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Steve Jobs: “A Patent Pool is Being Assembled to Go After Theora and Other “Open Source” Codecs Now.”

Posted in Apple, Europe, Free/Libre Software, Microsoft, Patents, Standard at 2:55 pm by Dr. Roy Schestowitz

Apple no longer a patent pussy, now a provocative tiger

Summary: Apple’s threat not only to Free/libre software but also to standards everyone can use is made more apparent because of new mail

APPLE’S legal attacks against Android and Linux go quite a way back when Apple used legal threats and sabotaged APIs to prevent access to its platform/s; Last month Apple took it up a notch and actually launched a legal attack. Hugo Roy from the FSFE has contacted Steve Jobs and received a nauseating response which he posted in full with maximal proof of authenticity


From: Steve Jobs
To: Hugo Roy
Subject: Re: Open letter to Steve Jobs: Thoughts on Flash
Date: Fri, 30 Apr 2010 06:21:17 -0700

All video codecs are covered by patents. A patent pool is being assembled to go after Theora and other “open source” codecs now. Unfortunately, just because something is open source, it doesn’t mean or guarantee that it doesn’t infringe on others patents. An open standard is different from being royalty free or open source.

Sent from my iPad

Based on some other messages from him, it sure seems like his style (the signature for example). What Jobs has sent from his hypePad seems to suggest that he knows something that others do not. Apple already invests in the world’s biggest patent troll and Apple is a key opposer when it comes to Ogg Theora as part of HTML5. Perhaps that explains it. Apple was also accused of ‘poisoning’ HTML with some patents it refused to relinquish control of.

Florian Müller’s interpretation of the letter from Jobs (which he mailed us a short while ago) was as follows:

According to an email of today, Steve Jobs wrote that a patent pool is being assembled to go after Ogg Theory and other open-source video codecs (codec = encoder/decoder software, such as a video player program).

While I can’t ascertain the authenticity of Steve Jobs’ email published on http://hugoroy.eu/jobs-os.php , the person who published it (along with the email delivery record) is a credible source. He’s a core activist of the Free Software Foundation Europe and received Steve Jobs’ email in reply to this open letter he had published on the web and sent to him by email: http://blogs.fsfe.org/hugo/2010/04/open-letter-to-steve-jobs/comment-page-1/#comment-72

As the founder of the European NoSoftwarePatents campaign and author of the “FOSS Patents” blog (FOSS = Free and Open Source Software), I hope you will find my following comments useful in your analysis of this matter:

1) Steve Jobs’ email doesn’t say who the patent holders are who will contribute to the patent pool that is going to be used against those codecs. Therefore it’s unclear whether Apple would contribute any patent(s) to that pool or not.

2) In connection with Microsoft’s patent licensing deal with HTC, a maker of mobile phones running Google’s Android open source (Linux-based) operating system, I believe there hasn’t been enough attention to an important fact: While Microsoft doesn’t try to force any Android phone vendor out of the market, Apple uses some of its own patents very aggressively in order to prevent such companies as HTC from providing certain functionality at all. I’s important to see the difference from the perspective of competitors and consumers: the worst thing that can happen with patents is if vendors, especially leading ones, use their patents for exclusionary purposes.

Should Apple be a contributor to the patent pool Steve Jobs mentioned, that would be very bad news because then the objective may very well be to prevent any commercial use and distribution of Ogg Theora and other open-source video codecs.

3) Multimedia codecs are one of the worst patent minefields out there, enforcement is aggressive and there’s no such thing as a video standard 100% unencumbered by patents. There are too many software patents out there to perform reliable clearance and patent offices often grant new patents on old ideas.

I wrote about these issues 10 days ago on my FOSS Patents blog:


That blog post starts with the story that Google might release its VP8 codec (which it acquired as part of On2 Technologies) on open-source terms. My blog post argues that even Google with all its knowledge and resources won’t be able to guarantee that any such codec software is 100% unencumbered by patents. The post discusses the impossibility of reliable patent clerance and also talks about the aggressive enforcement of such patents (the confiscation of MP3/MP4 product samples is part of the annual routine at the CeBIT trade show).

4) This is not the first incident this month of patents threatening open source. IBM’s threat letter to TurboHercules, which I published and discussed on my blog ( http://fosspatents.blogspot.com/2010/04/ibm-breaks-taboo-and-betrays-its.html ), shows that even a vendor claiming to be a friend and protector of open source (something that Apple never claimed) is determined to assert patents in order to protect a lucrative turf.

