Microsoft: Please let us tax you, Red Hat! Please? Pretty please?!?

And it came to pass in those days, that there went out a decree from [Steve Ballmer-ustus] that all the world should be taxed.

Some capitulated but some, like Red Hat, continue to resist, as eWeek notes. The sad thing is how foolishly consistent Microsoft is on this patent thing. And confused as to what open source means.

Here are just three points that Microsoft is making clear, which are completely wrong (on a number of different levels):

1. Microsoft wants to suggest that all open source infringes its patents, but this is like saying all proprietary software does, too, just because a few companies might. Bob Muglia, SVP of Server and Tools at Microsoft, says:

   [I]t is necessary to have a conversation about intellectual property when it comes to open source, and you can't just sit back and talk about interoperability for interoperability's sake without fully solving the customer issue. Unless you actually address the issues around IP, you haven't fully solved the customer's interoperability problem.

   Oh, really? Why? MuleSource writes its own code. So does SugarCRM. So do most open source companies. We just choose to release our code under customer-benefiting open source licenses. We care about intellectual property just as much as you do - we just don't make a fetish of it.

   Bob really means to say "community open source" when he says open source, i.e., those projects that get developed by communities without any one company predominately contributing to them. I'd excuse his slip of the tongue if I felt it were more honestly made.

   Regardless, Microsoft has never demonstrated that open source (including community open source) is any less respectful of IP than proprietary software companies are. It has made self-serving insinuations, but that is all. I've never met an open source developer that is disrespectful of others' IP, even when they may not believe that traditional IP is the right way to protect their creations. In reality, if there are violations, they are almost certainly unintentional and a product of our broken patent system, a system that even Microsoft dislikes.

   
   
   
2. However much Microsoft may want to tax every line of open source code, it has no rights to do so. PJ at Groklaw says this best when she captures Marshall Phelps, VP of Intellectual Property at Microsoft, saying this:

   For those of you in VC [venture capital], this is going to be a radical departure. We used to define competitive advantage as 'I've got and you don't.' Or 'You've got it, but I got better.' Well, today it's 'You got it and I got it, but I make money when you use it," said Phelps explaining the shift to a strong emphasis on companies licensing out their patented technology.

   For anyone still confused as to what Microsoft intends with its patent FUD, Phelps spells it out quite plainly, as PJ writes:

   So, let's see. How does this work? "I got it and you got it but *I* make money when you use it." Who wouldn't want that? Um... Red Hat. Why not, Microsoft beguiles. I'll tip you. And, by the way, I won't interoperate with you unless you agree. Oh, and Microsoft adds, if we assume a similarity to the Novell deal, we get to alter and control your development model and your license -- you have to agree we step over or around it somehow. And you can't just let all those end users and downstream folks do whatever they are used to doing. They have to sit in paid seats. No sharing. Or else we can sue them.

   Funny how Microsoft has never done this with its proprietary partners. It's only open source. And why? Because Microsoft threatens Microsoft's self-assumed God-given right to make money with a 20th Century software model.
   
   
   
3. Microsoft desperately wants to conflate interoperability with patents, but the reality is that this is a complete canard. Muglia acknowledges this, but says:

   We do know how to do this and there are ways in which we can have interoperability work without the IP conversation. My main point about IP is that you actually haven't solved the customer's interoperability problem unless you have also solved the licensing issue.

   And yet Microsoft has worked on the interoperability problem for decades without bringing in the patent issue, and it's put billions in the bank. Microsoft has a vibrant ecosystem of proprietary (and open source) partners that have never had this IP conversation with Microsoft. Microsoft has managed to limp along, somehow. But now that its business model is threatened, Microsoft starts slinging patent FUD. The world has not changed - Microsoft has.

And so here we are, separated into two camps: those that will choke down this rubbish from Microsoft, and those who won't. I won't. Microsoft doesn't need this silly stance to survive and thrive. It has proved this for decades.

All Microsoft has to do is join the rest of the planet in its adoption and embrace of open source. Life just gets better and better when you do. Just ask customers.

[gianugo]

Er... communities careless about IPR? You kidding?

Matt, what's the deal with community open source being careless about IPR? I have to vehemently disagree, as a number of communities (Apache, for one) have strong IP check policies and go at great length to ensure proper treatment of IP rights. Much more than what a lot of companies are doing, actually.

[Matt Asay]

Don't misunderstand me, Gianugo

...I didn't intend to imply that community open source is less careful about IP issues than corporate open source. In fact, I think I was pretty specific about that in the blog post. I think both are careful and respectful of intellectual property (even if some don't like the "IP" nomenclature).

Sorry if I wasn't clear on that.