Microsoft Media Player Blunder : Innocent Mistake? It goes deeper than that

The judge overseeing Microsoft compliance under the infamous antitrust settlement had chided Microsoft over a license presented to portable music player manufacturer which will effectively stop them from using anything but Microsoft Media Player on their devices. That license had since been withdrawn.

When the news first broke about a week ago, I took no notice about it and actually accepted Microsoft explanation that this is a honest mistake done by a newly hired, low level employee. After reading about the judge’s dismay on the issue, and taking into account that the US Government believes it needs to discuss with Microsoft about its legal training for employees, and lastly but most importantly, putting my conspiracy hat on, I think this issue is not that simple.

While it may be true that sending the license to manufacturers is an innocent mistake by a “insignificant” employee, the fact that the license even exists is and should be the source of concern. The employee blamed for this incidence could not had wrote the license himself, as he is, in Microsoft lawyer’s description, a ‘business person’, low ranking and himself a new addition to Microsoft empire. The persons who should be placed in front of a firing squad and described to journalists, US government and the judge are the lawyer(s) who dared to draw up the license, and the manager(s) sanctioning the drawing up of the license and its distribution. They are the real culprits, not the poor employee offered up as a sacrificial lamb.

I hope this does not mean that Microsoft had not changed its behavior after the antitrust Settlement was signed. If so, I hope the US government manage to rid Microsoft of this pandemic. Otherwise, the future is bleak. Worse, it is not that far away (late 2007 to be precise as this is when the constrains on Microsoft’s business practice under the settlement is lifted.)

MS introduces five new Share Source Licenses

Website : http://www.microsoft.com/resources/sharedsource/licensingbasics/sharedsourcelicenses.mspx

Well, not really, more like 4 new licenses and a rename for an old one. The new name for Share Source is MS Reference Library. Of the four new ones, there are actually two licenses and both of them have a slightly modified license each.

Like FSFE, I did not do a full analysis of the license, but rather just skim through it. The devil is always in the detail, and one cannot actually know what the detail is until one have to study it because one wants to use it. MS is notorious for having a lot of legalese in their licenses. However, this time, the licenses are quite short and rather easy to read. It is certainly easier to read than the GPL or LGPL or the Eclipse Public License. Hence, on first glance, well done to Microsoft.

The first new license, MS Permissive License (MS-PL) is very BSD-like. Cannot find any problematic clause in it. The second one, MS Community License (MS-CL), is GPL-like because of the requirement to share the file which contains call to the source code licensed under this license. To paraphrase Bill Gates, this is smaller version of the “Viral” GPL clause containing provision of “compulsory licensing”. I sense a problem here. I cannot really figure out what constitute “the file”. Furthermore, I cannot understand what is the purpose of asking the developer to open up that file. Perhaps it is to write interface to the proprietary portion of the developer’s code, but then it would just be necessary to use the LGPL clause of permitting reverse-engineering to discover the interface (and no more). The other two licenses is like these two licenses, but restricts the use of the programs to the Windows Platform only.

If I were to speculate how MS will license their source code under these licenses. Their most valuable source code, like those for Windows and MS Office will be available under the MS Reference Library, the second most valuable under the two Windows-only licenses, and the least valuables one the Permissive License and the Community License. My hunch is that among the two, Community License will be used for the slightly more valuable source code than the Permissive License. This is very subjective assessment as sometimes, the viral condition of Community License may means that the source code is not used to its full potential as it would under the Permissive License.

On the wider picture, we might be seeing a change in direction on Open Source in Microsoft. Microsoft had been hiring a lot of open-source people lately and I guess this is the results of their work.

