[Updated (1-Apr-2008 21:37): I posted follow-up commentary in a
separate post.
[Updated (12-Mar-2008 13:20): My apologies — Matt Asay points out that there will be a 30 minute slot for questions from the audience after the panel has had 30 minutes. I would still encourage we begin the tuning and discussion early: What would YOU ask Brad Smith at OSBC?]
We're just a couple weeks away from this year's Open Source Business Conference (OSBC) in San Francisco. Brad Smith, general counsel for Microsoft, is the closing keynote on the first day. This speaking slot has previously been filled by the likes of Clayton Christensen, Geoffrey Moore, and Lawrence Lessig, and each of these gentlemen have given us deep talks that have forced one to think about open source in the world at large from an economics, business, and legal perspective. Mr. Smith has large shoes to fill, and this worries me.
You see Mr. Smith is a corporate executive, and most execs (with a few notable exceptions like Mårten Mickos) feel compelled to "pitch the company." Mr. Smith is a lawyer (and general counsel to boot) so language is his oeuvre. We've seen Brad Smith's pitches before now. Here's what I hope we don't see at OSBC:
- A rehash of last's months announcement about how "open" Microsoft is. It is indeed a historical moment for Microsoft, publishing protocol specifications that were previously secret and offering generous patent licensing terms regardless of their motivation. The non-commercial restriction on the open source patent covenant makes it a non-starter. It demonstrates either remarkable naïveté of how the open source world works, or it's a deliberate snub. Either way it's irrelevant and not appropriate for this audience.
- Yet another lecture on how important patents are, the need to get a return on your innovation investment, or that the open source community wants special IP rules. We value IP. We don't want special rules. We understand the patent system and as software business people we often choose different IP tools by the necessity of our size. We also see the likes of most other large vendors sophisticated use of their asset portfolios. Most of us think US$40B per year is a pretty good return on investment. We've all asked to be told which of your patent claims you think we're infringing, so we can fix it. Microsoft is either in the room playing well with the rest of us or it's not. But don't pretend to play. That's boring and transparent. (The wrong sort of transparent.)
- More declarations on patent licensing innovation with Novell, Xandros, et al. Those are business cross licenses. Really. Move on. You're being lapped by the likes of IBM, Sun, and Oracle with respect to business innovation and open source.
So let's turn it around. What GREAT things could Mr. Smith announce to demonstrate that the Microsoft executive team gets open source software and they actually want to engage? What property or asset could they liberally share into a collaborative development community (that includes businesses), instead of publishing yet more licenses or making positioning statements? In essence, what could they DO. How about:
- Announce the release of the Sharepoint software base as open source software. Let the world know you will be genuinely exploring the revenue streams of support/maintenance/network in the context of this line of business, while encouraging innovation on the platform, and encouraging a community engagement unlike others in the Microsoft world.
- If he wants to talk about patents, then back up the earlier CIFS/Samba announcements with unrestricted patent covenants to any patents required, and scope the covenant to implementing CIFS. This seems a reasonable way to encourage the community (including businesses) while clearly stating the conditions under which infringement will not be tolerated outside of CIFS implementations.
At the end of the keynote, questions have been limited to a distinguished panel consisting of
Stephen O'Grady (Redmonk),
James Bottomly (SteelEye CTO),
Mark Shuttleworth (Ubuntu/Canonical),
and Andy Updegrove (Gesmer Updegrove).
I started to think about what I would want to ask and came up with the following:
Question: If you have the list of patents whose claims you believe are infringed by Linux, why won't you release it such that the community can deliver on its statement that they will fix the infringements?
Rationale: Regardless of how some people in the free and open source community feel about software patents, we all understand that it is the legal system we have in place. We all understand that changing that system is a different discussion. The community deeply respects intellectual property. The entire free and open source licensing space is based on strong IP law. People want to fix infringed claims. But we can't fix what you won't share.
Question: Why doesn't Microsoft share more software under open source licenses?
Rationale: Microsoft has a wealth of software assets that are not products. So take the discussion of "not a business model we can embrace" off the table. Microsoft has been "studying" open source and "learning" from open source for almost a decade. No one is suggesting the release of the Windows or Office software base. Why have so few small experiments been done?
But we live in the Internet age. I would love to hear what other ideas and questions people have. So here's a web site that will allow you to enter your questions and ideas, and vote on the others already in place: "What would YOU ask Brad Smith at OSBC?"
Thanks to Sandro Groganz for putting the survey site together so quickly once I asked.
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I've recently listened to an excellent presentation on free and open source software from Jason Haislmaier, a partner at Holme, Roberts & Owen in Boulder, Colorado. His slides are 
