EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

03.08.09

Microsoft Wants to Make Something Out of Nothing to Fight GNU/Linux

Posted in GNU/Linux, Microsoft, OIN, Patents, SCO at 6:01 pm by Dr. Roy Schestowitz

“Intellectual property is the next software.”

Nathan Myhrvold, Microsoft patent troll

Summary: Windows cannot compete with cheaper, better, freer competition; TomTom revisited

Old Software Paradigms Be Damned

PROGRAMMERS AND OTHER PEOPLE had actually been sharing code before proprietary, closed-source software came about. Then emerged a new method for distributing software, but it predated the World Wide Web (WWW). Nowadays, with old protocols like FTP and also newer ones such as bittorrent and P2P, the economics of media — much like the economics of software — are changing. As the media industry has learned the hard way, it is a simple case of “change or perish.” They absolutely must evolve; the sooner, the better. Having realised that bullying one’s customer is a poor and unsustainable business decision/strategy, the conglomerates more recently attempted a model wherein the scarce elements, namely concerts and merchandise/memorabilia, are sold along with the privilege of access to music (unlimited). This is similar to the services model (a la Red Hat) whereas DRM or subscription to streams may be more similar to SaaS in the world of computing.

At present times, Microsoft is coming to grips with what the music industry has been wresting with for quite a delirious period of prolonged agony and maybe constant collapse. But Microsoft is still in its earlier stage of demise where the customers are being bullied or sued. Unable to counter what it calls "Linux infestations", Microsoft is hopelessly trying to create artificial scarcity inside ‘its’ software market, using software patents that pertain to thought alone, i.e. no device present [1, 2] even though it’s necessary.

MarketWatch has this new column on why Microsoft’s business model is bound to fail (and already fails, for a fact).

I’ve been playing with one of many new systems that are hitting the market which allow the user to quickly boot the machine and go directly to a small version of Linux rather than wait to load Windows.

[...]

Until now, the average computer user has been ignoring this trend. But the economic conditions and the emergence of powerful inexpensive computing has to make people rethink the Microsoft proposition.

If Intel can provide users with powerful little systems for $99 and has been pushing prices lower and lower over the years, why can’t Microsoft? Intel makes elaborate hardware in billion-dollar factories. Microsoft stamps out a disk.

This discrepancy has to end soon.

It’s a dilemma which revolves around the question of scarcity. Software can be duplicated, hardware cannot. In order to impede this natural trend Microsoft has resorted to creating or reinforcing imaginary property (software patents). The company lobbies very hard for them, even in Europe [1, 2, 3].

In order to compete properly, Microsoft will have to find new ways of making money from gratis software. Dumping techniques (e.g. [1, 2, 3, 4, 5, 6, 7, 8, 9]) have a limited shelf life, but as Carla wrote just earlier on, Microsoft calls in the lawyers and MBAs, not the engineers.

I don’t know about American business as a whole, but it sure does describe some of the major players in tech, and the idea of Microsoft sending people to a conference to wring their hands and lament “Oh dear, the country is like all too greedy and shortsighted, and what ever shall we do?” is so ludicrous I laughed out loud. It’s like alcoholics and gambling addicts ranting about “the trouble with people is they have no self-control.” It’s like serial killers complaining about how people are too violent and bloodthirsty. It’s like cats criticizing dogs for eating poop. Ok, so maybe in cat culture there is a significant difference between licking one’s own behind and eating poop, but to me it’s a pretty meaningless distinction.

In another sterling example of diversion and lack of self-awareness:

“Josephine Cheng, an IBM vice president and fellow at its Almaden Research lab, suggested the problems in the U.S. were partly because we have “too many MBAs and lawyers. We need to go back and focus on basic science, technology and education and don’t [encourage] so many people” to become MBAs and lawyers.””

While it’s fun to pick on the MBA kids and lawyers, it’s still missing the point by a few orders of magnitude. Who hires all those MBAs and lawyers? Why would any smart American kid want a tech career with a big company? The tech industry has destroyed many of the legal protections that US workers fought for decades to gain.

