May 8th, 2005

Microsoft update.

I spent about an hour on the phone Monday afternoon talking to Jason Matusow about software licensing and patents, thanks to the efforts of Keen Browne to set up the conversation. Jason is the director of Microsoft's Shared Source Initiative.

I had two main concerns:

  • How can we get Microsoft to represent other licenses more accurately?
  • How can we get Microsoft to stop patenting obvious things?
On software licenses, we discussed the business models around different licensing schemes and it seems clear that we agree on a couple of basic things: that using the GPL does not prevent one from creating a company, and that to be commercially successful with a GPL-licensed software product you need a different business model than the direct sales of the software itself. As Jason said, "Microsoft looks at this and says, well, for our business, where our entire business is — we are not a services company — our entire business is predicated on the direct sales of software, this becomes a problematic element."

The current page on the Microsoft Shared Source website that describes the GPL makes some strongly worded claims, such as this:

A faction within the OSS community believes that commercial software is immoral and that nobody should hold IP rights in source code. This faction espouses the use of the GNU General Public License (GPL) to discriminate against all CSD.
(CSD refers to "commercial software development.")

This struck me as somewhat overstated, so I asked Jason: "What about the statement at the beginning that says 'a faction within the open source software community believes that commercial software is immoral'—"

He replied, "Oh, that would be correct. That is a factually correct statement."

I continued, "—'and nobody should hold IP rights in source code.'?"

He said, "That is probably an overstatement. ... The Free Software Foundation's position is that you, in fact, absolutely must have copyright in order to achieve the freedoms that they seek to achieve ... but I believe Stallman's direct quote was that the GPL should be used as a weapon against copyright. ... He has directly called software IP holders immoral."

I suggested that the page should stick to facts and avoid making broad statements about what other people believe, or at least link to the people who are claimed to hold these beliefs so they can respond and clarify their beliefs. Jason seemed pretty receptive to that.

I asked Richard Stallman about the two sentences in the above quote from Microsoft's page. In his reply to me, he made it clear that they were an inaccurate description of the FSF, if that is what they were intended to describe. In particular:

  1. The FSF is not a faction within the OSS community. "We are not against the Open Source movement, but we don't want to be lumped in with them," writes Stallman.

  2. The FSF doesn't condemn commercial software. The page on terminology at says "Free commercial software is a contribution to our community, so we should encourage it."

  3. The FSF rejects the term "IP rights" because it is confusing. Consequently, it doesn't make sense to say the FSF believes "nobody should hold IP rights in source code."

  4. The FSF encourages the use of the GPL, but not in order to "discriminate against all CSD," since it is possible for software to be both commercial and free.

The Shared Source page also describes a clause of the GPL as "viral." Regarding that, Jason said, "The term 'viral'.... It's a term that has been around.... It was certainly not our term. That said, it is a pejorative, and something we should step away from. We will be using the term 'reciprocal' in order to be more precise." That sounded like a good step to me.

"Internally we are working to make sure that we extend the understanding of the license throughout the organization," said Jason. "We do need to improve how we speak about the license." Apparently there has been another complaint from someone at the University of Maastricht about the descriptions of the GPL on the Shared Source website. Jason told me that "there was an entire document about the GPL that was up there that has now been pulled."

I asked him about what Bill Gates said, but of course he can't change what Gates says. No one can, except Bill himself. Jason continued, "I think what is the most useful is that we get our message on point and that the document that we place up on the Shared Source website where people come to read about this be as accurate as possible; I think that is a responsiblity that we have and we need to take very seriously. So, I think the first step is to get to that point and then the next step is to make sure that those positions are uniformly educated throughout Microsoft. Because it's not just Bill that matters; it's folks all the way through the field organization and into our partner organizations. When they talk about these things, they need to be accurate, so I can respect that a great deal. And it doesn't happen overnight; it does take work."

I asked Jason how long it would take to update the Shared Source site. "That whole section of the site is being rewritten," he said, and it should be updated in about "three to four weeks."

I suggested adding a note of clarification to Gates's speech, but he couldn't commit to that. He said he'd try asking about it, though getting the Shared Source site updated was a higher priority.

Regarding patents, Jason explained that a few weeks ago, "Microsoft's general counsel in Washington, D.C. ... called for patent reform, in that we would like to see the overall quality of patents go up and the number of issuances potentially come down. We think the patents themselves should be good patents." Keen Browne later sent me a link to the event; here's the transcript of the remarks by Brad Smith, Microsoft General Counsel.

He also cited MIT research that found that about 69% of software patents are owned by manufacturing firms, IBM owns 8% of all software patents, and the entire rest of the software industry including Microsoft owns appoximately 6% of software patents.

I suggested that nonetheless, Microsoft could take a leadership position in raising the quality of software patents. "It's got to start at some point, it's not just within the company, it's got to start externally as well," he said. "And if you are going to call on one organization to make changes in terms of how they patent and you're going to choose the organization that's most likely to be a target for frivolous lawsuits, you're then saying there's going to be a double standard, right? So — our patent portfoio to this point has only been used for defensive measures, and our legal track record shows that, so the question becomes, you know, if in changing your patent strategy you are unnecessarily exposing yourself, you have at some point a fiduciary responsibility to your shareholders."

He couldn't say much more about how patenting decisions were made, since he wasn't involved in them, but Keen offered to put me in touch with the patent folks at Microsoft.

On the whole, i'm not sure how the whole thing went. Do these conversations make a difference? I'm encouraged by the intention to speak more accurately about the GPL, but trying to influence the attitude about free software and software patents at Microsoft does feel a little like trying to push an asteroid off course with your bare hands.