Shared Source vs. Open Source: Panel Discussion

Part 1: The Debate

Tim:
Sounds like some of Michael's speech was maybe a treaty with the free software people. [laughter]

Anyway, there probably are divisions within Microsoft just as there are divisions within our community. It's kind of interesting, because the diversity of opinions often leads not to division but to strength, and I think we're going to demonstrate that strength as we hear from a number of people who are prominent in our community and are allied under the banner of the core principles of open source, but who do have different takes on how it works and what's important about it.

Anyway, I'd like to invite up the rest of our panel. Michael and Craig, you may want to come back up and sit down.

I have here with us Brian Behlendorf, who's one of the cofounders of the Apache Project. [applause] I'll just start down at the far end, then.

Clay Shirky is a partner at an incubator called the Accelerator Group. He's also a well-known commentator on coming technologies, and he's recently done some very interesting thinking about some of Microsoft's new technologies, in particular Hailstorm. That's why he's here to talk to us. [applause]

Dave Stutz is, I believe, now the program manager for the shared source implementation of the common language run time and so forth. Is that the appropriate designation?

Dave:
Sure. It'll work.

Tim:
Dave is —

Dave:
— Craig's Mini-Me .

Tim:
Yeah, I was going to say, I don't know, maybe something like, if you had the hat [reference to the red hats on heads all through the room], I would say, "Mini-Me. Do not chew on your hat." [laughter]

Next in line is Mitchell Baker, who's known as the Chief Lizard Wrangler at Mozilla.org. Mitchell is also the person who wrote the Mozilla license, so she's done a lot of thinking about free software and open source licenses and the needs of corporations. [applause]

We have with us Ron Johnson, who's an attorney at Arnold & Porter and the chair of the 22nd Annual Computer and Internet Law Institute.

And obviously you know Craig, and I already introduced Brian.

So, Craig, I don't know if you wanted to respond at all to any of Michael's comments [laughter], or whether you want to hear from a few other people before we get there.

Craig:
I'll just offer one general thought, which is, you know, in some sense it's easy to poke fun or think you know what is the look-in from the outside and to be at Microsoft.

We're a company now of 50,000 people, and among any community of 50,000 people, particularly fairly smart people, you're going to have a lot of people who think carefully about a lot of issues, and feel passionately as you do about a lot of issues. So I don't think we're embarrassed at all to find that people would come forward at Microsoft and ask questions or ask whether we do the right thing or not.

What I can tell you is that there is a single-purpose focus in the management of the company. The leadership of the company is not uncertain about what we're doing. We welcome people asking questions in the company, but ultimately we recognize our job is to make decisions and provide consistent leadership. And so if people don't like what the company wants to do, there's no indentured servitude. You know, they're free to go do something else. But the company is clear about what it will do. And I can just tell you that as a member of a management committee of the company, and while listening to Michael's comments that many of the ways he characterizes what he thinks may go on inside the company in terms of a civil war or anything, frankly [it] just doesn't exist. It may be fine to ruminate about what you think could exist or does exist. I can tell you quite specifically, there's no civil war at the management level and, to me, no observable civil war among the rank and file either. So that's one thought I'd leave with you today.

Tim:
So, Brian, you're obviously someone who has, you know, come up from the GPL side of the house but from the university style of license regime. Clearly you have done a lot of thinking about what licenses you would choose and why. Do you have any thoughts on that, or any things you'd like to talk to Craig about with regard to the BSD orientation.... [laughter]

Brian:
Sure. [more laughter] You don't want to call on anybody else, do you? [laughter]

One of the slides in [Craig Mundie's] presentation was actually a very useful slide. It showed that there is a relationship — a set of relationships — between the public research through universities, corporations, users, and government. I think what we've seen is that it's not one-directional like that. What we've seen is that it's actually bi-directional in all those things — in fact, bi-directional across universities and consumers and government and business and all those directions.

And so while Apache, for example, is under a BSD-style license, it was very important while we were building the Apache community that we not only have other corporations use it and adopt it into their commercial products, but also that we communicate to those companies the need to reinvest back, the need to build Apache itself as a strong force as they build up the momentum behind it. And to us, even though the obligation isn't there to share their code back, the companies that are participating in the Apache Software Foundation and even more broadly, within the BSD communities, understand the need to reinvest, to build it back up. And that's one thing that I think may be missing in some of this debate: the creation of licenses, the creation of regimes that really are bi-directional, that really put all the participants at an equal level.

I totally welcome Microsoft exploring shared source licenses. I think for proprietary software, I'd much rather have the code to it than not have the code to it. I think we're going to see a big difference in the amount of resources that people will put in to a shared source license regime versus one that is an open source license regime. So it's all a matter of experimentation. I'm all for experimenting with different licenses. I think history has shown that open source is a more efficient way to go in certain circumstances. At the same time, there are 10 million Microsoft developers out there who might have a different opinion. I think it's worth finding out.

Shared Source vs. Open Source Related Links Debate and Panel Discussion Technetcast of the debate Part 1: The Debate OSCON Conference Coverage

For the bulk of the panel discussion, Dave Stutz and Craig Mundie defended Microsoft's business position to the other panelists. Do you think this conversation helped bridge the gap between open source and Microsoft?