This is apparently where Microsoft wants to be. To quote Arno Edelmann, who is Microsoft’s European business security product manager, “usually Microsoft doesn’t develop products, we buy products.”

So, is Microsoft really much of a software company? Based on its lawsuit against TomTom, it is not. As Google pointed out some days ago, patent applications too are nowadyas being written by lawyers and that's just what Microsoft bets on. How sad.

What Microsoft Was Hoping to Achieve

As Jeremy Allison explained it, Microsoft had potentially chosen to challenge the GPL and it chose a target which is less able to afford defence of the GPL (TomTom itself is a former GPL violator). Microsoft may also have embraced an approach of “move to Windows or we’ll sue you until you drop.”

Some of the analysis of this train of thought was accumulated here and the Huffington Post has this good article.

So here’s what it looks like to me

1. Microsoft has abandoned its long history of not suing on software patents, in order to attack the Linux operating system. (Other patents at issue are specific to GPS systems.)

2. It has attacked Linux in the embedded devices market, where Linux has been conspicuously successful. This avoids the problem of suing developers or users of Linux distributions, such as Red Hat, which would threaten the many large Microsoft customers that use both Windows and Linux.

3. Even if the Linux community rides to the rescue, TomTom will be under pressure from its shareholders to settle quickly on “undisclosed terms” and, weakened as is, to avoid the cost and uncertainty of making a posterchild of itself.

4. More likely, TomTom will sell out to Microsoft, which tried to buy TomTom in mid-2006. Companies with large patent portfolios can drive hard bargains. With TomTom in a bind at the bank, Microsoft can use its patents to acquire TomTom on the cheap.

5. By demonstrating its willingness to sue a small company, Microsoft can induce others to settle, while undermining confidence in the market for embedded Linux. By contrast, when IBM sought to impress the world with its patent portfolio, it at least picked on Amazon — a company able to defend itself and with a reputation for asserting patents aggressively. (Remember the one-click ordering patent that Amazon used in its holiday-season attack on Barnes and Noble?).

The head of the OSI has responded to this article, which we’ll return to in a moment.

Is It Patentable Anymore?

A lot of the above is hinged on an important assumption. It’s the assumption that in this post-Bilski era [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14] software patents cannot be challenged and eliminated in the courtroom (let alone be granted).

Well, here is a very relevant new article from Law.com.

During the heady dot-com heyday, patent attorney Scott Harris and his buddies set off to patent a far-out sounding “paradigm” for marketing software to customers.

The idea reached the end of the road Friday when the U.S. Court of Appeals for the Federal Circuit determined that it’s not worthy of a patent. Citing its recent decision in In Re Bilski, which found that pure business methods aren’t patentable, the court ruled that the “Applicants do no more than provide an abstract idea — a business model for an intangible marketing company.”

What a bummer, eh? Groklaw writes more about the subject:

The Federal Circuit Court of Appeals, the one that handles patent cases and which ruled in In Re Bilski has ruled in another business methods case, In Re Ferguson [PDF]. The “inventor” tried to patent a “paradigm” for marketing software.

No. I’m not kidding. Not just a software patent; a method for *marketing* software. Here’s the short version of what the ruling says:

As to Applicants’ method claims, which at least nominally fall into the category of process claims, this court’s recent decision in Bilski is dispositive.

Dispositive. So he lost, though he may appeal, and that’s why I put the word inventor in quotation marks. I’ve done the PDF as text for you now. The ruling is the dernier cri in patent law, and if we’re looking for prior art, such as in the Microsoft v. TomTom or the Red Hat cases, we need to keep up, so we know what the rules are currently.

Speaking of Groklaw, patents in de facto standards, and Jeremy Allison, here is a highly relevant bit from Grokdoc:

This quote from Jeremy Allison discussing Microsoft’s proprietary “extended” Kerberos specs says it all:

This is course is a very clever way to pretend to distribute the spec, whilst making it completely impossible to implement in Open Source kerberos servers. If you did of course the full weight of US anti-reverse engineering laws would descend upon you.

