It was only a week ago that we mentioned Novell vs. Microsoft litigation status. According to the Washington Post, this case has just taken a step forward.
Two antitrust claims brought against Microsoft Corp. by Novell Inc. can proceed, a federal appeals court ruled Monday.
A panel of the 4th U.S. Circuit Court of Appeals affirmed a decision by U.S. District Judge J. Frederick Motz of Baltimore dismissing four of Novell’s six claims but keeping the other two alive.
Novell alleges Microsoft used its monopoly power to limit sales of WordPerfect, a word-processing program, and Quattro Pro, a spreadsheet program.
There’s more on the issue in last week’s post (links included). This also happens to come at an interesting time when Microsoft faces a possible class action over stealthy “Genuine Advantage” activity.
Microsoft’s “Genuine Advantage” program is now being challenged by a number of Windows XP users in Federal court. If you are interested in helping in this effort to hold Microsoft accountable for using your computer to help Microsoft chase down software pirates without asking for your permission, contact us.
Microsoft is facing another setback as its appeal has just been rejected in the case of alleged racketeering.
The Supreme Court Monday rejected an appeal by Microsoft Corp. and a unit of Best Buy Co. Inc. to dismiss a lawsuit alleging violation of racketeering laws through fraudulently signing up customers for Microsoft’s online service.
The companies asked the justices to overturn a May ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals, which said the civil suit could proceed. The Supreme Court is letting that ruling stand, which means the class-action lawsuit involving thousands of consumers with complaints against the companies will be litigated in federal district court.
It is curious to see Novell taking an offensive stance against Microsoft (for a change). It is less curious to find that Microsoft keeps breaking the law and gets in endless trouble.
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“‘Innovation’ is a convenient excuse and there is rarely any innovative value involved in deviation from standards.”While at the airports, I managed to do some extensive reading on Microsoft’s antitrust ruling in Europe and also on OpenDocument format. The texts said a lot more about how Microsoft never complied with standards. It showed that Microsoft was willing to take standard protocols and then make minor and pointless changes to them — the way proprietary — just to ensure interoperability would be broken. To Microsoft, proprietary protocols are whatever it wishes to call ‘innovation’, but in reality, Microsoft knows that proprietary protocols are just a lock-in method. ‘Innovation’ is a convenient excuse and there is rarely any innovative value involved in deviation from standards. The Commission’s ruling exposed all of this.
Here we are today waiting for Europe’s action to take effect. According to one of the latest articles on this matter:
It also upheld the EU executive’s demands for the company to offer a version of its Windows software without its Media Player, and to share the software protocols or ‘interoperability information’ underpinning Windows for makers of rival products.
As we said several times in the past, with Novell’s deal, which was ‘bought’, it is easier for Microsoft to argue that standards are not the way forwards. Instead, Microsoft wants companies to invest in and to purchase binary bridges. It turns out that Microsoft has just opened yet another establishment that it calls an interoperability lab (this time in India).
Microsoft has set up a lab in Bangalore where industry, government, and educational institutions can build test applications for their interoperability with open-source and other technologies.
Why can’t Microsoft just embrace standards? This question was answered many times before, but never was the answer satisfactory. Novell used to fight for standards and openness along with the tiny Samba and FSFE. Then came the Microsoft money which had Novell change its mind. Novell sold out.
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Unrest in Novelland?
Watch how Novell’s staff is trying to calm people down in the SUSE mailing lists after the question “Good or Bad of SuSE Novell Takeover” had been raised.
[opensuse] Good or Bad of SuSE Novell Takeover – Was: Re: subpixel hinting…”
* From: Stefan Hundhammer [ sh@xxxxxxx ]
* Date: Tue, 9 Oct 2007 11:49:38 +0200
* Message-id: [ 200710091149.39173.sh@xxxxxxx ]
On Monday 08 October 2007 18:26, Jan Engelhardt wrote:
> >We could get away doing that kind of thing back in the days when we were
> > that small German company SuSE. But now that SUSE is owned 100% by
> > Novell, that just won’t work any more.
