Intellectual property Toolkit

Microsoft's secret deals on open source

Tags:
Printers,
Cash,
Patents,
Press

Leader ZDNet.co.uk

Published: 06 Feb 2009 16:26 GMT

It's a familiar story. Microsoft does a secret deal with a company over patent licences. Almost no details are provided about which patents, how much money has changed hands, or why, except for one vaguely worded press release that talks about how such secret deals benefit the customer through openness and innovation.

This time, the lucky donor of cash for secrets is Brother, which will now be allowed to use Microsoft patents to make printers. As Microsoft doesn't make printers — indeed, doesn't even make printer drivers — it is an interesting exercise to try and guess what's actually happened. It's fruitless to ask either of the companies — and we did try. In cases like this, as in the best gangster movies, nobody ain't sayin' nothin'.

Patents, you might remember, are designed to encourage innovation by the disclosure of information: when a $1.8bn (£1.2bn) company pays a $230bn company a secret amount for secret rights to a secret list of patents — something else is going on than the open promotion of innovation and "a healthy and vibrant IT ecosystem".

In this case, as so often, it involves Linux. Brother uses Linux in some of its printers. Microsoft claims Linux infringes its patents. It won't say in public which ones, and it doesn't attempt to press such claims against companies — such as IBM — who would want to fight back and not care about the cost (Ask SCO how that business with AIX went). It doesn't go after people who have little to lose and plenty to gain by fighting back, such as individual high-profile developers or small open-source teams. And it has never gone to court on this matter.

Instead, it sends in the lads to mid-sized companies who would really suffer from a long court case, and who care about that lovely legal fact of intellectual-property life: paying off a determined litigant is often cheaper than winning. A look at the list of people with whom deals have been done, and from whom cash has been extracted, underlines Microsoft's approach: Novell, for example (market cap: $1.25bn) and Nikon ($4.2bn) both paid Microsoft. Kyocera ($12bn) has a deal with no mention of payment. Samsung ($100bn) may be on equal terms. Microsoft says that it did a 'similar' deal with HP ($85bn), but uniquely, no details whatsoever have been published.

Of course, it isn't illegal to cross-licence patents in exchange for cash or cuddles. Indeed, it's as much part of the system as the principle of open dissemination of information. But you can't have one without the other. If Microsoft cares about looking like a company more interested in innovating openly than doing closed deals, then it should be open on details such as which patents are involved.

Otherwise, Microsoft's trick of gaining revenue from licensing open-source software behind closed doors will smell more and more like extortion. As the economy sours and curdles, the values of trust and accountability will prove to be worth far more than a handful of dollars in secret taxation raised on other people's software.