Microsoft's open-source patent threat still intact

Closer examination of the software maker's announcement shows it has left the door open to take legal action against commercial Linux distributors and others
Written by Stephen Shankland, Contributor

Microsoft made major concessions on Thursday that should make it easier for open-source software to dovetail with or even replace Microsoft products, but a major caveat means the company's legal threats remain alive and well.

Microsoft announced a number of moves that could significantly improve its relationship with the open-source world. Among other things, the company said it will share communication protocols that govern how Microsoft software products communicate; pledged not to sue open-source programmers for developing software that uses those interfaces; and launched an Open Source Interoperability Initiative to improve how well open-source software works with its own.

Although programmers now are apparently free to reproduce the software, Microsoft's generosity ends when the software crosses the threshold from project to commercial product.

"Microsoft is providing a covenant not to sue open-source developers for development or non-commercial distribution of implementations of these protocols," the company said. "Companies that engage in commercial distribution of these protocol implementations will be able to obtain a patent licence from Microsoft, as will enterprises that obtain these implementations from a distributor that does not have such a patent licence."

According to insiders, Microsoft hasn't backed down from its insistence that its intellectual property isn't free for the taking, an assertion made most clearly in 2007 when chief executive Steve Ballmer said Linux and other open-source projects violate 235 Microsoft patents.

"The promise not to sue is only for 'non-commercial' open source, which is a bit meaningless," said Jeremy Allison, a founder of the open-source Samba project that lets Linux servers substitute for Windows file and print servers by emulating the required Microsoft communication protocols.

The Thursday move suggests two forms of patent agreement. First is one in the mould of the Microsoft partnership with Novell from 2006 and various other smaller Linux companies afterward. The second is an agreement directly with customers who use open-source software such as Red Hat's Linux, as Ballmer suggested last October when he said: "People [who] use Red Hat, at least with respect to our intellectual property, in a sense have an obligation to eventually compensate us."

Commentators have been quick to point out that it's unlikely Microsoft opened up its specifications and made its pledges on Thursday out of the goodness of its heart. As the open-source movement and its free-software predecessor have matured over more than two decades, Microsoft has found it necessary to make accommodations.

First, the open-source programming philosophy outdid Microsoft in an area where it previously had been a leader, fostering communities of developers.

Second, there have been years of antitrust litigation, first by the US and more recently from the European Union, that called on Microsoft to share.

The third and perhaps strongest reason is that open-source software has become a powerful force in the software industry and customer sites — and even at Yahoo, the internet company Microsoft is trying to acquire for $44.6bn (£22.9bn) in part because of its engineering expertise.

The Samba case illustrates the pressures on Microsoft. In December, Samba announced a complicated third-party arrangement that in effect gives it access to Microsoft's communication protocols, a move that came shortly after the EU required Microsoft to share interoperability information with open-source projects.

Sharing protocols, while it makes it easier for others to interoperate or clone Microsoft products, also could serve to entrench Microsoft's products by making its in-house protocols into de facto industry standards.

Take OOXML, the office document format Microsoft is trying to standardise as an alternative to the ODF that was spawned from the OpenOffice.org software, an open-source rival to Microsoft Office. "The approval of OOXML, for instance, is seen as crucial by Microsoft as a means of maintaining its Office market share," The 451 Group, an analyst firm, said in a statement on Thursday.

And as ZDnet blogger Mary Jo Foley noted, the ISO standards group is meeting in Geneva next week to vote on whether OOXML should be awarded official standard status.

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