Subject: Re: [Fwd: Why Microsoft Shouldn't Spurn Open-Source Code]
From: "Karsten M. Self" <>
Date: Sat, 4 Aug 2001 15:57:47 -0700
Sat, 4 Aug 2001 15:57:47 -0700
[Note:  I'm cleaning out my drafts folder, found this, thought it was
still vaguely appropos, particularly as we've had a season to reflect on
Microsoft's earlier attacks on free software and the GPL, and subsequent
position shifts running through the O'Reilly Open Source Conference.]

on Sun, May 06, 2001 at 09:41:48AM -0700, Tim O'Reilly ( wrote:
> I thought this was a useful perspective.


> Monday, May 7, 2001
> Vol. 3, Issue 87
> Postscript: Why Microsoft Shouldn't Spurn Open-Source Code
> By Jonathan Hill


Note that the following quoted text is attributed to Jonathan Hill, not
Tim O'Reilly.

> The problem is that .Net applications may be based on a wide variety
> of programming languages, tools, and libraries. Thus, GPL's mandate
> that "any software that incorporates source code already licensed
> under the GPL will itself become subject to the GPL" means that if
> someone creates a .Net application that contains GPL open-source code,
> all of the rest of the application becomes open source, and you can
> say goodbye to competitive advantage and all those MS dollars thrown
> into creating .Net building blocks.

Jonathan Hill is incorrect, on at least two counts.

I as a copyright holder cannot be compelled to license copyright in my
works due to the actions of some third party.  The GNU GPL is not
assumptive -- my work cannot be licensed under the GPL without an
affirmative action on my part.  Violating terms of the GPL doesn't lead
to automatic GPLing of the non-GPLed code, it requires actions to come
into conformance, either by ceasing to perform acts not allowed by the
GPL or by changing licensing terms of other portions of the work.

What could happen in the situation Jonathan is talking about is that the
third party developer would find himself in conflict with the GPL (and
possibly the proprietary terms of distributing other associated code),
requiring some action to come into compliance.  One of these could
include requesting rights to distribute my code under GPL.

The second error as pointed out by Simon Cozens, is that the GPL doesn't
currently address inter-program operations.  If .NET is a web of
freestanding but interacting programs, licensing of portions under GPL
doesn't effect other components.  This is one of the areas of possible
revision under GPL v3.

> Mundie errs, however, when he tries to tie the use of GPL to
> the "dot-com business models that proved least successful" last year.
> His audience -- an audience that Microsoft desperately needs to court
> -- knows better. From IBM to one-person shops, developers are making
> money by developing complex applications using open-source tools. 

Agreed strongly.  In fact, the entire middle section of Mundie's speech
dealing with IP rights is at strong odds to the facts.  Microsoft did
not attain its current position through its superior position vis-a-vis
copyright, patents, or trade secrets.  For much of its early (and even
later) years, the company's own standing in IP has been vastly weaker
than those of its peers.  Even recently, Microsoft's own patent
portfolio has been relatively weak, though it's been grown rapidly.

Rather, Microsoft emerged in a landscape of IP giants:  IBM, still the
world's largest holder of patents, and with a significant copyright
library.  AT&T, Xerox, Apple, and others.  What Microsoft based its
fortunes on was:

  - Creative technology aquisition.  Dartmouth dumpster diving was the
    source for the company's first product.  Later, hardball
    negotiations with DRI (boosted by spectacular incompetance on the
    part of DRI) resulted in MS DOS.  

  - Exploiting blind spots.  Microsoft gained its exclusive license from
    IBM due to Big Blur's dismissal of PC technology as irrelevant next
    to its mainframe lines.

  - Licensing deals.  Again, per-CPU licensing bought Microsoft the
    sweet spot in PC sales as the market diversified out of IBM.

  - Interoperability and lock-in.  As Microsoft introduced new operating
    systems (Win3.0, WinNT, Win95), it used its own familiarity with
    internals to both make its own software work better, and
    competitor's work worse.  Witness the DRDOS error message produced
    in a Win95 beta uncovered by Andrew Schulman

  - Bundling and tying tactics.  Selling a bundled office suite helped
    crack a wedge into the established dominant PC applications:  WP,
    Lotus 123, cc:Mail.  Tying the IE browser to the desktop was part of
    a strategy against Netscape.

  - Monopoly hardball tactics.  Vis:  Stack technologies, Netscape,

Microsoft's advantage has been its monopoly desktop position.  While
it's used IP rights to help secure this position in some cases,
strategic and market considerations have been far more significant.

The challenge of the GPL isn't to IP, Microsoft's or otherwise, but that
it provides the means for Microsoft's competition, deliberately or
otherwise, to throw a wedge into this grip.  Microsoft isn't trying to
preserve its IP rights but its monopoly advantage.

The remaining question is what Microsoft is attacking.  I'd argue it's
not IP, per se, but locuses of control, as discussed extensively in
IBM's open source strategy documents.  It's not that the GPL creates a
power center independent of Microsoft, it's simply that it reduces the
values of Microsoft's own chokepoints.  This is a significant risk to

Karsten M. Self <>
 What part of "Gestalt" don't you understand?       There is no K5 cabal

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