FSFE says that this is a good sign, but mourn that MS is introducing new licenses into a already crowded Open Source License space. They would had preferred that MS uses GPL or LGPL (what’s new?). Well, first and foremost, Microsoft have the rights to introduce new licenses and most importantly, the rights to determine how they want to share their source code. Moreover, if the position of their American counterpart (FSF) is a guide, FSFE will have problems with all licenses, including Open Source License, which are not compatible with GPL or LGPL. Please do not get me wrong as I think their aim and aspiration is a good one and I support their cause, but the world is not perfect and we live in a real world. It is true that open source landscape is more challenging than commercial or properitory licenses where the licensees know that they have to pay either a lum sum to use the licensed software, or a per-user/per-site license charge for the licensees and the customers of licensee. The reasons for this complicated Open Source Landscape is effectively the results of dabbling by commercial interests. Every companies have to struggle to reconcile their commercial interest with that of open source and they all want different levels of restriction on their source code, and a desire to tailor-build their open source license rather than rely on a small set of reference licenses. Looking at the bigger picture, the proliferation issue is just a sidetrack. It may be difficult to navigate the landscape, but everyone have to manage licensing issues, even if one goes on the purely proprietory license route. To have someone open up their source code, even if it is for a very limitted scope, is a step forward as it may save somebody time to reinvent the wheel.

Defining the license(s) is a good first step. As FSFE point out, having licenses available is not sufficient, since it is access to source code that counts. What I would like to see now is not Microsoft rejigging existing share source code from Microsoft, e.g., (Windows CE) to align it with the new licenses without adding any more “openness”, but that Microsoft made available more source code under these licensing scheme.

In the end, I will judge them by looking at the how they license their source code and the value of their contributions to open source. My ultimate criteria how much they contribute to the open source community and humanity. I will definitely view very dimly any company that uses open source as a tool to foster a set of complementary technology to their technologies while keeping their technology firmly proprietary. This to me is not open source but rather a market ploy and a cunning ruse to promote and enhance the value of the proprietary technology.

Astroturfing by Microsoft on ODF?

When the news first broke that Massachusetts is adopting OpenDocumentFormat, there was a buzz in the media around it. Everyone jumped in including Microsoft Brian Jones. Normally one can expect to move on to the next topic in a week or so. At worst, the whole affair will stretch to two weeks. However, in this case, it lasted for at least 4 weeks, and still counting.

Just as I thought the story will go away, we have people trying to keep this story in the headline. First we have a Fox News article from a group which Microsoft supports, then Microsoft’s Yate talking to David Berlind. After which another Microsoft employee, John Caroll joins in. It sounds like there is a concerted effort to keep this story fresh. The fact that I mentioned two Microsoft employees and a Microsoft affiliation is no coincident and no accident.

May be I am simply paranoid. But I think Microsoft, or its allies, do not want this issue to die. The latest run is from John Caroll, a self confessed Microsoft supporter and now Microsoft employee. It may be possible that John Caroll may simply feels that there is a need for robust reply to Berlind’s comments on Microsoft. However, he is simply rehashing what is already said and added virtually nothing to the discussion. In fact, in his latest installment to date, all his questions were already answered, if he bother to do his research, such as reading his fellow Microsoft employees’ (Brian Jone’s) blog. If I want to be harsh, I would say he simply parroted existing Microsoft opinions on the case.

Are we seeing an astroturfing campaign? May be. Writing an article takes time. Parrotting what is already said is a waste of an author’s time, as an author’s real value is to present new insights/opinion to the topic. However, from a business point of view, having more people parroting an opinion helps to create an impression that that opinion is the majority view, casting doubts on opposing opinions. Parroting is a type of “astroturfing”, just as using affiliates to voice similar views is.

Is this a campaign to bias top results returned by Google using the search term “Massachusetts OpenDocument” towards negative opinion? At present, Google return a balanced results. David Wheeler once said something on the line that the best way to fight FUD is to write articles to refute it. The logic, I believe, is to overwhelmingly pointing out the fallacy of the FUD. If this is the case, then one of the main battleground will be search engines’ results. The flip side of the coin is that the more people refute the FUD, the more the article is perceived to be valuable from a business point of view (e.g. brownie points in selling advert on a website). It is a catch-22 situation at best. I have not decided what the best course of action is.

