Underexposed

Linus Torvalds, leader of the Linux kernel project that's among the best-known open-source threats to Windows, has words of praise for Microsoft's announcement last week that it would share some previously hard-to-get technology with open-source programmers.

"I may make fun of Microsoft occasionally, and yeah, I think they do stupid things at times, but I think this one was a step in the right direction," Torvalds said in an e-mail.

"Could it have been even more? Sure. But give them credit for at least seeming to open up a little, even if it probably was at least partially ."

Torvalds' opinion goes right down the middle of the mixed reactions various people in the open-source software area had to the news.

Some praised Microsoft for making it easier for programmers to get access to technology such as communication protocols and file formats, and to get their software to work better with Microsoft's; others griped about Microsoft's continued desire for open-source companies to obtain patent licenses.

Torvalds isn't in the castigation camp. "Does it mean people should trust and love them? No," he said. "But I also don't see the point in flaming them over what is clearly at least an incremental improvement."

Open-source fans can be a skeptical bunch, but I've seen their collective opinions shift--for example in the gradually diminishing loathing for Sun Microsystems as that company stopped deriding Linux and started moving its portfolio to open-source software.

So it's not a surprise that various representatives had a mixed reaction to Microsoft's move Thursday to share details of its technology with open-source programmers.

The move could make it easier for many projects to work well with Microsoft products and potentially replace them--for example the Thunderbird e-mail software could communicate better with Microsoft Exchange servers and also displace Microsoft Outlook on PCs. But Microsoft also made it clear that a pledge not to sue open-source programmers only applied in "non-commercial" contexts, so open-source fans didn't get everything they want.

And even though Microsoft said it now will share the specific list of patents it says it has on technology it wants to license to others--something open-source fans have sought once Microsoft asserted last year that Linux and other projects violate 235 patents--some see signing licenses as incompatible with open-source license requirements.

For its part, Microsoft is pledging to move beyond its historically adversarial treatment of the open-source realm. "As Microsoft takes this significant step forward into the interconnected world of the future, we aspire to doing so with members of the open source community by our side now and for the long haul," said Bill Hilf, Microsoft's general manager of platform strategy, on his blog. Hilf previously ran Microsoft's Linux lab and was an Linux deployment specialist at IBM.

I surveyed various companies and individuals about the move and received some other thoughts unsolicited. Here are some reactions:

• Jim Zemlin, Linux Foundation executive director: "The world of software development has been marching in a steady direction toward being open and transparent. As Linux's use continues to rise, so does the demand for customers to enable it to interoperate with Microsoft products. This announcement by Microsoft seems to indicate they want to participate in that march. Even if some of the announced details still seem less than ideal for open source developers, at least it's a first step."

• Michael Cunningham, Red Hat's general counsel: "Red Hat regards this most recent announcement with a healthy dose of skepticism. Three commitments by Microsoft would show that it really means what it is announcing today:

"Commit to open standards: Rather than pushing forward its proprietary, Windows-based formats for document processing, OOXML, Microsoft should embrace the existing ISO-approved, cross-platform industry standard for document processing, Open Document Format (ODF) at the International Standards Organization's meeting next week in Geneva...

"Commit to interoperability with open source: Instead of offering a patent license for its protocol information on the basis of licensing arrangements it knows are incompatible with the GPL (General Public License)--the world's most widely used open source software license--Microsoft should extend its Open Specification Promise to all of the interoperability information that it is announcing today will be made available...

"Commit to competition on a level playing field: Microsoft's announcement today appears carefully crafted to foreclose competition from the open-source community. How else can you explain a 'promise not to sue open-source developers' as long as they develop and distribute only 'non-commercial' implementations of interoperable products? This is simply disingenuous."

• Miguel de Icaza, founder of the GNOME project and a Novell programmer working on Mono, an open-source implementation of Microsoft's .Net software: "As a chess move, it is a fascinating one...On the surface it looks very good. (There are) lots of things that we want to interoperate with--Office, SQL Server, SharePoint. Getting the documentation to everyone sounds great, and it seems like they are serious about doing more interoperability work...When the full list for patents becomes available, the question is what will open-source vendors do if they find pieces that have historically infringed: will they choose to license and be the recipients of the community wrath, or will they hold their grounds and risk a lawsuit?"

• Jeremy Allison, a founder of the Samba open-source project: "The devil is in the details. If they can follow through with this, the world will be a better place...It doesn't mean any change for us (Samba) as we already had all these documents, and the promise not to sue is only for 'non-commercial' open source, which is a bit meaningless. At least everyone now gets access to the same info, which I'm very happy about. Hey, should we ask for our money back ? :-)."

