A Tale Of Two Michaels

Microsoft's biggest liability may be its willingness to use disproportionate strength

If you were 17 and were called Michael Rowe, would you be able to resist calling your Web site Mike Rowe Soft? Of course not, as Mike Rowe, 17, demonstrated. And if you were a zillion-dollar company run by the son of a lawyer, would you be able to resist calling down the wrath of hell's own litigants on the poor chap?

Let's be clear: Microsoft is not only within its rights but is pretty well compelled to defend its name. Under US law, if you let one potential infringement slide you lose the ability to defend against any. Where the company went wrong was in treating a teenager like a con artist: it may be backing down now, but the damage has been done.

Take IBM, a company currently in receipt of oceans of goodwill due to its active espousal of open software. It's currently being a friendly bear, but a bear nonetheless with a long a history of defending its intellectual property with ursine determination -- and, in the days when it owned the world, no shortage of unreasonableness. It still has one of the world's largest legal departments, and expertise in defending intellectual property second to none. Yet it knows better than to marmalise all pretenders: these days, it does reasonable too.

While IBM's internal policies regarding litigation are not something the company ever discusses, rumour has it that the company's response to a threat is regulated by the amount of money involved. Turf up to Big Blue with a claim of, say, $25,000, and the chances are good that you'll get a cheque by return -- oh, and an agreement that you will never again even think of typing the letters I,B and M in that order. Try it for $1,000,000 and you'll be looking at the lapels of some very expensive tailoring as it explains to you why you don't want to do that. (Just to add spice to the game, apparently, one in every so many of the $25,000 and under claims is picked at random and thrown to the lawyers, just to keep them in fighting trim. Bear that in mind.)

The result is that IBM no longer looks like a bully, but retains a fearsome reputation for fighting its corner. It might have lost a few defensible million dollars over the years, but it saves on the court costs, reduces the chances of a perverse ruling that does disproportionate damage, and it keeps control of its IP no matter what. People approach it with reasonable intent, and are not disappointed.

Now, let's see what Microsoft has done with MikeRoweSoft. Microsoft offered ten dollars, which is an insult in anyone's language. He wanted ten thousand -- and Microsoft made the decision that it was right, he was wrong and he could go to hell in a hand basket. It's not as if he is being malicious or deceitful, nor as if there are a thousand Mike Rowes lining up to drain Microsoft of its petty cash. Public opinion is not with Microsoft on this. Does the company really want the same rap as the RIAA, which will forever be known as the mob who put the heat on a 12-year-old girl? Is ten thousand dollars worth more than that?

Meanwhile, back in the world of thousand-dollar suits running million-dollar suits, Microsoft ain't doing so well. Although it's vowed to carry on fighting, court after court has agreed that it violated a 1994 patent about browsers dealing with embedded components in Web pages. The damages are set at around half a billion dollars, and the winner -- Eolas Technologies, otherwise known as Michael Doyle -- looks set to collect.

There have been worries that this is an example of one person holding a whole industry to ransom: after all, despite everything there are more browsers out there than just Internet Explorer and all of them do the same trick. Many gallons of bile have been spilled online, portraying Doyle as the Evil Destroyer seeking personal enrichment, careless of the destruction his greed will bring.

Things are not as they seem. Doyle is not only on record as being in favour of open source, he is a developer on the open source tcl language and co-author of a book on the subject. He's said that he's "working with" those in the community who are affected by the patent, and shows no signs of wanting to be a disruptive influence. Clearly, here is a reasonable person. There must be something about Microsoft that particularly rankles reasonable people, and I bet both Mikes know what it is. Could Microsoft have saved a lot of money and a lot of very bad press if it had a better reputation for being worth dealing with?

It's not that this is Doyle's only brush with IP and big guys. When he started Eolas, he concocted a nice little logo -- a stylised swoosh of a lower case e morphed with an @ sign -- which proved so attractive to someone else that they, shall we say, came to a reasonable agreement. But then the recipient, IBM, has learned that reasonable is worth every penny.