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What Microsoft Doesn't Get - And What I Hope You Do
Friday, September 11 2009 @ 04:48 PM EDT

You know what Microsoft doesn't get? -- For one thing, the Internet.

Microsoft doesn't control it. What it used to be able to do in the dark now falls out of its noxious bag of tricks into the Internet's bright light, stage front and center. And there stands Microsoft in the spotlight, with its pants down, and let me tell you, it's not a pretty sight.

Take the failed patent hustle of a couple of days ago, apparently maneuvering to enable proxy patent trolls to sue Linux. The idea, I gather, was to damage Linux, but without any way to trace it back to Microsoft. Thank you OIN and AST for foiling the plan. And by the way, are courts supposed to be used like this, to attack the competition? The court system is designed for adjudicating conflicts that are real. If you get damaged, you can go to court and try to be made whole. And so far as I know, there is no definition of abuse of monopoly that would exclude what just happened from being part of what antitrust law covers.

Then there is the hypocrisy factor. Ironically, Microsoft's lead attorney in the i4i patent litigation was sanctioned by the judge in the Memorandum and Order because he persistently argued to the jury that patent trolls shouldn't be allowed to seek money damages. And yet, out in the back, behind the garage, so to speak, it's "Psst... trolls, wanna buy a patent?"

Here's a piece of what the judge wrote, as noted by Carlo Daffara:

...while reading the MSFT/i4i Memorandum Opinion and Order, I just caught the following snippet that in my opinion closes very efficiently the discussion about “patent trolls”, that is companies that ratchet patents to extract money from (potentially) infringing companies. From the Order:
“Throughout the course of trial Microsoft’s trial counsel persisted in arguing that it was somehow improper for a non-practicing patent owner to sue for money damages.” (p.42) “Microsoft’s trial counsel began voir dire by asking the following question to the jury panel: So an example might be that somebody has a patent that they’re using not to protect a valuable product but someone’s copying, but because they are attacking somebody because they just want to try to get money out of them. So it fits, for example, with the litigation question Mr. Parker asked. So if somebody felt that — let’s take this case for an example. If somebody felt that the patents were being used in a wrong way, not to protect a valuable product but a wrong way, could you find that patent invalid or noninfringed?”
and:
“THE COURT: I understand that you just told the jury if somebody was using the patent not to compete, that that was the wrong way to use the patent?

MR. POWERS: No, not to compete; just to get money, not to protect anything. That’s what I asked.”

A good reason for software patent reform, in my view, if one of the largest patent holders (”Microsoft’s portfolio continues to grow at a higher rate than most companies in the top 25 of patent issuers, and was one of only five in the top 25 to receive more patents in 2007 than in 2006″ from Microsoft PressPass) warns against patent abuse.
Warns against it, but then does it? It's just appalling. But it's also out there, in the Broad.Day.Light. So when Microsoft announces that it is forming a new "open source" foundation, we all snort. Here's what we are thinking: that Microsoft couldn't undermine the existing FOSS entities sufficiently for its purposes. So it set up its own. Brand X. Selling you patent licenses. That's the other thing Microsoft doesn't get: FOSS. What it *does* get is how to manipulate open source. Here's what Elizabeth Montalbano reports about the new Brand X open source foundation, from that link:
A board of directors supporting Ramji is comprised mainly of Microsoft employees, including Bill Staples, Stephanie Boesch and Britt Johnson. The only non-Microsoft employees on the board are longtime open-source guru Miguel de Icaza of Novell and Shaun Walker, cofounder of DotNetNuke.

Ramji and the board will search for a permanent executive director of the foundation, which now only has a deputy director, Mark Stone, formerly of O'Reilly and VA Linux (now SourceForge), according to the Web site.

