Tell Me This is "Just a Coincidence"

Tell Me This is "Just a Coincidence"

By Pamela Jones
Groklaw

July 23, 2003

Microsoft has a new license [ http://news.com.com/2100-1012_3-5050986.html ], as of March 1. They will indemnify their users against IP lawsuits, such as the SCO mess:

"In older contracts, Microsoft agreed to pay all legal fees for volume license customers who got sued because of Microsoft, but only up to the value of the software they bought.

"Under the new provision, which took effect March 1, Microsoft removed the liability cap in intellectual property suits and altered other parts of the agreements that potentially expand its liability.

"The company also expanded its product warranties for licensing customers from 90 days to a year and expanded the minimum notice given to customers regarding software audits from 15 days to 30 days."

You'll never guess who thinks this is a wonderful idea. Yes, it's the lovely and tireless Ms. DiDio:

"'The former clause allocated too much risk to third parties,' said Laura DiDio, an analyst at the Yankee Group. 'Intellectual property issues relating to Microsoft software are entirely in the control of Microsoft.'

"In real world terms, the changes won't likely dent Microsoft's legal budget. The indemnity provision rarely comes into play, said Morris Kremen, associate general counsel for licensing at Microsoft. Customers, though, hated the old one."

The new license says that if there is a lawsuit, MS promises to buy a license, such as the one SCO is now offering. So...let me get this straight. In March, they changed their licensing terms to include terms that would fit the SCO fact pattern to a tee, in May they signed a licensing agreement publicly with SCO, unlike Sun who at least had enough angst to ask to keep it secret, and today there is a news story just two days after the SCO licensing scheme is announced, that MS wants to be your friend in need. And with such a strong endorsement from an "independent" analyst, what more would you want to go with MS instead of Linux?

Excuuuse me, but what jumps off the page is that "the indemnity provision rarely comes into play", meaning this is a big FUD issue, for starters, and MS wasn't indemnifying anybody in any real way either, until the SCO attack was planned:

"A phantom menace

"Microsoft, however, was defending against a phantom menace. Kremen could recall only one case where a plaintiff brought a copyright infringement action against Microsoft's customers rather than the multi-billion dollar company. (In that case, IBM and Microsoft actually picked up the defense anyway and obtained a verdict in favor of their customers).

"Neither Kremen nor Mark Bolender, senior attorney at Microsoft, could recall any cases where customer sued a Microsoft customer for software security breaches or personal injury relating to a Microsoft product.

"Even if a suit were brought, the old indemnity provisions, which are similar to contractual provisions issued by other software companies, would likely have been adequate to protect licensees.

"'It is hard to imagine a royalty claim that is higher than the cost of the software,' Kremen said."

Especially if you've paid through the nose for Microsoft's products. Just a coincidence?

Sorry, Microsoft. Friendships are built on trust. Even business relationships are built on a measure of it . This announcement inspires less trust, not more, because of the coincidental timing, and, frankly, Ms. DiDio being trotted out again.

The fundamental problem MS faces isn't Linux. Their problem is their business depends on customers being tech-stupid and FUD-inexperienced. That only can work for so long. At one time, nobody knew anything about computers, so they relied on MS products to ease them into it and hold their hands. That just isn't the case any more, except for my mom. Her generation is the last one that believes such FUD and will put up with poor quality and poor service and proprietary ways, because they imagine the BSOD they are staring at happened because they did something wrong as they typed and they imagine proprietary software is normal, like air.

When she reads about the new license, she'll think it's great, until we talk it over. When I read about the new license, I just snort. And that is MS's real problem. They lost our trust. We grew up. And we know how to use computers. We know now that it's valuable to be able to look at code yourself. Some of us went into business, and we are the new office managers and other types that decide what software to buy. MS treated us like we were criminally-inclined. And that told us who they are. And their licenses for XP onward were so mean-spirited, so weighted against the customer, that we got disgusted. GNU/Linux gave us a choice, and we took it. How do you reverse that? I can't think of any way, can you? No one goes back to a bad relationship of their own free will. Especially because in the interim, we fell in love with the new software.

9:42:45 AM