07.21.09
Posted in Courtroom, Fraud, GNU/Linux, IBM, Microsoft, Novell, Patents, SCO, UNIX at 10:29 am by Dr. Roy Schestowitz
Summary: SCO bankruptcy gets a lot more interesting and serves as a reminder of patent trolls
THE MOST recent SCO scandals [1, 2, 3] showed that funds had arrived rather mysteriously and pushed to create a company whose domain names SCO staff had registered.
In the legal procedures, Novell and IBM take the stand and present documents that further complicate things for SCO, at one stage bringing “fraud” into it. Groklaw has a new article about it.
We’re in OMG territory now, y’all. Let’s continue:
14. Of course, the very involvement of Mr. Robbins in introducing Mr. McBride to Mr. Norris calls into question the good faith of the contemplated transaction. In its January 8, 2009, disclosure to the Court, the Debtors represented that Mr. Robbins — Mr. Norris’s “partner” — had “extensive experience in structured finance and private equity as co-founder and managing partner of Peninsula Advisors” and “served as Investment Director and lead negotiator with several leading financial institutions.”… And Mr. Robbins first introduced Mr. Norris to the Debtors, laying the foundation for the PSA…. But both Mr. McBride and Mr. Norris have testified that they believe Mr. Robbins to be involved in fraud. … Mr. Norris “had come to find out and pretty definitively that Robbins had been lying to everyone and misrepresenting essentially everything to everyone and had probably engaged in a whole variety of frauds.”
This proposed deal is dead in the water, methinks. It turns out, according to IBM’s filing, that there is no one actually committed to invest in this deal:
15. Financing for the PSA Transaction. Mr. Norris claimed that he had fairly firm plans to line up capital for the transaction proposed under the PSA, but he did not provide particulars…. He admitted, however, that he has no executed agreements from anyone to invest in this transaction, that there are no written commitments to back up either the Letter of Credit-Balance or the Letter of Credit-Sun and that he has no scheduled meetings over the next two weeks with any potential investors…. He claimed to have a variety of interested bidders, but did not clearly explain his solicitation process and, apparently on the advice of counsel, refused to identify any of the potential bidders
[...]
Now that the word “fraud” has entered this bankruptcy, we find ourselves in a new universe. Bankruptcies spin the other way, once there is fraud in the picture. And it’s about time, too, I know you are thinking. If I had to read the judge say one more time that SCO was doing its very best, I was in danger of becoming a cynic. Why doesn’t someone tell this judge what is *really* going on? That was what I was thinking about over the weekend. And now someone has.
In a separate context — one that relates to trust in Microsoft — Jason has just reiterated the fact that Microsoft gave money to SCO and it can also fund patent trolls like Acacia or Intellectual Ventures to attack Linux. Microsoft's patent troll recently extorted a Microsoft rival ($120 million in ‘protection money’) and this troll would never do this to Microsoft. The founder, Nathan Myhrvold, dislikes GNU/Linux, obviously.
Food for thought there, especially considering the proxy battles Microsoft has waged against Linux in the past; $86M to SCO, for one example.
Maybe it’s worth explictly telling those people that say things like: “Microsoft would be suicidal to sue” that that is simply not true. Microsoft could easily sell off one patent to any patent troll company to attack Linux with – then what? It’s not like Microsoft doesn’t spawn patent troll companies.
The SCO case is very relevant to us because there are parallels and future lessons at stake. █
Other new Groklaw articles:
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Posted in FSF, Novell, Red Hat at 9:53 am by Dr. Roy Schestowitz
Summary: Another look at notable policies that are still ignored by some
NOW THAT the FSF is more openly a critic of Mono (despite Microsoft’s Community Promise), there are two options for those who strive to characterise Mono criticism as “zealous”; one is to try calling the FSF “zealots” and another is to just come to the realisation that Mono is indeed problematic inside GNU/Linux. Jason has a little new post about this subject and he explains:
FSF on Microsoft’s “Empty Promise”
[...]
Now I’ve been preaching this gospel since Day 1. It is pure dishonesty to pretend like every company present the same risk and hostility to Linux, Free Software, or Open Source that Microsoft does. Microsoft’s hostility and desire to destroy Linux is not the fevered imaginations of wild-eyed zealots. It is documented. It is proven. It is inarguable.