What is interesting is that it used to be the Open Source people who trash talk corporate/government decision to adopt proprietary software. Now we are seeing the opposite. In this case, Microsoft-phile trash talk the decision. All we can draw from this is that the loser, whoever they are, generally feels that they need to get their message across. What surprise me is that the length of time some corporate entities will go to propound their point of view. Or may be it is the other way round, open source have too short an attention span.

It is expertise that counts

ZDNet carries a story where Microsoft’s Nigeria Manager argues that cost is not as important as the expertise to use a piece of software.

He is right and wrong at the same time. He is right because expertise is needed to make the most out of the software you use. To support this point I will point out that people pay good money to have experts create templates for the word processing documents for them, and there are courses on advance use of software which charges a lot of money. I use GIMP but find myself unable to do a lot of fancy stuff with my image precisely because I do not have the technical expertise on manipulating images (and of course, my lack of artistic talent does not help). Savvy readers will immediately note that I am only talking about a small high end of the market which is not representative of how most people use software. Nonetheless, the proliferation of IT colleges that offers introductory and intermediate course on computers, especially Office productivity software such as Word Processor, spreadsheet and presentation software, definitely point to the fact that having a piece of software is not as important as the ability (expertise) to use it.

He is wrong because cost do matters, especially in a country where the average wage is too low to even afford a computer and pay of any software to use on it. Access to software and expertise in using them goes hand-in-hand. I had argued that expertise is needed to use a piece of software. Conversely, if users cannot afford access to the software, any expertise to use that software is useless and moot.

Since Mr Ilukwe (The Microsoft Manager in question) insists that cost is not a matter but expertise is and Microsoft is “sharing expertise” with Africa. I am going to post him this question: “What is the point of sharing expertise when the receivers is not able to use the expertise as he cannot afford it?”. I understand that Microsoft’s purpose, like that of any companies, is to increase the value of their product. However, it is also necessary to make sure one’s product is accessible to the people one “share” expertise with.

Hence, here is my most drastic viewpoint to any software company that “share” expertise knowing fully well that the recipient cannot afford the product to exercise that expertise *and* takes no steps in making their product affordable: YOU ARE ENCOURAGING PIRACY OF YOUR PRODUCT. I just hope one day you reaped what you sowed.

That is my cue to start my rambling about Free Software. If it is not already clear to the readers, my argument here is that sharing and building expertise in Free Software is one that allows the recipients to be able to exercise and demonstrate their expertise, as the recipients have access to the software. If I were the government of a developing country that really have its people interests at heart and is working towards giving them better access to ICT and training local expertise, I will choose Free Software, especially when I cannot see how the non-free versions can be afforded by the majority of my citizens for a foreseeable future.

Other articles which explains the situation better than me:

• Africa needs free software, not slick marketing talk – Directly from the people who really matters in this conversion.
• Editor’s Note from LinxToday – Brian Proffitt noticed an inconsistency: Cost matters in cash-rich countries, but not in a cash-strapped one.

MS Response to Massachusett’s ODF issue

Finally we have a response from Microsoft. It is from Alan Yates (the person who wrote the long comments to Massachusett on behalf of Microsoft).

It is a pity it was not on official stationery, but rather through a third party blog (David Berlind’s blog on ZDNet). Its a pity because David Berlind, as the author of the blog, exercised his rights to comment on the blog, giving us a “filtered” view of Mr Yate’s response. Please do not blame Mr Berlind for that, its not his fault. Mr Berlind cannot post Mr Yate’s correspondence on his blog as it is private conversation. Therefore, his hand is tied and have to post the whole affair as a commentary. Moreover, given Mr Berlind’s previous records on journalism, I will say that he is one of the few on ZDNet who is relatively neutral on most topics. He definitely give everyone a fair hearing, and most importantly, report the facts as they are. If you want to blame anyone, blame Alan Yates. He is the one who choose not to release it on official stationery.

