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From the End of the Beginning to the Beginning of the End

When Eric Raymond posted the first of the Halloween Documents in 1998, it marked the end of the beginning for open source. That is to say those documents demonstrated that the logical superiority of the open source development model had penetrated the most headstrong corporate skull in the proprietary software universe: Microsoft. The fact that Microsoft could judge major open source projects to be equal or possibly superior to their own efforts more than 10 years ago, and the fact that they recognized

The ability of the OSS process to collect and harness the collective IQ of thousands of individuals across the Internet is simply amazing. More importantly, OSS evangelization scales with the size of the Internet much faster than our own evangelization efforts appear to scale.

- Halloween I

that open source was getting better faster than they could ever hope to accomplish working by themselves. Yet instead of adopting these superior methods for the benefit of their customers, they formulated a strategy to lock-in customers, fence out competition, and essentially use the patent system in the opposite way it was intended, namely to frustrate progress in science and the useful arts, rather than promote it. Brian Kahin writes an article that tells us that Microsoft has signaled it has now reached the beginning of the end. But for whom?

Please read that article now, because it establishes key background for the argument about to be made.

United States v. Microsoft was a set of consolidated civil actions filed against Microsoft Corporation on May 18, 1998 by the United States Department of Justice (DOJ) and 20 U.S. states. Joel I. Klein was the lead prosecutor. The plaintiffs alleged that Microsoft abused monopoly power in its handling of operating system sales and web browser sales.

Source: Wikipedia.

While some things may never be known because the proceedings of a trial don't work like an open source project, other things came to light, including this gem from the Washington Post:

[Microsoft Chairman Bill Gates] accused the government's lead attorney, David Boies, who conducted the deposition, of being "really out to destroy Microsoft" and "really out to take all the good work we've done and make us look very bad."

A government official involved in the case said: "The government is not trying to destroy Microsoft, it's simply seeking to compel Microsoft to obey the law. It's quite revealing that Mr. Gates equates the two."

Indeed, this government official completely summed up both Microsoft's legal strategy and the ultimate question Microsoft convinced the judge that she would be forced to answer in the remedy trial in which I gave testimony as a witness. Namely, if it were in fact impossible for Microsoft to follow the law and survive, should the law be sustained, or should Microsoft? The judge ruled that Microsoft should be sustained, much to my dismay and much to the chagrin of other courts who had hoped the US would police its own anti-trust scofflaws.

For more than 10 years Microsoft has toyed with the idea of using the entirely questionable practice of using software patent litigation as a kind of trump card in its battle against open source innovation. The idea was present in Halloween III and stepped up a notch in May 2007 when Microsoft's general counsel Brad Smith made the unsubstantiated claim that Linux infringed 235 Microsoft patents. As many of you may recall, Microsoft played very coy, refusing to identify a single infringement with any specificity. (The open source and free software communities have a great track record [1], [2], [3] of devising alternative implementations to avoid the possibility of patent infringement, and so perhaps Microsoft was more interested in using the element of surprise attack than indeed any timely remedy of the infringement. But that is mere speculation.)

The strategy of specific patent litigation is problematic for two reasons. First, because the very existence of software patents remains a highly controversial result of a 1981 court case. Indeed, the premise of a patent on software is so absurd that Bill Gates wrote

If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today. ... The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors.

Now that Microsoft has become the Established Company, they choose to use patents against innovation rather than using their enormous influence to actually reform the system and return it to its original design. The recent case of Bilski shows that the US Supreme Court is no longer willing to give the pro-patent lobby a free pass, and we can hope that further readings of Bilski will lead to an abolition of software patents. And indeed, perhaps Bilski alone can sustain in all-out war on software patents. By firing the first shot against TomTom, Microsoft makes clear they are ready for this war. And perhaps they want to "bring it on" now, before the Supreme Court hands down any more rulings that strengthen Bilski or go farther.

A second reason that a strategy of patent litigation is problematic is because the competitive free market depends upon interoperability. From Brian's analysis of Microsoft v. TomTom it is clear that Microsoft intends to strike a gratuitous blow at the heart of the type of interoperability that the entire industry has taken for granted for many, many years. Rambus is a company now more famous for its abuse of standards and the patent system than for any technical innovation it developed. In a series of cases the courts found that patenting a technology, promoting the technology as a candidate for a standard without disclosing the existence of the patent, and then later turning around an asking for royalties on the patented technology amounted to bad faith. What began as a case of bad faith became a series of anti-trust cases that churned through the courts for nearly a decade. As of this writing, Rambus lost the case that turned on bad faith but they escaped losing the FTC's case against them for anti-trust. But reading the specifics it makes Microsoft's patent-and-tax strategy look very, very risky, because every aspect that Brian outlines in his TomTom analysis worked against Rambus in court, and the one thing that saved their bacon was that the Court of Appeals agreed that Rambus had not been able to show specific harm. When it comes to harm, Microsoft has never been able to show (nor do I think they ever claimed) innocence.

And Microsoft knows both full well. So well that for more than two years they would temper their legal saber-rattling with a claim that they will not sue Linux over patents. And even today they are claiming (directly and through surrogates) that they haven't broken that promise. But their campaign to entice weak or failing companies to sign agreements bolstering Microsoft's patent claims against Linux and other open source software have prepared the battlefield and split the populace into collaborators and those who will defend freedom to the end. Brian's writing makes it clear that any claims of pacifism toward Linux cannot be accepted at face value.

And so Microsoft is at it again, daring the courts to choose between destroying the law and destroying Microsoft. A decade ago Microsoft realized that open source was already good enough to displace them, but the world at large did not yet know this, and Microsoft believed that with enough FUD, the world could be deceived into never knowing this. That didn't work. A decade ago, a judge faced with the question of sustaining the law or sustaining Microsoft could not risk pulling the plug on what seemed to be the most important economic and technology driver in America. Today, the world knows well that open source better, faster, cheaper, and greener. Everybody now knows that if Microsoft ceased to exist in five years, the world would adapt just fine. Indeed, many Windows to Linux migration projects are eliminating Microsoft in 12-18 months.

Whatever the arguments may be, by filing against TomTom Microsoft has effectively pulled the pin from their legal grenade and have lobbed it into the center of the open source community. Can we pick it up and throw it back (like the FTC attempted to do with Rambus)? Will the grenade be judged a dud (if Bilski holds)? Will the legal shrapnel kill those who are trying to protect our village? And if it does, will Microsoft win anything more than a pyrrhic victory? As Brian writes, Microsoft's actions are despicable. But I remain optimistic. I believe that thanks to the financial meltdown and the stories of fraud and abuse coming from the most well-polished offices on Wall Street that the world understands now, better than it has for a very long time, that sustainable success depends on success we can all share and participate in. When monopolies rise all-powerful, when the power of a company becomes so great that we no longer question our need to police it, then that is the moment we must say "ENOUGH!". It is neither a sustainable nor a desirable condition to become beholden so such power, and we should do nothing, neither legally nor legislatively, to protect those monopolies against our own interests. Rather, we should fight against them with every strength that we have, knowing that when they are defeated, we can all build a stronger, shared success. And to paraphrase Microsoft's own understanding of open source,

The ability of unfettered, free market competition to collect and harness the collective IQ of thousands of individuals across the entire world is simply amazing. More importantly, free market competition scales with the size of the world and succeeds much faster and much better than any top-down, controlled, monopoly efforts appear to scale or succeed.

Or, to quote from the movie The Matrix, it's time to take the red pill.