Post your comments

Craig:
One thought on that. I agree with you that it is bi-directional, and in a way, when you look at all the different licensing regimes, you're correct to point out that there are many different ways to give back. In a sense, giving the code back is just one way. You know giving taxes to the government to give back is essentially another institutionalized way.

Tim:
So how much does Microsoft pay in taxes? [laughter]

Craig:

It's a lot. I don't know the exact number this year, but it's billions. One of the things that we've been fascinated by, and I guess you could say it's some benchmark of this, [is that] this week, as I kind of predicted in May, we actually came out with this Windows CE source license. I guess we actually posted it three, maybe four days ago. And the first three days, ten thousand people downloaded the entire source tree. And we had had a kit that we had offered to people who just wanted to use it for commercial purposes and we had sold about four hundred of those in the last year. I guess only time will tell whether people will decide that they really want to make an investment or whether they're just curious. But we were quite happy to see that when we offered it for non-commercial use — really targeting the academic environment, primarily — that ten thousand people in the first three days decided to take it and take a look at it. So we're enthused with that kind of reaction, and it is, you know, some way of giving back. You know, we give back financially, we give back in the standards world, as Michael said, with XML and other things. I mean, well before XML, we've been a big participant in the process of standardization, and so I think we will continue to seek ways to share and give back.

Tim:
Dave, I'm sort of curious. You're sort of closer to the hacker level inside Microsoft. What did you think of Michael's comments about a war within Microsoft over the license thing?

Dave:
Well, I don't think there's a war going on. I definitely think that we're trying to internalize a lot of good things from this community, though. There's a lot of people who have paid a lot of attention to the open source community and to all of the issues that surround sharing source code, and as you all know, sharing source code — the whole process of sharing source code — is an entirely different beast than sharing binaries that have been tested to work together and packaged up on a disk and sort of sold as a unit. And we're in the process of internalizing that right now.

We've shared source with developers for many, many, many years. We have a huge developer community. The samples and MSDN programs and that kind of thing have been out there for a long time and have been heavily utilized and helpful, I hope. But people do ask for more and more access to source code. It is becoming much more central to a lot of people who do development on a daily basis, and because of that, we've started developing all these different kinds of licenses. And those licenses are the individual product groups at Microsoft responding to customer needs, basically.

For example, the project that I'm working on is based on a standard, based on the ECMA specs for CLI and C#. It's the same standard that Miguel is working on in Mono. And I have worked to design the license effectively as a long-term investment of the intellectual capital that we've been putting into the work, ongoing work on our CLR. It's a good example of some place where we're really trying to invest in a different way, and it's reflected in our license.

By the way, for those who haven't seen it, the new licenses are one page long [he holds up a copy]. They're definitely worth going up, download the thing, and take a look at it. We're trying to be very clear. It's a document that's trying to be clear and simple. And I'm around. I'd actually like to hear feedback from people here.

Tim:
By the way, I just want to say among the members of the panel — feel free to jump in on each other, because there's nothing worse that everybody kind of waiting. [Laughing on panel]. I just kind of feel like we're getting the conversation going—

Dave:
—I feel like Michael wants to talk. [Laughter]

Michael:
I'd like to move a little bit from the nuance to the substance, and to say that I very much appreciate the analogies that have been brought forward both by Craig and by Dave on the kinds of efforts that they're making, but it sounds to me like the logging companies will be really, really nice guys as long as you let them cut down the trees, or the oil companies will be very sensitive to the environment as long as they can drill for oil. And the way in which this concerns me in the software world is that, in spite of what the shared source license or whatnot may offer, there are some things that are still very concerning to us related to how patents are being used to prevent interpretability and to prevent the open source or free software communities from fully participating in what the future of the Internet will be. And so from my perspective, the substantial important difference here is a question of whether it is acceptable to where it's convenient provides some limited access to some particular resource while still excluding and preventing—

Tim:
—I'm going to jump in here, though. I mean... I'm going to speak for Microsoft. As I understand the position of Microsoft, what's wrong with the right of somebody creating something to set the terms on which it's distributed? And if that works for their customers, why is that wrong?

Michael:
The reason it's wrong is because people can incrementally build up systems that are patently unfair. And we have seen this time and again in the case of civil liberties and human rights, that an incremental divergence between those who make the rules and those who are forced to live under them ultimately becomes untenable and ultimately, the revolution occurs. [applause]

Tim:
So the point you're making, then, is really that it is not necessarily so deep an opposition between proprietary software and free software as the fact that Microsoft has massive marketing power and that creates distortions.