I had always said that Microsoft should presents its side of the story, if only as a record for historians to judge the matter.

John Carroll calling a storage device a PC

John Carroll’s idea for a sub $100 PC is interesting, and I like the idea/concept and can see myself doing this. However, I cannot call it a PC, not even a PC substitute.

His idea is that everything is stored on a USB device instead of an internal hard disk. User simply bring the USB device to a dummy computer terminal, i.e. one that only have processor, display, keyboard and mouse, boot it off the device and run everything from the USB device. He then call USB device and the dump terminals a PC.

He asks us to be bold and disregards the concept of a traditional PC. There is no need to do so. The dummy terminal/external storage combo is a PC in every sense of the word. Let’s not forget that hard disks is a relatively new addition to PC. Before hard disk become common places (around 1995), we boot PCs from floppy disks. In fact, today you can download Knoppix CD and DVD and boot your computer off it, bypassing your harddisk completely and store your data to a USB device.

However, since he ask it nicely, I will try my best. BUT what I am not prepared to do is to confuse the ownership of a storage device with the ownership of a PC. He is asking us to disregard the composition of a PC. But a PC, whatever its composition, must be able to process data such write a document or spreadsheet. This is actually a fundamental requirement for any PC. Another important purpose of creating a sub $100 PC is to give its owner an INDEPENDENT means of processing his data. Otherwise, we can all call a dummy terminal that do timesharing processing time on a mainframe a PC … and it is easier to configure one like this sub $100 coz it means we can disregards the cost of everything on the servere end (including the server). A USB or other device which stores program/data/OS cannot perform data processing and therefore fails to qualify as a PC. An owner of the storage device, however sophisicated, still needs to access to a dummy terminal. If he does not own one, he is at the mercy of others and therefore not independent.

His argument seems to rely on the fact that the majority of the people personally spend less than $100. This does not fly. It is like saying I have a sub $30 PC TODAY since I own a Knoppix CD ($1 – cost of a CDR) and a small USB flash memory stick (approx $20 for a 256MB model) and at time insert the two into someone else computer to do my word processing. Even if we stretch this personnal cost thinner by using communal ownership of dummy terminals to spread the cost of it over as many storage device to bring the cost per person down to sub $100 level, I am sure most people will count the number of PCs as the number of dummy terminals collectively owned. Otherwise, given enough people, we can each personally spend less than $100 for supercomputing.

If his purpose is to squeeze in Microsoft Windows into the sub $100 PC space, by offseting the cost of a copy of the OS against the dumb terminal, that is disingenius. There are better ways. I reckon the easiest way Microsoft can achieve this is to give away Windows Starter Edition or other crippleware version of Windows.

P2Pnet : Use and Abuse of TPM

P2Pnet have an good article on Use and Abuse of TPM. Technological Protection Measure (TPM) is just another broader name for Digital Right Management (DRM), or more correctly, as Tim Bray puts it: Digital Restriction Measure.

He asked for comments on the WIPO’s WIPO Copyright Treaty article 11 which mentions Technological Measures:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

I decided to oblige by posting my comment on P2Pnet, here and on the discussion board for WIPO course (DL101 : General Course on Intellectual Property) I am studying.

Here is my comment:

The treaty text shoulds reasonable as it only aims to prevent circumventions that are illegal. However, it would be stronger we change it to

“Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law, **provided that the technological measures preserve access to and do not interfers with activities permitted by the law.**

My reasoning is that TPM measures must maintain fair use as mandated by the law, and when the the copyrights etc expires, the same DRM measure must ensure unflattered access to the material as permitted by law.

