Open source's open door

As most of you know, much of success has to do with being in the right place at the right time. A golden opportunity is about to emerge, thanks to consumer advocates and a horde of greedy lawyers, and open source will once again be in the right place at the right time to exploit this opportunity.

Before I get to the external circumstances I have in mind, it's important to note that open source is earning many wins on its own. A Pentagon report found Linux and open source to be innovating more quickly than proprietary competition, as well as more robust and less vulnerable to cyberattacks.

Naturally, Microsoft Corp.'s response has been to lobby the Pentagon against open source, but it will be an uphill battle. IBM Corp. has been selling Linux into the U.S. Air Force, the U.S. Federal Aviation Administration and the departments of Agriculture, Defense and Energy, and I don't see the momentum slowing anytime soon.

Microsoft's new licensing scheme and the threat of audits are also driving a lot of customers to open source, including entire governments. Peru is trying to make open source mandatory for government use. Edgar David Villanueva Nunez, a representative in Peru's National Congress, wrote a masterpiece of a letter to Microsoft laying out the need for this policy. (See now there's a new force about to come into play that works to the advantage of open-source adoption. It's the call from consumer advocates for legal reform that would enable customers to sue software vendors for damages from security holes and bugs.

I have a theory as to why security holes and bugs in Microsoft software haven't motivated that many people to migrate to open source. I'll bet businesses have bought into the excuse that software is simply so complicated that nobody could make it any more airtight than Microsoft already does. It's a myth, but one that is nearly impossible to expose.

Microsoft has never been held accountable for the problems in its products. Unless you know the ins and outs of the law, you're likely to conclude that the reason Microsoft has never been taken to task is that the problems aren't severe enough to justify suing Microsoft for damages.

Certainly, lawyers have every reason to pursue this. Look at the obvious facts. Fact 1: Microsoft sells software that is notoriously vulnerable to dangerous exploits. Fact 2: These problems cost companies time, money and lost business. Fact 3: Microsoft is sitting on billions of dollars. Fact 4: Lawyers often get a nice percentage when they sue for damages. Fact 5: Microsoft is sitting on billions of dollars. Fact 6: Lawyers will take on a case like this only if the accused party has the ability to pay damages. Fact 7: Microsoft accumulated many of those billions because it hasn't been held accountable for problems. Never mind strike Fact 7. Moral issues are irrelevant to lawyers.

The fact that is not obvious is that software is regarded as a service, not a product. This protects companies like Microsoft. Much of Europe has declared software to be a product, a trend that would have been likely to spread to the U.S. if it weren't for vendors pushing UCITA. UCITA is Microsoft's last best hope against liability.

If consumer advocates win the fight to make software a product, it will change the landscape of the software market forever. Microsoft will be faced with an onslaught of lawsuits. Microsoft will no doubt shift any future liability to its solutions providers (assuming Microsoft hasn't already anticipated this I recommend that Microsoft solutions providers check their contracts).

Solutions providers will abandon Microsoft en masse for open source, not because open source is more robust and less vulnerable to attacks, but because it will give them control over the software that could drag them into court. If a customer has a problem, the solutions provider can fix open source immediately. It doesn't have to wait for Microsoft to issue a patch that closes one hole and opens three more.

My crystal ball says consumer advocates will win, liability insurance providers will get rich, lawyers will get richer, open source will rule the world, and we'll finally transition into a service-based software economy. What do you think?

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