Michael:
For me, it's not a question about whether or not one group of people or another are allowed to use the water fountain or wash room. It's whether or not we have full access to everything from education to economics to marital choices and what not. [applause]

Shared Source vs. Open Source Related Links Debate and Panel Discussion Technetcast of the debate Part 1: The Debate OSCON Conference Coverage

Mitchell:
Actually, I want to address that from the point raised earlier of the effects of an environmental niche, open source software and public policy choices that result. The equilibrium that we have today in the software industry is flawed. It has a critical flaw in it. That flaw is a flaw of choice. Among the choices that were listed on that slide was not included the choice of leadership. And that is one of the things that open source software allows. [applause]

And in our world today, thanks to the very smart and successful people at Microsoft, vast amounts of the data and software and information flow that we rely on as individuals and societies are controlled by one entity. That is not a healthy ecological system. It's not healthy for us as individuals or as a society, and is ultimately not healthy for development of software and related services in the future. Clearly— [applause]

—Clearly there are many smart and innovative people at Microsoft, and I imagine that within the buildings of Microsoft, that we don't see, there is a massive outpouring of new ideas and creativity. But the issue is that those get filtered through the business plan of a single entity, and what we as a society and a world need, going forward, is software we're not yet sure about — is the unexpected and the serendipitous combination of new things combined with a choice of leadership, where we go, who we follow. And that's the core of the open source software world. And that's why the public policy considerations should promote the flourishing of open source and free software, and I'm very concerned that policy implications... that an effort to characterize open source and free software as bad for public policy could be undertaken, and more concerned that it might succeed. [applause]

Craig:
I'll offer you three thoughts, okay? Some personal and some corporate. First, as I said again and again, there's no attempt on our part to characterize open source per se as bad, or bad from a policy point of view. [sarcastic laughter from audience]

Tim:
[To audience] Please. Keep it cool.

Craig:
Secondly, the ecosystem of software in the future will not be strictly about the things we call computers.

Mitchell:
Absolutely.

Craig:
And so, the system you talk about retrospectively has largely been one where we knew what the computers were.

I can tell you in the first six years that I was at Microsoft, my job was essentially the non-PC world, and I can tell you that Microsoft has little sway with the world's telephone companies, consumer electronics companies, etcetera. In fact, arguably, we've had limited success in trying to get any of our technologies adopted in those other regimes. [one person applauding] That's great. I mean it's your opportunity. I mean, with or without government intervention, okay, I can speak personally that there are plenty of people who say, "Boy, you know, we have hegemony in our markets already. We have customer relationships. We have technologists. We have choice." All right? And I can attest to the fact that they've been able to effect those choices. So I think you have to really be thoughtful about what you think the future world is and where the intersection between government oversight, public policy, and the evolution of computing is.

Clay:
I'd like to jump in a little bit on this idea of the future world, and to pick up on some of Craig's comments about the ecosystem, and to say — as much to this group as I said to Microsoft — that I think the issue of source code considered alone is less important now than it was five years ago, and will be much less important five years from now, because the number of times that applications are running on a separate box in a separate location than the operating system they are interacting with is going to explode through Web services and through peer-to-peer architectures. And I think the meta-issue we're concerned about here, with an ecosystem, is interoperability, not merely open source; and to me, when I think about this future world, I'm more concerned with open interfaces, which is increasingly how we're going to have our ecology constructed, than I am with the source code that lies behind those interfaces, which is often not exposed.

So: our questions for the Microsoft folks, probably more for David than for Craig... In the Hailstorm documents, and in the demo and the white paper, you noted that Hailstorm's schemas are straight XML, no special sauce — demo'd Hailstorm running on Mac OS, a Palm OS, and Linux box—

Craig:
—[garbled] access from those points—

Clay:
—Right. Those were running as Hailstorm end points. And there was a mention in the press conference, though not in the white paper, that there would be ways for Linux and Solaris servers to participate in Hailstorm, although that participation wasn't defined. So the question I haven't seen answered in public, that I'd like to get an answer to is: Can I have — can I use a Hailstorm schema to have a Palm Pilot communicate with a Linux server, without contacting a Microsoft server during that transaction?

David:
[To Craig] You going to take that or shall I? Okay. We absolutely recognize that in a distributed world, interop is key. Right? No question about it. And as Craig pointed out, there are a number of industries which sadly have not yet seen the light and are not running all Microsoft software. [laughter] Alas. [laughter] I'm sure they'll wake up.

And so from a customer perspective — and we always come from a customer perspective — I know I just need to keep pounding that — the customers are going to want it, and we will definitely make it possible. There is no question that we will do that. It's the right business choice. It's the right choice in terms of policy. It'll happen.

Michael:
So you'll do that when everybody else is dead.

Dave:
No, Michael. [Inaudible]

Clay:
To be fair to Microsoft, that's not true on device classes where they don't have the monopoly. So there are kind of two Microsofts here, and there are places where they don't have a monopoly and they behave very differently. I want to re-ask the question and try and get a yes or no. [laughter and applause]

Dave:
Okay. [applause] I failed.

Clay:
Yeah. Can I have a Hailstorm transaction without phoning home to Microsoft during that transaction?

Dave:
So, that is a.... [laughter] — I'll try to explain. I'll give you a yes or no. I'll say... yes?

Clay:
All right.

Dave:
But I will caveat that with [laughter] much — as you know, in distributed systems, the interesting things are done when the parts are brought to the table that you need, right?

Clay:
Yep.

Shared Source vs. Open Source Related Links Debate and Panel Discussion Technetcast of the debate Part 1: The Debate OSCON Conference Coverage

Dave:
So if Hailstorm is wildly successful, and people are using Microsoft services provided from Microsoft farms,then it's highly likely that that Palm Pilot is going to want to perhaps do authentication and then to federate data from the Linux server with the authentication information. Right?

