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Microsoft and standards--deja vu all over again?

On November 2nd, 2006, Microsoft and Novell announced a business agreement that, without adding any prejudice of my own, was characterized as worse than useless by Bradly Kuhn, CTO of the Software Freedom Law Center.

This week we see another announcement from Microsoft that seems to offer everything we didn't like about the Novell deal to a wider range of developers and nothing that meets the first test of our open source principles. To wit: the OSD #6 says that open source software may not discriminate against fields of use, including the right to exploit the software commercially. There would not be open source companies if open source licenses did not proect this right! Yet Microsoft seems to want to divide the community in half--those who do it for love but not money receive a promise to not sue, whereas those who do it also for money must beg and pay for Microsoft's blessing. At least that's how I and others [1] [2] [3] [4] have read their statements.

Let's be clear: Microsoft's lawyers have a deep understanding of open source software. They submitted two licenses to the OSI earlier this year after many years of internal discussion, deliberation, and refinement. They went through one of the most difficult gauntlets of reviews I have seen on license-discuss. They succeeeded in having those licenses approved because they met all the criteria spelled out in the OSD, and because the answer to every question posed to them (within the scope of the license approval process) was answered well and to the satisfaction of all who reviewed objectively. (You can see for yourself that some people did not want to approve the licenses on the priciple that Microsoft is evil, and rightly or wrongly we chose to not consider that question in the review process.) So given that Microsoft does understand the rules and requirements of open source, why would they make a major announcement about open source interoperability that so clearly violates the principles of our community?

We have shown tolerance for Microsoft as a company by reviewing and approving their licenses. Soon, I would like to see Microsoft show respect for our community by actually issuing a patent covenant that we can all embrace and applaud. Any steps that fall short of universal safe harbour look like strategic behavior against the community, and we will continue to reject that in the strongest possible terms.

A wonderful thing about the internet and all our source code is that our culture of open source is universally accessible to anybody with a computer and the free will to live the values of inquiry and innovation. This week witnessed an historic event: the apology of the Australian government to the people of Australia. A generation of children—the stolen generation—were removed by the government from their families, their homes, their land, and their culture. Stolen from their families, these children also lost their greatest treasure: 30,000 years of knowledge and teachings that their ancestors had risked everything to share with them.

I do not take for granted that once software is protected by the GPL, it will be forever the inheritance of everybody. Changes in copyright and patent law undermine the foundations of software freedom and open source. Changes in constitutional priorities placing property rights above both human rights and the right to vote give property holders powers that were inconceivable when I studied the US Constitution in high school civics class. New generations of children are fed a steady diet of media and corporate messaging that makes some of our most important truths seem inconsistent or irrelevant to their daily lives. And yet our community is not only surviving, but thriving.

As long as nobody accepts a promise of security in exchange for a little liberty, our community will continue to thrive. But as long as corporations are creating fear, uncertainty, and doubt on the one hand, and offering safety or financial reward for those who can be pried away, we face the risk that there will be a stolen generation if we are not eternally vigilant.

If Microsoft wants to offer a covenant to the open source community, let them come to the us, and let them accept the terms that we have upheld for a decade as being the absolute least we can possibly accept.

Comments

I agree the patent pledge isn't much good. Microsoft was never going to sue non-commercial developers anyway, as it would be a publicity nightmare. If a non-commercial distributor actually agreed to a patent license like this (non-commercial only), they could lose the right to distribute GPL software, depending on how the termination clauses are interpreted (IANAL TINLA). However, we can just dismiss the patent pledge (hoping, of course, for one we can accept in the future), and look at the rest of the press release (http://www.microsoft.com/presspass/press/2008/feb08/02-21ExpandInteroperabilityPR.mspx). They also say they will fully document which protocols are covered by which patents, and offer a RAND license. Of course, the RAND license is useless for FOSS. The documentation part may actually be worse than useless (to borrow a phrase) because it opens the door to willful infringement claims (treble damages). The useful elements, as far as I can see it, are: 1. They are promising to document all proprietary extensions to open standards. 2. They are creating Office APIs to allow third parties to add formats, including the ability to set a third party format as the default for saving. This would be a major benefit for Sun's Microsoft Office ODF plugin project. 3. They are publishing "secret" (It's questionable whether they could actually enforce trade secret protection on this info) protocol documentation, such as what they sold Samba for $10,000 euros at the EU's behest. If they kept these three promises, that would be a major step forward. It remains to be seen whether they will.