• Matt Asay, vice president of business development for Alfresco and a writer for CNET's Blog Network: "The really big news is Microsoft's commitment to open APIs (application programming interfaces) and open protocols...It's great news, and it's big news. My company has been seeking this API and protocol information for months (years, really). But Microsoft's pledge doesn't obviate the need to negotiate patent royalties, if required, with the company."

• Andi Gutmans, a co-founder of Zend: "I have no doubt Microsoft is doing the right thing for their business. I believe Microsoft has finally understood that their closed nature has significantly hindered the growth of their ecosystem...Microsoft has had a strong Microsoft-centric ecosystem, but going down this path they are able to extend their applicable market beyond today's reach...I believe the PHP community can only benefit from this move. With PHP being a heterogeneous solution which works on pretty much any operating system, any database and any Web Server; the more interoperability capabilities it has with all open-source and proprietary solutions the better...Microsoft's all or nothing approach has been an accelerator for the adoption of open-source operating systems. While I am a big fan of Linux, I do believe that this is going to put an increasing amount of pressure on the Linux/Unix backers to deliver innovation and value on top of these systems."

Microsoft made major concessions Thursday that should make it easier for open-source software to dovetail with or even replace Microsoft products, but a major caveat means the company's legal threats remain alive and well.

Microsoft announced a number of moves that could significantly improve its relationship with the open-source world. Among other things, the company said it will share communication protocols that govern how Microsoft software products communicate; pledged not to sue open-source programmers for developing software that uses those interfaces; and launched an Open Source Interoperability Initiative to improve how well open-source software works with its own.

Microsoft Chief Software Architect Ray Ozzie (left) and CEO Steve Ballmer.

(Credit: Microsoft)

Although programmers now are apparently free to reproduce the software, Microsoft's generosity ends when the software crosses the threshold from project to commercial product.

"Microsoft is providing a covenant not to sue open-source developers for development or noncommercial distribution of implementations of these protocols," the company said. "Companies that engage in commercial distribution of these protocol implementations will be able to obtain a patent license from Microsoft, as will enterprises that obtain these implementations from a distributor that does not have such a patent license."

In other words, Microsoft hasn't backed down from its insistence that its intellectual property isn't free for the taking, an assertion made most clearly in 2007 when Chief Executive Steve Ballmer said Linux and other open-source projects violate 235 Microsoft patents.

"The promise not to sue is only for 'noncommercial' open source, which is a bit meaningless," said Jeremy Allison, a founder of the open-source Samba project that lets Linux servers substitute for Windows file and print servers by emulating the required Microsoft communication protocols.

The Thursday move suggests two forms of patent agreements. First is one in the mold of the controversial Microsoft partnership with Novell from 2006 and various other smaller Linux companies afterward. The second is an agreement directly with customers that use open-source software such as Red Hat's Linux, as Ballmer suggested last October when he said, "People (who) use Red Hat, at least with respect to our intellectual property, in a sense have an obligation to eventually to compensate us."

It's not likely Microsoft opened up its specifications and made its pledges Thursday out of the goodness of its heart. As the open-source movement and its free-software predecessor have matured over more than two decades, Microsoft has found it necessary to make accommodations.

First, the open-source programming philosophy outdid Microsoft in an area where it previously had been a leader, fostering communities of developers. Second, there have been years of antitrust litigation, first by the United States and more recently from the European Union, that called on Microsoft to share. The third, and perhaps strongest reason, is that open-source software has become a powerful force in the software industry and customer sites--and even at Yahoo, the Internet company Microsoft is trying to acquire for $44.6 billion in part because of its engineering expertise.

The Samba case illustrates the pressures on Microsoft. In December, Samba announced a complicated third-party arrangement that in effect gives it access to Microsoft's communication protocols, a move that came shortly after the European Union required Microsoft to share interoperability information with open-source projects.

Sharing protocols, while it makes it easier for others to interoperate or clone Microsoft products, also could serve to entrench Microsoft's products by making its in-house protocols into de facto industry standards.

Take OOXML, the office document format Microsoft is trying to standardize as an alternative to the ODF that was spawned from the OpenOffice.org software, an open-source rival to Microsoft Office. "The approval of OOXML, for instance, is seen as crucial by Microsoft as a means of maintaining its Office market share," The 451 Group, an analyst firm, said in a statement Thursday.

