Microsoft opens up — just a little

Tom Yager analyses the OSI

I'd like to see the specifics of Microsoft's new open source interoperability initiative, but the link to the FAQ (frequently asked questions) takes me to a page that says, "We're sorry, but we were unable to service your request". I think that's the answer to my own frequently asked question: What is the open source interoperability initiative? You shouldn't draw too many conclusions from the fact that takes you to Ontario Swine Improvement, an idea that mystifies me more than Microsoft's OSI. OSI also happens to be the initials for Open Source Initiative, the body that determines the legitimacy of homespun open source licences, of which Microsoft has two, called the Microsoft Public Licence and the Microsoft Reciprocal Licence. Both of these were filed late last year, and they are what I'd like all legal documents to be: concise. They offer royalty-free licences of software and permit redistribution of derivative works, provided that attributions are maintained. Short and sweet, yes? There's a little catch in the language of these licences in the phrase "licensed patents", defined to be "contributor's patent claims that read directly on its contribution". The contributor is Microsoft, so this phrase says that all of that royalty-free and unfettered redistribution stuff doesn't apply unless you've licensed the applicable patents that Microsoft has attached to it. Now, if Microsoft contributes apparently open code, API (application programming interface) or protocol, that is itself derived from patented work, or that is great-grandfathered by an obscure patent on the letter "q", it gets messy, especially if any of the contributions are in uncommented object code form. I recall a conversation I had years ago, and I swear to this, with a mildly besotted Microsofter who declared that Microsoft had a patent on the run queue, a list that keeps track of the order in which processes will run on the CPU. I asked, "Really?" and he said "abschuhoodly". For all I know, he's right. I expect that between Microsoft and Novell, everything that inventors hadn't the presence of mind to patent is now patented. Microsoft states in its open source licences that non-commercial use of its code, APIs and protocols is okay and royalty-free. But let's say that somebody likes a date-to-string function you lifted from Microsoft's patented Exchange Server API and rolls it into their open source mail client. That client is subsequently folded into, say, OS X, and at that point, it's gone commercial. Land mine. I don't know how this will sort out. As I see it now, I wouldn't touch code created by anyone who has come within whiffing distance of Microsoft's published code, APIs and protocols. How am I supposed to know whether someone's going to sell the code derived from my code derived from Microsoft's patented protocols? I'd only lift my quarantine if Microsoft took to tagging everything I might want to use as 100% patent-clean. Perhaps it will set up a legal department just to declare hunks of code patent-free. It speaks in Microsoft's favour that, with the encouragement of the US Department of Justice and the European Union's Court of First Instances, Microsoft has been negotiating with Xen, JBoss, and other open source projects that turned into commercial software. Microsoft's patent arrangement lays out the usual "fair and reasonable" language with relation to patent licences. As long as vendors are free to share with us the terms of their patent licences, I'm cool with fair and reasonable. If the licence agreement requires that the terms be held confidential, that'd make me a bit squirmy. Perhaps I'm exaggerating about the patent risk, or perhaps not, but let's keep in mind that newly open Microsoft is the same Microsoft that was SCO's primary cheerleader in its (my opinion) scheme to extort licence fees from Linux users. SCO had not proven, and never did prove, its claim that Linux contained stolen code, but Microsoft kow-towed to SCO in a letter that conveniently excoriated all competitors of Microsoft, except Sun, which also ponied up, for abusing licences and patents. It was the most disgusting press release I've ever read. So now, when Microsoft says "open", my mind immediately goes back to that chapter in Redmond's history. I'm making with the cynicism as my way of telling you to be careful. I have absolutely no doubt that there are people inside Microsoft who believe in this programme deeply, and who want to see it succeed for the best reasons. I know I'll hear from them; I want to. I'll bring what they have to say straight to you, uncoloured by bias.

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