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.