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Editor's Note: Olive Branch In One Hand, What's In The Other?

May 06, 2005, 23:30 (23 Talkback[s])
(Other stories by Brian Proffitt)

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By Brian Proffitt
Managing Editor

There seems to be a fixation on the part of Microsoft regarding Linux and open source of late. A fixation that makes my teeth itch.

First, they indicated that their own virtualization product would support, among other things, Linux. That it came out of Steve Ballmer's mouth was cause for a certain smug satisfaction, but when you got down to it, the announcement was not as earth-shattering as one would suspect. After all, virtualization promises to make the concept of "operating system" moot, if it reaches its full potential.

Then, interestingly, Microsoft general counsel Brad Smith made a public statement indication that they (Microsoft) would love a sit down with key leaders of the open source community. And we all shook our heads, rubbed our eyes, and said "wha'fa"?

Almost immediately, pundits came out with a lot of hue and cry about how talking to Microsoft would be something akin to dealing with the devil himself. Their past actions, even with partners, demonstrated that Microsoft is simply not to be trusted.

While I don't disagree with this assessment, I have another theory that makes me think it doesn't matter if the open source community talks with them at all. Whether the community has a sit down or not, in the end, Microsoft could be setting the stage for the opening salvo in a patent war.

My theory is not based on any sort of law, and very little business acumen--it is more along the lines of "who benefits the most?"

When Smith made his public offer of an olive branch, my first thought was "what does Microsoft get out of this?" Initially, my guesses were "good PR," "technological understanding," and (my biggest guess) "I have no clue."

But then I got to thinking about the topics of conversation that Smith mentioned. Technology, licences, and intellectual property. At this point, the suspicious little part of my brain started winding up, and tossed out this question: "If I wanted to sue someone, don't I have to demonstate that I tried, in good faith, to try to resolve the problem with someone before I sued them?"

In that light, the offer of a conversation makes a little more sense.

If an OSS team goes to the meeting, Microsoft gets one of two outcomes: either they get their point across and the open source community goes in the direction Microsoft wants or the open source community is backed into a corner and sticks their collective middle fingers up at the Redmond team on their way out the door.

In the short term, this latter outcome might seem like a win for the OSS side. But later, if Microsoft did decide to take some litigious action, Microsoft could say to the judge "gee, your Honor, we really tried to negotiate with them, but they were just big meanies." (The same statement would apply, by the way, if an open source team declines to meet with Microsoft at all.)

I will happily welcome corrections to my logic, particularly on my view of the law. But this sort of a wheels-within-wheels win-win scenario is just the kind of thing major corporations like to do: maximize benefits and minimize risk. Frankly, I can't think of any other reason, save PR, for this offer to be made. And PR could be reason enough; I have seen companies do stranger things for image.

Yesterday's announcement of the new Microsoft Intellectual Property Ventures program actually lent a lot more credence to my wild notions. My initial reaction, like some of you, was this program will just give more companies a reason to sue Linux for any perceived patent infringement. If a patent lawsuit is indeed a potential outcome, the more people who license a patent means there will be more people ready to use if an alleged patent infringement occurs.

Having third-party patent partners involved also defuses a lot of the mutual-assured destruction arguments that I and others have made recently. IBM might be more than willing to use its patent portfolio on Microsoft if redmond gets rowdy; they might be less inclined to whack a whole bunch of vendors who could be their own partners or customers.

Now, with all of this said, what can the open source side do about it? Other than watch the oncoming train, not much. I don't say this with any hint of defeatism, mind you; I simply don't think there's a lawsuit out there that Microsoft or one of its partners can win. They can try, of course, but when the dust settles, a patent lawsuit will likely give Microsoft nothing but grief... even if there's a judgment in their favor.

Maybe I am completely wrong, and Microsoft is willing to work in a world that features heterogeneous environments and penguins and clippys can work harmoniusly.

Sure.

More likely, I am completely wrong about the plans but not the motivations. After all, Smith said they wanted to work with the open source community, not Linux specifically. Maybe they'll sit down with, oh, I don't know, Sun Microsystems's OpenSolaris team. Wouldn't that be a match made in heaven? A CDDL-licensed UNIX-like OS would be a much better pill for Microsoft to swallow than a freaky GPL-licensed UNIX-like OS.

In fact, if Sun does fall much farther, maybe it could be Microsoft OpenSolaris...

Just a thought.