Florian’s words deserve a level of skepticism not because of IBM’s position (which we never supported anyway) but because of him standing up for the company that sidles with Microsoft. His history of fighting against software patents in Europe and also standing up against Microsoft lobbyists makes his analysis worthy of attention though.

Earlier today we showed more evidence connecting Apple’s attack on Android/Linux to Microsoft (more on that later today). Several months ago, former Microsoft evangelist Michael Gartenberg claimed that Apple was moving towards Microsoft, but Gartenberg too should be treated with extreme skepticism for reasons we gave in, e.g.:

Other Patent News from Europe

The president of the FFII, Benjamin Henrion, highlights this new page about UPLS (United Patent Litigation System). This comes from an FSF-backed project. Henrion tracks the UPLS as it may serve as a back door to software patenting in Europe (and Microsoft front groups already lobby for it). The following new ruling that he points to shows a software patent being revoked in France (around the same time Germany does the opposite). A site called Tangible IP (it’s like saying “solid solidity” about water) writes:

One of our interests on Tangible IP is the never ending story of software patents. Just to recap: the European Patent Office is currently considering the degree to which computer-implemented inventions are patentable. On the other side of the Atlantic the US Supreme Court has head arguments in the re Bilski case and we’re waiting for a decision.


The EPO Examiner initially rejected the patent on the grounds that it was not possible to determine the technical problem which was to be solved by the invention. The Applicant’s attorneys responded that the technical problem has been clearly described in the description and that this problem was solved by the claims. The EPO granted the patent.

“French Court TGI rejects search engine software patent EP1182581 based on subject matter exclusion (art52 EPC),” claims Henrion (information in French) who also found evidence [PDF] of what he claims to be “5.000.000 EUR for violation of a software patent.” Aren’t software patents already illegal in Europe? Well, there are loopholes that are being exploited.

“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway”, —Marshall Phelps, IAM: Microsoft to have 50,000 patents within two years, Phelps reveals

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  1. Agent_Smith said,

    April 30, 2010 at 4:09 pm


    This madness must end. What is he talking about ??? Open Source must be patented to be legal ??? What the F…??? Here, in my country (Brazil) the government broke the patents of the aids medicines, so, the poor population could be treated against Aids. And now, this… Free and Open Source being chased anywhere, HTC’s Android is not enough, those greedy sharks must come at everyone’s door…
    Stop the patent madness, this American craziness has gone too far…

    Dr. Roy Schestowitz Reply:

    Yes, patents are worst when they kill people. It puts software in a humble perceptive.

    Jose_X Reply:

    Let me get this straight, Microsoft can raise the cost of Linux, of those that use Linux to make money, but when IBM (we’ll assume for a second) does the same to another company, IBM is super bad (enough to post without end for over a week)?

    Of course, IBM did not specify it was FOSS that was the problem. The company was pushing Microsoft technology (with some specially optimized “WinFOSS”) as their solution and IBM stated that such a platform was not licensed.

    BTW, Florian apparently completely eliminated some threads on his site and has not added them back. In some of the conversations, he defended closed source, and avoided any blame at all on Microsoft after I pointed out the double standard he was using and all the problems he was ignoring about Microsoft’s threat to FOSS.

    I would not be shocked to learn he anticipates rewards of some sort from Microsoft or from companies that don’t want Microsoft be put in a bad light.

    He was dishonest and then resolved the issue apparently by deleting various threads.

    [PS, I think point 3 is basically right, and since Jobs said so little it's difficult to know exactly what is going on there.]

    Jose_X Reply:

    I haven’t gone back to the comments I wrote, but I remember that he defended any type of software against patents. He felt proprietary was necessary and deserved as much protection as any other software.

    With this context, I supposed he would be upset at IBM not licensing MSware; however, he framed his entire attack on IBM as IBM attacking FOSS. He didn’t even bring up Microsoft (I think it was groklaw where I first heard it). And he gave no real reply when I pointed out some of these things.

    He always comes back defending Microsoft. And here we see that now, rather than to criticize Microsoft for being worse than IBM, he exculpates them because Apple did much worse. Of course, he wasn’t consistent wrt Microsoft and IBM across postings, but perhaps within the same posting he would have avoided mentioning IBM (but he didn’t, go figure).

    BTW, if Microsoft “bought” this guy, Microsoft would be well aware that they would win if Florian was respected and they would win if Florian was shown to be hypocritical or otherwise showing bad judgment. In one case, IBM looks bad. In the other, Florian’s good judgment over software patents is put in doubt.

