Is Microsoft Hijacking Open Source?

Like many, I was pretty shocked by the recent Microsoft-EU deal to settle the long-running investigation into interoperability issues. This was not so much because of the way Microsoft has used every kind of delaying tactic it could before eventually agreeing (for the nth time) to try harder in the future. My real dismay was provoked by the gap between appearance and reality – a chasm that I think bodes ill for the future of open source.

At first – again, like many others - I was lulled into a sense of false security by the declarations of Neelie Kroes, the EU's Commissioner for Competition:

I told Microsoft that it should give legal security to programmers who help to develop open source software and confine its patent disputes to commercial software distributors and end users. Microsoft will now pledge to do so.

What impressed me particularly was the fact that open source was not only mentioned, but singled out as one of the key issues that the EU felt had to be addressed. That seemed to show an awareness of open source, and of its importance for the future of computing, that was surprising coming from such high-level – and usually tech-averse – politicians.

It was only when I read the FFII's press release offering a very different perspective that I began to worry:

Neelie Kroes European Commissioner for Competition and Microsoft agreed that the royalties payable for the interoperability information will be 10,000 Euros, and that Microsoft can use its EPO software patents to charge 0.4 percent of all the sales of its competitors. The FFII says that these conditions effectively exclude open source competitors and add costs for all who wish to communicate with Microsoft products. This is a new transaction cost for all society, its the opposite of an open Internet.

Following this up, the FFII pointed me to a question in the EU's FAQ on the agreement:

Can open source software developers implement patented interoperability information?

Open source software developers use various “open source” licences to distribute their software. Some of these licences are incompatible with the patent licence offered by Microsoft. It is up to the commercial open source distributors to ensure that their software products do not infringe upon Microsoft’s patents. If they consider that one or more of Microsoft’s patents would apply to their software product, they can either design around these patents, challenge their validity or take a patent licence from Microsoft.

This, of course, was rather different from what Kroes had said. about giving “legal security to programmers who help to develop open source software and confine its patent disputes to commercial software distributors.”

So what is going on?

One issue seems to hinge on the phrase “Open source software developers use various “open source” licences to distribute their software. Some of these licences are incompatible with the patent licence offered by Microsoft.” Perhaps the EU assumed that this is not a problem: provided some open source licences work, so the thinking went, it will always be possible to offer an open source alternative. Of course, what this overlooks are the details: the fact that one of those licences that are “incompatible” with Microsoft's licence is the GNU GPLv3 – which also just happens to be the licence used by Samba, the only project that really cares about Microsoft's protocols.

The Samba crew has decided to get around this by taking the option of making a one-time payment of 10,000 euros for details of the protocols. That may allow Samba to get the information it needs, but there's still a big problem. As Microsoft's Patent Pledge for Open Source Projects makes absolutely clear:

Microsoft irrevocably promises not to assert any Microsoft Necessary Claims against you as an open source software developer ("You") for making, using, importing or distributing any implementation of a Covered Specification ("Covered Implementation"), subject to the following.


An "open source project" is a software development project the resulting source code of which is freely distributed, modified or copied pursuant to an open source license, and is not commercially distributed by its participants. If You engage in the commercial distribution or importation of software derived from an open source project or if You make or use such software outside the scope of creating such software code, You do not benefit from this promise for such distribution or for these other activities.

Samba may be fine, then, but commercial distributions like Red Hat, Ubuntu and the rest most certainly are not.

What really worries me is what looks like an emerging pattern in Microsoft's behaviour. The EU agreement is perhaps the first fruit of this, but I predict it will not be the last. What is happening is that Microsoft is effectively being allowed to define the meaning of “open source” as it wishes, not as everyone else understands the term. For example, in the pledge quoted above, an open source project is “not commercially distributed by its participants” - and this is a distinction also made by Kroes and her FAQ.

In this context, the recent approval of two Microsoft licences as officially “open source” is only going to make things worse. Although I felt this was the right decision – to have ad hoc rules just because it's Microsoft would damage the open source process - I also believe it's going to prove a problem. After all, it means that Microsoft can rightfully point to its OSI-approved licences as proof that open source and Microsoft no longer stand in opposition to each other. This alone is likely to perplex people who thought they understood what open source meant.