Now, you may want to advance the idea that Microsoft has changed. That is a possibility, sure – but it is not documented, proven or inarguable. The safe and sane position towards Microsoft is suspicion and wariness. Microsoft made it so, not wild-eyed zealots. It also becomes on open question on what type of change it is.
The Linux Action Show, which is FSF-hostile [1, 2], is of course ignoring the FSF’s stance and almost accusing Red Hat/Fedora of spreading FUD (or blames those who cite Red Hat’s concern). But why be so close minded? If both the FSF and Red Hat see issues in Mono, it is worth listening to them and judging the allegations based on facts. The labeling of people as “black or white” is not helpful and those who accuse us of it are often hypocritical.
“If both the FSF and Red Hat see issues in Mono, it is worth listening to them and judging the allegations based on facts.”Fedora has sort of acquired protections from F-spot (and by association from Banshee [1, 2, 3, 4, 5], which contains non-ECMA portions), so it’s not just about Gnote, which already replaces Tomboy in future versions of Fedora (Red Hat). F-spot can be conveniently substituted by Solang, which is available from this Fedora repository.
To paraphrase someone from this Web site, “Novell ‘supports’ Red Hat” only in the sense that it is looking to poach Red Hat customers. One reader sent a pointer to this old marketing proposal from Novell:
Choose SUSE® Linux Enterprise Server and get top-ranked Novell support for your Existing Red Hat Environment.
[...]
When you transition from your existing Red Hat environment to SUSE Linux Enterprise from Novell, you can recognize dramatic cost savings—perhaps as much 50%…
This one has nothing to do with Mono, but can Novell use Mono against Red Hat? Will it ever? █
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Posted in Deception, GNU/Linux, Kernel, Microsoft, Novell, Patents at 8:53 am by Dr. Roy Schestowitz
Summary: Beyond the blatant PR efforts, assessments suggest the patch is a self-serving Trojan horse
MICROSOFT WORKS for Microsoft shareholders. Microsoft depends greatly on its bread and butter, Windows and Office. The purpose of this latest patch has been evident from the very start, but we waited for others to express their opinions and then show that it is not “zealotry” or “prejudice” that lead only us to this conclusion (stated in the title).
“Microsoft depends greatly on its bread and butter, Windows and Office.”Opinions we have gathered so far can be grossly classified as follows: there are those who consider the patch to be a Trojan horse, those who say it is a sign of victory for Linux, those who must be diplomatic due to their role/job and thus cautiously commend Microsoft, and then there are Microsoft employees and their easily-identifiable journalists who play along with the Microsoft press release and tell the world how wonderful and tolerant Microsoft has become (the “new Microsoft”, which is still extorting companies like Melco [1, 2, 3, 4]).
We shall deal with those strands of analyses in turn and allow readers to judge and see if our independent assessment is reasonably backed by present and past evidence, of which there is plenty. Yesterday we echoed our response to the press (after an approach by journalists), but we did not go deep into details.
“Embrace and Extend”
That is the opinion held by quite a few sources, one of which is from IDG:
Embrace and extend: That has been Microsoft’s competitive mantra for as long as I can remember. So it comes as no real surprise to me that the company would choose to release, via the GPL, device driver code that more closely integrates Linux into the Microsoft virtualization ecosystem. After all, it’s not like Linux will be running the show in this relationship. Rather, it’s making the FOSS (free open source software) community’s fair-haired boy feel more comfortable as it settles into the warm, fatal embrace of Hyper-V that is the Redmond giant’s ultimate goal.
Groklaw’s headline warns: “Remember, folks, what comes after ‘Embrace’”
Microsoft wants Linux to run on Windows, in short. So remember what comes after the ‘Embrace’ part.
In case you had any doubt about the true motive, please note that the Microsoft announcement offers a link to video of Microsoft’s Tom Hanrahan discussing the move with Sam Ramji. But to view it, you have to have or install Microsoft’s proprietary Silverlight. There is no Microsoft Silverlight for Linux.