Well done, Microsoft’s Watson

In this article, Microsoft Chief Security Advisor (software security, not physical security 😉 ) for Australia and New Zealand, Peter Watson, is quoted to had said that

“I don’t think it creates any benefit for us or anybody in the ecosystem to turn around and say, ‘It’s good that this company has a whole load of security vulnerabilities’,”

Given all the negative publicity of Microsoft Software’s vulnerabilities, and that one of the major attraction of non-Microsoft software is the perceived reduced-vulnerabilities, I can understand it if he decided to use the Firefox vulnerability issue to lash back at his competition. Let’s face it, for a guy who is at the receiving end of all the “security vulnerabilities” arrows we throw at Microsoft, he is entitled to lash back at us. Instead, he had chosen to clarify that nobody benefits from any software having a whole load of security vulnerabilites.

Now, before someone discovers the blog post and start flaming the blog, I know there are disputes to whether Firefox is more vulnerable than IE. That is not the point. The point here is that we have a chap that kept his cool and levelled head. He deserves the praises.

Intellectual Property vs Intellectual Monopoly

I am doing a course with WIPO Distance Learning (DL101 : General Course on Intellectual Property). I am about 1/8 through the course, and begin to form some opinion on the course. I will write a review when I complete the course, which should be sometime late November. Right now, inspired by the first module that introduce the notion of Intellectual Property ownership, I want to attempt to reconcilate my conflicting view on why certain so called IP, such as copyrights and trademarks, are fine and acceptable, but others, like Patents, are not acceptable.

Opponents of open source keep spreading FUD about open source proponent are against Intellectual Property, which open source proponents counterclaim by saying that the open source rely on Intellectual Property protection to protect their work, in particular, the copyright provision. Lately, open source proponent, like myself, have rally behind the movement against Software Patent. Some members of the general public probably think that we are hypocrits by embracing some form of IP protection that benefits us, namely Copyright, but decries other that do not or expensive to obtain, namely patent. Opponents of open source is starting to use this “inconsistency” to attack open source. Various members of the open source community had addressed this issues before.

My own struggle with Intellectual Property is that Intellectual Property Protection has gone overboard and is constraining humanity, rather than advance it. I believe that Intellectual Property, properly implemented, do help advance humanity, but at a price. The price we pay is short term ownership of a piece of “intellectual property” by individuals (including companies). However, in the long run, the society benefits because this short term ownership is conditional on the owner disclosure on how he did it. And if society can exploits the disclosure and retake ownership after the “short term” private ownership expires, the pain is worth it. The history of the Chinese People is one littered with a lot of lost “inventions”, all of which are well substantiated by various documents. These inventions are lost because there is no framework that reward and encourage the inventors to disclose how they did it. Thus, inventors rather take their inventions to the grave than to tell others how to make it. I can only imagine how much richer our society will be if these inventions are not lost.

The problem I have with IP laws are their implementation, in particular the constant redefinition of “short-term private ownership” which seems to be getting longer and longer. In my opinion, these extensions are often not justifiable, as they are contrary to my stated priciple above on what IP is meant to be. This is the easy part to explain. However, my view is not that simple, because I find that certain categories of IP rights, is more repungant than others. Although I have a certain ideas on why this is the case, I am often at a lost on how to explain this. That is, until I took the course.

The course explains that Intellectual Property is like a phsyical property, e.g. real estate, where it can be owned by excluding others from using the “property”. I have trouble with the physical property analogy, for the sake of this blog entry lets just leave it as it is. Rather, lets focus on the issue of “excluding others on using the property”. This is the root of the problem I have with certain categories of intellectual property.

If IP is like a house, I have no problem with it. This is because many people can own houses. They simply own different houses. These houses serve the same purpose: providng shelter. The houses can be very similar (think terrace houses), but not identitcal (must occupy different spaces). Since there can be many houses owned by many people, excluding the majority of people to use a particular house does not really bother any one, including me, as long as there is enough house to go around.

Now, imagine that you cannot own a house because someone else own all the houses in this world. Futhermore, this someone is not impartial, is out there to protect his own interest at the detriment of others if necessary, and his decision is final and binding with no rights to appeal. In effect, he has a monopoly on house ownership. If this is the case there will be a big uproar against this monopoly.