Nor is this the only way in which Microsoft is carefully draining away the original power of openness. As many have pointed out, Microsoft's attempt to have its OOXML document format declared an ISO standard will devalue the whole point of having open standards. Moreover, the way in which Microsoft has gone about this – by encouraging friendly parties to join the ISO voting bodies – has damaged the open standards process well beyond this particular case. As Andy Updegrove points out, we are already seeing the knock-on consequences of this, as real open standards are stuck in a kind of administrative limbo thanks to Microsoft's corporate hacking of the ISO machinery.

What we are seeing here are a series of major assaults on different but related fields – open source, open file formats and open standards. All are directed to one goal: the hijacking of the very concept of openness. If we are to stop this inner corrosion, we must point out whenever we see wilful misuse and lazy misunderstandings of the term, and we must strive to make the real state of affairs quite clear. If we don't, then core concepts like “open source” will be massaged, kneaded and pummelled into uselessness.

Glyn Moody writes about openness at opendotdotdot.



Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.

open source IS weak

Canuckistan's picture

Stallman might be a pain in the ass...but the real reason he's a pain in the ass is that more and more he's being proven to be right.

I've stopped using the term "open source". When the open source definition is so weak that a couple of Microsoft licenses can be determined to be "open source" then this term has lost any meaning at all.

I proudly use the term "free software" now and wave the flag of software freedom. I'm even starting to call it "GNU/Linux"


Anonymous's picture

As I see it "open source" means software legally developed for Linux .MS can't say what is open source is and what isn't because MS is not Linux.MS cannot have exclusivity of interoperability because the Internet is not MS.The internet was not created by MS ,why should MS dictate what has legal grounds concerning "open source"? I think that MS is trying to monopolize the Internet which ultimately is "open source".

matrix and zion peace or

Anonymous's picture

matrix and zion

peace or extinction

RE: Is Microsoft Hijacking Open Source?

Observer's picture

Little by little so as not to be noticed. A big jump is too much for the public to take all at once. Your children will not know open source as we have for the past 25 years. MS may have redefined it and locked it up with patents very well by then. They are crafty and not to be trusted. The fox is in the hen-house!

Have you checked out how much Leopard has stolen from Linux?

Don Flowers's picture

The entire Mac OS is now based on open source FreeBSD. The front end of the latest version of the Mac, Leopard, also seems to be stealing the best of the open source world 3d graphics and you guys are worried about a web standard from Microsoft? Has Apple ever paid the open source world in any form for its blatant OS theft? Will they get users to move from Apple to the open source world or will they hang onto those users forever? Is it a good move to allow Apple to pick and choose the elements from the open source world they want to pick and choose with no return at all?

Is the open source banner so weak they can't stop Apple from using the desktop cube a direct rip off of open source ideas and probably even code? If Vista had been released with a desktop cube the entire open source world would be in an uproar. Apple has no respect for the open source world and has no projects supported by Apple. The entire Mac OS and quite a bit of the front end is stolen from the open source world. The original Mac front end was a blatant rip-off of X windows back when the Mac was released but they couldn't get sued by the Unix mainframe companies because the approach was a standard and was able to be used by anyone, including Apple.

Microsoft is not your enemy. Apple is your enemy and instead of getting frustrated new users from the Microsoft world they are going to Apple instead. The blatant theft of the linux front ends and other front ends by Apple are legion. Leopard is just the latest rip offs of the open source world. It is time to protest.

Apple complies with the GPL

Anonymous's picture

Apple complies with the GPL and thats all one should care about before on frowning it.
I hate both Apple and Microsoft for the things they do, but I dont agree on this one.
There is a whole bunch of companies making money off of Open Source stuff in the corporate world.
There are so many companies including IBM, Oracle etc selling a version of Apache, and then making money off of supporting it.

Open Source was build on GPL, anyone and everyone is free to use it and make money off of it.
If you dont want anyone to use it, then perhaps you should make a petition to change the GPL rather than b1tch1n about it.