    Oh well, maybe the guy was running short on dough. Fortunately, Florian is not the reason software patents are bad for society, individuals, competition, and most small to medium companies.

    Dr. Roy Schestowitz Reply:

    BTW, Florian apparently completely eliminated some threads on his site and has not added them back.

    Wow. is that so? Last night he sent me several mails criticising Groklaw for censorship in the comments.

    Can you say more about this? Maybe there’s hypocrisy?

    [For the record, Techrights/BN never deleted any comments]

    Jose_X Reply:

    I’ll just mention one thread [I verified other threads were also nuked and even came across someone else who had also complained]. On April 11, I posted to http://fosspatents.blogspot.com/2010/04/ibm-confused-and-confusing-but.html and eventually had 11 comments total.

    In that thread he had various comments as well. His first comment was in reply to me and begun like this:

    >> Your reference to Groklaw

    >> In the beginning you refer to Groklaw, and whenever IBM’s actions are concerned, Groklaw has over the years supported IBM. Groklaw’s founder even admitted in an interview that the objective of starting Groklaw was to assist IBM’s legal department. Therefore I strongly caution against trusting Groklaw on anything, especially anything IBM-related, without scrutiny.

    I don’t like beating up on people whenever possible, but we have to keep in mind that lies hurt people (potentially a huge lot and a great many), and it seems we have an attack on behalf of Microsoft (that is the effect whether there is an understanding between Mueller and Microsoft/partner or not). All he has to do to get people like me “off his case” is to stop giving Microsoft a free pass because that ends up in deception and then significant harm. [Let me just say that people have even waged revolutions to fight back against various forms of nonphysical harm. People quit jobs to leave serious headaches and conflicts of principles and to avoid taking actions that could really hurt others. I say this to pre-empt talk about "harm". Fact is I think Gates would call some very violent dogs if I went over to his house with intent to remove billions of dollars to pay back people, so obviously "harm" is a fine word to use here.] Now, IBM and everyone also plays other people for their own gain. I find Microsoft particularly distasteful and don’t like that specific company to be let off the hook until they have made amends for their crimes and stop the attacks. Making amends may not be possible since I doubt they are going to pass around the hat to major shareholders. And it is troubling to me when I perceive someone is trying to pass a greater harm for a lesser one. Deception is damn ugly. At least in art and history, deception has been used to bring down kingdoms and people.

    Jose_X Reply:

    I also want to mention that the last theme I hit upon before the comments disappeared was about how untrustworthy is closed source (proportional to its size, position, and backers), and the significant leverage position Microsoft has against the industry, against FOSS, against consumers, and against all third parties competitors (as could anyone else) by controlling such a large closed source platform(s).

    The turbohercules fight (it seems to me) is really between IBM and Microsoft over control of a particular platform. Closed source and open source are not “about the same” by any means.

    Mueller may very well have been honest about a number of things, but when it appears you refuse to acknowledge certain problems with Microsoft’s control, ambitions, and past harm, I start looking at you as an extension of that plague and major threat to FOSS and to fair competition that is Microsoft.

    I can think of at least one other person that perhaps had very good reasons to have a real beef with IBM and also did not look upon Microsoft as a threat. It’s difficult to know what people really think. In private conversation that person was interesting, polite, etc. Fortunately, we aren’t judging people by what they think but by what they say and do within context. Muller, as far as I am concerned, continues with the deception. He writes up a piece that lets Microsoft off the hook again and then also links back to this attack on IBM. Not good, especially when you don’t leave room for being wrong by allowing others to post their opinions and complaints.

    Dr. Roy Schestowitz Reply:

    I’ll just mention one thread [I verified other threads were also nuked and even came across someone else who had also complained]. On April 11, I posted to http://fosspatents.blogspot.com/2010/04/ibm-confused-and-confusing-but.html and eventually had 11 comments total.

    It seems as though he suspended comments everywhere in his blog (I took a look this morning).

    I am skeptical about him because I know Microsoft’s history of hiring/contracting people who are vocal Microsoft critics in order to shut them up, especially people in the legal field.

    I don’t think he is connected to Microsoft, but yesterday he sent me ~7 E-mails defending his position and it wasn’t sufficiently convincing.

    Jose_X Reply:

    Software, software controlled products, and products realized through software controlled processes affect the quality of life of a huge number of people in very strong ways. These products play a huge role in the health care industry for example. Is there any industry not tied up in “software”?

    If software and other patents were asserted more aggressively, we would see a lot more people dying much sooner and less developed countries might never get out of their hole (if they accepted the “infringement” rulings).

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