Clay:
No question. And obviously I was simplifying the question by asking for a simple round trip. But the question was whether or not it's a choice or requirement. And I hear you saying, "It's a choice."

Craig:
Let me give you my analogy, and it probably won't be perfect, but the way I think of it, in programming individual machines in the past, the programmer's interface was the APIs. And the API was essentially a protocol and schema of an interface for an operating system. And in the world we see coming, it became clear to us — for our own account — that we couldn't depend on things happening only within one machine. We believe that the traditional notions of distributed computing, in terms of remote procedure calls and things like that, was the right model, and that in fact you needed to have loosely coupled systems, broadly defined. And that that really says in that world, protocol, schemas, and message packets essentially are akin to APIs. Microsoft has always published the APIs, and in fact as this community does, they borrow those APIs and they do whatever they want with them. They emulate them, produce completely independent implementations. So once we publish the protocols and schemas for interfacing through a Hailstorm service or any other .Net service, I don't know why anybody can't take and do what they do with an API spec today, which is use it as they want to use it. But—

Tim:
—Can I ask a question about that? I know there's been some concern in this community about the sort-of second generation of the SMB protocol being protected by patents to help keep it from being reverse engineered. There is sort of this feeling that Microsoft has a strategy that control — and hey, if it's not going to be controlled via, you know, binary programs, it's going to be through patents. So maybe are we going to have open shared source but patent protection? [applause]

Craig:
Sure.

Tim:
So in fact there is still a tool whereby you could keep people from—

Craig:
—But look: we're a business, okay? We're in the business of licensing intellectual property. So if it turns out that in the future that business says, "Okay, we should license the patents to people who use that in order to be compensated for the development of intellectual property," maybe we'll do that. You're always welcome to come and ask us to license anything from sources to patents. But I mean, we are a business. We're not—

Tim:
But Apple was a business when you copied their interfaces and, you know— [laughter and applause]

Craig:
Steve would tell you they still are a business.

Brian:
I think even aside from the patents issue, even aside from the publication of the API issue, you still have a question of centralization.

Let me use, as an example, DNS. DNS is a quote "distributed system." That's the D in DNS, right? But we all know that there are a set of root name servers out there. Those root name servers used to be managed by a government entity. And that was privatized. And certainly the Internet exploded, certainly there's been a lot of contention over the privatization of those root name services and other people going after promoting alternative root name servers. The fact is right now that is a critical point in our infrastructure, and people are concerned about that.

And I think, likewise, we are similarly concerned with .Net and Hailstorm — that there could be a similar centralization taking place. Where today to go look up a DNS, to look up a host name, you have to ultimately go to a root name server to find out — you know the details. I think there's people concerned that the same type of centralization may come to be inherent in deploying .Net services.

And taking a step back from that, I think a lot of what drives people towards open source is the desire to remove centralization from the software development, from the software distribution model. And I think that's something that's very right for all of us to think about, to be concerned about—

Craig:
—I guess there's two things to think about. Right now, I mean, we've gone out and told people, "This is what we're going to do." All right? We didn't wait and just deliver a fait accompli. All right? We actually have advertised our intentions, all right? The down side to doing that for us, you know, I mean — I recently read about AOL deciding to come up with Magic Carpet. What do you think that is, okay? I mean, they said, "Oh, this may be a good idea, this thing over here Microsoft's talking about. Maybe we should have one, too." So it isn't clear to me that we are granted any automatic franchise in this area.

Tim:
[Let's] come back to a point that Mitchell made, and that's really the health of the overall ecosystem and I think some of the concerns that people have. I think one of the big differences between Microsoft and the rest of the world is that you guys [Microsoft] see yourselves as still a relatively small player in a much bigger world that you want to be part of. You see a lot more markets where you don't have that power.

For most of the people in this room, you are the universe. You are, to use Scott McNeely's phrase, "the top predator." And in this ecosystem, there is a concern that there really is not enough to go around.

You mentioned the size of the software industry earlier, and you mentioned the number of companies. I remember an SPA study a few years back — you know, the average software company with ten or fifteen employees, which if you do the math is most of those that you talk about — does not make money, because a few big players are making all of the money in that industry.

And we've basically created a situation where it is very, very difficult for new entrants to compete in the traditional software industry. [applause] And I think a lot of the attraction to open source is people saying, "We want in. We want an opportunity as developers to have a chance to have our ideas flourish." And you guys have been so successful that you've created a market where it's difficult for developers outside Microsoft to have a chance to succeed. So I'm kind of wondering if one of the issues behind this whole proprietary source versus open source debate is really, "How do we get to a health in the ecosystem?" Is it "What's good for Microsoft is good for the software industry?" at this point? The two may diverge.

Dave:
Tim, don't you think that the reason that — one of the reasons that it's hard to enter the industry now is that the expectations of the consumer have been brought up by the quality of software that's out there? I mean we've written — all of us have written very good, high-quality software, and it's continued to raise the bar over time.

