Spreading the Secret Source Code Sauce

Opinion: IANAEL (I Am Not a European Lawyer) but I think that if Microsoft goes about its source code license the right way, its European legal issues are over. But why now and not years ago?

Microsoft has, for many years, licensed the source code for Windows to a variety of partners, large customers, educational institutions and others.

But until now, the company would rather have incurred large fines, legal bills and distractions than make the code available to competitors.

Microsoft execs must have thought that making the code available would be against the companys interests for some reason.

Whatever those reasons were, Microsoft appears to have gotten over them with its announcement Wednesday that it will make the source code for communication protocol code available in an effort to meet demands of the European Unions Court of First Instance.

Microsoft already complied with the European courts absurd first requirement, that it provide a copy of Windows without Windows Media Player in it. Since it wasnt required to discount it, anyone with a brain could see that it would be a market failure, and so it was, but that part of the case is behind the company.

The other part had to do with other vendors who want to interoperate with Windows communications not having adequate documentation. There may be other important vendors, but from what I understand its all really about Samba.

/zimages/2/28571.gifClick here to read a review of Samba 3.0.

For years Microsoft has been providing documentation and has been told that it was inadequate. If the company really is talking about licensing the necessary parts of the source code, then I dont see how anything more can be asked.

I suppose its possible, depending on the specifics, that someone could claim there are necessary parts of the source code that werent included, but its probably not worth it to Microsoft to do this license unless that puts its legal troubles behind it.

There are still many other important factual issues that arent clear. No. 1, and this is the controlling issue: What are the licensing terms?

This means not only what may I, as a competitor, do with the source code, but what will it cost? In fact, since this is the heart of the matter, I wont even bother with No. 2.

I dont know the exact terms under which Microsoft has licensed its source code to others, but it must be an incredibly restrictive license. Theres been only one publicly disclosed instance of source code leakage. The code that was leaked was quite old and theres no evidence that it led to the flood of vulnerability disclosures that was predicted at the time.

Of course, Microsoft critics often want to have it both ways with this argument: They claim that open-source code is more secure for being open, and they were willing to claim that Microsofts code would be more exploitable because the source was disclosed. Ironically, Microsofts arguments played along with the part about exploits for a long time.

Obviously Microsoft has many different licenses that it has used over the years; some are just for examination, while some (Citrixs for example) have allowed it to build new products based on Windows.

Next Page: Handling licenses to avoid litigation.