The Microsoft penalty that isn't

Open Source Initiative co-founder Bruce Perens writes that a proposed antitrust settlement contains a loophole Microsoft will use to escape challenge from its only viable competitor.

4 min read
In its antitrust settlement with the Justice Department and nine states, Microsoft promised to publish technology that would allow competing products to interoperate with Windows. But Microsoft has sidestepped the penalty by crafting a technology license that excludes the company's only viable competitor.

Linux, which was described by Windows Division Vice President Brian Valentine as the long-term threat against Microsoft's core business, is banned from interoperating with its common Internet file system, otherwise known as Windows File and Printer Sharing.

The Microsoft license specifically excludes software under the General Public License, commonly known as the GPL. The GPL is the software license used by Linux and by SAMBA, a popular open-source program that allows non-Microsoft systems to share files and printers with Windows.

Microsoft has also banned software under the Lesser General Public License, or LGPL. That license is used by the Mozilla Web browser, the GNOME graphical desktop, and many of the software libraries shipped with Linux. The GPL and LGPL are the most popular licenses used for open-source software, and cover tens of thousands of free programs.

A second Microsoft license on extensions used in Windows 2000 and Windows XP will require royalty payments, excluding all software produced by the open-source developer community. Because Microsoft has patented features of the file-sharing protocol, open-source developers who implement the protocol could be sued for infringement.

Microsoft is likely to use this same license on future "standards," embedding patented features in the standards and excluding free software like Linux from use of the patents. While patented features in file sharing would handicap Linux from being able to exchange files over an office LAN (local area network), similar future efforts could ban open-source tools like OpenOffice and AbiWord from operating with documents created using Microsoft Office, and Web browsers like Mozilla from viewing Web sites produced with Microsoft software.

Although Microsoft's compromise with the U.S. Department of Justice is crafted to seem that a competitor could enter, it still leaves Microsoft owning the whole pie.
It's the share-and-share-alike provision of the GPL that Microsoft can't accept--the requirement that modified versions of software under the license be available for anyone to further distribute and modify. But this is the aspect of the license that made Linux a threat to Microsoft while even the mighty IBM could not dent Microsoft's monopoly with its OS/2 operating system.

The GPL, brainchild of MacArthur "genius" grant recipient Richard Stallman and his GNU Project, creates a fair partnership among many thousands of independent software developers that is difficult for Microsoft to swallow. Microsoft previously responded by influencing government and universities to choose weaker OS licenses that lack the share-and-share-alike provision.

Because Microsoft can make proprietary and patented enhancements to software under the weaker licenses, it can apply its embrace-and-enhance strategy: Microsoft introduces incompatibility into the Microsoft version of the software, and forces the public version of the software out of the market because it won't interoperate with the Windows version. Only a vendor that dominates the market could use such a strategy to maintain its monopoly. The GPL-licensed Linux system is the only one that has been able to make a dent in that monopoly.

Microsoft executives justify their position with the mantra, "We are for strong intellectual-property protection." But only when it's to Microsoft's advantage; otherwise, Microsoft wouldn't be pressuring others to weaken their open-source licensing. Even during the penalty phase of their antitrust prosecution, the company still can't settle for a piece of the software industry pie. Although Microsoft's compromise with the U.S. Department of Justice is crafted to make it seem that a competitor could enter, it still leaves Microsoft owning the whole pie.

This situation also illustrates the dichotomy of software patents versus copyright. Copyright laws protect your rights to the software that you've created. Even the OS advocates use copyright law to enforce their share-and-share-alike provisions.

To foster open-source development, we need to provide developers with a safe harbor from software patent prosecution.
In contrast, software patents create a legal monopoly that allows the holder to prevent someone else from creating and distributing their own software. If software patents were awarded justly, they might not be quite so bad. But according to patent expert Greg Aharonian, 95 percent of software patent claims are not inventions at all, and should never have been awarded. Blame the U.S. patent office, which rewards its examiners for awarding patents, not denying them, and gives them only a few hours to examine each application.

When an open-source developer is prosecuted under an invalid patent claim, can he prove that the patent is invalid or does not apply? The legal fees for a patent defense often exceed a million dollars. The little open-source developer will be forced to settle with the big corporation, regardless of the merits of the case. To foster open-source development, we need to provide developers with a safe harbor from software patent prosecution.

What should you do if you aren't happy about Microsoft escaping an antitrust penalty? Don't be passive about it. Since Microsoft hates the GPL so much, give them more of it to contend with: Deploy systems like GNU/Linux as Web servers and other infrastructure, and consider Mozilla, OpenOffice and Evolution for the desktop. Look around for software projects that you can place under the GPL: internal tools, research work, products that you built and then didn't sell--and get your employer to release them.

But most importantly, let the U.S. Department of Justice and the nine U.S. states that want to settle with Microsoft know that you won't tolerate a sham. The remedies in the antitrust case must not exclude Microsoft's only real competitor.