Microsoft’s Open Premise: Divide and Conquer?

There is a lot of discussion around the new Microsoft premise to offer freely documentation about its protocols and interfaces, and to not sue developers who use it to create code for non-commercial goals, even if they violate Microsoft patents. Some people think that this is done to avoid further pressure from the European Commission. It could be so – but there could be also a different rationale for it.

The former approach of Microsoft – threatening to crush the top FOSS projects by litigation – was stillborn. It was clear that the total weight of the IT powerhouses behind The Linux Foundation – IBM, Sun, Oracle, Google etc – is greater than that of Microsoft, and that they will fight for it, knowing that this could be their last opportunity to defend themselves. So, Bill Gates didn’t even tried it.

Waging a patent war, even through a proxy (SCO), backfired. Sites like Groklaw put in the light the entire plan, and a lot of moves around it that Microsoft hoped will stay hidden. Even worse, the image of Microsoft as a honest IT player was all but ruined. Trying to continue the war may bring them so much bad publicity that their sales could be damaged.

The latest promise, however, took into account an important change in FOSS. During the last years, more and more of the best-known FOSS project – the Linux kernel, and the entire GNU/Linux OS – was written not anymore by hobbyists, but by paid professionals, hired by companies who make money from FOSS. Some key projects, like MySQL, PHP etc, are developed almost exclusively by companies. They, together with the FOSS commercial distribution companies, are the ones who provide FOSS not only with development power, but also with business and institutional influence. Undercutting them, combined with some more investment into commercial software development, could put FOSS in the position of inferior, obsolete, second-degree software.

By giving up the fight against the hobbyists, Microsoft loses practically nothing. Far less than 1% of the software users would compile their OS and applications, debug their code etc themselves. At the same time, MS gains an important image ground: they are not anymore “those evil greedy people who harass the selfless open source programmers”. By targeting the commercial distribution only, they get in the position of “just business, and a humane one – we don’t touch the noncommercial people”. And by asking only for a patent tax, they pretend to want only what is by law, reason and decency theirs. Add to this the promise for “low, minimal tax”, and instead of despising them, the average Joe will sympathise them. Wouldn’t you?

I would. Fair is fair… If only it wasn’t for one small detail: this way, they destroy the FOSS essence. Every FOSS license gives you the right to use and distribute the software in any way you like, commercial or not. If you are limited to non-commercial distribution only, this is not freedom anymore. And this is going to damage the positions of FOSS not only among the freedom pundits, but also (and maybe even more) among the ordinary users. That is – to marginalize FOSS.

And another small detail. If Microsoft were going to sue a FOSS project, the image fallout would be horrible, and the united strength of the anti-MS IT heavyweights could prove greater. The current promise puts the pressure on the FOSS commercial distributors, who not only evoke far less sympathy, but also have much less legal resources. Actually, you can sue them over even the most stupid and senseless patent – a lot of them simply don’t have the money to stand a serious litigation, and will have to settle. In other words, Microsoft until now were in a losing position – but with this premise they move into a winning one.

Sure, projects like The Open Source Defense Fund may be able to help a couple of defendants – but the seeds of FUD among the commercial distributors would be planted. And if Microsoft creates an initiative that allows every patent litigation company (in a good standing etc.) to litigate for their patents, and get a (big) percent of the money, they will harness the free initiative to suppress the free software. (For greater convenience, they could even supply lists of the possible offenders, and lists of the appropriate violated patents. They could even hide these lists from all but the patent litigation companies, citing the condition for a good standing, and thus would catch the defendants less prepared.) I doubt that OSDF and its likes would be able to stand against this. And we must think about this possibility, and find ways to act against it, as soon as possible.

Of course, this might be just paranoia. I confess of not expecting that the Samba project will get anything under the MS-EC agreement – but still, they got the protocol documentation they needed, and Microsoft showed a great deal of goodwill there. It could be that the tide inside MS has turned, and they will be friends to FOSS. And it could be also that this was just a part of the plan that unravels now with the premise we discuss… Time will tell.

But when the time tells it, best we be ready not only to work together, but also to defend ourselves. Hope for the best, but prepare for the worst – this is the best one can do to make the preparations for the worst undue.