Microsoft's dilemma: The importance of the downstream

The most critical element that emerged from Brad Smith's OSBC keynote is the importance of protecting the downstream. By "downstream" I mean those users who may come into contact with open-source software beyond the immediate licensee. One of the benefits of open source is that once released under a certain license, the code endures under that license.

Patents foul the water. As emerged from the question-and-answer period, while Microsoft may prefer to deal with other "cathedrals" (e.g., its agreements with Novell, LG, etc.), in open source you simply can't avoid the bazaar (e.g., downstream developers who may come into contact with the code). This is why at Microsoft's Mix conference, Mozilla's Mike Schroepfer took issue with Miguel de Icaza's suggestion that his Moonlight code is protected from patent claims:

During the discussion, de Icaza explained that anyone who downloaded Moonlight from Novell was protected by the company's licensing of Silverlight codecs from Microsoft through the company's own cross-licensing agreement. Mike Schroepfer, vice president of engineering from Mozilla, then raised the question that if he downloads and then distributes the code for Moonlight, would he get the patent protection?

"There is a patent covenant for anyone that downloads (Moonlight) from Novell," answered de Icaza, who then acknowledged that "as to extending the patents to third parties--you have to talk to Microsoft."

This answer led Schroepfer to point out the inconsistency between having products that are called open source but are "patent-encumbered." "There are a lot of complicated IP patent-licensing restrictions," he said. "Even if you have open-source (products), you can't get the end result you're interested in."

Bingo. I don't blame Miguel for this, and I don't even blame Microsoft for it. It's a difficult issue.

James Bottomley, maintainer of the SCSI subsystem on the Linux kernel, repeatedly pressed Brad on this element of Microsoft's open-source strategy, and Brad/Microsoft lacked a good answer. I'm not sure there is one, other than Microsoft capitulating, which Brad indicated is not an answer.

To work within the open-source community, which Microsoft will absolutely have to do if it wants to remain relevant in the 21st century of the Web, Microsoft must stop polluting the downstream with patent encumbrances. Period. Full stop.

Microsoft is not alone in being threatened by open source. Everyone is to a greater or lesser extent, including open-source companies. MySQL's biggest competitor is not Oracle. It is fee-free use of MySQL. Ditto for other open-source companies.

But Microsoft has acted alone in taking up an aggressive stance against open source. Why? Microsoft has more to gain from open source than it has to lose. As a platform company, there is no reason that it can't be the preferred home for open-source projects. It won't take up that mantle, however, until it stops polluting the downstream, which it implicitly does with each patent-licensing deal that it makes.

I think there are good reasons for Microsoft taking a cagey position on patents, reasons that have nothing to do with open-source developers and have everything to do with billion-dollar street brawls with other cathedrals.

Even so, Microsoft can't live with the cathedrals anymore without protecting the bazaar. Open source doesn't work that way. It's simply not possible.