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"Microsoft takes on the free world", and loses (a commentary)

An article that has recently been published by the Fortune magazine and through called "Microsoft takes on the free world" is one I would regard as historic. In three pages it clearly and honestly describes what is happening between Microsoft and the Free Software movement revealing certain points which are rarely seen in the mainstream media. After reading the article one can't be too confident that Microsoft will succeed, which inspires confidence to the opposite; that the Free Software revolution is imminent.

This is an inspired commentary on the article and issues that it describes, emphasizing certain points.

If GNU/Linux was a product of one corporation this whole issue would be non-existent. All Microsoft would have to do is a cross-licensing deal that would allow the two to mutually control each other. Eventually, Microsoft as the bigger of the two would simply swallow that company.

Things are different, however, when an operating system that Microsoft fears so much is backed by a number of corporations and a vast community of people all around the world. Not only is it hard for them to come up with a confident report on how many and which patents does GNU/Linux or even more vaguely all Free Software infringe on, but it is hard to impossible for them to settle the issue by making just one or even a number of patent deals.

Fortune magazine nicely describes a reason why Microsoft prefers licensing as a way to deal with their patent issues:

Roger Parloff of Fortune wrote:

In 2003, Microsoft executives sat down to assess what the company should do with all those patents. There were three choices. First, it could do nothing, effectively donating them to the development community. Obviously that "wasn't very attractive in terms of our shareholders," Smith says.

Alternatively, it could start suing other companies to stop them from using its patents. That was a nonstarter too, Smith says: "It was going to get in the way of everything we were trying to accomplish in terms of [improving] our connections with other companies, the promotion of interoperability, the desires of customers."

So Microsoft took the third choice, which was to begin licensing its patents to other companies in exchange for either royalties or access to their patents (a "cross-licensing" deal). In December 2003, Microsoft's new licensing unit opened for business, and soon the company had signed cross-licensing pacts with such tech firms as Sun, Toshiba, SAP and Siemens.

The first two options are obviously non-attractive because it diminishes the number of business opportunities which Microsoft wants and needs, but the third is proving to be difficult in case of dealing with GNU/Linux. The reason: free will of the community. It does not want a deal with Microsoft. It wants to be free and independent. Microsoft made a deal with Novell and then aligned Dell with it, but now the GPLv3 is slated to invalidate such deals for all software which will be licensed under it. And the community largely agrees that such deals hurt the movement by seemingly validating Microsoft's claims. There seems to be a consensus which Microsoft cannot go around.

And in other words, Microsoft is facing a disruption it can't deal with the way they want to. And this is a reason behind Steve Ballmer's statements:


Microsoft counters that it is a matter of principle. "We live in a world where we honor, and support the honoring of, intellectual property," says Ballmer in an interview. FOSS patrons are going to have to "play by the same rules as the rest of the business," he insists. "What's fair is fair."

Note the emphasized parts. This is the world he and Microsoft are living in. This is the world his company largely helped to create, and Free Software, this disruptive force, is trying to change all of the rules. His statements make total sense when you consider his point of view and his interests. He is representing a dieing breed in the eyes of the Free Software community and he moans about it, pleading for a "fair play".

When we look at the options that Microsoft currently has, or better yet a lack of them, we can finally realize the ingenuity of the founder of the Free Software Movement, Richard Stallman, and the community that helped push his cause to this point. Many are quick to criticize the Free Software ideology as a rant of "religious" "communist" hot heads, and yet it is exactly this ideology which has built the biggest defenses against Microsoft's (or anyone elses) attacks. By stubbornly focusing on the ideal of freedom for everyone, without compromises, without provisions for the proprietary interests, Richard Stallman and the Free Software Foundation came up with the GNU GPL. Let's observe what effect does this license have today:


Yes, free software is a more sophisticated concept than many people think, and it is subject to a legally enforceable license of its own. That license was written by free-software inventor Richard Stallman, who anticipated 20 years ago all the threats free software faces today. Foremost among those threats, Stallman understood, were patents.


While the open-sourcers have produced lots of good applications, crucial portions of Linux remain governed by Stallman's GPL. For our purposes, the key aspect of the GPL is that it expressly forbids what Microsoft general counsel Smith wanted to do: cut patent royalty deals with distributors of Linux.

"Any free program is threatened constantly by software patents," Stallman wrote in a 1991 revision to the GPL. "We have made it clear that any patent must be licensed for everyone's free use or not licensed at all." This restriction became known as the "liberty or death" clause.

Stallman knew that a way to subvert Free Software is through patents and logically expected proprietary software corporations to try that in the future. Hence the patent provisions in the GPL. However, Microsoft found a bug in it and by exploiting it through its deal with Novell and its patent threats against the Free Software community afterwards, sent a clear "bug report" to the Free Software Foundation, which will therefore be aptly fixed in the next version of the GNU GPL (version 3):


Over the summer Novell and Microsoft hammered out a clever, complicated—and highly controversial—deal. They knew that if Novell paid Microsoft a royalty in exchange for Microsoft's promise not to sue Novell for patent infringement, Novell would be in violation of the GPL, Stallman's farsighted free-software license.

So they came up with a twist: Microsoft and Novell agreed not to sue each other's customers for patent infringement. That would be okay, because it's something that the GPL does not address. On those terms, Novell agreed to give Microsoft a percentage of all its Linux revenue through 2011 (or a minimum of $40 million).

GPLv3 will ban such deals and by that it will cut the only remaining preferred option Microsoft has against GNU/Linux and Free Software; to validate its threats by patent related deals like one with Novell. GPLv3 in a way directly targets Microsoft's patent FUD. It's not that it will shut Microsoft up. It will simply cement the impossibility of Microsoft ever again cross-licensing with Free Software in a way that benefits them more than the community (by leaving large portions of the community not covered by their patent promises), leaving Microsoft in the cold while the Free Software revolution proceeds in changing the face of the software industry.

If, however, Microsoft proceeds with one of the other two options, a "patent armageddon" will emerge, likely prompting a deep revision of the patent system and likely a change in the marketplace as well. It is a very dangerous proposition for them because they could very well still lose the battle and Free Software may still emerge as victorious.

Continuing to spread FUD, with or without the ability to make deals which "validate" it, is the slowest path towards the revolution, but also the one which simply won't do any good for MS either. Its importance will continue fading away while Free Software continues to grow.

Microsoft is really out of what they may consider good options here. So maybe, by chance, they would listen to my advice: Join us!

You can't defeat this community so why not joining us on the equal footing, on the terms which govern the rest of this community, a true fair play, a new free world in which both you and us can coexist without trying to subvert each others' chances, a true free market. You can't be that adverse towards the concept of a free market, right? The time of your monopoly is over. If you can't deal with that, you deserve to be defeated in the great patent armageddon.

It's your choice, Microsoft, it's your choice.

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Mahatma Gandhi wrote:

First they ignore you, then they laugh at you, then they fight you, then you win.