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Shared Source vs. Open Source: Panel Discussion
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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 debateWith audio

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.

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