Jason brings Novell into this because, as Steven J. Vaughan-Nichols (SJVN) puts it, “Microsoft’s Linux driver offering [has been] planned for years.” It’s not about Novell, contrary to some reports, but there is this historical relationship, predating a Red Hat-Microsoft virtualisation deal, which we covered in:
- Novell the Biggest Loser in New Red Hat-Microsoft Virtual Agreement
- Red Hat-Microsoft Agreement Not Malicious, But Was It Smart?
- Red Hat-Microsoft: Take III
- Summary of the Red Hat-Microsoft Story
Jason writes:
Novell and Microsoft have long stated that virtualization is one of the goals they are working together on. Microsoft wants you to use Windows; but, if you must use Linux, at least run it on top of Windows. So, they are releasing this code to help make that happen.
Customers have told us that they would like to standardize on one virtualization platform, and the Linux device drivers will help customers who are running Linux to consolidate their Linux and Windows servers on a single virtualization platform.
Nothing altruistic here – if one must use Linux (or Open Source in general), Microsoft certainly wants it running on Windows. Of course, you can’t have a truly Free system running on top of Windows; but in general corporations are not interested in Freedom (until they are stormed by the BSA), so they aren’t looking at things that way.
Why they used the GPL
Because they had no option. If they hope to get it close to the kernel, it must be GPL. It’s not like Microsoft chose
Microsoft still hopes to make GNU/Linux just a ‘Windows application’ with Microsoft ‘patent tax’. That vision with Novell goes a long way back, but now its applicability is extended beyond SUSE, provided the other vendors take the bait (bar patent extortion).
Sean Michael Kerner reminds his readers that Microsoft is still a foe of Linux, judging by its very own actions.
Microsoft’s relationship with Linux has been a touchy one over the years. In the past, Microsoft has alleged that open source technology infringes on over 200 of its patents.
To date, Microsoft has signed a number of patent licensing agreements with Linux vendors and users including Novell and most recently Buffalo Technology.
Here is Microsoft speaking about the patent question; there is no word on anything other than its own self-serving patch. In other words, Microsoft racketeering against Linux will continue while the company puts code inside it.
Wonderful, no?
The Microsoft Spin Versus Skeptics
How often is it that Microsoft makes such a fuss about writing 20,000 lines of code? Well, this one is a public relations charade, which attempts to control the debate about Microsoft’s true intentions.
“How often is it that Microsoft makes such a fuss about writing 20,000 lines of code?”The Microsoft-sponsored TechFlash released a huge load of posts about this development, all of which contain pro-Microsoft spin or appearance of sympathisers. It starts with a fairy tale about Microsoft and the GPL (Microsoft ‘chose’ the GPLv2 because they have no other choice), then proceeds to promotional videos and an interview with a Novell employee (yes, Microsoft’s ally, Novell).
Over at The Register, the Microsoft-sympathetic (with track record) Gavin Clarke published not one but two articles about this. He uses some humour to characterise it as a positive thing we must all welcome with open arms. Mary Jo Foley, who runs an audiocast with Gavin Clarke, did the same, whereas Sam Dean at OStatic was a little more apprehensive if not rightly skeptical. Dean’s friend, Matt Asay, was cited by him because he had spun it as great news for Linux.
Microsoft, in short, can’t ignore open source, including Linux, without ignoring its own customers.
The Linux Foundation was a little more ambiguous about it, unlike others.
“Obviously we are tickled about it,” said Jim Zemlin, executive director of the Linux Foundation. “Hell has frozen over, the seas have parted,” he said with a chuckle.
Here is the sobering reality:
It’s clear that this is a business move. Microsoft will stand to profit from turning Windows into a hosting setting for IT shops that want to run both the Linux and Windows platforms.
Lastly, here are the opinions of two GNU/Linux users and advocates:
Based on what we’ve seen, Microsoft’s move was openly endorsed (not just accepted) by Microsoft employees, a Novell-employed developer, and journalists who are always singing Microsoft’s tune (and some of whom are paid by Microsoft). Check whose interpretation you find and question it. Microsoft is a true master of “perception management” [1, 2]. █
“People everywhere love Windows.”