Tim:
My experience is that it's actually pretty easy to enter in new markets that are outside the scope of what people have thought about at Microsoft. It's not very easy to get very far in those markets, because then Microsoft comes in and uses its current market power to basically take over those markets. So you see cases again and again where somebody comes up with a good idea and they don't get very far.

Dave:
Well, perhaps I've got a unique viewpoint, but I've certainly been inside Microsoft and seen repeated failures. It is not the case that we automatically are granted the franchise.

Tim:
Oh, I understand that.

Mitchell:
But one of the things that Microsoft has is plenty of ability and money and backing with which to fail.

Craig:
Sure.

Mitchell:
And also — I'll finish in a minute — the other thing that Microsoft has, which is pertinent in this open source debate about making money — is a very efficient system for taking money out of certain aspects of the software market. It can do that by giving products away for free — like the browser, so there's no money in the browser any more. Or by rolling it into the OS or into Word or whatever. And so in that system, where Microsoft has, rightly or wrongly, as a business matter, the ability to extract all of the money out of given areas of software development, I'd say it's open source — where people join together and voluntarily produce something more than any one of them can do [alone], and jointly create a work without direct payment — that is the only way to get innovation in these areas. [applause]

Tim:
Dave?

Dave:
So I think one of the points that Craig was making a minute ago, that I'll come back to... We recognize that we are in a position in which we have a lot of resources and that people are sensitive about this, and we have started saying, trying to be very clear about what our intents are, and trying to work with people in the community to carve out places that are safe places, such as the ECMA standard, for example. And so we need, as a community, as a whole, to continue to develop ways that enable businesses based on free markets, which is where we are, to continue to exist — but also for ways to foster trust and innovation.

Tim:
Well, let me ask this question: Would it be a fair analogy to say that Microsoft is shifting from a hunter-gatherer economy to a farming economy? And that part of the goal of shared source is to say, "Hey, we've got to breed innovations, we can't just sort of expect them to sort of happen out there?"

Dave:
Well, you know, I am a farmer, actually — as Tim knows, I have a farm. So I'd like to think yes. But Craig, I don't know, what would you say to that?

Shared Source vs. Open Source Related Links Debate and Panel Discussion Technetcast of the debate Part 1: The Debate OSCON Conference Coverage

Craig:
I actually think a little differently.

Microsoft would be nothing if it wasn't for the fact that millions of people wrote apps and deployed them on PCs. I mean, just offering an operating system is not an interesting business per se. And so— [audience and panel laughter] —It's true. I mean, it's a fact. If you don't have a symbiotic relationship between the platform and the users of the platform — both the ultimate consumer and a development community for it — the thing will not sustain itself. So in a way, maybe we already were a farming economy, in that we depend on having a lot of people both develop for and use this thing. And in a way, as this world has changed, as people have diversified both the number and type of platforms that are interesting, and you get this incredible device diversity, I think we've been forced to recognize there's no direct transference. And again, I reiterate I can personally speak to our inability to transfer any of our PC franchise to any of these other ecosystems.

Tim:
Is that part of why the GPL bothers you so much? Because it's getting so much traction, and Linux is getting so much traction on embedded devices?

Craig:
No. No. In fact, our concern about the GPL is strictly the fact that it creates its own closed community.

Tim:
But so does Microsoft. [applause]

Dave:
No, no, it's not true.

Tim:
Yes. [applause]

Craig:
I mean, that's fine. If the GPL community wants to explain how people get to stand on their shoulders in both the commercial world and the academic world, fine.Then that's what this debate should be about, to elucidate that.

Brian:
[Let's] compare the GPL to the shared source license. The GPL tells me as an entrepreneur, as a businessman, the terms under which I can use that software. Right? It sets boundaries, it says what I can do, what I can't do, how I can incorporate, how I can't, that kind of thing. The shared source license, at least the one for the Windows CE release that I saw, says "This is the noncommercial use license. Contact us for terms under for commercial use."

Craig:
That's right.

Brian:
As a businessman, it doesn't tell me how I can use it.

Craig:
Call us up.

Brian:
Well, let me ask the audience here. How many people here write software completely, only, for hobbyist purposes? Not for their employer. Not for some commercial purpose. [pause] A few, I'd expect. But certainly the vast majority here write software [that has] some other commercial purpose. So in the spirit of helping Microsoft come up with a good shared source license, perhaps — maybe I shouldn't do this, but — you know, if it even said, "A dollar per CPU that it runs on," or something like that.

Craig:
Anybody who wants to know, call us up, allright? And we'll figure out, well, what is it you want to do? We'll give you a price. Just call us up!

Brian:
Granted. That sets up a different set of relationships, though. The shared source license itself does not define a community of people who are part of that community the same way that open source licenses do.

Dave:
Actually that's not true. Specifically, in the CE community, not only is there the noncommercial license, which is the one I was waving around, but we also have a community-based source-sharing effort with people that build devices commercially. It is in fact set up around the notion of everybody sharing changes —

Tim:
—I saw Ron trying to get in there for a moment and he hasn't had a chance to say anything.

