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Reader's Take on Microsoft Open Source

Guest post by SubSonica

Microsoft never utters the phrase "Free Software". Microsoft tries to obliterate the meaning of "Free Software" as in fighting-for-freedom- and-against-monopolisation- of-knowledge-software (remember the distasteful comments of Bill Hilf, one of Microsoft executives, saying "Free Software doesn't exist in 2007", there is no such thing as a free lunch, and etc ad nauseam) and instead substitute it by the much-easier-to-tame "Open Source" phrase, which they promote for everyone to embrace, without any ethical implication whatsoever which must represent just a way of developing software and monetizing it.

Yes, they do. When trying to infiltrate and destroy a new market they don't dominate yet, they always try to invent similar-but-not-quite-the-real-thing marketing words and denominations for their products in order to introduce confusion to the unsuspecting public that will probably confuse them with the original thing or somehow try transmit the impression they were the original ones: "Shared Source" instead "Open Source", "MPL" instead of "GPL", "MS-lmpl" instead of "LGPL", "Open XML" instead of "Open Document", CodePlex (for GooglePlex), etc... you get the pattern...

For example, I read a story earlier this week about a company named Aras that radically shifted its strategy in the last year, switching from a traditional proprietary model to one involving "open source." The article called attention to the fact that Aras is only making its software available for Microsoft Windows -- an acceptable open source strategy, if an unusual one. But then the article indicated that Aras was releasing its software under a "shared source" license that was written by Microsoft.

Now, to anyone in the world of open source software, the term "shared source" is a red flag. The "shared source" program was and is Microsoft's way of fighting the open source world, allowing customers to inspect Microsoft source code without giving those customers the right to modify or redistribute the code. In other words, "shared source" is not open source, and shouldn't be confused with it. So if Aras is distributing its software under a shared-source license, then we can't consider it to be open source, can we?

Actually, we can: It turns out that "shared source" is now the umbrella term that Microsoft uses for its policy of relatively openness and transparency, and that this program includes several different software licenses. Two of these licenses, the Microsoft Public License (Ms-PL) and the Microsoft Reciprocal License (Ms-RL), have indeed been approved by the Open Source Initiative, which means that they are indeed open-source licenses. And in fact, Aras is distributing their software under the Ms-PL, which means that their software does indeed qualify for the "open source" moniker.

The confusion stems from the fact that Microsoft's "shared source" program includes three proprietary licenses as well, whose names are similar in some ways to the open-source licenses. Thus, while the Microsoft Reciprocal License has been approved by OSI, the Microsoft Limited Reciprocal License (Ms-LRL) is not, because it allows users to modify and redistribute the software only on the Windows platform.

Even Miguel de Icaza was mad at these tactics:

Microsoft is hosting Windows-only projects on its 'open source project hosting site,' CodePlex. Miguel de Icaza caught and criticized Microsoft for doing this with its Microsoft Extensibility Framework (MEF), licensing it under the Microsoft Limited Permissive License (Ms-LPL), which restricts use of the code to Windows. Microsoft has changed the license for MEF to an OSI-approved license, the Microsoft Public License, but it continues to host a range of other projects under the Ms-LPL. If CodePlex wasn't an 'open source project hosting site,' this wouldn't be a problem. But when Microsoft invokes the 'open source' label, it has a duty to live up to associated expectations and ensure that the code it releases on CodePlex is actually open source. If it doesn't want to do this — if it doesn't want to abide by this most basic principle of open source — then call CodePlex something else and we'll all move on.

Microsoft-only open source, what a mockery...

About the FSF, it never endorsed any Microsoft licence, it was the OSI that approved it as "Open Source" (not endorsed) and it was much begrudgingly, in fact some of the Microsoft licences it tries marketing as "Open Source" are listed as NON-FREE by the FSF. Of course Microsoft has issued numerous different licences that they try to market as Open Source (remember, never "Free Software", because for Microsoft the word Free is too dangerous since for them it just means "NO MONEY") to introduce confusion in the field, so you can never be sure as to whether a Microsoft-licensed product is really open or not... in any case anything coming from Microsoft always will have the "threat" of patents attached...

Just look at what the FSF says about Microsoft Corporation's allegedly "open" licences:

Microsoft Limited Public License (Ms-LPL)

This license is non-free because of section 3(F), which requires that any modified software you make from the original code must run on Windows. The Microsoft Public License does not have this restriction.