–Bill Gates
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07.20.09
Posted in America, Free/Libre Software, Law, Microsoft, Patents at 5:23 pm by Dr. Roy Schestowitz
Summary: Patent news from the past week or so
THIS is another long roundup of patent news that may affect software patents and patent trolls.
Patent Ambush and Extortion
Rambus, a recent pioneer in gigantic patent ambush [1, 2, 3, 4], has suddenly seen the red light, which is rare. It will not be getting its way with Nvidia.
Patent Office rejects Rambus claims against Nvidia
[...]
The additional eight claims are based on two patents that Rambus has asserted against Nvidia in litigation. This follows the USPTO’s rejection last month of 41 other claims in seven patents that Rambus had asserted, Nvidia said.
This report from Eric Savitz talks about an extortion that has actually just worked.
Research In Motion (RIMM) this morning said it will pay $267.5 million as part of an agreement to settle all existing patent litigation with venture-backed Visto, which is now known as Good Technology.
FFII’s president writes in response to this: “RIM pays 267 Millions USD to get rid of another patent troll [...] We need more patent trolls.”
What he probably means to say is that by showing how utterly broken the patent system has become will there be greater pressure for change. Patent trolls are one symptom of an ill system
Some weeks ago we saw Microsoft's patent troll extorting Intuit, which is Microsoft’s rival.
Microsoft
Guess who is buddies with Facebook’s founder? It’s the aforementioned patent troll, ‘born’ and raised (and funded) by Microsoft.
After leaving Microsoft, Myhrvold went into the patent business. His Intellectual Ventures works like this: Buy up patents, then use them to bludgeon large tech companies into forking over fees or making investments in Intellectual Ventures.
In the course of his short career, Zuckerberg, as a tipster reminded us, has accumulated a nice array of patents. They’re related, as you might guess, to social networking and digital media. Could he use them against his rivals via Myhrvold, raising some money for Facebook in the process?
This is something to watch out for. Zuckerberg has been meeting and having fun with Microsoft executives for quite a few years.
Microsoft is not just a patent troll (by proxy). Here it is being hit from multiple directions, as the latest news ought to suggest:
i. Patent parasites sue Microsoft over Xbox Live (Microsoft too is a patent parasite)
Peter Hochstein and Jeffrey Tenenbaum (pricks) once patented a method of “communicating live while playing the same video game in separate locations” and have been milking their “idea” since 1994. In 2004, they went after both Sony and Microsoft, and in April of this year, scored a settlement with the former over the PS2′s online gaming network. Now they want more, and are focusing on Xbox Live.
ii. Apple, Microsoft, others sued over touchpad products
A case started in a US district court alleging that Microsoft, Apple and a host of other defendants have breached a patent relating to touchpad technology.
iii. Apple, Microsoft sued over iPod, Zune controls
Apple, LG, Microsoft, and 20 other companies are being sued for patent infringement by a Texas firm that claims to have invented the touchpad.
It was disappointing to find some more “innovation” propaganda published as an article in BusinessWeek (“innovation” is almost synonymous with patents in some contexts). And guess what? Only in page two does it say who the author is: “Bill Buxton is Principal Scientist at Microsoft Research and the author of Sketching User Experiences…”
Common practice for the business press. They let corporations do the ‘reporting’ or ‘independent’ ‘analysis’. The sad thing is that most readers would neither notice nor mind. Business press: from the corporations, for the corporations, passed on to ordinary people (“consumers”) to absorb.
Other Approaches
Slated has written two essays, one of which is a general critique of intellectual monopolies.
In fact, I have often drawn this comparison before, because I see very little distinction between the practise of physical slavery, and the equally reprehensible practise of intellectual slavery. Indeed, the latter may actually be more sinister, since it assumes ownership and control of that which touches all of us, not just an unfortunate few, and is a form of subjugation which travels silently and invisibly throughout all of society, tainting us and compromising our liberties, infecting us with the disease of intellectual monopoly, thus assuming ownership of our minds. More bluntly, Intellectual Property is a cancer.
The second essay is his proposition of an alternative to patents.
Then every company in the world would be funding all research (and any other relevant industrial development included in the budget), and every company in the world would be entitled to utilise the results of that research without any further legal obligation or financial liability. No company would be at an immediate disadvantage due to R&D costs, and the need for patent protection would be completely dispensed with.
