MS code-sharing 'Faustian bargain' says lawyer

Microsoft’s “shared source” scheme, a response to the growing popularity of open source software, is a “Faustian bargain”, says lawyer Craig Horrocks.

The shared source approach, which lets some large users see Windows source code but not alter it, could rebound badly on software developers who are careless at building mental walls between their own legitimate intellectual property and what they have learned from perusing Microsoft code.

Shared source could severely handicap, if not forbid, those who have seen Microsoft code from developing in an open source framework, Horrocks said, in an address late last month to the New Zealand Computer Society.

Microsoft itself warns in its shared source agreements of the danger of “impairing intellectual property”.

In an address to New York University’s Stern School of Business in May 2001, when shared source was first advanced as a concept, Craig Mundie, senior vice-president of advanced strategies at Microsoft, said the open source software (OSS) philosophy embodied “a strong possibility of unhealthy forking”. Forking is the emergence of two materially different versions of a product, drawing on the same intellectual property.

Microsoft displays “a sorry history of FUD” (baseless spreading of fear, uncertainty and doubt) and an “inconsistent” attitude when it comes to relations with the OSS community, says Horrocks.

Papers in circulation “attributed to Microsoft” pose dark hints of damage to the US’ ability to best overseas countries in innovation. They suggest that insecurity of open code could make hacking easier and put consumers at risk. The various open source licensing schemes let developers see and alter code at will, though some demand that the resulting code be distributed under the same licence.

Horrocks, whose law firm, Clendon Feeney, took Microsoft to New Zealand's Commerce Commission over its anti-competitive licensing practices, also criticised recent licensing changes in the direction of digital rights management.

Microsoft has signed agreements with unspecified partners to manage their intellectual property on their behalf, and the terms of use of such IP may change without notice to the ultimate user. “Digital rights management effectively says, we, Microsoft, may change your [the user’s] rights to anything,” says Horrocks. Microsoft will not even disclose who its “partners” are.

Such changes would be expected to arrive in the form of an automatic online update to “security”. There is some doubt, says Horrocks, whether the terms of any such update “fully and fairly inform the user”, as expected in contract formation. “Most users would just press the ‘accept’ button.”

Richard Niven of the Open Polytechnic said significant positives arose out of digital rights management, but there were also dangers that a third party could lock up a user’s own copyright material, as ISP Xtra seemed to be trying to do with an amendment to its terms and conditions in April. He asked if over-zealous protection and even appropriation of IP would become a trend outside Microsoft.

In reply, Horrocks called Xtra’s move a question of “lovable idiocy”. Microsoft’s DRM moves, however, are “deliberately coordinated”, he says and the company is coming to see itself as “the policeman of the digital world”.

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