And as ZDnet blogger Mary Jo Foley noted, the ISO standards group is meeting in Geneva next week to vote on whether OOXML should be awarded official standard status.

Eastman Kodak will receive royalties from Matsushita Electric Industrial through a settlement of a July patent infringement suit, according to a regulatory filing Thursday.

On December 21, Kodak settled suits with Matsushita, better known in the United States by its Panasonic brand, and with a Matsushita subsidiary, Victor Company of Japan (JVC).

Under terms of the settlements, the companies signed cross-licensing agreements granting each company access to the others' patents, Kodak said in the filing with the U.S. Securities and Exchange Commission. Both settlements are "royalty-bearing to Kodak," the company said.

(Credit: Samba)

A complicated third-party arrangement means that the open-source Samba project will be able to make use of proprietary documents describing Microsoft file-sharing software.

Samba, governed by the General Public License (GPL), lets Unix or Linux servers behave like Windows machines used to share files over a network and control networked printers. But the effort has been difficult: Microsoft doesn't go out of its way to share the details of the protocols; patent infringement concerns also have appeared more than once.

On Thursday, though, the Samba team announced a deal that gets around the previous barriers. The increasingly influential Software Freedom Law Center, led by open-source legal guru Eben Moglen, established a nonprofit group called the Protocol Freedom Information Foundation. The PFIF is paying Microsoft 10,000 euros (about $14,400) for documentation that will be shared under a nondisclosure agreement (click here for a PDF of the NDA or read this Samba explanation for further details) with Samba programmers.

Those programmers are free to write code based on the documentation, though not to share the documentation itself, Samba said. And Microsoft must keep the documentation up to date.

The move is interesting for a number of reasons. For one thing, it's a concrete outcome after years of antitrust efforts that had left many Microsoft foes bitter. For another, the technological repercussions very likely will strengthen a direct Microsoft competitor. And perhaps most interesting, it illustrates the growing legal sophistication and clout of the free and open-source programming movement.

Samba leader Jeremy Allison is champing at the bit with the technical possibilities the agreement opens up for the software project.

"If you'll pardon me breaking into song: it's beginning to look a lot like Christmas," Allison said.

Among the features he expects will be added as a result of the agreement are full support for Microsoft's Active Directory, encrypted files, a better search interface, and support for "SMB2," a new version of Microsoft's Server Message Block protocol after which the Samba project took its name. SMB2 is built into Longhorn Server, which when released in 2008 will be called Windows Server 2008.

I asked Allison whether open-source code in fact reveals information in the proprietary documentation. "It does to those who can understand it. It's not revealing the actual documents, though, and that's the main thing," he said.

Why was Microsoft so willing to share the specifications now? In short, the antitrust case the European Union brought against Microsoft required the company to release interoperability information. Most recently, Microsoft agreed to share the information for a one-time fee rather than requiring a share of revenues from products--a pricing scheme that doesn't jibe well with open-source methods.

The roundabout way of getting proprietary information to an open-source project may sound abstruse, but it's actually relatively common. Companies provide information to open-source programmers under nondisclosure terms, knowing full well the coders will release open-source code that reveals at least in part how hardware works.

Indeed, one purpose of the Linux Foundation is to make sure there's an organization in place to handle NDAs. Novell programmer Greg Kroah-Hartman now runs a program that regularly does so in order to write software drivers that let Linux computers communicate with various hardware devices.

One specific case in point: Red Hat programmer David Miller has worked with Sun Microsystems to bring Linux support to its Sparc processors. "I signed an NDA with Sun that got me the documentation and allowed me to write GPL code using it, but I'm not allowed to pass on those documents to others."

What's notable about the Samba case is that it involves Microsoft, which at times has been outspoken about free and open-source software. Although the company tried to tone down earlier rhetoric that called the programming movement "un-American" and a "cancer," the company resumed the offensive this year, declaring in May that Linux and other open-source projects infringe 235 Microsoft patents. Microsoft didn't say which specific patents it believed were infringed.

The Samba agreement also specifically addresses the patent issue. Microsoft is required to make a current list of patents involved in the protocols, Samba said, letting programmers work around them.

"The patent list provides us with a bounded set of work needed to ensure non-infringement of Samba and other free-software projects that implement the protocols documented by Microsoft under this agreement," Samba said Thursday. "Any patents outside this list cannot be asserted by Microsoft against any implementation developed using the supplied documentation."