Even better, those who benefit most from this research, profit the most, and subsequently pay the most tax. This is not only demonstrably self-sustaining, but is even fair. And of course, it keeps capitalism under control too, thus stabilising the economy, and benefiting consumers.
The result is: No patents, no profiteering, a massive and guaranteed supply of research funds, academic freedom for all, and better prospects for industrial development and mankind’s overall progress.
The only losers here, that I can see, are those who were unethically over-exploiting the current system anyway (patent trolls, and those engaged in the practise of so-called Hollywood Accounting).
There is also a new journal article about the peer-to-patent initiative. It takes an entirely different approach to tackling the real issues that are no longer just perceived ones.
The patenting of software has increased significantly. Regardless of any personal bias as to the existence of software patents, it is a trend that is unlikely to end anytime soon. As a result, the open source movement may be threatened by the proliferation of non-meritorious or overly broad patents. Peer-to-Patent provides a means for mitigating the limitations that may be placed upon the open source community by software patents, as the program allows the open source community to participate in the peer review of pending patent applications. Members of the open source community are knowledgeable, interested parties with a unique stake in the software patent debate and thus are capable of making a significant contribution to improving the current system.
USPTO Head: Patent Are Monopolies
The Mises blog asks, “Are Patents ‘Monopolies’?”
On occasion you get some defender of patents who is upset when we use the m-word to describe these artificial state-granted monopoly rights. For example here one Dale Halling, a patent attorney (surprise!) posts about “The Myth that Patents are a Monopoly” and writes, ” People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda.”
[...]
Now it is, indeed, clear that a patent is a monopoly grant to someone that permits them to charge above-market prices; this is exactly the goal of the patent law: to provide this monopoly profit to inventors so as to incentivize them to innovate and file for patents. And it is why, for example, Blackberry paid over $600 million to NTP in a recent patent suit; and it is why consumers will have to pay more for Blackberry services than they otherwise would, etc. Did NTP have “monopoly power” as defined by the government’s antitrust scheme? I don’t know. Probably not. But did they extort RIM/Blackberry by use of the government-granted patent monopoly? Of course.
David Kappos, the new head of the US patent office (whom we mentioned previously in [1, 2, 3, 4, 5, 6, 7, 8]), can be seen as responding to the above with the following immortal quote:
Mr. Kappos announced his opposition to business method patents last year by stating that “[y]ou’re creating a new 20-year monopoly for no good reason.” Thus, it is unclear where Mr. Kappos will attempt to draw the line between software and business method inventions worthy of patent protection.
Yes, that’s right. Even the head of the USPTO openly admits that patents are a “20-year monopoly”. Some proponents of software patents still deny this. Kappos is considered a strong proponent of the peer-to-patent initiative mentioned above.
Pro-Software Patents Lobby (Gartner et al)
Brian Prentice from the Gartner Group is an advocate of software patents, as we noted before [1, 2]. Whether it’s part of the general policy at Gartner, well… it may hard to tell, but here he is again making it very explicit at Gartner.com: “Why We Need Software Patents”
I would much rather we embrace software patents and water down trade secret legislation than the other way around.
Microsoft’s connection to the Gartner Group is a financial one by the way [1, 2, 3]. Gartner helps Microsoft fight against Free (libre) software.
Another Web site whose habitat remains rather similar is IP Watchdog, with the usual lobby for software patents, this time from another writer: “Is Software Patentable?”
As mentioned above, new, useful software is not always patentable. But some software must be patentable, or the long history of patents for manufacturing process and electronic devices cannot be sustained as software becomes central to these inventions.
