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Microsoft does not believe there is an inherent contradiction between its recent statements that free and open-source software infringes on 235 of its patents, and the veiled legal threats that go along with that, and its attempts to reach out and build bridges with the open-source community.
“In fact, one makes the other possible, especially at a time like this, when interoperability is so important. Microsoft recognizes the importance of interoperability, which is why we are doing the things we are in our products, why we created the Interoperability Executive Customer Council, and why we are listening to customers,” said Horacio Gutierrez, Microsofts vice president of intellectual property and licensing.
Customers did not want to have to solve this problem themselves, they wanted industry leaders, their vendors, to solve the interoperability problem for them, he said.
“The only way thats possible is for companies to really be open to licensing arrangements and building these bridges that people thought were impossible before, among different providers and among different software development models,” he said.
In a recent interview with Fortune, Brad Smith, Microsofts general counsel, claimed that the Linux kernel violated 42 of its patents, the Linux graphical user interfaces ran afoul of another 65, the Open Office suite of programs infringed 45 more, e-mail programs violated 15, while other assorted free and open-source programs allegedly transgress 68.
While Gutierrez acknowledged that he could see how someone could believe by reading the Fortune story that there was some kind of change in Microsofts position on these issues, that was not the case.
“Microsoft has not changed its stance. We have worked very hard for more than three years to build a constructive solution to this problem, and that is the IP bridge we have built with Novell and which we have entered into with Samsung and Fuji Xerox and that we are working very hard on building with other people in the future. That is our approach, and it is precisely the approach that customers have asked us to implement,” he said.
While some customers on Microsofts interoperability council, like Lt. Gen. Ulrich Wolf, director of the NATO NCSA (Communication and Information Systems Services Agency) based near Mons, Belgium, have no doubts about Microsofts commitment to interoperability and are unconcerned about the ongoing patent and IP debate with the open-source community, others like Daniel Gasparro, the chief technologist for information services at global consulting firm Booz Allen Hamilton, based in McLean, Va., are disturbed by the recent moves.
“I would hope that Microsoft would do the right thing and not let this [software patent issue] get out of control … I do feel that [there] is something of a paradox to what we are talking about here [in the council] where we are trying to bring enterprises together and actually help all of us deal more effectively with our complex, heterogeneous environments,” he said.
Asked by eWEEK why, then, Microsoft had decided to not only release the 235 patent violation number, but also to detail what open-source software was violating them, Gutierrez said the company felt that once it had created a solution to the problem, it was appropriate to talk about the depth of the problem.
It was also important for everyone to understand that the issue of mutual respect for intellectual property rights was an important one for not just Microsoft, but for every participant in the industry. It was also important to recognize that there was an issue and that people needed to work in good faith to resolve it, he said.
“Ignoring the existence of the problem, or trying to prevent vendors from coming together and resolving the issue is not solving the problem, but putting it squarely on the shoulders of customers, which is what we have taken great pains to try and avoid for three years now,” he said.
Bob Muglia, Microsofts senior vice president for the Server and Tools division, agrees with this argument, telling eWEEK that “it is necessary to have a conversation about intellectual property when it comes to open source, and you cant just sit back and talk about interoperability for interoperabilities sake without fully solving the customer issue. Unless you actually address the issues around IP, you havent fully solved the customers interoperability problem,” he said.
Next Page: The bridge building business, not the bridge burning business
The bridge building business,
not the bridge burning business”>
Asked if the third draft of the GNU GPL (General Public License) version 3 was also a reason for Microsofts decision to talk about the specific patent numbers and violations, Gutierrez declined to comment on the license specifically, saying it was still under development.
But what he would say was that he felt it “unfortunate that while Microsoft is trying to build bridges wherever possible between the commercial and open-source software industries, some seem intent on tearing down those bridges. We are in the bridge building business, not in the bridge burning business.”
Microsofts focus had consistently been to ensure that there was a viable solution to the problem, which was constructive and accessible to anyone and which solved customer problems, he said.
But even Novell has expressed concern about the potential impact of GPLv3 on its patent deal with Microsoft. In its latest annual report filed with the SEC, the company notes that Microsoft may be forced to stop distributing SUSE Linux coupons if the current text of the third draft of GPLv3 is included in the final license.
“If the final version of GPLv3 contains terms or conditions that interfere with our agreement with Microsoft or our ability to distribute GPLv3 code, Microsoft may cease to distribute SUSE Linux coupons in order to avoid the extension of its patent covenants to a broader range of GPLv3 software recipients, we may need to modify our relationship with Microsoft under less advantageous terms than our current agreement, or we may be restricted in our ability to include GPLv3 code in our products, any of which could adversely affect our business and our operating results,” the Novell filing said. “In such a case, we would likely explore alternatives to remedy the conflict, but there is no assurance that we would be successful in these efforts,” the filing said.
When asked what Red Hat Linux customers, who did not want to switch to SUSE Linux, were supposed to do, Gutierrez was evasive, saying that Novell had “taken the leadership step” in signing the patent co-operation agreement with Microsoft. However, Microsoft was working hard to ensure that other companies had the same ability.
“Microsoft has no intention or design to limit that arrangement to just Novell, and we have been saying openly that we are open to entering into similar agreements with others. You would expect that to happen over time as customers manifest to their vendors that IP indemnification is an area they care about given the realities of litigation on patents,” he said.
As to what happens next, Gutierrez said this was the same as what had happened over the past few years. Microsoft continued to have discussions and make progress as it had with Novell, Samsung and Fuji Xerox.
“I think you are going to see a number of additional announcements in the next few weeks that point in the same direction. We believe we are making progress as many companies realize we are being open and flexible in building solutions that meet their requirements from both a business and licensing perspective,” he said.
Microsoft also did not believe that litigation was an efficient way of dealing with these issues, he said, before adding that, “this does not mean you may not have to go there some day, but it is not a preferred option, and certainly not a preferred option for us. We are hoping that this can be addressed in a different way. Our focus is on solving this through licensing, and that approach should work between the worlds of open source and proprietary software,” he said.