| |
| META TOPICPARENT | name="WebPreferences" |
|---|
Ready for review. | | | Since the 1990s, the term has been used to characterise a facet of Microsoft’s response to the open source movement, which has been implicitly acknowledged in the company’s internal “Halloween Documents”. The Halloween documents comprise a series of confidential Microsoft memoranda (drafted by Microsoft employees Vinod Valloppillil and Josh Cohen) on potential strategies relating to free software, open-source software, and to Linux in particular; and a series of responses to these memoranda. Both the leaked documents and the responses were published by Eric S. Raymond, an open source advocate and co-founder of the Open Source Initiative. Marked "Microsoft confidential", these documents identify open-source software, and in particular the Linux operating system, as a threat to Microsoft's dominance of the software industry, and suggest ways in which Microsoft could disrupt the progress of OSS. According to the Halloween Documents, OSS is identified as a “long-term credible” product and thus “FUD tactics cannot be used to combat it”. Still, over the following years, Microsoft has made various announcements regarding the potential dangers of developing or using OSS software, particularly with regard to the General Public License’s (GPL) “viral nature” which “_[...] poses a threat to the intellectual property of any organisation that derives its product from GPL source_”, and to the potential liability for users of Linux, since the latter software allegedly infringes 235 of Microsoft’s patents. This acknowledgement has been recently followed by relevant legal action taken by Microsoft against a company using Linux as the software platform for their products. The latter case was eventually settled out of court. | |
<
< | b. "Embrace, Extent and Extinguish" | >
> | b. "Embrace, Extend and Extinguish" | | | A different strategy has been followed in the course of open standards (HTML 4.0 standards in particular), in the seminal antitrust case between Microsoft and the U.S. Department of Justice. As referenced in the proposed findings of the Department of Justice , “[...]_ Microsoft’s response to the browser threat was to “embrace, extend, extinguish”; in other words, Microsoft planned to ‘embrace’ existing Internet standards, ‘extend’ them in incompatible ways, and thereby ‘extinguish’ competitors_.” (Section V.A.3.b. para. 91.3.2). In this context, the first step involves the development of software which is substantially compatible with competing products and which implements the public standard, the second step refers to the adding or promoting features which are not supported by competing products or part of the standards, and thus creating interoperability problems for customers who attempt to use the standard without said additions or features, whereas the third and final step involves the marginalisation of the competitors, by the time these additions or features become a de facto standard because of the company’s dominant position in the market. | | | I suspect that the mere presentation of these two strategies helps little to address the underlying questions regarding the use of intellectual property rights in the context of OSS and open standards; to conclude that the aforementioned strategies are based on the misuse of IPRs - and that proper use of IPRs would resolve this tension - would be a rather short-sighted remark, since the effect of IPRs on these areas is systemic. Moreover, this remark overlooks the fact that the judgement on whether IPRs (especially patents) are used or misused depends essentially on the standards of granting a patent by the administration and upholding it by the courts (in this sense, if an abstract software patent (see p.194 etseq.) is granted based on current legislation and upheld by the patent court, its enforcement by its holder would not contitute a legally prohibited abuse stricto sensu, despite its detrimental effect to the software community. In any case, used or misused, IPRs have an impact on innovation fostered by the open source community as well as standard setting organizations that promote open standards. The strategies that we may devise to overcome the potential threat of IPR enforcement (e.g. collecting and keeping prior art information in order to invalidate patents, establishing mechanisms that facilitate better examination and quality of patents, patent pooling, open source insurance, code scanning / code "management") may help mitigate the risks diriving from IPRs, but do not tackle the problem at its source. | |
>
> |
Nikolaos,
This was an interesting read. I have no substantive comments, I'm mainly leaving this comment because I changed the second section's heading from "Embrace, Extent and Extinguish" to "Embrace, Extend and Extinguish" and I thought that, even in a wiki environment, it would be inappropriate for me to adjust even something so minor without telling you (especially if I was wrong about the change). Again, a good read and I appreciated the linking for additional information.
-- BrianS - 17 Jan 2010 | | | | |
>
> | | | |
| META TOPICMOVED | by="IanSullivan" date="1263572970" from="LawNetSoc.TWikiGuestSecondPaper" to="LawNetSoc.NikolaosVolanisSecondPaper" |
|---|
|
|