The EU commision has a section on MS’ handling of Kerberos in their (long) final decision against MS (PDF, too long to quote, search for “Kerberos”). A snippet:

Already in its reply to the Commission’s first Statement of Objections, Microsoft stated that it in fact published “on 26 April 2000 […] details concerning its use of the Authorization Data field […]“. Microsoft thereby referred to a specification called Microsoft Authorization Data Specification v. 1.0 for Microsoft Windows 2000 Operating Systems.

However, this specification only described the structure of the authorization_data field and does not describe in detail the meaning of the various fields. Furthermore, the text of the document provided that “the Specification is provided to you solely for informational purposes […] and pursuant to this Agreement, Microsoft does not grant you any right to implement this Specification”. Thus, the specification could not be used by competitors to adapt their work group server operating systems so that they could participate in Microsoft’s Kerberos-based security architecture.

Another ongoing debate out there is to do with a thesis dismissing the economic value of patents as a whole. Here is another article on this subject which was brought up some days ago.

Michele Boldrin and David K. Levine, two leading economists from the Washington University in St. Louis, believe that the time has come for patents and copyright to disappear as pieces of legislation from the laws of all countries. They say that the most important asset that any nation now has in front of the economic crisis is innovation, but that these two types of laws hinder it, and prevent new and potentially marketable products from reaching customers. In their new book, “Against Intellectual Monopoly,” the two argue the necessity of making copyright and the patenting systems obsolete.

Here Be Villains

Microsoft has chosen to shake up and bark up the wrong tree. An IBM employee and known OS/2 advocate back is the days (Jason Perlow) is warning that Microsoft could go down the same path as Unisys if this charade against TomTom continues. We’ve already seen public protests over the TomTom case, along with other related issues.

Unisys became a pariah in the Open Source community, their patents for LZW expired, and when they entered the Open Source consulting business years later, they lost all of their credibility and many companies and individuals refused to work with them as a result.

Unisys has still never completely recovered from this. As a former Unisys employee I can speak with authority about this, because every time I used to talk to my friends in the Open Source community about what we were trying to do with Linux and Open Source in our professional services business, I would get the usual “Hey, weren’t you the guys who…” preamble.

End of discussion.

If this litigious behavior from Microsoft continues, I don’t see why consumer electronics manufacturers which use embedded Linux couldn’t just go and standardize their own flash memory filesystem equivalent to PNG. After all, there are other perfectly good file system formats that could be used to store data on SD cards and other flash devices, such as UBIFS and LogFS, which are even more efficient and more resilient at storing data. UBIFS and LogFS also have the advantage of being journaled, whereas FAT32 is not.

Dana Blankenhorn speaks of a form of retaliation against Microsoft and the OSI’s blog points out that Microsoft is annoying a lot of angry people at this very sensitive time.

For more than 10 years Microsoft has toyed with the idea of using the entirely questionable practice of using software patent litigation as a kind of trump card in its battle against open source innovation. The idea was present in Halloween III and stepped up a notch in May 2007 when Microsoft’s general counsel Brad Smith made the unsubstantiated claim that Linux infringed 235 Microsoft patents. As many of you may recall, Microsoft played very coy, refusing to identify a single infringement with any specificity. (The open source and free software communities have a great track record [1], [2], [3] of devising alternative implementations to avoid the possibility of patent infringement, and so perhaps Microsoft was more interested in using the element of surprise attack than indeed any timely remedy of the infringement. But that is mere speculation.)

[...]