Microsoft Limited Reciprocal License (Ms-LRL)

This license is non-free because of section 3(G), which requires that any modified software you make from the original code must run on Windows. The Microsoft Reciprocal License does not have this restriction.

Microsoft Reference License

This is a non-free license: you are not allowed to modify the software at all, and you are only allowed to share it under very particular circumstances.

Microsoft's Shared Source CLI, C#, and Jscript License

This license does not permit commercial distribution, and only allows commercial use under certain circumstances.

Microsoft has other licenses which it describes as “Shared Source”, some of which have different restrictions.

Microsoft Windows Embedded CE 6.0 Shared Source License

This license is non-free because it places various limitations on the kinds of modifications you can make. For example, your modified software must run on Wince, and you are required to provide end user support for your software."

"Patent grant," say the licences. Surely they must be joking. What use is a patent grant if I cannot pass the rights downstream? Clear and unambiguous you say? C'mon, give me a break! these clauses are just more FUD and fear mongering, and totally useless against a proxy attack (a Microsoft's specialty) since they do not specify which specific patents they refer to, so it can provide you with rights for anything in the world or nothing at all. Moreover, there is no place for patents in software. Software is not patentable outside the US and should never be. Anyhow, as if there weren't Free and Open Source licences galore already to choose: who the hell needs Microsoft's licences except Microsoft itself?

The Patent Poison Pill

What happens if you file a claim regarding a patent implemented in the work? The MSPL section 3B says:

That is, if you initiate legal action against any contributor to the work regarding a patent which the work may infringe, your right to the patents of that contributor (under this agreement) go away.

Set aside that commentary for a moment. The Apache 2.0 license (again section 3) is much more strict:

If you file a claim (even in response to a claim) that the work infringes on one of your patents, against anyone, not just a contributor, you lose this license’s grant of patent usage.

Now neither license offers any protection against patent trolls who don’t use the software at all, but adding such language to any OSI-approved license is difficult. (Such language would likely overreach the scope of the license and offer no protection.) However, it’s interesting to see how anemic the MSPL is.

Suppose I, as an individual, contribute to a work licensed under the MSPL. A company which uses the work decides that my contribution infringes upon one of their patents, and files suit against me. Under the terms of the license, they no longer have an implicit right to any patents I hold on the work.

The problem is that I don’t hold any software patents. As an individual, it’s likely that I never will. Worse, I don’t even have to be a contributor. I could even be a mere user of the work, and a likely target. (It’s even more fun to point out that even if you receive MSPL-licenced code from Microsoft, they can revoke their patent grant immediately and file a claim against you. You might get some traction with estoppel, but the license language isn’t that strong, and a SLAPP that gets thrown out eventually is still painful.)

If I had contributed instead to a work under the Apache 2.0 license, all patents held by all contributors–revealed or not–are on the line. Note also that the target of the legal action does not have to be a contributor to the software. The target can be completely independent of the project. The target doesn’t even have to use the software.

With a patent protection clause as anemic as MSPL 3B, I wonder why even bother adding it to the license. Though I don’t really believe it’s this useless as part of some sinister master plan, I think it demonstrates that Microsoft still doesn’t understand that there’s no distinction, in terms of our licenses, in the FOSS world between users, contributors, and companies.

Microsoft is yet at the "Embrace" stage with respect to Free and Open Source Software. At the "infiltrate" stage. Of course, in order for them to kill Free Software through EEE (embrace, extend, extinguish) they must go beyond standards and protocols. Free Software is very much a different beast as a competing company or product. They need to re-define the very philosophy of Free Software, marginalize the FSF and any related movement (because, oh, the GPL is sooo restrictive!, Free Software advocates are soooo radical and religious zealots, sooo communists, such a big "cancer"...) it and restrict FOSS just to Open Source with legal burdens so they can monetize it. But first they need to disguise themselves as "part of the community"... and we are already seeing the problems: Windows-only software, non-free licences specifically designed to introduce confusion, patent threats, bizarre open-source "redefinitions" i.e. are you open source? No: we are open to collect patent royalties... and in the meanwhile they send some drones to stalk any site that tries to raise awareness and ring the alarm bells about their strategy!

Darth Vader Microsoft
Picture by SubSonica


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