The Microsoft defense brief

The Microsoft defense brief

Summary: Phelps' book is essentially a defense brief of Microsoft's actions over the last six years.


A week ago Portland freelancer David Kline sent me a copy of "Burning the Ships," which he ghost-wrote under Microsoft IP executive Marshall Phelps.

Unfortunately I had a library book that needed finishing and couldn't be renewed, so it wasn't until after Matt Asay went all Glenn Beck on it that I settled down for a quiet evening's read.

The title alludes to Cortez burning his own ships so his soldiers would not desert the invasion of Mexico, and this allusion fuels Matt's rage. Maybe he identifies with the Aztecs.

A better title might be "Precious Bodily Fluids," alluding to Gen. Jack D. Ripper's fear of poisoning and the Internet's traffic business model, where ISPs exchange data first and worry about the money later. That's more what Phelps is getting at.

For years, Phelps writes, Microsoft protected itself through a clause called NAP -- Non-Assertion of Patents -- which it forced upon business partners.

NAP freed Microsoft from worrying about most patent claims, he notes, but not from trolls who were not business partners. Worse, it left Microsoft isolated, with great ideas left as mine tailings behind the shop.

The Phelps plan was to sign cross-licenses with business partners instead, to aggressively patent what it had, and then to license those patents to start-ups.

The cross-licenses would let Microsoft do business with partners in a similar way to the old days, while the patenting and licensing of new inventions would spin straw into gold for new entrepreneurs, who might then become business partners.

In Phelps' view it worked a treat. And it's hard to argue with the financial numbers the company has put up the last five years, while losing not only CEO Bill Gates but his entire founding generation.

There are two problems with this.

  1. The law allowing software patents is subject to question, and is now being questioned.
  2. While Linux vendors and users are exchanging bodily fluids even more readily than ISPs peer, that's due to legal agreements among all players which look a lot like NAP.

Thus, in Phelps view, all this folderol about Microsoft "owning Linux" is really just a ploy to participate fully in the Linux ecosystem, through cross-licenses.

The title of this piece was chosen deliberately. Phelps' book is essentially a defense brief for Microsoft's legal strategy of the last six years. Matt clearly is not convinced.

Me, I'm taking it under advisement.

How say you?

Topics: Software, Browser, Linux, Microsoft, Open Source, Operating Systems, Telcos

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  • Does fit the known facts

    But it doesn't sound much like a defense.
    John L. Ries
    • I disagree

      The defense is that Microsoft was being pounded
      by patent trolls, that Microsoft saw open source
      coming and wanted to participate in the broader
      trend this represented, and that it decided
      using patents as a tool for this was the right
      way to do it.

      Under the law as it was before In Re Bilski,
      it's hard to argue they were wrong. Surrender is
      not a corporate option.
      • You fight back against patent trolls... amassing a large and legally dubious patent portfolio and then using it to attack the competition? Note that MS is still having to fight off patent trolls in court (and losing most of the time). Not surprising since the trolls don't actually develop software and therefore can't violate anyone's software patents.

        This looks more like a variant of the strategic incompatibility game MS has been playing since the mid-1980s. And if they can effectively limit software development to a patent cartel controlled by themselves (that's really what cross-licensing is all about), so much the better.

        I think MS has embraced software patents because Steve Ballmer sees them as a magic bullet he can use to cripple open source. Doesn't look terribly rational (after all, it's never worked very well), but the other explanations look even less so.
        John L. Ries
        • That's one way of looking at it

          A lot of the views I read on this thread are
          informed either by "Microsoft is good,
          therefore" or by "Microsoft is evil, therefore."

          I don't think Microsoft is either good or evil.
          I think they're a company like any other trying
          to make its way in the world.

          Open source did change the rules of the game,
          and what Phelps writes about -- what you
          criticize -- is Microsoft's effort to deal with
          this world.

          Given that its previous policy of only signing
          contracts that absolved both sides of patent
          claims failed.

          Because, as you note, there were (and are)
          patent trolls.
          • I try to judge actions

            That is to say... Company X did this, that, and the other, which leads me to think such and such about them and maybe do such and such about it.

            The other way (Company X is good/evil and therefore...) doesn't allow for changed behavior and is usually exaggerated. As you note, both people and organizations are mixtures of good and evil and the purity level is normally low. And even the worst organizations sometimes do the right thing, or are defendants in unjust lawsuits, or are otherwise wronged.

