft's patented protocols and interfaces in non-commercial ways. In other words, Microsoft isn't throwing in the towel in its quest to get Red Hat and other Linux vendors to sign patent-protection agreements.

So how sweeping are the new interoperability commitments that Microsoft announced on February 21, especially the promising-sounding "covenant not to sue" open-source developers?

As I've said, I consider what Microsoft announced today to be more fluff than substance. It sounds like the European Commission shares my view. During a conference call with press and analysts to explain the finer points of Microsoft's newly announced "interoperability principles," company officials reiterated that Microsoft is not changing its thinking about its right to protect its patents, trade secrets and intellectual property.

Microsoft's promise not to sue open source developers solely applies to developers who are using Microsoft's patented protocols and interfaces in non-commercial ways. In other words, Microsoft isn't throwing in the towel in its quest to get Red Hat and other Linux vendors to sign patent-protection agreements.

Senior Vice President and General Counsel Brad Smith told participants on the call that Microsoft's goal was "carving out a portion of its patent rights." Specifically, Microsoft is now allowing any developers -- commercial or open-source to see and "use" its application-programming interfaces (APIs) for free.

(As of today, the APIs that Microsoft is making available to developers are the same communications-protocol-related ones that Microsoft was required to provide by Department of Justice and European Commission antitrust authorities. By June, Microsoft will add more APIs to this list -- specifically those related to the .Net Framework, Office 2007, Exchange Server 2007 and SharePoint Server 2007. It sounds like Microsoft is planning to make the interfaces and protocols for its eXtensible Application Markup Language, or XAML, available to developers at some point, too.)

For developers who want to implement these APIs in a "non-commercial" way, there will be no charge. I guess that means Samba won't be getting its 10,000 Euros back? (I've asked Samba if they might be getting at least a partial discount; no word yet.)

But for those developers who want to create commercial implementations using these APIs, Microsoft will be charging what its officials are calling a "very low" royalty rate. Microsoft will provide reasonable and non-discriminatory (RAND) license coverage. But if a developer plans to commercial distribute code implementing Microsoft-patented protocols, the distributor still will need a patent license from Microsoft, officials said -- just like the ones Novell, Xandros, Linspire and TurboLinux already have signed.

Microsoft CEO Steve Ballmer made it clear that today's announcements are not about Microsoft making its IP "freely available."

"We have valuable IP in our patents," Ballmer told conference call attendees. "In some senses we are opening up, but we are retaining our valuable IP assets."

Ballmer said Microsoft plans to continue to seek to monetize any technology that includes Microsoft patented protocols or interfaces, and that Microsoft still plans to protect vigorously its trade secrets.

Microsoft Chief Software Architect Ray Ozzie said that Microsoft's February 21 interoperability announcement represented "a very important strategic shift for every engineer" at Microsoft. Do you agree?

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