Ron:
I'll give the suits' — as the lawyers are known — perspective on a couple of these questions. The legal business is just only recently getting into debating the interpretation of these licenses and the enforceability of these licenses. But we've been advising companies on drafting these licenses for a long time, and most of the commercial software companies draft licenses tailored to their distribution, tailored to their parsing of intellectual property rights, tailored to their best commercial interests. Now that is not just a Microsoft problem. That is the problem for virtually every large software company that at least I'm aware of, save a couple. The trouble with the GPL, to companies who are doing commercial development, is in fact it doesn't at all cause clean lines.

The language in the GPL that tells you what you can do without being subject to the redistribution provisions in the GPL is expressed in about four different ways in the GPL. None is any more specific than the basic derivative work standard of the copyright law. Some of the others' expressions of that standard are inconsistent with the derivative work formulation under copyright law. Now we've been litigating that standard in the software business for over twenty years, and there's been very, very little guidance after twenty years of litigation.

I've tried cases on the meaning of that standard. There's been very little guidance from the courts as to what constitutes a derivative work. It's clear that it goes beyond code. It's clear that it goes into the levels of abstraction above code. But beyond that, there's been no articulation of a useful test. The test that's most often used by courts is in fact dangerous because it makes the court feel, when it gets through the test, like it's accomplished something — when in fact, as any programmer would know — it's just starting the analysis.

So the trouble with integrating any kind of commercial software with the GPL is going to be in part that there's a huge uncertainty as to whether you can do that — and where you're going to end up five years from now.

Brian:
If the uncertainty was clarified — I mean, Stallman's working on Version 3 [of the GPL] — if Microsoft wanted to participate in that, I'm sure he'd welcome their feedback.

Craig:
We already are.

Ron:
One trouble is that —

Craig:
—One sec. We put up all these questions and say: "Here. Here's twenty questions. Ask yourself these questions." You can't answer these questions by looking at this license. I'm mean that's pretty clear guidance where the problem is.

Michael:
What I just heard is that the derivative work clause in the Microsoft shared source agreement is something to be feared because in fact it has stipulations about what is covered by intellectual property rights concerning derivative works of authorship. And if derivative works of authorship extend beyond code into abstractions — if I look at Microsoft software, I'm infected. [applause]

Ron:
The language that has classically been chosen by companies depends on the kind of software. For example, the —

Michael:
— The language is derivative work of authorship. It's the same language in both licenses.

Ron:
In some context, that makes sense as a standard. In other contexts, where you're trying to establish a generalized standard for all software, it doesn't. Now Microsoft obviously has, like most other software companies, a whole series of license agreements that include different standards and different language and grants of rights depending on the nature of the software —

Tim:
I think we need to wrap this because we're going to run out of time, without time for the audience. I think in general, I would say as a layman the GPL and Microsoft's proprietary licenses actually have more in common on some axes than the GPL and the university licenses, which tend more to the public domain. They're both strong intellectual property licenses and they probably both have ambiguities that — in the case of Microsoft licenses — probably have been litigated more often than the GPL. But anyway, let's not go down the legal hole because we know what we're talking about here. [laughter]

Michael:
He does.

Tim:
Well, Mitchell does too. [laughter] Two lawyers here. [Shifting to audience]

We have a long line of people out here, so let's start taking questions from the audience. Bradley?

Bradley Kuhn:
I'm Bradley Kuhn, vice president of the Free Software Foundation. [applause]

Microsoft has stated that the GNU GPL is an un-American cancer, yet this country was founded on the principles of freedom. The GPL was founded on those principles of freedom. These foundations of freedom inspired others to create the companion open source movement, and now the two movements stand together around an important intellectual commons. This debate is covering well the relevant business models and methodologies, but we'd like to challenge you, Mr. Mundie, or another Microsoft executive, to a second debate with the authors of the GNU GPL on the philosophy behind the GPL. Mr. Mundie, will you accept that challenge?

Craig:
I'm willing to discuss it. [applause]

Bradley:
We have a conference October 10 in Washington D.C. You're invited. Will you be there?

Craig:
Call Rick Miller and we'll talk about it. [applause]

Tim:
All right. That would be really nice if you'd do that, because I think there really is a lot of interesting dialogue that could happen there. Richard [Stallman] is trying to rewrite the GPL, and we may actually — it would be very interesting to get that input.

Craig:
Richard didn't manage to join the dialogue we had on the Web at siliconvalley.com, or anything else, so I'm kind of interested in why.

Tim:
Okay, go ahead. Next question. [laughter]

Carl Holden:
Hi. In the interests of full disclosure, actually, I'm Carl Holden from CollabNet, the same company as [Brian] over there. This question is also directed at Craig Mundie, mostly because he's the person whose answer I can least predict. [laughter]

Craig:
I'm sorry. My answer what?

Carl Holden:
You're the person whose answer will be least predictable, I suspect. So this is more directed at you than perhaps to the others. You were talking about ecosystems and choices earlier, and the subject of patents came up and then sort of got skirted around a bit. I think there's little debate in this room, probably even from you and others with Microsoft, that a lot of software patents are pretty ridiculous. But Microsoft, I'm sure, holds a lot of them, and you expressed a willingness to have Microsoft enforce them, even when the violator is an open source programmer. Do you agree with that?

Craig:
Absolutely.

Carl Holden:
No matter whether the patent is a good patent, a just patent, in the sense of patent law?