            But MS has a very long track record of abusive behavior (over 20 years), so it would take me considerable time to adjust my opinion of them and probably even longer before I would consider patronizing them (or investing in them, or working for them). But I am willing to adjust my views and buying behavior when I see that their actions warrant it. Maybe they should get started.

            The sad thing is that the old abusive practices and their modern abusive replacements now seem to hurt them more than they help them. The sadder thing is that when Steve Ballmer started his "Linux violates our patents" campaign (but we won't tell you which ones or how), I was on the verge of dropping the boycott.
            John L. Ries
          • RE: That's one way of looking at it

            You are too kind on yourself and on Microsoft.

            If you didn't "take this under advisement" Microsoft would "cut off your oxygen supply", since ZDNet is an online mag that heavily DEPENDS on Microsoft ad revenues, and those from 3rd parties whose applicatons run only on Windows.

            Microsoft, as you well know, is not business "neutral". Funding and operating through surrogates and "useful idiots" it has waged one of the most corrupt business models in modern corporate history. Even some journalists are not above receiving new laptops in a quid quo pro for glowing reviews of VISTA, and now Win7. The laptops are only "on loan", of course, AFTER the scam was revealed and many "journalists" were exposed as the MS sock puppets they are.

            Your memory seems to be wiped clean of Microsoft funding SCO's attack on Linux, or the stuffing the ISO committees to get OOXML approved as an "Open Source" standard, which is another joke, but the episode is a pure example of the application of the "Stuffed Panel" technique so aptly taught to budding new Technical Evangelists (TE) by James Plamondon. See page 53 of the PX03096.PDF from the Comes vs Microsoft website for full details, or catch a text extract of the "Stuffed Panel" at
            You might be interested in Plamondon's other technique, "The Slog", described in the first source.

            That Microsoft is still employing these corrupt techniques is evidenced by their recent waving of the "Open Source" flag, but only, as Bruce Perens warned, to destroy FOSS from within. As we write, Microsoft is waging all out war on FOSS in Europe by employing the "Stuffed Panel" technique through one of its surrogates, created by MS during the DOJ period and now being extended to fake being an "independent" (explained in the SP technique) opinion that is totally slanted to Microsoft. The result can be seen in their infiltration of a European FOSS strategy document, revealed on wikileaks:

            It demonstrates the "Stuffed Panel" in all its glory, or I should say GORY, details.

  • RE: The Microsoft defense brief

    I don't think your description of Matt Asay's response is
    accurate; it was not an incendiary as you indicate.

    Asay has been exploring two themes the past few months,
    first, the customers are using open source, like it, and plan
    to use more. Second that Microsoft is very publicly
    thrashing out a response to the phenomenon and has
    proponents for transforming the Redmond business model
    and the other strategy, leveraging ip to create costs for
    using open source.

    This book is part of the debate. Ghost-written. Hmm.
    • Need a ghostwriter?

      I was too harsh on Matt -- you're right on that.

      Should I have written that he went all "Rachel
      Maddow" on him? Maybe. But I find Beck funnier.

      As to ghostwriters, I am very glad that Mr.
      Phelps felt he could give Mr. Kline full credit
      for his work on this. Most celebrities use
      ghostwriters on their books and give no credit.
      • Thanks for the offer, but I can't afford a ghost writer

        I had seen commentary about this book before and this was the first time
        I saw reference to a ghost writer. Since the writer was a friend of yours I
        jumped to the conclusion that this was inside information. I beg your
        pardon for slipping in ignorant snark.

  • Garbage ware who wants it....

    Good grief who wants this insecure software?

    Let it go to the dumpster.

    We are the good guys!
    Loverrock Davidson
    • An extra R

      Nice touch ;)
      Alan Smithie
    • Ah... creative mispelling

      I see that He Who Must Not Be Named (lest he have a public ego attack) has attracted a parodist.
      John L. Ries
    • I was going to object.

      But since you used all caps, you convinced me. ;-)
      • What?

        I have no idea what you Linux people are talking about!
        Loverrock Davidson
        • Most accurate statement from you yet

          "I have no idea" ("what you Linux people", or anybody else, "are talking about!")

          Persevere! The truth will escape (and encompass) you yet........
          Ole Man
    • Don'tcha wish you were popular like me?

      Apparently some people do, so much so that they want to be me.
      Loverock Davidson
      • No (nt)

      • Damn, now that you were doing so well you decide to spoil it all?

        Your new tone is so much better that you should never consider a return to your old ways.
        InAction Man
    • Lousy Mike Cox wannabe

      Mike is funny. You're not. It's so simple.