Whatever the arguments may be, by filing against TomTom Microsoft has effectively pulled the pin from their legal grenade and have lobbed it into the center of the open source community. Can we pick it up and throw it back (like the FTC attempted to do with Rambus)? Will the grenade be judged a dud (if Bilski holds)? Will the legal shrapnel kill those who are trying to protect our village? And if it does, will Microsoft win anything more than a pyrrhic victory? As Brian writes, Microsoft’s actions are despicable. But I remain optimistic. I believe that thanks to the financial meltdown and the stories of fraud and abuse coming from the most well-polished offices on Wall Street that the world understands now, better than it has for a very long time, that sustainable success depends on success we can all share and participate in. When monopolies rise all-powerful, when the power of a company becomes so great that we no longer question our need to police it, then that is the moment we must say “ENOUGH!”. It is neither a sustainable nor a desirable condition to become beholden so such power, and we should do nothing, neither legally nor legislatively, to protect those monopolies against our own interests. Rather, we should fight against them with every strength that we have, knowing that when they are defeated, we can all build a stronger, shared success.

Like Unisys, SCO used to be a large company whose products were still established enough to marketed and sold, at least to an extent. Look where it's at today.

Et tu, Microsoft?

“Pamela Jones [...] has told Infoworld that Microsoft will be the next SCO Group”

Heise

USS Towers - sinking

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

2 Comments

  1. Lyle Howard Seave said,

    March 9, 2009 at 1:43 pm

    Gravatar

    It’s Dvorak!!
    Everyone drink a shot!

    Have I gotten older (get off my lawn you damn kids!) and senile or does he make more sense now?

  2. Roy Schestowitz said,

    March 9, 2009 at 2:00 pm

    Gravatar

    He has been publishing in MarketWatch for a few years and it’s mostly sobering. I don’t know about his personal blog though because I stopped reading it in 2005.

    He also contributes to PC World (IDG) and he doesn’t troll much anymore. If you want to see trolling of biblical proportions, see Don Reisinger.

What Else is New


  1. Links 24/8/2016: More From LinuxCon, Uganda Wants FOSS

    Links for the day



  2. Links 23/8/2016: GNOME 3.22 Beta, Android 7.0 Nougat

    Links for the day



  3. The Linux Foundation Gives Microsoft (Paid-for) Keynote Position While Microsoft Extorts (With Patents) Lenovo and Motorola Over Linux Use

    This morning's reminder that Nadella is just another Ballmer (with a different face); Motorola and Lenovo surrender to Microsoft's patent demands and will soon put Microsoft spyware/malware on their Linux-powered products to avert costly legal battles



  4. Not Just President Battistelli: EPO Vice-Presidents Are Still Intentionally Misrepresenting EPO Staff

    Evidence serving to show that EPO Vice-Presidents are still intentionally misrepresenting EPO staff representatives and misleading everyone in order to defend Battistelli



  5. Battistelli the Liar Causes a Climate of Confrontation in French Politics, Lies About Patent Quality (Among Many Other Things)

    Battistelli's lies are coming under increased scrutiny inside and outside the European Patent Office (EPO), where patent quality has been abandoned in order to artificially elevate figures



  6. The Collapse of Software Patents and Patent Law Firms Trying to “Overcome” Alice

    The United States continues its gradual crackdown on software patents (which are viewed as abstract and thus unpatentable), whereas in Europe things are murkier than ever



  7. Apple's Patent Wars Against Android/Linux Make Patent Trolls Stronger

    Apple's insistence that designs should be patentable could prove to be collectively expensive, as patent trolls would then use a possible SCOTUS nod to launch litigation campaigns



  8. Links 22/8/2016: Linux 4.8 RC3, Linux Mint 18 “Sarah” KDE Beta

    Links for the day



  9. Links 21/8/2016: Apple and Microsoft Down, Systemd Spreading to Mount

    Links for the day



  10. Links 20/8/2016: Android Domination, FSFE summit 2016

    Links for the day



  11. Patents Roundup: Trolls Dominate Litigation, PTAB Crushes Patents, Patent Box Regime Persists, and OIN Explains Itself

    Another roundup of patent news from around the Web with special focus on software patenting



  12. The Cost/Toll of the 'New' EPO and Where All That Money Goes or Comes From

    The European Patent Office has become a servant of the rich and powerful (including large foreign corporations) and even its own employees now pay the price associated with misguided new policies (or 'reforms' as Battistelli habitually refers to these)



