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As Microsoft's chief legal counsel, Smith has successfully maneuvered his company into reaching amiable agreements in several antitrust claims filed against the software giant.
His negotiation skills helped Microsoft convince nine state Attorneys Generals in the United States to drop their antitrust appeal against Redmond in 2002, and ink settlements with AOL Time Warner, Sun Microsystems and Novell.
Smith leads Microsoft's global legal and corporate affairs team, and plays a key role in driving the company's messages on competition law, intellectual property and Internet safety. He champions the company's global initiatives in promoting child online safety, and battling illegal spamming, virus attacks and software counterfeiting.
In Singapore during his recent week-long visit to Asia, Smith spoke with ZDNet Asia about Microsoft's fight against spam, and the need to collaborate with government agencies worldwide in enacting cybercrime laws that are effective.
He talked about his desire to bridge the two islands of open source and commercial software, and explained why Microsoft believes "co-opetition" now plays an important role in the industry's progression. He also discussed how the company manages its position as a "monopoly" in the desktop market.
But Smith was surprisingly candid about the company's ongoing legal tussle with search rival Google, and firm on the company's policy that taking a "sabbatical" should not mean taking off to work for a competitor.
The Singapore government recently unveiled the latest draft of its spam control bill, highlighting a key proposed change which would give individuals the right to sue illegal spammers. Is that a good step forward?
I think that's probably less important than other parts of the legislation. Giving consumers the right to sue is one thing, but the reality is that that's not what most consumers want to do. Suing is time-consuming and an expensive endeavor.
Frankly, one of the challenges with spam is, first, undertaking an investigation to see who's sending it. And that takes time and it takes resources, even for a company like Microsoft. It's unlikely, in my opinion, that an individual consumer is either going to have the resources, or is going to want to spend them to pursue that type of fight.
I think it's more important that the legal means be there for the government and private companies to bring effective action. The most progress come when governments and companies have worked together, or when a group of companies have worked together. We then are able to pool the resources that it takes to be effective.
However, Harris Miller, president of the World Information Technology and Services Alliance (WITSA) highlighted that Internet governance is getting in the way of issues like digital divide, and that spam and privacy issues cannot be driven by the government but by market forces. Do you agree?
When you look at a problem like the Internet and safety, it's very clear that the government cannot solve this problem by itself. I also think that we in the private sector cannot solve this problem by ourselves either. I think it's through partnership between the government and private sector that we are best able to make progress.
We need governments to enact strong laws and devote resources to law enforcement. We in the private sector need to work on strengthening our products through better technology, we need to invest in broader education, and we need to focus on what we can do to work with law enforcements in specific cases.
For example, we had a new worm just in late August and were able in partnership with the FBI in the United States to track down that worm to its source--one individual in Morocco and one in Turkey.
Law enforcements in both countries arrested those individuals within two weeks of the worm being launched. Those kinds of cases are very important because they send a very strong message. I, in fact, believed that three to five years ago one could launch a worm and the chance of getting caught was very low. Today, the chance of getting caught is actually quite high.
Do you think it's ever possible to fully eradicate spam? I'm still getting hundreds of spam from Germany, Russia, and goodness knows where else. It seems impossible.
First of all, I would say that the biggest source of spam is still the United States. There's more that we can do. But the fact that we can take action in Morocco and Turkey so quickly shows we can take effective action on virtually a global basis.
| Our industry is still characterized too much by these two separate islands. We have an open source island, and we have a commercial or proprietary island. The future is about building bridges between those two islands. |
When we're talking about illegal spam and virus attacks, we're talking about crime. We live in a physical world where we know the elimination of all crime is impossible. There will always be a certain level of crime. But we also live in societies like here in Singapore and the United States, where crime is kept to a level that's low enough so that most of us can go out, live our lives, be successful and not have to worry about crime as an ever-present in our everyday lives.
Our goal with the Internet has to be put on a similar level. It's not realistic to suggest crime will ever disappear completely from the Internet, but crime is being reduced, and can be reduced further to a level where people will feel comfortable and safe using the Internet for everyday activity.
WITSA's Miller also said for that to happen, there needs to be similar cybercrime security laws across borders. You agree?
Yes, we all have to recognize that because the Internet is global, laws and law enforcement need to work well on an international basis. What that means, fundamentally, is two things.
First, we have to get to a similar level of legal protection in multiple countries. Second, we must have effective coordination between law enforcement agencies across borders.
With the Zotob worm, for example, one of the questions we had to ask ourselves was whether law enforcements in Turkey and Morocco were interested in collaborating with the FBI. Good news was that they were and they moved very quickly. The second question was whether they had laws in their books that would actually make it possible to prosecute these individuals successfully. The laws were better in Turkey than Morocco, but they were good enough in both places for us to be successful.
I actually believe that in most countries, the law is good enough to bring cases. But we do need the laws to be made better, and that is a worldwide initiative. Right now, it's a focus of the U.S. national legislative, but we may see it as a more global exercise in terms of international treaties as well. And for us as a company, it means we need to do a good job of being supportive of government and working effectively with governments across the borders.
When you say there are areas to be improved, what are some of the key issues?
A lot of these involve modernizing the law to focus on Internet-specific crimes that are part of our vocabulary today, but that none of us talked about a decade ago. Ten years ago, the only thing that spam was, was a particular type of ham. A virus was something you went to a doctor for because you had a cold and a fever, and a worm was a creature in the ground. It shows how much our vocabulary has changed.
This new vocabulary then needs to find its way into new laws. By doing so, we are able to really refine the law so that it can be as effective as it can be. We're seeing governments pass laws and we need more laws like that.
Even where we don't have the new laws, I have a fair degree of confidence that we can act on older laws because government agencies and courts know this is a problem that we need to address. But we can be even more effective if the law itself is modernized to address these issues.
A large part of your work also deals with intellectual property (IP). Microsoft's platform guy, Martin Taylor, when he was in Singapore, talked about how the software patent structure needs to be improved. Are there changes that you're pushing harder for than others?
I would say that, if you look at it globally, there are two broad categories of changes. The first is in countries like the United States, where we need to reform the patent law so it responds to the latest wave of technological change.
We should recognize that we have had patent laws in countries like United States and United Kingdom for over 200 years. And periodically, they do need to be updated to reflect whatever the impact has been from technological change. In the United States, we need to strengthen the quality of the system. We need to curb litigation abuses, and we need to make the system more accessible to small businesses and individual inventors.
Globally, the most important priority for countries like Singapore is really ensuring that the global patent is more easily accessible to startups and small businesses here.
Protecting a patent is much more time-consuming and expensive than protecting a copyrighted work. A copyrighted work doesn't require the filing of registration forms in lots of different countries. But if there's a new business in Singapore that does something that
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