Microsoft Shepherding Intellectual Property Discussion

As someone who has been around the computer industry long enough to say that I was there before the birthing of the microcomputer (the term we used before PC), my view of Microsoft has always been dim. The reputation of Microsoft as a company acting on the edges of propriety is legendary. There are many examples, from accusations from GO Corporation's Jerry Kaplan that Microsoft stole the core concepts they pioneered in pen computing in the early 90’s, to Microsoft’s anti-competitive arm twisting of PC manufacturers.

When Google was formed, they took as their motto, “Don’t be evil.” This was clearly code for “we won’t be like Microsoft.” And certainly, at the time, history was on their side.

But indeed times have changed, and some might even suggest the roles have reversed.

Windows is clearly not gaining ground in devices or phones. Web applications using HTML and Javascript, and Adobe’s Flash and AIR have almost totally supplanted Windows as an application development target. Microsoft’s web strategy has, for the most part, despite spending billions of dollars, been a failure.

To quote Bill Gates, “Success is a lousy teacher. It seduces smart people into thinking they can't lose.” Indeed, if Gates is right, in recent years Microsoft has finally had the opportunity to do some solid learning at the hands of Google.

The tipping point for the change might have been the loss of the anti-trust case. Or perhaps it was tied to the retirement of long time Microsoft general counsel Bill Neukom, and the ascendance of kindler gentler general counsel Brad Smith in late 2001. But whatever the cause, the result is clear. Microsoft, right before our eyes has become a very different company from the one we knew ten years ago.

The first indications became clear when, on the arrival of Smith, Microsoft began settling cases that they never before would have settled. The old Microsoft fought everything tooth and nail to the bitter end. Microsoft was famous for not giving an inch – on anything. Ever.

More recently, Microsoft has indicated a desire to turn another corner. Tom Rubin, Chief Counsel for Intellectual Property Strategy at Microsoft, gave a speech last week in New York about the future of intellectual property and creativity online. The core of his argument, is the basic idea that technology companies and content companies need to figure out a way to get along. He frames the issue as primarily a social and structural one more than a technological one – a point with which I wholeheartedly agree. The term he uses for this needed awakening is “stewardship.”

Tom’s basic point is that recent data is showing us that the Internet is currently not a platform that can economically sustain content creation. As such we need to figure *something* out to allow creative efforts to remain economically viable. Tom defines stewardship as follows:

“So stewardship means appreciating the impact of one’s actions on others and on the media ecosystem as a whole. It means making sure that new species of individual creators can thrive and survive, and that new technology is given room to flourish, even if they both challenge your traditional ways of doing business.”

After the talk I had an opportunity to sit down with Tom, and I discovered that the speech reflects more that just a philosophy about intellectual property. The speech is really a marker for a new concept for how to approach intellectual property by Microsoft. It reflects a desire to truly move the discussion forward in some substantive way. Microsoft wants, in some respects, to be a shepherd. As Tom explains it, Microsoft’s desire is not to impose what is right, but to engage us all in a discussion that leads to a future we can all live with.

Tom pointed out in our conversation that Microsoft is both a technology company and a content owner, and so they do not take the perhaps extreme positions that pure tech, and pure content companies tend to get into. Of course, the fact that they are Microsoft, will indeed, in the minds of some, taint their credibility.

But what is really fascinating here is the idea of Microsoft *seeing themselves* as a kind of reasonable, thoughtful, verging on academic voice on this issue – almost an honest broker. (Yes I do see the irony in that last sentence.) Of course it is not at all clear that this will be possible. It is entirely possible that such talk will not actually fly internally at some point because of competing interests. It is also possible that the outside forces are so entrenched and Microsoft’s history hopelessly undermines some kind of new role in the industry. But the fact that this kind of talk is even happening is hugely significant since it would not have happened in another era.

At the end of the day only time will tell if Microsoft really can bring everyone together to come to our collective senses. But it seems to me some kind of intellectual property rapprochement is critical to our economy, as well as to our culture. And so, in my book, Herculean though the task may seem, it is certainly an admirable and worthy effort.

And so, perhaps for the first time in my professional life, I can actually say, at least on this issue, I truly applaud Microsoft. Godspeed.