Enough, Mr. Ballmer, please.
There have been a rash of articles over the past week on Steve Ballmer's recent statements about open source software and intellectual property during the New York financial analysts presentation. They follow on other recent related statements around the Novell-Microsoft deal by Brad Smith, and the Progress and Freedom Foundation. Here's what Ballmer et al get wrong:
- Customers care about patents. (The corollary that vendors sue customers over patents, and that this is why customers need care is patently (sic) false.)
- Free and open source developers don't respect intellectual property.
- People think free and open source software is free.
Let's handle them in reverse order.
Open Source Software is Free
Wrong. And no one thinks this. Mårten Mickos brilliantly observed two years ago that the early community is willing to trade time to save money, and the later community is willing to trade money to save time. But neither the do-it-yourself users or the pay-as-you-play customers thought anything was "free". They each made an economic decision based on their particular needs in context. Anyone that ever paid for a Red Hat Advanced Server installation or a Novell SuSE desktop or MySQL Network knows that the solution isn't free, even if they didn't pay a software license fee.
Microsoft continues to think that free and open source software sits at one end of a spectrum that has commercial software at the other end. They apparently still don't realize these two ideas are orthogonal. Really.
Free and Open Source Software Developers Don't Respect IP
Wrong. First, F/OSS licensing is completely dependent on strong IP (copyright) law. Second, key projects generally have contributors license or assign the rights of their contributions to the project owner. This is no different than Microsoft licensing third party code for inclusion in Windows or Office. The terms and conditions bar might be higher for Microsoft because of the business and litigation risk they take, but the legal concept is the same. Brad Smith suggesting otherwise is disingenuous at best for a lawyer.
Mr. Smith would obviously point out that the sort of licensing Microsoft does includes discussions around patents, something most (but not all) open source software licenses do not discuss. This is because patents are a vendor-to-vendor discussion, and not all open source software projects are necessarily run by commercial vendors. (This may explain why vendors with patents also make interesting patent grants to open source projects in which they participate.)
This discussion also flies in the face of the reality of vendors
with more mature IP strategies than Microsoft's contributing heavily to
free and open source software projects. These other players seem to be extremely respectful of IP, yet they find their business strategy includes F/OSS. Makes you wonder more at the lack of imaginative asset strategy at Microsoft.
Customers (Should) Care about Patents
Wrong. Patents are tickets to negotiations in vendor-to-vendor discussions. Customers could care less. I started this blog two years ago with a short essay titled "When are you going to sue your customers?" In it I use the following example:
Legal IP tools are important for vendors and certainly relevant in vendor-to-vendor discussions. The idea that customers care about patents, however, would seem counter-intuitive. Consider the following: when you last bought an automobile, did you pick the “Honda” over the “Toyota” because the Honda had more patents in it, or more patents per ton of vehicle, or maybe because Honda's intellectual property practices were “better” some how? Of course not. You bought the product that met your needs. It may well have even been the more innovative product by your own subjective measure, but whether or not the manufacturer chose any number of legal tools to protect the innovation wasn't part of your buying consideration. How the vendor's business process works is of no interest to the customer beyond the actual customer-vendor interface so to speak.
Whether the vendor has a mature IP strategy, applying for patents, trademarks, and copyrights appropriately, choosing to keep some ideas trade secret protected, sharing selected IP with partners or competitors through patent pools and cross licenses, or aggressively publishing some ideas in the face of their competition is of little interest to the customer. The customer only cares that the product serves their needs and provides the value they paid for it.
Next scenario: you are happily driving your Honda when you receive a letter from Toyota one day telling you that you're infringing their patents. They give you the choice to (a.) cease driving your Honda, or (b.) pay them a license to their patents. You can essentially “pay twice” for the privilege of driving your car, and for some small sum you can feel free of any concerns that you are infringing Toyota's patent claims ever again. On this vehicle. Or for your household. Or maybe it will be offered to you the customer as an annual license calculated by the number of drivers in the house and the number of Honda vehicles you own, pro-rated over certain uses, unless the patent applies to certain other manufacturers as well. What do you do? Do you even waste time calling your lawyer to figure this one out? Or do you call the Honda dealership and tell them quite simply to “fix this.”
Of course this assumes you don't also receive letters from General Motors for their patents (frustrated that North Americans are buying foreign vehicles), Daimler-Chrysler, and Hyundai, so you have the opportunity to “license” your Honda vehicle from many companies and pay for it numerous times. [srw -- this is WHY patents are a vendor-to-vendor discussion.]
The reality, however, is that Toyota is not going to threaten to sue Honda's customers. They would like the opportunity to switch those Honda customers to Toyota's products, not upset them to the point that no Toyota dealership ever gets a chance at that Honda customer again.
If anyone sued a customer company for patent infringement over its use of Linux, the company being sued would find a lot of "friends", starting with the Linux Foundation. One might even imagine the company having a negotiation with IBM over opportunities for IBM to sell in other unrelated areas in return for help on the Linux litigation front.
Jeremy Allison recently mentioned in an interview that "I have had people come up to me and essentially off the record admit that they had been threatened by Microsoft and had got patent cross license and had essentially taken out a license for Microsoft patents on the free software that they were using, which they then cannot redistribute. ... But they’re not telling anyone about it. They’re completely doing it off the record."
This is hugely disturbing. It means these companies are essentially giving into a market bully. They certainly aren't serving their share holders. If Microsoft is so gung-ho on the idea that this is a good thing, then THEY should come forward with the who and the how so we can all take a look. The fact that this may be happening in secret does not put them in a good light at all.
The Novell-Microsoft technical co-operation agreement around virtualization, web services, and document formats is no different than any other vendor-to-vendor tech co-op (marketing) agreement. It's business as usual.
The Novell-Microsoft "agreement to provide each other’s customers with patent coverage for their respective products" is no different than any other vendor-to-vendor cross license deal at the end of the day. Microsoft wants to message it around open source software (Linux specifically) and IP and customers, but that's actually irrelevant.
What other patents do these two companies have? As much as Microsoft loves to maintain ambiguous IP messaging around Linux and patents or the Novell sponsored mono project and patents, the more interesting question is what historical patents Novell may have that might read on operating systems or file systems. This scenario would be far more damaging for Microsoft than for Novell in a patent injunction shoot-out on revenue streams. Cross licensing is just good business for two such vendors. And customers could care less.
Culture comes from the top. For all the good work that Bill Hilf's team may be trying to do, Ballmer's message is damning. Ballmer's is the message that will be carried by the Microsoft field organization. He's the CEO. And it's doubly damning because Ballmer's message on this issue has no credibility anymore.
If Microsoft really wants to prove once and for all that customers should really care about paying for patents separate from their solutions, then Microsoft should go sue a customer over Linux systems that allegedly infringe their patents. It would need to be a customer that clearly has a large installed base of roll-your-own-Linux systems. They should go sue Google. Or Bank of America. Then we can all see how important this really is.
Of course Google may well have interesting patents on things like "search", so it would become a negotiation again. And Bank of America probably spends a lot of money with Microsoft for other things, and it's unclear Microsoft would want to risk such a revenue stream (since they clearly wouldn't be worried about customer opinion at that point).
At the end of the day Steve and Brad need a new strategy. (Or a new PR firm.) This message is growing old, and makes them look unimaginative (or worse, sneaky) in leading a modern high technology company. Microsoft continues to stand alone in this space. It's really too bad.