Apple is a corporate predator even worse than Microsoft

Don Flowers's picture

The open source world is here because of old school Unix vendor lock downs and the creation of Linux on the GNU technology was a brilliant back breaker for these old school lock down vendors. Microsoft may be big and everywhere but it is not a vendor lock down practitioner like Apple is. Vendor lock down is the enemy and the only surviving old school vendor is Apple. Even Sun and IBM, the oldest and strongest of the old school vendor lock down companies have been humbled by the Penguin. Apple stole all its ideas about how an OS should behave from Unix vendors and unix practices.

Windows was never designed to be a home computer just a workstation. That workstation role it does very well. It makes no sense to use Unix when you have Windows so the other prong in the two pronged attack on the old school unix vendors was a free unix workalike and a workstation OS that simply worked and worked well as a workstation. When Windows moved to the NT core it created a workstation that was also a server which means there was no need for unix workstations ever again. But, because of the market that Microsoft has, it makes no hardware and does not lock down hardware at all, it is the most used workstation out there and the cheapest, when comparing it to mainframe services it is the cheapest OS out there. Linux, though, has created a very similar set of tools, though, by doing the same thing, bringing server technology to the desktop.

This was done so well that Apple, which has never had a decent OS core, ever, just took the FreeBSD core as its own and immediately benefitted from all the work done in the Linux world. FreeBSD is not Linux and in my own less than humble opinion, is not as good as Linux is but Linux has a whole lot more developers working on it than FreeBSD does. Plus, BSD is old school unix world and quite ancient in its design and practices.

The problem for me is that all the latest advances in Leopard are there because of advances in the open source world. Jobs was showing off the reflections of a desktop item in the power bar, another stolen technology, that was made possible by the advances in OpenGL and not a single effect they have would be there if not for the advances in OpenGL and X-Windows in general but Jobs claimed it as Apple's work and improvement when in fact it was from the open source world. Why not mention the source of the ideas? Well, if the Apple users ever found out that they are paying twice as much for the Macs as commodity desktops running Linux I suspect they would stage a palace revolt but the average Mac user is stuck in the Mac image as somehow being innovative and creative when in fact the hard work has been done by the open source community for Apple and all these ideas can be implemented, at will, by most Linux users who have paid nothing for the OS or the special effects.

I would be careful before

Rob Gibson's picture

I would be careful before making blanket statements about anyone or anything.

Apple has contributed to the open-source community, just not a great deal to the GPL-centralized factions.

The Darwin kernel has been improved as a result of the involvement from Apple. As far as I remember, Apple contributed code back to the KHTML folks from using Konqueror's rendering engine. Also, Apple owns Easy Software, the folks who write and provide (via GPL) the CUPS system.

So, Apple might have leveraged the idea of a spinning cube from the folks who write Compiz and Beryl... If they used code, they must abide by the licenses. However, have the Compiz or Beryl developers filed for a patent on the process? Have they invested in some legal protection? If they have not, they are simply out of luck. Unless copyrighted or patented, intellectual property is available to those who see it. Like trademarks, UI designs would need to be fought at every turn to retain protection from external entities. Besides, the newest version of Ubuntu has an effect that looks awfully familiar to the iPhone album finder/cover flip design.

While I agree that Apple has taken many steps which have hindered their overall support of open-source, there are far less concerns with Apple at the moment than Microsoft.

Just to make sure it is

Anonymous's picture

Just to make sure it is straight: Samba Team hasn't decided anything yet. There is no official message/announcement from them and Sys-Con article is only talking about that on its own. SFC lawyers who represent Samba Team are still working on the analysis.

Well, they are already trying to subvert OSI's decision...

Rui Miguel Silva Seabra's picture

In Portugal, they were caught red-handed blanketly saying: "OSI Approves Shared Source".

Blam, just like that... in the title. After the big hussle that caused, the proeminent Microsoft Portugual guy corrected the title to "Two licenses from Shared Source approved by OSI".

Nonetheless, I have ZERO doubt they are going to keep saying to governments: see, Shared Source is good, OSI even approved two of it's licenses...

