The dying embers of Microsoft's IP claims against open source

Horacio Gutierrez, Microsoft's intellectual property counsel, indicated that Microsoft has finally seen the open-source light in a recent interview with CNET. Demonstrating that Microsoft has finally learned that it can't fight open-source gravity, Gutierrez suggests, "Today, but increasingly in the future, we are all going to be 'mixed source'," meaning Microsoft and everyone else will balance open source with some proprietary element to their business.

I actually think the war between proprietary and open source is a thing of the past.

In fact, we're already there. Even Microsoft. But it's nice to have Redmond admit it.

What was perhaps less pleasant, and completely unnecessary because Microsoft lacks both the will and the strategic interest in pursuing it, was Gutierrez's saber-rattling over Microsoft's patents:

While Microsoft is patient, Gutierrez indicated that Microsoft's patience is not unlimited. "If every effort to license proves not to be fruitful, ultimately we have a responsibility to customers that have licenses and to our shareholders to ensure our intellectual property is respected," he said.

Yes, you do, Microsoft. Fortunately, the more Microsoft uses open source within its products, the less it trots out this tired refrain from the past.

The fact is that Microsoft has yet to find a way to call out its intellectual property (IP) in things like Linux without stumbling over all of the IP that it, in turn, has "borrowed" from others, including the open-source world. Plus, Microsoft can't sue open-source communities without bumping up against companies like IBM with much broader patent portfolios than its own. If Microsoft sues, Microsoft loses.

Indeed, I'd argue that one primary reason for shacking up with Novell wasn't Microsoft's patent portfolio, but rather Novell's: Novell had key IP that goes to the heart of Microsoft's Office business. The Linux patent covenant was a way for Microsoft to clean up its own patent violations. Funny, that. When I was at Novell my team in the CTO's office never worried about a patent lawsuit from Microsoft.

But that's just the way the modern software world works: it's such a thicket of conflicting IP claims that the only rational (and workable) solution is to overlook competing claims.

If Microsoft really wants to defend its IP religiously, it will need a bigger army of IP gorillas (oh, wait, I mean "guerrillas"), because it's a full-time job. Just ask Qualcomm.

I know and have profound respect and personal amity for Gutierrez. We once sat together outside a cafe near the Eiffel Tower and talked shop about open source and Microsoft, and he was as cogent in that discussion as his argument above sounds strained. Despite these words here, I think his heart is in the right place.

And, despite Groklaw's (reasonable) ire against Microsoft on this issue, I actually think that most people at Microsoft are the same. There are a few bad eggs, but they'll come around (or retire) at some point, and Microsoft will join reality.

Reality need not include erecting a toll-booth around open source. Microsoft doesn't need that to compete with free, though Steve Ballmer can't seem to get his head around that. There are more productive ways to work with open source.

Microsoft should start by continuing to work with open source. Given enough time embedding open source in its products, as it is doing with jQuery in Visual Studio, Microsoft's tired and fading tirade against the IP bandits of open source will disappear.

[shane_coyle]

Wow, it's been a while since anyone has tried to paint Novell as the party of advantage in their MS deal. My question is, if Novell's patent portfolio is so great, how come there is no ongoing royalty from MS to Novell, as their certainly is on open source software shipped under the agreement by Novell?

[Arthur Belle Dent]

There is a big problem with disconnect when we are told that Gutierrez "directly threatens to sue any company, like Red Hat, that refuses to sell out and do a patent deal like the one Novell signed up for":
http://www.groklaw.net/article.php?story=20081018165715723
and your take is you had croissant and cafe au lait with him.
***?
We have heard how Bill Milf, Sam Raimi (sp?) and other microsofties are wonderful human beings. heck, even their lawyer brad is a swell guy I hear. it still changes to their actions and the ongoings threats.

A protection racket is a protection racket. You dont need to drive a black sedan and speak with a Jersey accent to recognize it. No matter how much you try to humanize these people, it still remains what it is.

We'll see soon how microsoft's code to apache will come with strings and OS favoritism included
and Im sure we;ll hear about how such and such at Redmond is a great golf player.

[Papa Chango]

So NOTHING has changed in the Redmond extortion scheme, the threats are always there and Horacio is touring to remind us of this fact and you think we should be happy because it is nearing its end and they will eventually get it and some will retire?
How about a plan B in case this doesnt work out your way?

Horacio clearly has shown in the interview that the extortion business model that he and Ballmer are pushing is still their plan so every measly little 100,000$ given to Apache is meaningless.
Like someone said, you dont look to some regional Apple director when asking which way the company goes, you listen to waht Jobs says.
Same here. All the open source (lets not bring in that evil free software term they flee like the plague) lovey dovey talk means diddly if the CEO and the VP's sing a different tune.

Paul Furber did a much better job analyzing the Horacio Extortion Tour, I suggest you give a read:
http://www.itweb.co.za/sections/columnists/doubletake/furber081022.asp?A=COL&S=Columnists&T=Columnist&O=A

You might have a place in your heart for Horacio but from where Im seated, he seems to be another ********* lawyer.