There are more similar pieces (similar convictions) from the same site, e.g.:
i. Examiner Interview Changes Favor In Person Meeting
It seems that early last week a memo went out from the powers that be to the examiners handling Bilski-related applications, and in the memo it was explained that merely putting “computer implemented method” in the preamble of the claim is not something that will any longer work to overcome a patentable subject matter rejection under 35 U.S.C. 101. It seems that now you need to have “computer implemented method” in the preamble and there must also be positive recitation of “a computer” in the body of the claim.
ii. On the Road: Bilski Examiner Interview and CNN
I spent the better part of last week in Washington, DC conducting Examiner interviews for some of my clients that have pending software patent applications. The great news is that I believe we now have a handle on the ever changing Bilski ruling. I know it sounds like a misstatement to say that the Bilski ruling is ever-changing, but apparently, the reality of the situation is that when the Federal Circuit provides a ruling, it comes with little or no guidance for the Examiners to properly examine applications based on the ruling. The guidance comes from internal memos to Examiners from the PTO indicating how applications should now be examined based on Bilski.
As a site of lawyers, it is inclined to support more and more patents. The broader the scope, the higher the revenue. Science doesn’t matter so much to them. Engineers are “pawns in the battle”, to borrow a phrase from Microsoft evangelists.
Car Insurance Patent Trolls
There are reports circulating about patents that threaten even the car insurance businesses. [via Digital Majority]
Under a major decision handed down last fall, the United States Court of Appeals for the Federal Circuit interpreted federal law to make it much more difficult to patent “business methods.”
The so-called “Bilski” decision essentially ended a decade of looser standards the same court introduced in 1998 with a decision known as State Street. That ruling opened the floodgates for business-method patents like Amazon’s one-click process to buy goods online.
See how much positive impact the decision In Re Bilski has had. Law.com has some more information about this Amazon patent in its new article, which starts by stating:
Ten years ago, Amazon.com riled the tech world when it sued Barnes & Noble with a patent on “1-click” buying. Critics cried that clicking once to order a book wasn’t really an invention — and certainly not worthy of a patent. And it became the poster child for a patent system gone overboard.
Here is another new report about the car insurance patent. FFII’s president remarks on it by saying: “Help Patent Trolls make their patents more resistant.”
A Stamford patent agent and a Massachusetts actuary have paired to seek a patent on an insurance product aimed at promoting safety among teen motorists.
Mark Nowotarski, president of Markets, Patents & Alliances LLC, said today the U.S. Patent Office could rule by late June on their patent application (No. 20090063201) filed last October for the SoberTeen Driving Insurance product.
It’s obviously a patent troll. On the “Ethics of Patent Trolling” (or lack thereof) The Prior Art blog has an article which states:
The nature of the claimed invention in these cases also raises serious questions about online rights. The Spangenberg companies, by suing hundreds of websites, have claimed a proprietary right over e-commerce itself. I’m not making that judgment based on an analysis of his patents—I’m making it based on the accusations in the lawsuits, filed against hundreds of companies that don’t have anything apparent in common other than the fact that they sell stuff online. And while Spangenberg targets only big corporations, many of his imitators have no such scruples.
Patent trolls and software patents both need to go. Patent trolls are a useful excuse for reform that eliminates the latter. █
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Posted in Finance, Free/Libre Software, Microsoft at 3:28 pm by Dr. Roy Schestowitz
Summary: Microsoft executive Steven VanRoekel becomes Managing Director of the Federal Communications Commission (FCC)
MANY FOSS PEOPLE ARE no friends of the Federal Communications Commission (FCC) because the FCC is no friend of Free software. They went as far as public humiliation. Some recent FCC scandals aside (Professor Lessig wants them thrown out), the FCC repeatedly fails to carry out its job; business interests are sometimes blamed for bias, apathy, or sympathy towards offending companies which the FCC is there to regulate and punish. So, it may as well be stated that the new Managing Director of the FCC is a Microsoft executive, who is changing hats.
Former high-ranking Microsoft executive Steven VanRoekel has been named managing director of the Federal Communications Commission
This is also covered in:
In other news about former Microsoft employees, one of them is shutting down his Redmond-based business.
A year after receiving $1 million from angel investors, Redmond Web startup Sampa is shutting itself down.
Where will he be/they heading now? People should be very often reminded that an unfortunate fact of life is that people carry their biases, convictions, relationships and goals from one job to the next. And speaking of which, here is another attempted elevation of Microsoft’s stock, which is very typical for Eric Savitz. Can his Microsoft bias be any more obvious? Microsoft is going down, not up (based on actual numbers). █
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