We mentioned sub-pixel hinting before, but the source we relied on was not accurate. It does, however, make you wonder. Is it becoming more of a reality each day now that Novell boasts a Technology Assurance Program and even blogs to brag about Microsoft ‘protection’.
Novell rolled out the new Novell Technology Assurance Program this week…
Shane’s comments (and responses) have eventually appeared, so you can see that by following the link above.
Meanwhile we are also hearing about the not-so-reassuring staffing adjustments at Novell. AppArmor was apparently just the tip of the iceberg and a sign of things to come.
A former Novell worker who still has ties with the company told the Daily Herald he had heard as many as 600 jobs could be eliminated or moved overseas to lower labor-cost countries including India, where Novell has a software development center.
They might be referring to Matt Asay, who blogged it a few days after we had. If things go as awry as projected, then managers will hopefully get reprimanded for their tactless moves, which included a horrible deal with Microsoft — a deal that spurred a lot of trouble that not only affects Novell, but also other companies that surround it.
Update: Others seem to be upset and they direct their criticism at the management too.
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To those who have missed the recent events (myself included), here are some highlights.
Mark Webbink has joined the SFLC.
This is good news, that Mark Webbink has joined the board of the Software Freedom Law Center. Good news for the FOSS community. For him, I think the idea of a laid back, restful retirement is now just a dream.
Just hours ago he also published an article, Patent Sanity, in Linux Magazine. Subscription is needed for access to the full text, but you could forge HTTP headers and appear like a search engine, which then permits entry.
For years, many in the software industry have expressed concern over software and business method patents and the patent system.
Earlier this week, Mark Webbink’s home base, better known to us as Red Hat, was among those hit by a software patent lawsuit.
Intellectual property licensing firms IP Innovation and Technology Licensing Corporation have filed a lawsuit against Red Hat and Novell for alleged patent infringements in their Linux distributions.
The Groklaw community was prepared for such developments. It jumped all over this one with a sea of comments. Result? This whole case seems to be virtually over before it even began. It’s DoA based on at least one criterion. And there’s another:
It’s a 2005 case, so a lot has happened in the meantime. Oh, and if you are looking for prior art, the patent to look at first would be the oldest one of the ones IP Innovation has claimed in the Red Hat litigation. That is the one that I think needs to be knocked out either by prior art or by obviousness.
Then comes the Microsoft threat, which was implicit. It also had the Microsoft spinners (yet again) trying to do damage control after Steve Ballmer. It’s a “good cop, bad cop” routine.
Those who were worried that the FUD would have a negative effect on adoption should worry no more. Linux isn’t just unaffected, but it’s actually gaining momentum, according to Dell.
The PC manufacturer says that Microsoft’s patent-infringement claims have not affected sales of its Linux servers.
Some more analysis at eWeek says that this case is nothing out of the ordinary.
“Any impact would largely depend on who was the first mover. One likely impact of such a lawsuit, regardless of who sues, is that software companies may pay closer attention to patents,” he said.
Red Hat points its finger in the same direction that it did back in May — the “Deploy with Confidence” page.
The Linux Foundation dismisses Ballmer’s threat as another “FUD attack.”
More about this here.
Red Hat is taking a business-as-usual stance in the face of renewed rumblings from Microsoft’s Steve Ballmer over the need for Red Hat Linux users to pay up.
As usual, Mark Shuttleworth comes out swinging.
For starters, Shuttleworth said, Ballmer is implying that open-source developers don’t take IP seriously. Nothing could be further from the truth, he said.
SJVN does the Sopranos analogy.
Steve Ballmer, the Sopranos and the protection racket.
“Because they don’t, Tony. Er, I mean, Steve. What you’re doing is trying to set up an extortion racket.”
“Oh, yeah? Who knows more about extortion, me or you?”
In this case, I think it’s me.