For a blow-by-blow history of Samba's attempts to get access to the Microsoft documentation, another Samba leader, Andrew Tridgell, has posted a long account at the Samba Web site.

A month ago, Network Appliance sued Sun Microsystems, alleging the server and software company's ZFS file system infringes seven NetApp patents. Sun on Thursday fired back with a suit that claims NetApp violates 12 of Sun's.

Sun's suit also argues that NetApp's patents are invalid and that it doesn't infringe them anyway. And it requests an injunction prohibiting the company from selling any products that infringe Sun's patents.

Patent suits are often expensive and acrimonious proceedings, and they're particularly unpleasant when fought among Silicon Valley rivals who often share mutual customers and sometimes even are business partners. The Sun-NetApp case is particularly interesting in that it's being fought in the blogosphere as well as U.S. District Court's Eastern Texas district: Sun Chief Executive Jonathan Schwartz and NetApp founder Dave Hitz have been taking potshots at each other and expressing disappointment at the rival's needlessly litigious behavior as the case proceeded.

For a reporter such as myself who's heard "no comment" in response to countless queries about legal actions, these blogs add significant flavor to otherwise dry court proceedings. But being vocal about legal actions also can backfire, as in the case of The SCO Group's CEO, Darl McBride, whose very public accusations went over poorly with judges overseeing his case.

Sun legal counsel Mike Dillon on Thursday added his take for the countersuit, painting NetApp as a company that can't deal with the shift to open-source software. "But, it's clear that NetApp views the open source world much differently than Sun. We've made the transition--they can't contemplate it," Dillon said.

Hitz, meanwhile, posted his own response to the suit, publishing a note he sent to NetApp employees that assures them they still have jobs and assuring customers they still can buy NetApp products.

"Even for the RIM/Blackberry case, which is the closest I can think of to a big company being shut down, it took years and years to get to that point, and was still averted in the end. I think it's safe to say the odds of Sun fulfilling their threat are near zero," Hitz said.

One thing Hitz said he finds "frustrating is the way Jonathan wraps himself in the open-source flag. We aren't against open source, and we aren't even against non-commercial use of ZFS. The number one rule of open source is that you should only give away stuff that belongs to you. That is what this suit is about, and everything else is just fluff."

A day after Sun Microsystems Chief Executive Jonathan Schwartz said his company will sue to have Network Appliances' file-server products removed from the market, NetApp's founder Dave Hitz brushed off the threat and took issue with Schwartz's open-source reasoning.

"This sounds like Sun's broad threats when they sued Azul, but in the end, Sun didn't put Azul out of business or even stop them from shipping products. I'm quite confident that two years from now--or however long it takes this suit to reach court--NetApp will be doing just fine," Hitz said in a blog posting Thursday.

In a September lawsuit, NetApp accused Sun of infringing seven patents. Specifically, NetApp believes Sun's ZFS file system infringes on patents related to NetApp's rival WAFL software. Sun has released ZFS as open-source software, and Apple is among those using it.

According to Schwartz, NetApp wants Sun to "retract (ZFS) from the free software community," but he said that's impossible. Hitz sees things differently.

"Jonathan seems to be arguing that once something has been put into open source, it is beyond the law," Hitz said. "Jonathan's claim that 'you cannot unfree what is free' sets a very dangerous precedent. It says that you can steal anything, as long as you open source it afterwards. That can't be right!...One of the most important rules of open source is that you must only give away things that belong to you."

Updated at 2:31 p.m. PDT: Sun Microsystems plans to countersue Network Appliance later this week, Chief Executive Jonathan Schwartz said Wednesday, a suit that will include a request to remove the company's products from the market.

Schwartz said on his blog that he has "no interest whatever in suing them" and therefore "reached out" to Chief Executive Dan Warmenhoven. But, he said, NetApp's demands--that Sun "retract" its ZFS file system from open-source community and restrict its use to computing and not storage devices--can't be met.

Consequently, "Later this week, we're going to use our defensive portfolio to respond to Network Appliance, filing a comprehensive reciprocal suit. As a part of this suit, we are requesting a permanent injunction to remove all of their filer products from the marketplace, and are examining the original NFS license--on which Network Appliance was started," Schwartz said.

NetApp wasn't immediately available for comment. But don't be surprised if there is some: founder Dave Hitz has been outspoken about the lawsuit on his blog.

Sun spokeswoman Dana Lengkeek said Sun has a Friday deadline to respond to NetApp's suit, which accused Sun of violating seven patents.

