Microsoft General Counsel Brad Smith put in an unusual appearance yesterday at the Open Source Business Conference in San Francisco. Smith, the tip of Microsoft's formidable legal spear in dealing with alleged open source violations of the company's patents, delivered an opening day keynote which apparently resulted in no rioting, lynching, or spontaneous combustion. Indeed, it sounds as if the speech, and a subsequent Q&A session with attending open source devotees, was mostly convivial.

As personable as Mr. Smith is and as positive his message was, Todd Bishop's pre-keynote interview still finds the basic Microsoft position on patents and open-source unchanged: Microsoft still contends that Linux and other open-source projects infringe on patents it holds, and still refuses to detail those infringements. Bishop, to his great credit, pushed Smith to the point of clamming him up on the matter, but was left without any real logical response as to why the company refuses to give open source developers enough information to remedy their complaints.

I think the "why" is obvious; it's to frighten people like you, the CIOs and IT management staff reading this blog. And maybe it works. After all, you didn't get into business to take a moral stand, did you? If you're running the numbers, maybe taking the implied risk of running open source doesn't make the business case. Yeah, it's probably a bluff, or at least a very weak hand, but if you don't have to call it, why would you?

This is a fairly clear carrot and stick approach that Microsoft is using to attempt to further its control of the market, only they are holding the stick behind their back so you can't see how big it is. The real discussion should be not about all the details of these manueverings, but whether or not in general the ability for companies (and it's not just Microsoft at fault; as Smith points out, they are sued more than anyone for patent violations) to engage in such shenanigans in the first place is really healthy for the marketplace. Like copyright, patents were intended to broaden the distribution of good ideas and technologies, not to hinder them. When the system is manipulated to favor those who aren't innovating over those who are, it's simply not working.