Microsoft's interoperability pledge not free enough for Free Software

The agreement between the European Commission and Microsoft announced last Wednesday did not mention "Free Software" by name. There is no corporation or partnership by that name, at least not officially, though up until the resolution of the dispute last week, there had been occasional hints from outgoing Commissioner for Competition Neelie Kroes that any agreement with Microsoft must take "free" into account, almost as though it were "Free Software, Ltd."

It's a very serious issue for many European developers, as Free Software had been treated as a worthy-of-all-caps entity in drafts of the European Interoperability Framework from last year. But recent discussions on revising the EIF have included suggestions from many sources, including a controversial one from the Polish government, that strike references to Free Software as a legal entity, especially as one that deserves equal protection as a limited legal body.

Thus the omission of reference to FS or FOSS from last week's agreement drew a harsh warning from Free Software Foundation Europe (FSFE), one of the only entities to criticize the agreement for legal, as opposed to technical or operational, reasons.

The real problem may come down to the fair, reasonable, and non-discriminatory (FRAND) licensing terms that Microsoft has agreed to enter into...with commercial publishers, for commercial licenses. In a blog post last Thursday that cited observations from Betanews blogger Joe Wilcox, among others, as evidence of his company's earnestness, Microsoft VP and Deputy General Counsel Dave Heiner explained, "We also are posting our protocol documentation on the Internet, so any developer can access it easily without entering into a license with Microsoft. For our protocols that contain patented innovations, we are making available patent agreements on reasonable and non-discriminatory terms. We are also making available warranty agreements that guarantee that our technical documentation is complete and accurate -- backed by legal recourse if it is not."

The company's Web site explains further: "With respect to patents, Microsoft will generally license our patents under fair and reasonable terms so long as licensees respect Microsoft intellectual property rights. These licensing terms are similar to how others in the technology industry license their own patents, typically referred to as 'commercially reasonable' terms. Where Microsoft determines to license patents, we will generally do so nonexclusively. For products that practice Microsoft patents, the royalty rates will follow industry norms. Microsoft will consider all requests for licenses but reserves the right not to license certain IP. For example, Microsoft will generally not license patents, including design patents, which differentiate the appearance of Microsoft products and services."

Historically, free software advocates have argued that the law should enable the innovators and engineers of free software to use legal means to keep that software free -- most certainly, to prevent commercial interests from either patenting it for themselves, or simply exploiting it to their own benefit and eventually excluding even its creator from using it. In short, something or someone needs to guarantee the freedom of products designed to be free.

But the latest objection from FSFE appears to put a new spin on that principle, arguing that a dominant commercial interest such as Microsoft should enable free software developers to freely create commercial derivatives -- competitive versions, for instance, that would enable Free Software not only to maintain legal rights but equal standing.

"[Microsoft's] patent commitments are clearly insufficient, because they don't allow commercial exploitation," reads a statement from FSFE legal counsel Carlo Piana. "This keeps out competition from Free Software, which in many areas is the biggest competitor to Microsoft's programs. Instead, Microsoft will continue to threaten commercial Free Software developers and their customers with patent FUD (fear, uncertainty, and doubt)."

Piana did not go into detail, though the statement appears to say that, to the extent that Microsoft is enabled to use commercial means to compete against free alternatives, and that free alternatives are disabled from competing...commercially, the company is tinkering with the principles of a free market.

Since February 2008, Microsoft has unilaterally presented a Patent Pledge for Open Source Developers -- a few paragraphs whose ostensible purpose is to promise not to sue someone who , one of whose main purpose is to distinguish between "open source" and "commercial" for legal reasons. As Microsoft perceives it, "open source" means "not for commercial distribution." So the Pledge pertains to developers who refrain from making commercial use of free software.

"An 'open source project' is a software development project the resulting source code of which is freely distributed, modified, or copied pursuant to an open source license," the Pledge reads. "If You engage in the commercial distribution or importation of software derived from an open source project or if You make or use such software outside the scope of creating such software code, You do not benefit from this promise for such distribution or for these other activities."

The company goes on to say that open source practitioners may sell or barter open source products among each other -- that doesn't make open source "lose its character" and become suddenly commercial. But when a manufacturer enters into a commercial contract with its customer, that's not open source -- and it's certainly not "free," no matter how you capitalize it.

"Microsoft tries this trick every time," responded Groklaw publisher Pamela Jones last week. "Same thing with the Microsoft-Novell patent pledge, if you recall. It means the same thing here, that you are not covered unless you are not a commercial competitor of Microsoft. So Linus [Torvalds] in his bedroom would be covered, but once people actually started to use Linux to the benefit of the world's economy, the deal is off? Then what happens?"

Although the dispute over browser interoperability is settled, the EC's investigation -- the case with which the dispute was associated -- remains open. That's a relief for the European Committee for Interoperable Systems, which responded to last week's agreement with this: "Whether third parties will in fact be able to obtain the information necessary to create software that is fully interoperable with Microsoft's dominant products will depend on how this commitment is applied by Microsoft and enforced by the Commission. Past experience is not promising; future experience alone will tell."