Craig:
If you want to basically violate — you or anybody else — somebody's patent. Right? Then you always have the choice to challenge the validity of that patent. And there's a well-established legal process —

Carl Holden:
[inaudible]

Craig:
Pardon me?

Carl Holden:
Takes money to challenge that, too.

Craig:
Fine. Get your money. [audience laughs, hoots]

I mean, look, the society, over decades, has decided that in order to find a balance between rewarding innovators and having a pure intellectual commons that we grant patents as one form of intellectual property protection. This is something that has been debated academically, legally, over many, many years. And it's always an interesting question. And you can say it's an interesting question today. People say, "Well, should we have patents?" Well, that question got asked a long time ago. Right now, at least, our society has said, "Yes, we still have them." In fact, there's more tendency to say we're going to have more, not less. I agree with you that the biggest challenge, as far as software patents goes, is that it's a relatively new field, it evolves quite quickly, and the examiners are really probably not as good as they could be, relative to giving out patents, but nonetheless, if they give one out, it bears legal weight, whether we have it, you have it, or anybody else has it.

[inaudible interruption]

Shared Source vs. Open Source Related Links Debate and Panel Discussion Technetcast of the debate Part 1: The Debate OSCON Conference Coverage

Craig:
Well, at the end of the day, if you have a patent, you enforce the patent if it's valuable to you. And so I think that Microsoft and other people who have patents will ultimately decide to enforce those patents.

Brian:
Are there any patents that apply or that will apply to implementers of .Net or Hailstorm?

Craig:
I expect there certainly will be. I mean, the patent process takes a long time.

Brian:
So you've applied for them?

Dave:
Actually, though, I think there's a really interesting point to be made. I think in the long run that patents will benefit open source as a structural thing. I think that in order to get large commercial entities like us involved — and you said you want us. We want to be there. So eventually it's going to happen —

Brian:
We want you on our terms.

Dave:
Ha. [laughter] Oh, I see. So the, ah — now that's not very [garbled]. [laughter] I think that in order to keep clear relationships, we need to develop ways to talk about those relationships and ways to litigate those relationships in the unfortunate circumstances where people come to disagreement, right? But certainly one of the things you can do with patents is you can share the source, because the patent is outside the source, and there are licenses as well, so there's lots of different ways to manage those relationships. You need to help us by telling us what else needs to exist, and we will help you in terms of making those things come to be.

Craig:
It's also fascinating, just to close on that point, to go back and look at both the academic world and among some of the most notable people who contributed to the intellectual commons, and find that they all held patents on their original contributions and made money off of them.

Tim:
Next question.

Clay Claiborne:
Craig, in December your boss Steve Ballmer declared Linux and open source the main danger to Microsoft in the coming year. And so it's July and here you are. I want to take advantage of this to ask you some questions. Okay, I'm Clay Claiborne from Cosmos Engineering. I've been a member of the Microsoft community as an OEM provider from DOS 3-something and a member of the Microsoft developers network when it first began, and I've been a member of the open source and free software community since Windows 95 was introduced. [laughter] So I have some experience in both communities. I understand the open source community — open is free or probably about two hallmark words to come to mind. This is a community that believes not only in open source but open dialogue, not only in free software but free speech and free markets —

Dave:
— and free beer.

Clay Claiborne:
Yeah, and free beer. Indeed, free beer. But with Microsoft, I'm a little vague because until recently I don't recall you referring to yourself as a community. Now the word "community" is broadly used. The CIA says it's part of the intelligence community. [laughter] The LAPD considers itself a community. I would like from you to get a better idea of what you mean when you refer to Microsoft as a "community," because it sounds like earlier you said that yeah, there was freedom in the Microsoft community. If any of the Microsoft serfs disagree, they were free to leave. [applause]

Tim:
Let Craig answer the question, and thank you very much. Let him answer the question please.

Craig:
I'm not sure I know what the question was.

Clay:
Can you define community? In Microsoft.

Craig:
Microsoft actually has a number of communities. You could say we have our internal community, that's our employee community. We have our developer community. That's people who choose to take our tools and write some code. All right? We have a customer community. That's people who buy our products directly and use them. [So] there are a variety of communities. My comment this morning was that, with respect specifically to the developer community, we — and by the way, we do use that term [community] and have used it for a long time. What we recognize is that we can do a better job in addressing the needs and in perfecting our relationship on an ongoing forward basis with our developer community, and we're investing heavily to do that.

Audience member:
I have a question for Craig. You spoke of the software ecosystem, and as Tim and Mitchell pointed out, in the traditional software market, you're a cash cow and [in] the business of most of those of us in the room, you have an overwhelmingly dominant position. And as Microsoft goes forward in trying times, it's difficult to maintain annual growth and revenue of 15 or 20 percent. And we all know that exponential growth has its limits. In the interest of the software ecosystem — and I'm speaking now of the traditional market — is it time for Microsoft to declare not zero population growth but zero revenue growth?

Craig:
Well, I don't think so. [laughter] I mean, our fiduciary responsibility to shareholders pretty much would preclude that. Our job in our publicly held company is to in fact provide return to the shareholder. That is the end job.

