Microsoft’s Open Source Strategy – I Think

Maybe this isn’t news to anyone but I think I finally understand Microsoft’s strategy when it comes to open source. If I’m right, I’m quite impressed (with them, not me). The net of this is that Microsoft would like you to (in order of preference):

1. Pay for and use Microsoft software
2. Use open source software and have a Microsoft licensing agreement (e.g. Linux under the Novell deal)
3. Use open source software that violates Microsoft patents so they can force you to make license payments (e.g. TomTom)
4. Use their competitor’s software
5. Use open source that does not violate their patents

For #4 and #5, I think they would prefer you pay for competitor software than use unencumbered open source because you are still in the world of vendor lock-in, where traditional marketing and sales tactics are effective. If you are using unencumbered open source software you are below their radar and you are difficult for them to reach.

I patched this together from these isolated facts and incidents:

Halloween Emails – 1998

In 1998 a series of internal emails were leaked from Microsoft (the Halloween emails). It is clear from these emails that Microsoft understood how open source worked, that it was a threat, and that attempts to market against it were counter-productive. In the next few years Microsoft does little or nothing to fight against open source.

Source – The Halloween Documents (Eric Raymond, catb.org)

Lack of Patents < 2001

Microsoft did not make a lot of patent applications prior to 2001. It ended up making a lot of payments to other software companies to resolve IP claims because of this. Bill Gates resolves to remedy this.

Source: Gates wants patent power (Ina Fried, CNET)

Strategy Revealed – 2002

From an internal memo at HP:

“Basically, Microsoft is going to use the legal system to shut down open-source software. Microsoft could attack open-source software for patent infringements against (computer makers), Linux distributors, and, least likely, open-source developers,” Gary Campbell, vice president of strategic architecture.

At that time the open source projects specifically mentioned were: Samba, Apache HTTP, and Sendmail.

Source – HP memo: Microsoft planned open-source patent fight (Stephen Shankland, CNET)

Cross Licensing Initiative – 2004

In order to meet its patent portfolio goals Microsoft embarks on a cross-licensing initiative.

“If we are able to strike cross-licensing deals with the top 30 technology companies, that alone would provide us access to a vast majority of the patents in areas we care about”, David Kaefer, Microsoft’s director of intellectual property licensing.

This was done to protect Microsoft from IP claims made against it by proprietary companies, but it plays into their open source strategy.

Source – Microsoft–License To Deal (Ina Fried, CNET)

Microsoft Shared Source – 2005

Around 2005 Microsoft started to make some of it’s source code available under a ‘shared source’ program. Jason Matusow (director of the program) claimed this was to try to replicate the advantages of open source. It sounds good but under this program you are allowed to view their source, but you are not allowed to use the source. This text is from Microsoft’s Developer Center is rather ominous:

You are warned that when you build a run-time image based on an OS design that contains shared source code, your run-time image might contain private code that cannot be released in a product under the terms of the Microsoft EULA

So by making their source code available they make it very tempting for developers to use it as a source of code samples. But doing so leaves you open to legal problems that are best resolved by making license payments to Microsoft.

Codeplex – 2006

In order to encourage developers to inadvertently full into the shared source trap, Microsoft launches Codeplex.

Source – Microsoft to Launch Code-Sharing Site (Martin LaMonica, CNET)

Microsoft Novell Partnership – 2006

This agreement is particularly interesting. The deal protects Novell’s customers from legal action by Microsoft for any IP infringements that exist in Linux. Effectively Novell customers are pay Microsoft (through Novell) for the right to use software that includes functionality covered by Microsoft’s patents.

Source – Microsoft Statement on Novell Agreement (Microsoft.com)

The Linux Attack – 2007

Microsoft claims that Linux violates 235 of its patents. However Microsoft won’t reveal which of it’s thousands of patents at the problematic ones.

Many open source participants ask Microsoft for the list, saying that they will re-write the offending code so that the violate is removed. They miss the point. Microsoft wants the violations to remain in place. Microsoft wants users of Linux to pay a license fee to Microsoft to cover the use of their patents. That is, everyone except Novell’s customers, who have pre-paid for that same license (they pay Novell, Novell pays Microsoft).

Source – Microsoft Takes on the Free World (Roger Parloff, Fortune)

The TomTom Takedown – 2009

The recent TomTom case is a good example of the patent attack. Microsoft revealed two of its patent cards – #5,579,517 and #5,758,352 around the FAT filesystem – and slapped it on TomTom for using a Linux distribution that includes FAT-based code. The result of this case is that TomTom now pays license fees to Microsoft for the use of that code.

Source – Microsoft and TomTom settle patent dispute (Ryan Paul, ars technica)

So now we know 2 of Microsoft’s alleged 235 Linux-related patents. Now that Microsoft has revealed these patent cards it would clearly be in the interests of the open source movement for all the code that could violate the FAT patents to be removed or re-written in such a way as to avoid the IP issue (if possible). Long-time open source advocate Larry Augustin takes this position also.

Source – Linux, Microsoft and Patents: It’s Time to Get the FAT Out (Larry Augustin’s Weblog)

Summary

Since identifying open source as a threat 10 years ago Microsoft has consistently done two things: increased its patent portfolio, and gained revenue from licensing that portfolio to others.

Microsoft has  clearly decided that it cannot directly fight or defeat open source. But it can further increase license revenue by attacking users of open source with claims of IP infringement.

Individual open source developers are too small to target with attacks such as this. But any large company using open source internally or in a product or service should be concerned by this. The open source movement as a whole needs to pay attention to IP issues.

There are many people in the open source movement who hold a “we don’t believe in intellectual property” stance. They may, one day, find themselves sending a monthly payment to Microsoft for privilege of continuing to hold that belief.