Open Source Misconceptions and Walled Gardens: The Microsoft Case

Written By: Jonathan under Categories: copyleft, copyright and Tags: Tags: , , , , , ,   , It has 1 Comments and It was posted on Feb 20, 2011

0.Why are everyone afraid of open source?
One of the most amazing things is that in a material portion of the Share Purchase Agreements (or investment agreements) I’ve reviewed in my life, the invested company was prohibited from using Open Sourced software as a material condition for the investment. The “No-Open-Source” clause was added in companies which a major part of their business model was open source or cloud services, so that in fact there were clauses that excluded the specific Open-Source applications used from the warranty and prohibited the company to utilise any other Open Source application. This prohibition, in my humble opinion, represents and archaic misconception that investment in start-ups is in liquidatable property such as patents or copyrights, and not in the persons behind the company.

1. Why is the cellular market afraid of open source?
Both Apple and Microsoft are afraid of Open-Source. Apple recently banned the open sourced VLC player to attend its cellular festivities as it was released under the popular GPL (and a funny story with XPilot) and so does the Windows Phone 7 developer agreement which states that open sourced software may not be distributed by the WP7 marketplace (which caused several developers to change their licensing models). But Microsoft and Apple’s prohibition comes from ignorance in regarding to the licenses more than anything.

2. About Microsoft’s misconception?
Microsoft prohibits inclusion of what they refer to as “Excluded Licenses”, which are “any license requiring, as a condition of use, modification and/or distribution of the software subject to the license, that the software or other software combined and/or distributed with it be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge” (clause 1.l) but, open source licenses apply only when there is distribution of the software, and not when there’s use, therefore, many cloud services use open sourced software (as they don’t distribute the code, only use it). A clause prohibiting excluded licenses in any software reigns over applications developed for WM6.x and WP7. In some portions of the application are server side or server dependant, some interesting questions raised.

3. Open source prohibition and cloud computing?
This next case is purely theoretical: Facebook, which bases most of its activity on open source infrastructure, develops a Windows Phone 7 application which interacts with the Facebook servers which are under open source licenses. While these open source components are used, they are definitely not distributed and therefore the draconian clauses of Microsoft’s license are terrible. A better example would be more feasible; imagine that some person grabs Wikipedia and creates a mobile application; Wikipedia’s content is released under a Creative Commons license which allows free distribution as long as any amendment or contribution is distributed under the same license. Now, Microsoft may come to the developer in questions and claim that clause 5.e to the developer agreement was in breach and remove Wikipedia from its marketplace.

4. Why Microsoft was afraid of Open Source??
Microsoft’s scare from open source licenses is clear. Microsoft is terrified from the misconception of the GPL’s viral nature which was perceived as turning all proprietary code which interacts with open-source code turns open-source and is afraid of defending itself against he who comes and asks it to open it’s code. However, this fear is disproportional: like the VCs who heard, somewhere, that there’s a risk in open source and decided to ban it completely, Microsoft detaches itself from a world that can do it only good: Microsoft could have started its marketplace with thousands of free applications from day one and giving it a competitive edge over Apple. Microsoft, however, is afraid of not being able to limit its users, and that’s what it does.

5. So now?
The solution is quite obvious, if Microsoft restricts open source from its playground, it will restrict popular browsers, media players and other software from playing the game and it will fail. There’s no comfort in locking the garden, just another step towards the separation between the proprietary world and the open source one.

[Originally in Hebrew]

Bonus for my English readers, my Open Source Presentation: