Collaboration, Competition and IP in the Real World

Posted by Horacio Gutierrez 
Corporate Vice President and Deputy General Counsel


In the last few days Microsoft has made a number of announcements that reflect the pragmatic approach the company takes on intellectual property rights and open source software. 

  • On July 20, Microsoft announced the release of 20,000 lines of device driver code to the Linux community.  The code, consisting of three Linux device drivers, was licensed under the GPLv2 license and submitted to the Linux kernel community for inclusion in the Linux tree.
  • Similarly, on July 21, Microsoft announced the release of the Microsoft Live Services Plug-in to integrate Microsoft’s Live@edu services with the Moodle course management system. This plug-in is a free download specifically designed for Moodle, and was also licensed under the GPLv2 license.  
  • Earlier, on July 15th, Microsoft announced a patent agreement with Melco Group, maker of the Buffalo-branded devices, under which Melco’s customers receive patent covenants for their use of devices running Linux and related open source software, in exchange for the payment of royalties to Microsoft. 

Some observers question how a company can contribute to open source projects while, at the same time, insisting on respect of its intellectual property rights by its competitors.  In fact, these two things are not inconsistent, and striking a balance between them is one of the key things every commercial technology company must do in order to compete effectively in a mixed source world.

Microsoft has been consistent in its approach to the issue of IP and open source software.  We have shown our openness to licensing our patented inventions on commercially reasonable terms even to our direct competitors.  Far from an anomaly, the Melco patent agreement comes on the heels of more than 500 patent license agreements signed since the adoption of Microsoft’s open patent licensing policy in December 2003, with companies of all sizes, in all geographies, including other open source and mixed source software distributors like Novell, Xandros, TurboLinux, Samsung, LG Electronics, Fuji-Xerox, Brother, TomTom and Kyocera Mita.

An objective observer looking at these developments should take them for what they are:  real-life proof of Microsoft’s desire to build new bridges among industry partners for the benefit of customers, relying on patent licensing agreements as a means of opening up collaboration opportunities by ensuring mutual respect of IP rights and the innovations they protect.  This approach is not unique to Microsoft, but is instead the prevalent model for enabling open innovation in the technology world, consumer electronics being an excellent case in point.  IP licensing will also continue to play a key role in facilitating the emergence of new categories of exciting devices that embody the convergence of previously disconnected technologies, such as new generations of mobile phones, mini computers like netbooks and smartbooks, and eBook readers.

Some, however, choose to see an apparent contradiction in our actions, and view even an amicable patent agreement like the one with Melco not as the pragmatic, mutually beneficial solution to IP issues that it is, but as an assault on the philosophical tenets of free software.  It would seem that for them, IP issues should remain unresolved unless the IP holder is prepared to completely surrender the fruits of its investment in innovation. 

There is, in fact, no contradiction in Microsoft’s actions.  In the real world, the same companies can -- and frequently must -- simultaneously compete and collaborate.  Here too, technology companies have to strike a balance between collaborating to tackle difficult technical challenges common customers care about, and competing with one another by offering differentiated products that give customers real choice.  Taking purely ideological positions does not work in real life.  Instead, flexibility and nuanced approaches to complex problems will tend to win the day over dogmatic approaches.

Like the vast majority of businesses operating in today’s mixed source world, we are focused on creating pragmatic solutions to real-life problems that matter to real customers.  Intellectual property licensing is and will continue to be part of those solutions.


Comments (4)

  1. Anonymous says:

    It is interesting to see Microsoft collaborating with the open source community but I find it difficult to conclude that Buffalo paying royalties to Microsoft for a Linux based router supports this conclusion when the details of the agreement have not been disclosed.

  2. Anonymous says:

    1. Yes, I agree that contributing to open source in projects where there is mutual benefit to Microsoft and the users is good. There is no doubt about it. And more open source software should be contributed by Microsoft, especially in areas where there is no or little commercial value and where users can create a much better product through a community than Microsoft has the money and time for. For example, the recently announced .NET Microframework open sourcing and perhaps if you wanted in the future why not, Windows CE as well. The licensing dollars from say Windows CE are not perhaps worth it, compared to the lack of adoption of CE due to its closed nature. Also, many Windows technologies could have been improved much faster if they were open source. Technologies which are not core to Windows but are there as complementary. Therefore, more open source involvement should be expected and would be benefitial to Microsoft, especially regarding its relationships to academia where currently Microsoft is not viewed very favorably.  2. Yes, I agree that Microsoft has to be paid for their innovations and their patents. Yes, I agree that not everything in this world can be free and that Microsoft should be rewarded for their work.  3. However, I disagree with the substance of some of your demands. I have read, for example, the patents you had aledged that Tom-Tom had violated and they appeared simplistic, invalid and outright bogus to me. Yes, you have to be rewarded for your hard work, not for some patent which could have been thought by anyone. Also, I disagree with the use of patents in technologies which are aimed to improve the lives of millions of people. You cannot, for example, place patents on your Windows Media Codecs and then expect everyone to adopt them on the Web. I think that in some cases like say the Windows Media case, even company interests are best served by not burdening such widely used and relied upon technology with patents, because then nobody would want to bet their future on such technology. I believe, therefore, that in some cases you should think more long term and not short-sighted and allow everyone to benefit from your hard work, if the costs to you are not too much and if the monetary benefits are not significant anyway. Finally, you also agree that the patent system needs reform and it is time that a discussion on such reform should be undertaken by your company.  

  3. Anonymous says:

    I think Microsoft would benefit immensely from open sourcing some of its software. A mixed model of development similar to what Apple does with Safari (Webkit) and Google with Chrome(Chromium, Webkit) would help Microsoft lower costs and shorten development time. I understand Microsoft believes strongly in IP but that doesn't mean it should not support open source software. Also improving linux compatibility with its products would open a whole new market for Microsoft in enterprises that are leveraging open source and proprietary software. (e.g. For what I understand Microsoft has been working with the community on improving MS SQL support for PHP)

  4. Anonymous says:

    No one in the Open Source community claims Microsoft doesn't deserve to be compensated for their IP, however whenever Microsoft is asked by the Open Source community what the alleged IP violations are silence is the only reply.    Until Microsoft is prepared to publicly identify what the alleged IP infringements actually are, all we can do is take with a grain of salt any statements from Microsoft in regards their IP.    The 20,000 lines of GPL'd code are nice, thank you very much, but lets keep it in perspective, that code directly benefits primarily Microsoft, not the Linux community as a whole, there is nothing altruistic about it.    So how about it Mr.Gutierrez, identify all the supposed IP infringements or are the supposed infringements unable to stand up to real public scrutiny?

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