Since ZFS is part of Sun's open-source Solaris work, there are open-source ramifications to the case. And Schwartz is trying to use the connection to curry favor with the vocal and increasingly influential collaborative programming movement.

"We will be going after sizable monetary damages. And I am committing that Sun will donate half of those proceeds to the leading institutions promoting free software and patent reform," Schwartz said, pointing specifically to the Software Freedom Law Center and the Peer to Patent Project. "Whatever's left over will fuel a venture fund fostering innovation in the free software community."

Open-source software may be copied, modified and redistributed freely. One company interested in ZFS is Apple, which is including ZFS as an option in Leopard, the Mac OS X 10.5 update due Friday.

Apple need not worry about NetApp, Schwartz said.

"Apple is including ZFS in their upcoming Leopard OS X release. This is happening without any payment to Sun," Schwartz said. "Under the license, we've waived all rights to sue them for any of the patents or copyright associated with ZFS. We've let Apple know we will use our patent portfolio to protect them and the Mac ZFS community from NetApp--with or without a commercial relationship to Sun."

Suddenly all those discussions about the discordant ways of open-source software and patent law have become a lot less abstract.

Companies called IP Innovation and Technology Licensing Corporation sued Red Hat and Novell on Tuesday, claiming the top Linux sellers' software products infringe U.S. patent 5,072,412, "User interface with multiple workspaces for sharing display system objects," and two identically named patents. The suit (PDF), in the U.S. District Court in Eastern Texas, seeks damages and a permanent injunction prohibiting any further infringement.

Red Hat spokeswoman Leigh Day said Friday only that the company is aware of the suit and "will review the situation." Novell spokesman Bruce Lowry said the company is assessing the suit and that "it's too early to tell, tactically, whether it makes sense for us and Red Hat to join forces."

But as with another recent case, the Software Freedom Law Center's copyright infringement suit against Monsoon Multimedia, which takes the offensive in enforcing free and open-source programming interests, the ripples will likely travel well beyond this particular case.

"Although I and many attorneys in the open-source industry have long been concerned about patent challenges to open-source companies, this case appears to be the first by patent trolls against an open-source licensor," said Mark Radcliffe, a DLA Piper intellectual property attorney who has long been involved in open-source legal matters, on his blog. IP Innovation is a subsidiary of Acacia Technologies, according to a company filing with the Securities and Exchange Commission.

Acacia has licensed patents to a wide variety of companies, including Dell, Hewlett-Packard, Intel, Samsung, Exxon, J.C. Penney, the Walt Disney Co., Wendy's, Revlon, Orbitz, General Electric and 3M, according to the company. It had revenue of $46.8 million from the third quarter of 2006 through the second quarter of 2007.

Buying a license to a patent is often the quickest way to make such lawsuits go away, and companies often do so because it can be cheaper than a multimillion-dollar, drawn-out suit that occupies many employees' hours. But licensing a patent isn't such a simple matter when it comes to open-source software.

For example, a company that distributes a program such as the Linux kernel under the General Public License (GPL) isn't permitted to do so if it doesn't grant all recipients of the software the rights it has.

And in general, the patent system is somewhat at odds with open-source software in general. The former grants a limited-term monopoly to an inventor, but the latter involves unencumbered sharing of technology.

One obvious aggressor is Microsoft. Chief Executive Steve Ballmer declared in May that Linux and other open-source projects infringe 235 Microsoft patents. And according to a BetaNews transcript of another speech this week in England, Ballmer said more recently, "People (who) use Red Hat, at least with respect to our intellectual property, in a sense have an obligation to eventually to compensate us."

Red Hat offers a warranty in which it promises to replace any code found to infringe others' intellectual property, and both it and Novell offer customers legal protections. They have deeper pockets than most open-source companies, but they are by no means the only distributors of Linux-based products.

Groklaw, a site that monitors open-source legal actions and helped bring the new suit to light, predicted the suit would be a fitting sequel to The SCO Group's long-running but faltering Linux-related cases against IBM, Novell and others. "I think SCO II has arrived," said Groklaw founder Pamela Jones in a posting Thursday evening.

Jones pounced on two Microsoft connections, both also on Acacia's Web site: Brad Brunell joined the company this month as senior vice president after 16 years at Microsoft, including general manager of intellectual property licensing, and Jonathan Taub, who joined in July as vice president after leaving Microsoft as director of strategic alliances for the company's mobile and embedded devices division.