Some with even less scrupulous attitude will no doubt blatantly say OSI approved Shared Source.

If there was any doubt what they wanted to get, I have none anymore.


Scott Dunn's picture

Most of the commentary I see concerns getting others to move, change or take action. In particular, MS (that's Microsft, not Muscular Sclerosis). Since MS isn't going to change their attitude toward Free Software, people who support it are going to have to change.

When we change our behavior, there is no alternative for the other parties that interact with us: they must change their response. To put it differently, whenever I'm angry at someone, I ask myself what I might say to that person. If that statement requires them to change, then I change what I'm going to say until it doesn't.

That is our power, for each of us. Pointing out what MS does is useful information to share. Pointing out what we can do to change the situation for the better is power.

The more we understand our power first before trying to read the mind of MS, the more effective we will be in reaching our goals.

So what can we do about it that doesn't require MS to change?

Some thoughts...

Glyn Moody's picture

...on at least part of the problem will be coming in the next column.

You miss the most important factor in this discussion

Anonymous's picture

Microsoft is making two sets of information available. One is for the interoperability needed by SAMBA, etc. That's the one that costs 10,000 up front. The other contains methods covered by MS patents. That's the one with the per-dollar gross revenue charge. By forcing MS to separate it out this way, the EU commission is forcing MS to reveal it's patent hand, and give out a patent-free list of technology, that will be safe to implement.


Glyn Moody's picture

I'm not sure that's really clear. I think we need some lawyers (paging Eben) to tell us what exactly all these different options mean.


Alan's picture

Actually I believe if they do this they can no longer distribute SAMBA full stop.

They went GPLv3, so if Microsoft makes them a patent promise they have to extend it to everyone else commercial or otherwise (or cease redistribution).

I doubt thats what the SAMBA team plans, but I'm sure Microsoft like the idea


Interesting thought

Glyn Moody's picture

Maybe it doesn't count as a "promise"? (But IANAL.)

Get the Facts

Roy Schestowitz's picture

Excellent analysis, Glyn.

A lot of it repeats what I've been repeating for months. The Linux deals, the OSI, the ISO, and the antitrust ruling are all related to one another. The GPLv3 helps here, to an extent. Hopefully Linux Journal will bring these facts to a broader audience and earn this problem the attention it truly deserves.


Glyn Moody's picture

It's interesting how everything ties together. It's almost as if somebody had been planning it....

"Free(dom) Software" and not just "Open Source"

SubSonica's picture

Another symptom of what you say is that nowadays I see the term "Open Source" everywhere in the mainstream technological press in teh internet, whereas almost nobody mentions "Free(dom) Software".
Maybe the term "Open Source" has already been officially endorsed by Microsoft to be "safe" to use as a part of its assimilation strategy:the Borg are back, [while at the same time mainstream media journalists keep shunning Free Software and RMS, and all of us advocates of the "4 freedoms" as "fanatics"] as otherwise, the media would have to bear the wrath of one of their main advertisers....

Labels for software

Ted Swart's picture

We would do well to speak (in English) more often and more consistently about liberated software -- which does not have to be free in a monetary sense.


Glyn Moody's picture

RMS would doubtless see the situation I describe as confirmation that his insistence on the description "free software" is necessary.

You are aware that there are

Anonymous's picture

You are aware that there are no software patents in the EU?

More precisely the legislator says they aren't legal.
The patent office grants them anyway.
And judges quickly void them whenever they turn up in court.

OK, so MS patented stuff

JS's picture

OK, so MS patented stuff can't be used to create commercial software. But how does one define "commercial"? If a company offers the software for free but sells support and services, would it still be considered commercial?

Definitely still commercial.

Anonymous's picture

Definitely still commercial. Not charging for the software license but for all other services is simply a different arrangement but still very commercial.

Also - everyone is allowed to use free software (under the terms of its license) and whenever the software is used by a commercial organization I would say it is a piece of commercial software ...

Er, yes...

Glyn Moody's picture

...and doesn't that make all this far worse?

(BTW my next column will be looking at this area - again....)