OK, so I was wrong.
When Neelie Kroes proudly announced her deal with Microsoft over interoperability information, it seemed to me like a classic case of snatching defeat from the jaws of victory. Worse, it suggested that the doddering European Commission had been finessed by Microsoft's deft lawyers, with an apparent slapdown for the company concealing its underlying victory over free software.
But now we have this announcement from the people most affected by the deal, the Samba hackers, and they seem to paradigmatically “over the moon”:
Andrew Tridgell, creator of Samba, said, "We are very pleased to be able to get access to the technical information necessary to continue to develop Samba as a Free Software project. Although we were disappointed the decision did not address the issue of patent claims over the protocols, it was a great achievement for the European Commission and for enforcement of antitrust laws in Europe. The agreement allows us to keep Samba up to date with recent changes in Microsoft Windows, and also helps other Free Software projects that need to interoperate with Windows".
Actually, I wasn't completely wrong. According to Tridge's fascinating history of the case – a must-read – that original deal was not unproblematic:
Our initial reaction was dismay. The per-copy royalties on the patent license were completely incompatible with the principles of free software, so we knew that we could not even consider that agreement. We had hoped that the commission would view the courts decision of the 17th of September as sufficient to warrant a patent license which didn't involve a per-copy royalty, but unfortunately that was not the case.
That was my view, too. But:
Then a remarkable thing happened. Responding to an article on Groklaw where the agreement was being discussed, the trustee Neil Barrett posted a suggestion that I get in touch with him. Neil directed me to Craig Shank, who heads up Microsoft's protocol licensing team. Neil thought that Craig would be the right person to talk to to try and fix some of the problematic parts of the agreement.
This in turn resulted in several weeks of intensive discussions, during which we found that Microsoft was indeed very willing to make modifications to the agreement to make it more suitable for use by the free software community. Microsoft was keen to ensure that it complied with the court ruling, Neil Barrett was happy to help facilitate those discussions, and of course we were more than willing to point out the parts of the agreement that were problematic for free software projects.
The final solution is complex, but important. It sees the creation of a new entity – indeed, a wholly new beast in the world of free software – called the Protocol Freedom Information Foundation (PFIF), a non-profit organisation created by the Software Freedom Law Center. It is this body that will receive the protocol information from Microsoft, and then make it available to other free software projects. Crucially:
Although the documentation itself will be held in confidence by the PFIF and Samba Team engineers, the agreement allows the publication of the source code of the implementation of these protocols without any further restrictions. This is fully compatible with versions two and three of the GNU General Public License (GPL).
The other key element of the new agreement is:
Microsoft is required to make available and keep current a list of patent numbers it believes are related to the Microsoft implementation of the workgroup server protocols, without granting an implicit patent license to any Free Software implementation.
That may not seem like much of a concession, but Tridge explains why it helps:
The Samba Team has for a long time put a lot of effort into ensuring that we don't infringe any patents. I have spent countless hours talking to patent attorneys, and analysing patents to ensure we don't infringe. The problem is that the number of patents we have to analyse is unbounded. We have generally found it isn't too much of a problem to avoid infringement of patents that we know about, but what about patents that we don't know about?
The list essentially tells the team what they have to code around. Moreover, for any patents not listed, Microsoft has committed not to sue anybody implementing the protocols.
There are a number of major implications of this new agreement.
First, it confirms that there are groups within Microsoft who are willing to work in good faith with the free software world – whatever their chair-hurling boss may say. Judging by Tridge's comments – and contrary to my own impressions – it also demonstrates that there are people within the European Commission who really get this open source stuff, and want to nurture it. That's something that goes well beyond this agreement, since it is likely to impact future decisions too.
This news also underlies just how impressive the Samba team and its leaders are, particularly Tridge and Jeremy Allison: they are operating at the cutting edge of free software – notably where it interacts with Microsoft, arguably one of the most tricky areas.
Related to this, the creation of the Protocol Freedom Information Foundation and the complicated process of accessing Microsoft's interoperability details and navigating around the software patents it claims, have created a major precedent for future deals. If enough people within Microsoft are willing to take a similar approach in other areas, it may well be that this is the most important long-term result to come out of what has been an extremely long and painful process.