From the outside looking in, the Wikipedia entry on FLOSS doesn’t really clarify what it is. There’s a general concept here, sure, but if you read that page and then try to deal with the FLOSS community, as such, you may well be in for a confusing world of hurt. So when Jason Matusow asks for comments on the recent Microsoft patent covenants, it’s no surprise that there are a bunch of people talking right past each other. Frankly, these covenants, especially when viewed in the light of Steven Ballmer’s statements regarding them, seem like a prototypical demonstration of FUD tactics. I don’t like using that term because almost any argument intended to be persuasive could receive that label, however I’m willing to say it here in large part because you have Matusow asking people how they feel about it.
As for the covenants themselves, I think Matusow’s blog post, along with the associated comments, paint a sufficiently detailed picture. What strikes me, however, is the impossibility of the situation. Similar to how today’s geopolitical climate is confused by the lack of uniformed armies clashing on known battlefields, the line of contention between Microsoft and the FLOSS community is not a line at all. Instead, it is the result of a convoluted function that is most definitely not one-to-one. Members of the FLOSS community will often argue as if there is a unified voice, so when Microsoft addresses one set of issues, it finds that it is merely further upsetting another part of the same community. In this case, the loose philosophical blanket that covers most of that community happens to exclude Microsoft, so the arguments are all legitimate, but the details are squirrely, and that leads to many communication breakdowns. Some FLOSS advocates speak of how there should be no discrimination of users based on who they are or what they are doing with software, yet how can Microsoft form an argument for this person that will also satisfy a GPL v3 advocate who thinks it’s all fair as long as it doesn’t involve DRM? The debate is framed as being between two parties, yet the philosophies involved are varied enough to reduce the whole thing to noise.
Yet there must be an argument, and I do not believe it necessarily has anything to do with a unified theory of FLOSS. I think this issue can be reduced to individuals; forget the GPL, forget the ecosystem. These ideas are not irrelevant, but they are not necessary to frame the issue of patent covenants. What this boils down to is that software patents are virtually impossible for individual developers to avoid, and thus remain a constant dark cloud over all software development. Who cares if I prefer the BSD license, and you the GPL, we may both feel threatened by the idea of a big company hitting us with a lawsuit that we have no chance of winning no matter the merits of the case.
Some of the feedback on Matusow’s blog suggests that Microsoft should just tell the world what patents are being violated so that would-be offenders have the opportunity to change their ways to stay out of trouble. Unfortunately, this doesn’t get very far because Microsoft would rather wield an enormous, nebulous threat than a smaller, well-defined one. But also because it’s just not practical. There doesn’t seem to be any useful way of making a database of software patents available such that developers can clear everything they do on a daily basis. If Microsoft were to provide a user-friendly, searchable database of every patent they hold, would all developers be able to determine when they were in violation of a patent? Of course not. It takes months to determine this in courts, with paid advocates working on the outcome of that determination full-time.
If Microsoft wants to understand the other side, they must think about the lone programmer toiling away in relative anonymity. If you are threatening this individual, which you seem to be with these patent covenants, then it really doesn’t matter what Red Hat thinks. The worst act here is the oppression of the individual, not the competitor. And for those who would decry Microsoft as insulting them with this covenant and its associated perceived threats, I would suggest that they consider other large companies who draw significant revenue from patent licensing and litigation. Those companies are making the same threat, they just don’t have quite as visible of a good cop / bad cop routine as Matusow and Ballmer.
Anthony Microsoft, Software, Technology
