I've watched the emerging deal between the EU and Microsoft over the last weeks with increasing skepticism. From the moment the ECJ decided that Microsoft was indeed guilty of abusing its dominant position, it seemed clear that the vendor was negotiating its way through the wet paper bag that the EU - indeed the global - anti-trust policy has become.
The EU Commission steps down in 2009, and any appeal would have taken three years at least, damning Kroes and her department to eternal infamy as the anti-trust team who could not get Microsoft to back down.
Now Kroes can retire with glory, and Microsoft has to start behaving. But as the Las Vegas saying goes, every game has a patsy, and if you don't know who the patsy is, chances are it's you.
Microsoft pays the EU its fine, plus additional costs. It's perhaps a month or two of net profit for the vendor. The EU gets its paper victory. And what about open source?
Let's understand one thing. Microsoft has decided to redefine itself as a friend of open source. It has asked for, and gotten, two OSI-approved licenses. These are short and sweet and cover the use, not the distribution, of Microsoft's source code. They are not compatible with the GPL, indeed they are designed to give the appearance of open source without the substance of free software. I call this "franchiseware", because it's open source you can only use if you are part of Microsoft's global franchise.
So when Microsoft assures the EU that it will be nice to open source, we can understand this to mean, be nice to its franchiseware.
Backing Microsoft's franchiseware are of course its patents. Like a good poker player, Microsoft does not tell us what cards it holds. Probably a large number it does not hold at all, but has given to Intellectual Ventures to sit on. What we do know is that Microsoft's patent promise explicitly excludes GPL'd software.
So, when Kroes said,
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.
Then we see a direct attack on the GPL taking shape. I'd not be surprised if Microsoft actually wrote the above words, which appear in a FAQ answer to the question, "Can open source software developers implement patented interoperability information?"
Let's break down this plausible-sounding answer and see what it really says:
- Microsoft's patent licenses exclude some open source licenses, as we already knew.
- Microsoft is targetting "commercial open source distributors". What does this mean? Firms like Red Hat don't sell software, but support licenses. So, any firm that sells services backed by open source is liable?
- The options, if a firm infringes on Microsoft's patents, are the classic ones - design around, go to court, or take a license.
Design around, when we're talking about interoperability? That is surely pure nonsense. Go to court? Yes, that really makes sense. It took the EU Commission almost a decade to lose against Microsoft. So the chances for an ordinary business seem… low. Take a license? Yes, this is the obvious and desirable - for Microsoft - alternative. Kroes tells us how easy and painless this is:
That percentage royalty has become a nominal, one-off payment of Euro 10,000. This is all that has to be paid by companies that dispute the validity or relevance of Microsoft's patents.
Uhm… so if we don't agree with Microsoft's patents - which are illegal under the EPC, no matter how the EPO twists and invents its ludicrous 'interpretations' - we can pay and shut up?
Let's be clear here. Microsoft only has one real, uncompromising enemy. It's not the EU, and not Apple (in which it has a nice stake), nor IBM (both firms actually agree on the need to turn their patents into a tool to tax the FOSS economy), nor Ebay, Amazon, and not even Google. The real enemy of Microsoft is not a company at all, it's a license, the GPLv3.
GPLv3 is the wooden stake aimed directly at Microsoft's vampire heart. It enables a community of software developers and users who are completely protected from the vicious monopoly practices that have destroyed so many businesses over the years. A huge market that Microsoft cannot penetrate. Zero percent penetration. Worse, this economy is rapidly becoming the world's software factory, Linux is becoming the TCP/IP of operating systems, and it's carrying a tidal wave of free and aggressively competitive software that makes Microsoft's old, slow, expensive products look fat and slow, and stupid.
So, Microsoft has decided to bleed the GPL economy dry by:
- Fragmenting the Linux economy by making patent deals with Linux vendors - TurboLinux, Xandros, and of course, Novell.
- Starting a proxy-troll patent attack on Red Hat, the leading Linux distributor (it has also attacked Novell but that is probably so that it can ride to Novell's defense). Red Hat refused to make a deal, now it will pay the price.
- Splitting the open source community away from the free software community, by re-branding itself as an "open source" firm.
- Announcing that it wants to buy open source firms. Money is the greatest divider ever.
- Bringing open source projects into its franchise, where they will get protection from Microsoft's patents, in return for using Microsoft's open source licenses.
It's a desperate scheme, because it's guaranteed to backfire in the worst possible way, and surely Microsoft cannot be naive enough to think it'll work.
Here is how Microsoft's plan to kill the GPLv3 is going to backfire.
- It's going to bring large numbers of people into the "no software patents" camp. Up to now, it's not been clear to most people just how damaging the EPO's practice of allowing software patents has been. The FFII has been saying for a while, "software patents trump anti-trust" but few have understood, until now.
- It's going to end the license wars. Microsoft have set the stage for a mass migration to, not away from, the GPLv3. Why? Because open source projects that get too close to the beast will shrivel and die like grapes on hot coals.
- It's going to focus the wrath of an entire community against Microsoft. For the last decade or so, Redmond have not really messed with the FOSS world and the FOSS world has mostly ignored Redmond, apart from a lot of taunting and name-calling. Now, that has changed.
The future of open source and free software will look like this: first, Microsoft will pump money into its franchiseware economy and get very little back. Second, IBM will do the same with its own franchiseware economy (the Apache Foundation) and get a lot more back, because IBM actually understand how this works. Last, all remaining projects will move to the GPL, with a few exceptions. And it's that economy, the one based on formal copyleft licenses, and backed by increasing determination to litigate and defend against litigation, that will prevail.
Like every actor that thinks it's conducting the orchestra, Microsoft is as much a puppet of circumstance as any one of us.