For intellectual properties that behave like “Properties”, where different people can own similar (but not identical) properties, I am fine with the notion of granting temporary exclusive rights. It serves the purpose of rewarding the creation of the property and there is no overbroad exclusivity. Copyrights, Trademarks and related rights falls into this category.

However, if Intellectual Property start to behave like “Monopoly”, i.e., only one person can own the property to for his exclusive use, then they should ideally be banned, or extremely heavily regulated, to ensure that they are consistent with public good. In the case of Patent what is granted is a form of “monopoly”, but unlike other form of monopoly (electricity, gas and telephone for example), they are NOT regulated at all. I think this is wrong and should be vehemently opposed.

Is it an accident that the words “Intellectual Property” rather than “Intellectual Monopoly” is prefered? I do not think so. The word “Monopoly” have a negative cognotation and immediately put one in the defence of not granting the right. If the rights is granted to somebody, that person is usually under constant watchful eye and heavily regulated. However, using the word “property” give the whole thing a different meaning. It implies that the rights should be, by default, granted, unless there is a compelling reasons not to, and that regulations is not really necessary. Psychologically and practically speaking, the use of the word “property” favour the rights owners.

Indeed, as I had mentioned, some IP do behave like property, and therefore the terms IP is apporpriate for them. However, IP that behaves like monopoly should be identified instead as Intellectual Monopoly. It is simply a matter of saying things as they are.

Digital Right Management and Fair Use

Patrick Ross, VP of Progress and Freedom Foundation, an organization that is known to work with the Music Industry (See
SourceWatch information), recently published an article arguing that the ability to circumvent Digital Right Management measures (He calls it “Technology Protection Measure”) is wrong. In particular, he is against a bill (HR-1201) proposed by Congressman Rick Boucher (See Congressman Boucher’s opinion piece).

What do I think about the article? Another classic “Framing” exercise. Rather than tackling the issue Congressman Boucher raised, i.e., the purpose of the Bill is to readdress the imbalance that tilted towards complete protection and disregards towards fair use, Mr Ross decided to launch a tirade praising how “Technology Crippling Measures” are good since they provide more revenue.

Its true that these damn Technology Crippling Measures can create new business models for distribution of copyrighted content and have a place in the market. However, the way these measures are created ignore completely the notion of Fair Use. It is not the content owner’s right to decide what constitute fair use. It is that of the law courts. Moreover, over and over again it is demonstrated that the content owner’s notion of fair use is flawed and tainted. To say that one cannot circumvent technology measure even if one can demonstrate fair use is the same as saying that content owner is allow to infringe on the general public’s “Fair Use” rights. Only one sentence for this: IT IS WRONG, and should be illegal. Until this is corrected, i.e., when the public rights to fair use is restored in these technology measure, any technologically-based method MUST be opposed and should not be allowed.

Preventing piracy is something every Intellectual Property owner have to do since day 1 of the first IP law. All the while, the definition of Intellectual Property is being defined and redefined to meet emerging challenges. The basic IP laws are surprisingly robust enough to deal with all situations. The basic spirits of IP laws had not changed. Rather, it is human greed that had lead to the skewing of IP laws to unfairly favour the owners of IP. The situation needs to be corrected. And that is what Congressman Boucher is proposing to do.

Restricting public’s fair use right is a sure way to stifle innovation. Behaviours of big content providers had repeated demonstrated their willingness to stifle innovation and free speech. This include the attempts to use it to stifle Free Speech (Professor Ed Felten and SDMI case) and the imprisonment of a Russian Programmer when he went to the United States on something he did legally in Russia as a results of someone else decision to distribute his program illegally in the United States. Congressman Boucher correctly identified these as the weakness of existing laws and it is worth correcting. I will suggest to Congressman Bouncher to add a case where a company’s failed attempt to apply DMCA to garage door remote control as another case study.

Any technological measure to prevent law-breaking is good provided it also respects other peoples’ right as well. Otherwise, it is better not to have it at all, since it is supporting one evil over another.