All That Got Stolen Was Microsoft's Thunder

It's bad enough that Microsoft with its big war chest might sue you for producing open source software. But what's really hard to take is the suggestion that you stooped to stealing Microsoft code for your project. At the Open Source Business Conference this week in San Francisco, one show organizer got his revenge.When Microsoft says open source code infringes its patents, it's a hard charge for Linux kernel developers to defend themselves against. On the one hand, Microsoft won't say what code and which patents. On the other, it makes a charge that caters to a residual cynicism in the old guard of enterprise IT ranks. Volunteer open source programmers couldn't possibly have done all the work they're credited with doing. Maybe someone, somewhere, lifted Microsoft code and added it to his open source code project.

The best response I've seen was from Jonathan Corbet at a panel at the Open Source Business Conference in San Francisco last May. Corbet is a Linux kernel developer himself and executive editor of the Linux Weekly News.

"I feel I've been called a thief," he said levelly during a panel at the event, and pointed out that Microsoft was one of the companies that had patented "thousands of trivial functions ... There's no way to write a nontrivial program that can't be claimed to infringe on someone's patents."

Other open source code programmers answered the insinuation by saying, "Show us the infringed code and we will rewrite it." It's a point of pride that developers could quickly rewrite something that smacked of coming too close to a claimed Microsoft patent; volunteers would be waiting in line for the opportunity.

All of which has prompted Microsoft executives, as best I know, to shelve the infringement charge. It's still looking to get willing Linux distributors, like Novell, to sign a deal that says they will be protected from any Microsoft patent action. But Red Hat refuses to do so. If its fiscal 2008 results are any indication, Red Hat is getting more business for having the courage of its convictions. Microsoft's author of the charge, Brad Smith, general counsel, senior VP and corporate secretary, addressed this year's Open Source Business Conference Tuesday and declined to repeat what he had told Fortune magazine a year ago.

There's a lot of open source code running on Windows now, so much that Microsoft wants to forget about those claimed infractions and work more closely with open source developers. Smith said Microsoft believes in the patent system and won't back off its patent portfolio. But at the same time he acknowledged Microsoft has a lot to lose if it doesn't achieve greater harmony with open source communities. Smith made as good a case as he could, and open source developers and users listened, more or less respectfully. But just before Smith spoke, Matt Asay, OSBC program chair, got in a little sly revenge.

If you listened carefully, you could hear this refrain on the public address system above the pre-keynote hubbub, "When we want something, We don't want to pay for it." The name of the song -- "Been Caught Stealing" by the rock & rollers, Jane's Addiction.