There is still some extortion going on in Fortune 500 companies, according to Brad Smith, but companies don’t want to admit this because of the wrath of developers.
There’s also some activity in other patent harassment cases that occupied a lot of paper space recently, e.g.:
Vonage agrees settlement on Sprint lawsuit
Vonage Holdings, the internet phone company, agreed on Monday to pay $80m to settle a patent suit filed by Sprint Nextel, the third largest US mobile carrier.
Lawyers face sanctions in Qualcomm suit
Chipmaker Qualcomm Inc. dueled Friday in federal court with its hired attorneys over who shoulders the blame for what a judge called “gross misconduct on a massive scale” at a past trial.
Qualcomm Firms Meet a Stern Judge
It didn’t take long Friday for a courtroom packed with grim-faced attorneys to sense where a magistrate judge stands on sanctioning attorneys involved in a huge discovery failure by Qualcomm Inc.
Southern District of California U.S. Magistrate Judge Barbara Major came out swinging.
The cases above have helped illustrate the need for a patent reform. This is why they remain relevant, just like previous key rulings that were usually in favour of change and against a weak patent system.
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It’s about the timing, the money trail, and the staffing
“The next SCO” is a title attributed and grated to various companies (by ourselves and others). First it was Novell back in 2006 and then it was Microsoft in May 2007. Some people are now claiming that Acacia is another proxy that absorbs the bad PR which accompanies legal actions on behalf on a larger company. Acacia, unlike SCO, would not be suing its own customers (because it hasn’t any). As mentioned some months ago, this firm, which signed a deal with Novell is just a patent portfolio with investors whose portfolio is tied to junk patents and trolling, apparently.
I’ve just returned from a vacation, so I’m still catching up with old press and I have missing pieces that need researching. Here are some bits that tell you about possible ties between Microsoft and Acacia. Microsoft, unsurprisingly, denies all of this.
From Sam Hiser:
PJ & Company astutely make the connection that behind “IP Innovation LLC” is a group called Acacia which is staffed by senior Microsoft agents, including Jonathan Taub, a Microsoft Hero & Key Achiever.
Pamela Jones of Groklaw detects the fine hand of Microsoft at work here. Two former Microsoft executives, Jonathan Taub and Brad Brunell, joined Acacia in the last several months.
Matt Asay connects some dots.
Thinking more about all those darned coincidences in the IP Innovation lawsuit launched against Red Hat and Novell recently over the Linux desktop, I decided to list them out:
* One or more former Microsoft licensing execs join Acacia or one or its companies;
* Ballmer makes his most recent statement regarding Red Hat;
* Almost the same day, Red Hat (and presumbably Novell) receive notice of the alleged infringement from IP Innovation (Acacia);
* Before either company has a chance to consider the letter and respond, IP Innovation files its lawsuit in Texas;
* Novell changes all of its IP indemnification the same day (which it has named “Technology Assurance Program” as contrasted with Red Hat’s Open Source Assurance Program Novell apparently isn’t
interested in assuring open source, just technology ;-);
* Novell’s new program notes a change in the Microsoft/Novell deal that covers GPLv3 code distributed by Novell for downstream recipients.
Then, it quotes other research that Illinois-based IP Innovation is a subsidiary of California-based Acacia Technologies Group, which, in July, announced that Jonathan Traub, former Microsoft Director of Strategic Alliances for Mobile and Embedded Devices, was joining the company as a vice president.
Earlier this month, Acacia said that Brad Brunell was coming aboard as senior vice preisdent. Brunell is the former manager of intellectual property licensing at Microsoft. In fairness, Groklaw did note that Acacia, which is in the business of licensing and lawsuits, also has sued Microsoft.
We can probably judge for ourselves, but let’s keep an eye for more evidence and see how everything develops. The shifts in staff are reminiscent of the XenSource hijack (former Microsoft employees inherited prominent roles just before the acquisition, making it akin to a puppet state tactic).
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