  13. Links 19/8/2016: Linux Mint With KDE, Linux Foundation's PNDA

    Links for the day



  14. The End of an Era at the USPTO as Battistelli-Like (EPO) Granting Policies Are Over

    The United States is seeing the potency of patents -- especially software patents (which make up much of the country's troll cases) -- challenged by courts and by the Patent Trial and Appeal Board (PTAB)



  15. Battistelli's European Patent Office Goes to the United States to Speak About the UPC and Software Patents

    The European Patent Office is showing its utter contempt -- not just disregard -- for the very fundamental rules that put it in its place and brought it into existence



  16. Turkey Subjected to the European Patent Convention (EPC) But Benoît Battistelli is Not?

    The ‘constitutional crisis’ at the European Patent Office in the context of Turkey, which has signed "the EPC and as such recognises the competence and the decisions of the institutions which have been introduced in the convention."



  17. Links 18/8/2016: EFF Slams Vista 10, Linux Foundation Makes PNDA

    Links for the day



  18. Links 17/8/2016: GNOME and Debian Anniversaries

    Links for the day



  19. Personal Audio LLC and Patent Troll Jim Logan Demonstrate the Harms of Software Patents and Why They Must Never Spread to Europe

    Jim Logan of Personal Audio (a notorious Texas-based patent troll) is still fighting with his bogus patent, having already caused enormous damage with a single software patent that should never have been granted in the first place (due to prior art, not just Alice)



  20. The Patent Microcosm Hopes That the Originators of Software Patents Will Undermine the Patent Trial and Appeal Board

    Now that the actions of the Patent Trial and Appeal Board (PTAB), which have been consistently upheld by the CAFC in precedential decisions, are suddenly being questioned the patent microcosm gets all giddy and tries to undermine PTAB (again)



  21. That Time When the Administrative Council Helped Battistelli Crush Oversight (Audit Committee) and What ILO Said About It a Month Ago

    Things are becoming ever more troublesome at the EPO as the Administrative Council enjoys inaction from the International Labour Organization (ILO), in spite of its role in destroying much-needed oversight at the behest of Battistelli



  22. The EPO's Administrative Council Keeps Postponing Debate About Grounds for Firing the President

    A recollection of events prior to the latest Administrative Council meeting, where Benoît Battistelli's failings and accountability for failing to correct them never even came up



  23. A Surge of Staff Complaints About the European Patent Office Drowns the System, Disservice to Justice Noted

    Self-explanatory graphs about the state of the justice [sic] system which is prejudiced towards/against EPO workers, based on internal reports



  24. Links 16/8/2016: White House Urged by EFF on FOSS, Go 1.7 Released

    Links for the day



  25. Links 15/8/2016: Linux 4.8 RC2, Glimpses at OpenMandriva Lx 3.0

    Links for the day



  26. Clawing Back the Staff Benefits at the European Patent Office (EPO)

    Staff of the EPO is leaving (or retiring) in droves as abusive management continues to be the norm and staff benefits are being taken away or gradually revoked



  27. The Patent Microcosm is Panicking and Spinning Alice/§ 101 Because US Software Patents Are Still Dying

    A look at recent developments in the software patents scene in the United States, with increased focus on (or fear of) the Patent Trial and Appeal Board



  28. 21,000 Posts in Techrights in Less Than a Decade

    This post is the 21,000th post and the next one will make it more than twenty-one thousand posts in total. We are turning 10 in November.



  29. Patent Microcosm Shuts Out the Poor: Unified Patent Court (UPC) Promotion by Practising Law Institute (PLI) Only for the Wealthy

    The people who are profiting from patent feuds, disputes, lawsuits etc. are still trying to muscle their will into European law and they keep the general public out of it by locking down (or pricing out of reach) their meetings where they influence/lobby decision-making officials



  30. The United States Has a Growing Patent Trolls Epidemic as Very High Proportion of Lawsuits Filed by Them

    A look at the high proportion of patent lawsuits that are filed by entities that make nothing at all and thus serve no role whatsoever in innovation


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts