09.13.09
OIN Receives Thanks from Many, CodePlex Foundation Receives Thumbs-Down from Many
Summary: Putting in perspective some of Microsoft’s latest attacks on GNU/Linux and an apparent deflection
SHORTLY after the OIN had intercepted Microsoft’s attempt to float anti-GNU/Linux patents [1, 2, 3, 4, 5], many responses were posted. Among them there is one from Eben Moglen. who wrote that “Our community—including all developers, distributors and users—owes Keith Bergelt of OIN, and the companies on his board of directors, a round of serious thanks for interrupting this arms trade, and calling attention to a bad business practice.” He also wrote:
An announcement by the Open Invention Network has disclosed publicly for the first time another, previously-secret front in our community’s efforts to protect itself against anti-competitive aggression by Microsoft. OIN’s transaction with Allied Security Trust to buy patents, supposedly reading on free software, offered to the troll market by Microsoft prevented what could have been a very unpleasant experience for the whole free software ecosystem.
Selling patents to organizations that have no purpose except to bring litigation—entities which do not themselves make anything or conduct any research, which do not indeed contribute in any tangible or intangible way to the progress of civilization—is not standard commercial practice. What Microsoft is really doing here is sowing disruption, creating fear, uncertainty and doubt at the expense of encouraging the very sort of misbehavior in the patent system that hurts everyone in the industry, including them.
Jay Lyman posts a superb, concise summary of the responses which matter.
This week, we saw some of the software patent skirmishes that are driving and validating this thinking. There was first news that the Open Invention Network, the consortium dedicated to legal and IP defense of Linux, had bought some software patents that related to Linux, which admittedly is not hard to do these days. It turned out the 22 Linux-focused patents were purchased from Allied Security Trust, which had actually purchased them from none other than Microsoft. This might not have meant a whole lot, with OIN proclaiming a victory and Microsoft stating simply that the patents did not hold much value to them. However, the plot thickened as we heard from FOSS defender Eben Moglen, from Linux Foundation executive director Jim Zemlin and from vendor Red Hat, that Microsoft may have been shopping the patents around to would-be patent trolls who would do the dirty work of FUD on their own.
Here is the follow-on article from Groklaw, which finally relates this alleged trolling attempt to Microsoft’s so-called “Open Source” Foundation. Yesterday we explained why it's a farce, which only comprises the usual members [1, 2].
Microsoft doesn’t control it. What it used to be able to do in the dark now falls out of its noxious bag of tricks into the Internet’s bright light, stage front and center. And there stands Microsoft in the spotlight, with its pants down, and let me tell you, it’s not a pretty sight.
Take the failed patent hustle of a couple of days ago, apparently maneuvering to enable proxy patent trolls to sue Linux. The idea, I gather, was to damage Linux, but without any way to trace it back to Microsoft. Thank you OIN and AST for foiling the plan. And by the way, are courts supposed to be used like this, to attack the competition? The court system is designed for adjudicating conflicts that are real. If you get damaged, you can go to court and try to be made whole. And so far as I know, there is no definition of abuse of monopoly that would exclude what just happened from being part of what antitrust law covers.
Then there is the hypocrisy factor. Ironically, Microsoft’s lead attorney in the i4i patent litigation was sanctioned by the judge in the Memorandum and Order because he persistently argued to the jury that patent trolls shouldn’t be allowed to seek money damages. And yet, out in the back, behind the garage, so to speak, it’s “Psst… trolls, wanna buy a patent?”
Here is where Pamela Jones refers to Microsoft’s new foundation:
What won’t Miguel do for Microsoft, I ask myself? I take that as good news, frankly, as the new foundation wouldn’t be needed by Microsoft to “supplement” what others already have in place if they could undermine what the community already has. So Microsoft funds and runs a new Brand X open source foundation which will be entirely under Microsoft’s thumb. Now do you see the purpose of the GPL? Why the F in FOSS is so vital? If all that matters is viewing the code or excellence of code or whatever that concept was in the longstanding debate, look what you get: Microsoft’s Brand X open source foundation to sell you patent licenses to proprietary code. An offer they hope you can’t refuse. How do you like it?
Richard Adhikari of ECT correctly points out that “FOSS fans” (yes, the real ones) are not buying Microsoft’s story. From the summary:
The CodePlex Foundation, according to Redmond, enables the exchange of code and understanding among software companies and open source communities. Those OSS communities, however, aren’t entirely trustful of Microsoft’s intentions.
Sam Ramji still has 3 months to go at Microsoft; one has to wonder who he shall work for next. Experience suggests that departing Microsoft employees become an HR issue. Ramji’s job has been — to a great extent — lying to the press on Microsoft’s behalf; it was not easy, especially while Microsoft was attacking GNU/Linux behind closed doors. Microsoft is still lying without any qualm. According to David Williams, Microsoft says that CodePlex is accepted by Linux and the open source community. “According to [Microsoft's] Sara Ford,” he writes, “the site is accepted and welcomed among the fans of open source and Linux software.” Utter nonsense. Maybe it’s this type of people who endorse it.
He [Ramji] will serve as president of the CodePlex Foundation for at least the first 100 days but is also departing Microsoft before the end of the month for another software vendor.
The Microsoft-sponsored blog called the whole thing a “soap opera”, thus trivialising serious issues. That’s funny. When Microsoft attacks GNU/Linux from multiple directions — potentially breaking some laws in the process (depending on location) — and then further abuses the “Open Source” brand, all it can be called is just a “soap opera”? On the other hand, positions are at least provided from the other side of this story:
Bergelt said he suspects that strategic agenda was to stall or slow the growth of Linux by seeing the patents ultimately fall into the hands of organizations that would use them to pursue lawsuits against people who use or distribute Linux. Microsoft has said that it believes Linux and other open-source programs violate more than 200 of its patents.
Here are all the recent events sorted contextually. One has to wonder if the CodePlex Foundation announcement timing was intended to quell the storm over Microsoft’s attempt to sue GNU/Linux vendors by proxy. It was mas perhaps intended to change the focus of debate in the press; that would not be the first time Microsoft deliberately does this.
“One has to wonder if the CodePlex Foundation announcement timing was intended to quell the storm over Microsoft’s attempt to sue GNU/Linux vendors by proxy.”Over at the Mono-Nono Web site, one commenter argues that “The whole “microsoft opening up to open source” things reminds me of this movie:
http://www.youtube.com/watch?v=n3bI71P_8O8
“We come in peace”.
“Do not run! We are your friends!”
Yeah… right!”
There is already some FUD out there, such as the essay titled “Will Microsoft’s Open Source Initiative Kill Linux?”
This comes from Ken Hess, who has gone ahead with a lot of trollish anti-Linux rhetorics recently. He once invited Microsoft to hire him in one of his columns. Apart from the headline, however, the body of arguments seems rather reasonable.
In other patent news that we shall write about later, Microsoft has managed to overturn a patent judgment regarding Alcatel-Lucent’s claims. From Reuters:
A U.S. court of appeals on Friday overturned a $358 million damages award against software maker Microsoft Corp in a long-running patent dispute with French telecoms equipment firm Alcatel-Lucent.
The United States Court of Appeals for the Federal Circuit, which handles many patent and trademark cases, held that Microsoft did indirectly infringe Alcatel’s patents, but said the damages awarded against the firm were not justified and must be retried.
We wrote a lot about this case in the past [1, 2, 3, 4, 5]. It’s seemingly never-ending. Then again, that’s the nature of intellectual monopolies; those with deeper pockets can endure the test of ‘justice’ for longer, file more motions, and thus ‘win’. █
“The Company believes that existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments.” —Oracle Corporation, IBiblio: Oracle Corporation’s position paper on software patents
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Jose_X said,
September 13, 2009 at 8:35 am
>> “The Company believes that existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments.” —Oracle Corporation, IBiblio: Oracle Corporation’s position paper on software patents
That was from 1994, I think, but it was still useful.
The critic replies at the bottom against the argument that software being inexpensive to produce is a key point distinguishing software from traditional types of patentable material.
It’s good to see their arguments with their flaws since these args are used by others.
>> If someone can spend a few weeks and develop a fuel
additive that doubles the fuel efficiency of automobiles, the reward should
reflect the billions that are at stake, and not the few weeks of effort needed
for the inventor (who is either very lucky or very smart).
If sw is cheap to develop, inventions happen quickly from many inventors and happen more if these inventors share. There are many billions more being sacrificed if we give monopolies (whether the monopolies are even given to the “right” person). The opportunity costs of preventing thousands from leveraging “inventions” outweighs by a lot the gains from having that invention made public at the time the patent was granted (again, assuming the monopolies were given to the “right” person and we have a real breakthrough here). Chances are that less capable inventors broadly patent some invention idea before the more capable inventors do so or before these other inventors get to the real breakthroughs. Should we even allow one smart person to neutralize 1000 other smart ones? Should we allow 1 genius to neutralize 10 others?
Alternatively, there aren’t even billions at stake (as might be the case in some manufacturing sector) since inventions are cheap and hence happen at lower costs so more readily. Software inventions happen on-demand.
The cost factor (and some related properties of software) is a key ingredient. It puts software inventions on the level of literary (math, law, etc) inventions rather than manufacturing inventions. Copyright already protects software.
Remember, you can’t copy/paste a chunk of that new innovative skyscraper so as to use it in your own product, but you can copy/paste arbitrarily complex chunks of software. Costs, the degree of being able to leverage prior developments, and the large number of inventors in play are all interrelated, are a big deal, and are key to rationalizing why software is not like manufacturing.
BTW, Einstein was a patent examiner. Did he require patent protection to be motivated to develop the theory of relativity? Did he get there by himself? No and no.
Could Einstein have been cut off (discouraged, etc) from making those developments if someone else had patented some of the basic concepts or hunches (maybe someone that had kept correspondence with Einstein) ahead of knowing the full details? Yes (if patents were allowed and ethics level were low and in particular if patents were automatic like copyrights once you describe the invention on paper). Broad patents are always easier to write and always pre-empt the more detailed developments.
Are the people getting patents today making inventions of the significance and gain to society as was the theory of relativity? I don’t think so, yet these people are getting patents left and right so as to monopolize areas of development that could very likely be developed much faster (and in parallel) by many others if the patents were not an obstacle.
There is a very real cost in granting patents that prevent greater faster development or development that would happen regardless. We have to ask, does this person controlling this area (which might cover lots of ground, as patent claims are very general and low in detail, and where many more breakthroughs could be taking place or would need to take place to solve certain problems) from today through the next 20 years give society more than if we leave everyone free for the next 20 years? That is doubtful if the area is an important one.
Because advancement is so dependent on many ideas and experts contributing and coming together, it generally makes no sense to have monopolies if we want to promote growth. Note that many invent to solve a problem (eg, to make money) or for other reasons without needing a patent as a motivator. To justify a patent, we might look towards things like high costs to manufacture or experiment. Yes, I’m returning to that point: costs (and related factors) are key to concluding whether a monopoly grant would (very likely) hinder or else possibly instead promote growth.
Finally, Oracle makes many interesting points like the high immediate costs patents pose to the industry and how software has developed fast and far under the expectation that patents were not legal or were not being enforced or taken out very much.
If Oracle were to write that position paper today (assuming they felt the same way), they could make a stronger case by pointing to the wide spread of the Internet and computing (even lower costs to distribute software; greater opportunity for collaboration; more people able to participate). They could point to the huge world of FOSS: the gains this has to society and how it comes about from a focus on the sharing of ideas as these are expressed. They could point to the growing costs the system places on the industry. They could point to the deterioration of the quality of the granted patents. They could point to how much easier it is to run to the patent office with someone else’s idea because of all the sharing that is going on by people that don’t patent anything.