Microsoft's Patent Move: Giant Leap Forward Or Business As Usual?

Some see this as a big step forward for Microsoft and open source. Some, however, see Microsoft's open source patent movement as more of the same as ever.

 When Microsoft surprised everyone by launching its full portfolio of 60,000 patents to the open source community, someone asked me if I thought the measure would finally convince everyone that Microsoft is truly a friendly open source company.

Indeed, some people are still convinced that Microsoft intends to "embrace, extend and extinguish" open source. However, many others believe that Microsoft has really evolved and has become an open source company.

It's a trap?

On the purely positive side, we have Jim Zemlin, executive director of The Linux Foundation:

    "We were delighted to welcome Microsoft as a platinum member of the Linux Foundation in 2016 and we are absolutely delighted to see its continued evolution into a supporter of the entire Linux ecosystem and the open source community."

    Patrick McBride, Red Hat's senior patent director added: "What a milestone moment for open source and OIN! Microsoft is joining a unique shared effort that Red Hat has helped lead to bring the peace of patents to the Linux community, developers and customers will be the Beneficiaries, now is a perfect time for others to join as well. "

 On the side of those who hate, is Florian Mueller, editor of the blog FOSSPatents, who thinks:

    'Microsoft loves Linux' is a lie. And now Microsoft wants us to think that Microsoft is fighting against patent trolls. This is also a lie of Microsoft. "

He also said that joining the OIN, which Mueller considers an IBM front group in favor of the patent, "does not impose new real restrictions on them." This is just a cynical public relations movement from Mueller's point of view.

 Other anti-Microsoft advisors on Reddit, Twitter and other social networks also insist that this new Microsoft is the same as the old Microsoft. Or, as one person, going back to Star Wars, commented: "It's a trap!"

Microsoft finally gets open source

At Microsoft, the company insists that it has been changing its open source forms for years. John Gossman, a distinguished engineer on the Microsoft Azure team, described the 2001 comment by former Microsoft CEO Steve Ballmer that Linux was "a cancer" as "a fundamental misunderstanding of open source."

 With Satya Nadella as CEO, Microsoft finally gets open source.

What the patent experts say ...

But not only Microsoft employees are saying that Microsoft's attitude towards open source has evolved. Andrew "Andy" Updegrove, a patent expert and founding partner of 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's actually more a formal acknowledgment of where they are, and the realities of the IT environment today."

Daniel Ravicher, executive director of the Public Patent Foundation (PUBPAT), whose work was used by Ballmer against Linux, was not surprised by this movement:

     "With the acquisition of GitHub and other things that the company has done, they have really changed their tone over the last 15 years, and they also hired a former staff attorney for the Freedom Law Center (SFLC) software as a domestic lawyer. the Korean War that does not have a formal end date, but I think now Microsoft and the open source software are on the same page and working together. "

The prominent open source lawyer and law professor at Columbia University, Eben Moglen, also sees this as a movement towards peace of patents. Moglen commented:

"Microsoft's decision marks the transition from the patent war period to the creation of an industry-wide patent peace system for free and open source software (FOSS)." Microsoft's participation in the structure of OIN licenses will be the pole of the tent for the extension of the great IT world-wide, for SFLC and other parties whose job is to secure the interests of individual FOSS programmers and their non-profit projects, this is also the time of the opportunity to guarantee their safety and respect for their way of developing throughout the world, the entire industry, including companies that continue to patent their own R & D. "

 Why is Microsoft doing this when it makes money with patents?

Scott Guthrie, Microsoft's executive vice president of the cloud and business group, described the decision as a "fundamental philosophical change" as a result of an understanding that open source is intrinsically more valuable to Microsoft than patent gains.

John Ferrell, president of Silicon Valley's technology law firm, Carr & Ferrell, believes there may be a more pragmatic reason behind Microsoft's decision:

    "Microsoft's gesture to donate 60,000 patents to the OIN is, in fact, a philosophical change for this giant, but the change is likely to be rooted in the understanding that the Company is much better prepared to fight in the market than to fight. At the court, virtually every patent-holding company that gets into a patent battle with Microsoft is struggling from an asymmetric advantage position.When the damages are based on a percentage of sales, Microsoft almost always has more to lose. companies that take advantage of open source software, these companies tend to be small and patent infringement for Microsoft is difficult and expensive for the police. "

 Ferrell, the litigant, continued:

    "From a defensive point of view, small companies with one or two patents possibly infringed by Microsoft are especially annoying and potentially damaging to this goliath.Microsoft is a huge target and is constantly subject to patent claims by small and large companies who try to gain ground or monetize their development efforts at the expense of Microsoft's deep pockets. "

An additional reason for the change of heart of Microsoft, according to Rafael Laguna, CEO of Open-Xchange, an open source network services company, is:

    "Microsoft boss Nadella wants to buy a new credit in the open source industry, pushing the company away from the business model and practices of its predecessors, that is, the sincere aversion of Gates and Ballmer to code developers. Open "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 , backed by the fact that already half of Microsoft Azure's services are based on Linux today. "

Will this bring peace to our time?

Bradley Kuhn, president of the Software Freedom Conservancy (SFC), thanks Microsoft for joining the non-aggression patent pact OIN, and noted: "Perhaps it will bring peace in our time with respect to Microsoft's historic patent aggression."

Microsoft needs to do more, Kuhn added: "We are calling on Microsoft to be just the beginning of its efforts to stop its patent aggression efforts against the software freedom community."

Specifically, he said: "Now we ask Microsoft, as a sign of good faith and to confirm its intention to end all patent aggressions against Linux and its users, to send the exfat code in GPLv2 or later."

Samsung, with a file system, was opened by Samsung with the help of SFC in 2013. But Kuhn said: "Microsoft has not included any patents that may be included in the patent non-aggression pact."

 In general, it should be borne in mind that, when asked about patents related to FAT, Erich Andersen, corporate vice president of Microsoft and leading intellectual property (IP) lawyer, said:

    "We are licensing all the patents that we have that are read in the 'Linux system'." And, in addition, all 60,000 patents granted by Microsoft related to the Linux system are covered by the OIN requirements.

    In a subsequent email, Kuhn noted: "Ultimately, the OIN license agreement is limited to the 'OIN Linux System Definition' and, therefore, does not guarantee that the patent aggression should stop immediately; rather, Microsoft should only stop for those patents that read about technologies in the OIN Linux system definition. "

 So, for example, BSD specific code, wouldn't necessarily be covered.

Therefore, Kuhn suggested:

    "Expanding the 'Linux System Definition' would be a useful way to solve this problem through OIN."

Historically, OIN has been expanding the Linux System Definition.

Kuhn concluded:

    "Most importantly, Microsoft can help resolve it unilaterally by sending patches that implement their patent technology on upstream projects that are already contained in the Linux System Definition, and I suggest they begin with the incorporation of exfat in Linux.

conclusion

So, although there are some people who think that Microsoft is not doing anything right, experts agree that this is a laudable decision by Microsoft to show its open source good faith. That does not mean that some still want to see more evidence of Microsoft's intentions, but in general, people agree that this is a big step forward for Microsoft, Linux and the regulation of the open source intellectual property law. .