April 11th, 2009
The Microsoft defense brief
A week ago Portland freelancer David Kline sent me a copy of “Burning the Ships,” which he ghost-wrote under Microsoft IP executive Marshall Phelps.
Unfortunately I had a library book that needed finishing and couldn’t be renewed, so it wasn’t until after Matt Asay went all Glenn Beck on it that I settled down for a quiet evening’s read.
The title alludes to Cortez burning his own ships so his soldiers would not desert the invasion of Mexico, and this allusion fuels Matt’s rage. Maybe he identifies with the Aztecs.
A better title might be “Precious Bodily Fluids,” alluding to Gen. Jack D. Ripper’s fear of poisoning and the Internet’s traffic business model, where ISPs exchange data first and worry about the money later. That’s more what Phelps is getting at.
For years, Phelps writes, Microsoft protected itself through a clause called NAP — Non-Assertion of Patents — which it forced upon business partners.
NAP freed Microsoft from worrying about most patent claims, he notes, but not from trolls who were not business partners. Worse, it left Microsoft isolated, with great ideas left as mine tailings behind the shop.
The Phelps plan was to sign cross-licenses with business partners instead, to aggressively patent what it had, and then to license those patents to start-ups.
The cross-licenses would let Microsoft do business with partners in a similar way to the old days, while the patenting and licensing of new inventions would spin straw into gold for new entrepreneurs, who might then become business partners.
In Phelps’ view it worked a treat. And it’s hard to argue with the financial numbers the company has put up the last five years, while losing not only CEO Bill Gates but his entire founding generation.
There are two problems with this.
- The law allowing software patents is subject to question, and is now being questioned.
- While Linux vendors and users are exchanging bodily fluids even more readily than ISPs peer, that’s due to legal agreements among all players which look a lot like NAP.
Thus, in Phelps view, all this folderol about Microsoft “owning Linux” is really just a ploy to participate fully in the Linux ecosystem, through cross-licenses.
The title of this piece was chosen deliberately. Phelps’ book is essentially a defense brief for Microsoft’s legal strategy of the last six years. Matt clearly is not convinced.
Me, I’m taking it under advisement.
How say you?
Dana Blankenhorn has been a business journalist for 30 years, a tech freelancer since 1983. You can follow Dana on Twitter. See his full profile and disclosure of his industry affiliations.
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| 04/11/09