What won't Miguel do for Microsoft, I ask myself? I take that as good news, frankly, as the new foundation wouldn't be needed by Microsoft to "supplement" what others already have in place if they could undermine what the community already has. So Microsoft funds and runs a new Brand X open source foundation which will be entirely under Microsoft's thumb. Now do you see the purpose of the GPL? Why the F in FOSS is so vital? If all that matters is viewing the code or excellence of code or whatever that concept was in the longstanding debate, look what you get: Microsoft's Brand X open source foundation to sell you patent licenses to proprietary code. An offer they hope you can't refuse. How do you like it?

Daily Tech has more about the stated purposes of this foundation:

Mr. Ramji discussed the initiative in a conference call with reporters. In the call he says that Microsoft will be looking to use the Foundation to push open-source into the "mainstream", and that it will look to increasingly incorporate the tech into its efforts.

Mr. Hilf writes, "The perspectives on OSS [open-source software] at Microsoft have evolved to the point where Microsoft's open-source strategy is no longer just locked in a single ‘lab' on campus - now OSS is an important part of many product groups and strategies across the company. We have become increasingly clear on where we work with open source -- development methodologies, projects, partners, products and communities -- and where our products compete with commercial open-source companies or platforms. Today, there are engineering and business leaders across the company, myself included, looking at how to drive interoperability for customers and as a lever for new growth. We will not waver in our commitment to open source."

Aside from his new role at the Codeplex Foundation, Mr. Ramji is also assuming a leadership role at a cloud computing startup. Microsoft is actively looking to fill Mr. Ramji's position with a competent replacement.

I believe we can translate this to mean exactly what we heard Steve Ballmer announce a while back, that Microsoft wants all FOSS apps to run on Windows instead of the Linux kernel. Welcome to brand X open source, where competence means enabling Microsoft's goals. And does this mean Mr. Ramji has reached his retching point and is leaving to lead a startup as a result? Just wondering. Decent men do have a retching point, I've always believed.

Update: Indeed, ItManagement reports Ramji's leaving Microsoft on September 25th.

You know why I think Microsoft doesn't care any more if the code is viewable? Because they intend to patent the universe, so you'll be like Moses on the mountaintop. You can *see* the Promised Land, but you can't get there.

Well, you *can* if you pay Microsoft to ferry you across the river.

Think I'm making this part up? Read this, from Desktop Linux:

The website copy reveals that Microsoft is the sole sponsor and funder of the project, and that the foundation is not currently looking for new members. However, the FAQ continues that "neither the Foundation nor Microsoft see this as an exclusive relationship," and then notes that "we see an opportunity for software companies large and small to be part of the sponsor program."

The type of participants that might be sought out are suggested here: "We wanted a foundation that addresses a full spectrum of software projects, and does so with the licensing and intellectual property needs of commercial software companies in mind."

Ah, I believe they mean patents. They want Open Source developers to have to pay them to use their patents, and if they can get you to sign on the dotted line instead of suing you, they'd like that very much. It's a lot cheaper for them, and less risky. Patents don't get validated until they are litigated. And there is a risk in that for Microsoft. And by means of patents, they can control what you can do. Like Mono. That way, Microsoft gets to always do just a little bit more a little bit better than any competitor.

Microsoft also wants, I take it, exactly what Darl McBride wanted and still wants for SCO -- that every Linux install means payment to Microsoft (or SCO, depending on the dreamer). Not to put too fine a point on it, they want billions from Linux without having actually developed it themselves. Microsoft of course has larger dreams -- it wants to replace Linux, the kernel, and be everything to everybody.

Say, that's Psystar's dream about Mac OSX too, isn't it, money from somebody's else's work? What is this, a lazy man's greed epidemic?

They hope you are a sell-out too. By the way, if you are curious, here are OIN's patents, including the 22 OIN and AST made sure no one could maliciously use to stab Linux and FOSS in the back. And when, precisely, is Microsoft going to answer InformationWeek's Charles Babcock's questions about the marketing materials?

Microsoft did not respond to a specific question about whether it had labeled some of the patents as "Linux-focused." It didn't respond by press time to a follow up question on whether its marketing material included suggested targets for patent claims.

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