Microsoft's patent move: Giant leap forward or business as usual?
Steven J. Vaughan-Nichols for Linus and Open Source | October 11, 2018 -- 16:49 GMT (09:49 PDT) | Topic: Microsoft
Some see this as a giant leap forward for Microsoft and open source. A few, however, see Microsoft's open-source patent move as just more of the same old, same old.
When Microsoft surprised everyone by releasing its entire 60,000 patent portfolio to the open-source community, someone asked me if I thought the move would finally convince everyone Microsoft is truly an open-source friendly company.
"Oh no," I replied.
Must read: Microsoft open-sources its patent portfolio
Sure enough, some folks are still convinced that Microsoft is intending to "embrace, extend, and extinguish" open source. Many others believe, however, that Microsoft has truly evolved and has become an open-source company.
IS IT A TRAP?
On the purely positive side, we have Jim Zemlin, The Linux Foundation's executive director:
On the haters' side, there is Roy Schestowitz, editor of the Techrights blog, who thinks:
'Microsoft loves Linux' is a lie. And now Microsoft wants us to think that Microsoft battles patent trolls. This too is a Microsoft lie."
He also said joining the OIN, which Schestowitz considers a pro-patent IBM front group, "imposes no actual new constraints on them." This is just a cynical PR move from Schetowitz's viewpoint.
Other anti-Microsoft die-hards on Reddit, Twitter, and other social networks also insist that this new Microsoft is the same as the old Microsoft. Or, as one person, harking back to Star Wars, remarked: "It's a trap!"
MICROSOFT FINALLY GETS OPEN SOURCE
At Microsoft, the company insists that it has been changing its open-source ways for years. In a recent Open Source Virtual Conference keynote, John Gossman, a distinguished Microsoft Azure team engineer, described former Microsoft CEO Steve Ballmer's 2001 comment that Linux was "a cancer" as being " a fundamental misunderstanding of open source."
With Satya Nadella as CEO, Microsoft finally gets open source.
WHAT THE PATENT EXPERTS ARE SAYING...
But it's not just Microsoft staffers who are saying Microsoft's attitude toward open-source has evolved. Andrew "Andy" Updegrove, patent expert and founding partner at the Boston-area law-firm Gesmer Updegrove, said:
"While this may seem surprising to those who have not followed Microsoft's evolution in recent years, it is in fact more a formal recognition of where they, and the realities of the IT environment are today."
Daniel Ravicher, executive director of the Public Patent Foundation (PUBPAT), whose work was once used by Ballmer against Linux, wasn't surprised by this move:
"With the acquisition of GitHub and other things the company is done they've really changed their tune in the past 15 years. They also hired as an in-house attorney a former staff attorney of the Software Freedom Law Center (SFLC). It may be like the Korean War that doesn't have a formal end date, but I think now Microsoft and open-source software are on the same page and working together."
Prominent open-source attorney and Columbia University law professor, Eben Moglen, also sees this as a move towards patent peace. Moglen remarked:
"Microsoft's decision signals the transition from the period of patent war to the making of industry-wide patent peace for free and open-source (FOSS) software. Microsoft's participation in the OIN licensing structure will be the tent pole for the extension of OIN's big tent across the world of IT. For SFLC and other parties whose job it is to secure the interests of individual FOSS programmers and their non-profit projects, this is also the moment of opportunity to ensure their safety and respect for their mode of development across the entire industry, including by companies who continue to engage in patenting their own R&D."
WHY IS MICROSOFT DOING THIS WHEN IT MAKES MONEY FROM PATENTS?
Scott Guthrie, Microsoft's executive vice president of the cloud and enterprise group, described the decision as a "fundamental philosophical change" -- resulting from an understanding that open-source is inherently more valuable to Microsoft than patent profits.
John Ferrell, chair at the Silicon Valley technology law firm Carr & Ferrell, thinks there may be a more pragmatic reason behind Microsoft's move:
"Microsoft's gesture to donate 60,000 patents to the OIN is indeed a philosophical change for this giant, but the change likely is rooted in the realization that the Company is much better suited to fight in the marketplace rather than to fight in the courtroom. Virtually every patent-owning company that gets into a patent battle with Microsoft is fighting from a position of asymmetrical advantage. Where damages are based on a percent of sales, Microsoft almost always has more to lose. Especially companies that leverage open-source software, these companies tend to be small and patent infringement for Microsoft is difficult and expensive to police."
Ferrell, the litigator, continued:
"From a defensive standpoint, small companies with one or two patents arguably infringed by Microsoft are especially annoying and potentially damaging to this goliath. Microsoft is a huge target and is constantly barraged with patent lawsuits by small and large companies trying to gain a foothold or monetize their development efforts at the expense of Microsoft's deep pockets."
An additional reason for Microsoft's change of heart, according to Rafael Laguna, CEO of Open-Xchange, an open-source network services company, is:
"Microsoft boss Nadella wants to buy new credit in the open-source industry, distancing the company from the business model and practises of his predecessors, i.e. Gates' and Ballmer's sincere dislike of open source developers" Nadella, however, "recognizes that Microsoft's future revenue will come from providing cloud services, rather than selling operating system licenses. And for cloud services, Linux is now the operating system of choice - underpinned by the fact that already half of the Microsoft Azure services are based on Linux today."
WILL THIS BRING PEACE TO OUR TIME?
Bradley Kuhn, president of the Software Freedom Conservancy (SFC), appreciates Microsoft joining OIN patent non-aggression pact, noting: "Perhaps it will bring peace in our time regarding Microsoft's historical patent aggression."
Microsoft needs to do more, Kuhn added, "We call on Microsoft to make this just the beginning of their efforts to stop their patent aggression efforts against the software freedom community."
Specifically, he said, "We now ask Microsoft, as a sign of good faith and to confirm its intention to end all patent aggression against Linux and its users, to now submit to upstream the exfat code themselves under GPLv2-or-later."
Exfat, a file system, was open-sourced by Samsung with the SFC's help in 2013. But Kuhn said, "Microsoft has not included any patents they might hold on exfat into the patent non-aggression pact."
In general, it should be noticed, when asked about FAT-related patents, Erich Andersen, Microsoft's corporate vice president and chief intellectual property (IP) counsel, has said:
"We're licensing all patents we own that read on the 'Linux system.'" And, in addition, all of Microsoft's 60,000 granted patents relating to the Linux system are covered by the OIN's requirements.
In a subsequent e-mail Kuhn noted, "Ultimately, the OIN license agreement is quite narrowly confined to the ' OIN Linux System Definition' and therefore doesn't assure that patent aggression must stop immediately; rather, Microsoft is only required to stop for those patents that read on technologies in the OIN Linux System Definition."
So, for example, BSD specific code, wouldn't necessarily be covered.
Therefore, Kuhn suggested:
Historically, OIN has been expanding the Linux System Definition.
So, while there are a few people who think Microsoft is up to no good, the experts agree that this is a laudable move by Microsoft to show its open-source bona fides. That's not to say some still want to see more proof of Microsoft's intentions, but overall, people agree this is a major step forward for Microsoft, Linux, and open-source intellectual property law regulation.
by Aylin Demirci, Senior Counsel, Carr & Ferrell LLP
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