Audience member:
Do you also have a responsibility to the ecosystem?

Craig:
Well, absolutely. Sure. I mean Microsoft tries to be a good corporate citizen. I personally spend a lot of my time involved in a lot of issues, including critical infrastructure protection for this country. Okay? And many other things that have little to do with the direct business of Microsoft. And so people at a personal level and at a corporate level really do try to step up and deal with some of these issues that people think are an issue of corporate responsibility.

Tim:
Next question.

Mark Vercallo:
Yes. I'm Mark Vercallo with the Electronic Frontier Foundation. [applause] I'm just a sysadmin [laughter, whoops, approving applause]. One of the issues that concerns me is that we're in a more monolithic society. We have a monolithic press. We have a monolithic government of cookie-cutter politicians. The oil companies, the gas companies, the electricity companies, have us under their thumb. And the only thing that seems free anymore is the free software, the free Internet, the free speech community. Now, in that battle, the way I see it is that your community has taken a hostage in one of the members of our community and that Dmitry is still in jail at this time. And I want to know how Microsoft feels about the enforcement of the DMCA, whether or not that you are going to continue to take hostages in our community for free speech, free expression, and putting people in jail for open source and speaking their — using code as a form of free speech. [applause]

Craig:
I suggest you address your question to Adobe. [applause]

Audience member [off-mike, shouting]:
Did Microsoft lobby for the DMCA?

Craig:
We talk to people all the time. [groans of disbelief]

Right now the DMCA is what it is. It's the law of the land. All right? So we and you and anybody else has a right to go try to get it changed if you don't like it. But it is the law of the land.

Tim:
So, Craig, let me ask a question. Does Microsoft like it?

Craig:
There's aspects of it we like and there's aspects we don't like. We're like you.

Tim:
Well actually there's very little I like about it. [laughter and applause]

Dave:
Your business depends on copyright, Tim. Right?

Tim:
Right. But I figure the DMCA breaks the rules in that it basically — it goes too far against fair use.

Craig:
Write your congressman.

Tim:
Well, I've spoken to him —

Dave:
No, he has spoken out, no question about that.

Audience member:
My name is Robert Lydie. I'm speaking not so much from my current work background as by formal training as a biologist. We've been talking a lot about ecosystems. But one of the things that we have, as biologists, learn[ed] about ecosystems is that the width of the ecosystem has something to do with its vitality. When you get narrow ecosystems, what are called the monocultures, which we do fine with in farming occupations, you have to do things to keep these systems viable. You have to start [using] pesticides. You have to do other things. If we've got a force that's all the same type of tree and we get parasites, a red worm goes through and destroys it. What's the vision that Microsoft and the other commercial firms that are such a thin culture, a monoculture? How are you going to protect yourself form these red worms?

Dave:
We want a healthy ecosystem. And actually, in all seriousness, metaphors aside — and those are wonderful tie-ins — it's very, very important to our business as well as your businesses to have a healthy ecosystem.

Audience member:
Buy breadth. Have Linux. [laughter]

Dave:
There ya go.

Brett Glass:
Okay, my name's Brett Glass. I'm known as a writer for Boardwatch magazine, among other things, and somewhat of a rabble rouser in the community. In the interest of brokering peace between the camps here, I'd just like to ask a question. During his talk, Michael said that Microsoft shouldn't engage in a winner-take-all strategy. The problem I see here, though, is that the GPL is also a winner-take-all strategy. As a matter of fact, if you remember — I'm sure most people here have read the GNU Manifesto -- Richard Stallman said that one of the effects of the GNU Project was to eliminate competition in the realm of operating system.

Now, this is sort of scary, in light of what our previous questioner just said. The GPL also has the potential to destroy, or at least weaken, the ecosystem by creating a monoculture. So I guess the question is: Why should we be going to the other extreme? Why advocate the GPL, rather than some sort of fairer regime that allows room for both, such as the Apache license, for example. Why not offer something to both camps, rather than going to one extreme to the other? [applause]

Shared Source vs. Open Source Related Links Debate and Panel Discussion Technetcast of the debate Part 1: The Debate OSCON Conference Coverage

Tim:
Well, I would have to say this is probably a loaded hot potato and I'm not afraid of those. I have to say I've spoken out quite clearly: I think that the university licenses are the best balance between freedom and the ability to make money. I think that is a choice that many projects have made. At the same time, I really respect and support the right of Microsoft to put out software under a proprietary license, and I really respect the right of people who want to use the GPL to put out software on [garbled]. I think the very fundamental right, you know, of freedom zero, for me, is to offer the fruit of your work on the terms that work for you.

Craig:
It's all about choice.

Tim:
Yeah [applause], and I think that that's really what's absolutely critical here, and I think the fact is, let there be competition in the marketplace. I mean that's the answer. I mean let people use whatever license they choose, and if their customers don't like it, they will have other choices. And I think because of technological changes, we are entering an era of greater choice. The fact is, Microsoft's past history is past, and we really are entering a new era, and it's a result not just of open source but of profound technological changes, and I think the future is open and we can make that future be what we want it to be. [applause]

And we probably need to end on that. If you want to ask Craig more questions, go to the free software event in October. [laughter]

[applause]

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