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. Alice Continues to Smash Software Patents So Patent Lawyers, Monopolists' Lobbyists Etc. Now Attack the Supreme Court for Doing This

    Corporate lobbyists and patent lawyers are trying to put Alice in the grave, for its impact on software patents is very profound and thus far almost unstoppable



  2. How to Salvage the EPO's Reputation: Create More Boards of Appeal in Europe and Abolish the Misguided UPC Fantasy

    A critical evaluation of what goes on at the European Patent Office (EPO), which is quickly descending down (and overall degrading) to the level of Chinese systems, along with the corruption, the abuses, and the low quality of patents



  3. Court of Appeals for the Federal Circuit (CAFC) Has Just Sided With Patent Trolls

    The notorious CAFC, which manifested software patents in the United States, has just given a gift to patent trolls that typically use software patents for extortion down in Texas



  4. Analyses of the Latest Data From Lex Machina About Patent Litigation Show Some Litigation Declines

    Professor Mark Lemley's Lex Machina highlights litigation trends by collecting and analysing data related to patents and pertaining to intellectual monopolies in general; now it shows litigation droughts



  5. India is Having Another Taste of the Dangers of Western Patents, Must Learn to Reject Software Patents in the Face of Great Pressure

    The growing software giant which is India continues to face cruel and aggressive lobbying from the West, enabling the West to control India by patents that should not exist in the first place



  6. Links 29/4/2016: GNOME 3.21.1, Fairphone

    Links for the day



  7. Microsoft Says It Will Continue to Extort Companies That Distribute Linux, Using Software Patents As Usual

    Microsoft's war on Linux, a war which is waged using software patents (for revenue and/or for coercion in bundling deals), is still going on in spite of all the PR tactics from Microsoft and its paid partners



  8. Australia Might be Next to Block Software Patents If Commission's Advice is Followed

    Australian advice against software patents, which can hopefully influence Australian politicians and put an end, once and for all, to all software patents in Australia



  9. [ES] ''Si la Forma de Pensar de la EPO fuese Seguida, Guantánamo Sería Posible en Suelo Alemán.”

    La EPO está todavía bajo fuego, pero mucho de ello pasa detrás de las cortinas y envuelve abogados y/o burócratas



  10. The European Copy-Paste Office (EPO)

    This morning's example (not the first) of how the EPO uses 'social' media



  11. Links 28/4/2016: Fedora 24, EE Goes Open Source

    Links for the day



  12. Amid Referendum “the New European Unitary Patent System is Likely to Collapse Before It Started”

    The Unitary Patent Court (UPC) vision seems like it may be just one month away from its gradual death, depending on British voices amongst other key factors



  13. USTR is Trying to Shame and Bully India Into Introducing Software Patents in India

    Lobbying body of the US (corporations-led) is trying its usual dirty tactics against India's sound policy which excludes software/algorithms from patent scope



  14. No, Visual Studio is NOT Open Source and Xamarin Openwashing is NOT News

    The latest example of Microsoft openwashing, courtesy of confidants of Microsoft and those who got bamboozled by them



  15. Latest Black Duck Puff Pieces a Good Example of Bad Journalism and How Not to Report

    Why the latest "Future of Open Source Survey" -- much like its predecessors -- isn't really a survey but just another churnalism opportunity for the Microsoft-connected Black Duck, which is a proprietary parasite inside the FOSS community



  16. If EPO “Form of Thinking Were to be Followed, Guantanamo on German Soil Would be Possible.”

    The EPO is still under fire, but a lot of it happens behind the scenes and involves lawyers and/or bureaucrats



  17. Links 28/4/2016: Tomb Raider for GNU/Linux, Proxmox VE 4.2

    Links for the day



  18. [ES] La Departura de la Readidad de la EPO Y Su Entrada en la Esféra Industrial China de Propaganda

    La deceptiva trampa del maximálism de patentes, donde se asume que artficialmente aumentando el número de patentes otorgadas traerá el resultado esperado



  19. [ES] Una Fársa de Sistema: ¿Cómo la SIPO, USPTO, y cada vez más la EPO se Convierten en Llenado de Patentes (No Se Requiere Propia Examinación)

    Una crítica al decline en la calidad de patentes en algunas de las más grandes oficinas de patentes del mundo, donde aspiración parece ser neo-liberal en el sentido económico



  20. [ES] Microsoft ‘Asalto con Todo’ Contra Android, Java, y GNU/Linux, Usando la Clásica E.E.E. Táctica de Nuevo

    Otro recordatorio de la realidad que Microsoft está muy activo en el frente E.E.E., not no sólo contra GNU/Linux pero también Android y Java



  21. [ES] Más Rumores y Llamadas Acerca de Prospectos de Microsoft Vaya a Comprar Canonical (Ubuntu con todo y Zapatos)

    Teniendo en cuenta los últimos movimientos de Canonical, algunos expertos piensan que es posible que Shuttleworth elija el dinero a Microsoft sobre principios sino también inste para que esto ocurra



  22. Links 27/4/2016: A Lot About OpenStack, Vivaldi 1.1 Released

    Links for the day



  23. A Farce of a System: How SIPO, USPTO, and Increasingly the EPO Too Turn Into Filing Systems (No Proper Examination/Filtering Required)

    A critique of the declining quality of patents in some of the world's biggest patent offices, where the aspiration seems to be neo-liberal in the economic sense



  24. Microsoft's 'Full Assault' on Android, Java, and GNU/Linux, Using Classic E.E.E. Tactics Again

    Another reminder of the fact that Microsoft is very active on the E.E.E. front, not just against GNU/Linux but also Android and Java



  25. More Rumours and Calls Surrounding Prospects of Microsoft Buying Canonical (Ubuntu and More)

    Taking some of Canonical's recent moves into account, some pundits not only think it's possible for Shuttleworth to choose Microsoft money over principles but also urge for this to happen



  26. [ES] El Nuevo Impulso Finánciado por Microsoft Para Reforzar las Patentes de Software en los EE.UU., Apoyado por los Sospechosos Usuales (La Sagrada Familia) Mientras que Microsoft Cada Vez Más Lucha Como Compañíá Productiva

    Una mirada al esfuérzo de trae una resurgencia de las patentes de software en los Estados Unidos (con un clarísimo rol de Microsoft en él) y la fundación/conf ianza de Microsoften las patentes de software como arma contr Linux/Android porque las ganancias de Windows se están secando y el Windows Phone está al borde del colápso



  27. Links 26/4/2016: Firefox 46.0, Thunderbird's Stewardship

    Links for the day



  28. Links 25/4/2016: Kodi 16.1, OpenStack Summit

    Links for the day



  29. New Microsoft-Funded Push to Make Software Patents Stronger in the US, Backed by the Usual Suspects as Microsoft Increasingly Struggles as a Producing Company

    A look at the effort to bring about a software patents resurgence to the US (with clear Microsoft role in it) and Microsoft's reliance on software patents as a weapon against Linux/Android because Windows profits dry up and Windows Phone is on the verge of collapse



  30. Patents Roundup: Marijuana Patents, Patent Satellites, Patent Trolls, Wars, and Merchants (Notably Lawyers)

    Various strands of news about patents, focused on issues raised in the latter half of last week


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