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05.25.10

Microsoft Attacks Linux Competition Using Lawsuits and Threats (With Software Patents), Pays Acacia/IP Innovation After Anti-Linux Lawsuit

Posted in Courtroom, Deception, Free/Libre Software, GNU/Linux, Google, Microsoft, Patents, SCO at 7:42 am by Dr. Roy Schestowitz

“Microsoft retaliated against industry participants that supported DR-DOS. For example, when Z-Nix Inc. bundled DR-DOS 6.0 and Microsoft Windows 3.1, proclaiming no incompatibilities, Microsoft’s Brad Silverberg wrote: “look what znix is doing! cut those fuckers off.” Within three weeks, Microsoft demanded an audit of Z-Nix’s entire business and then commenced a copyright and trademark infringement action. Z-Nix was forced to file for bankruptcy in or around 1995″

Comes Petition [PDF]

Summary: “Microsoft is back to its old tactics,” claims Forbes Magazine as Microsoft not only sues Linux-using companies but also pays other companies that do so

MICROSOFT NEVER REALLY changed. Since its early days it has been threatening rivals and attacking them with lawsuits if they didn’t behave as Microsoft pleased. It still goes on today because Microsoft is in a litigious mood. Gone are the days of pretense.

Redefining “Open Source”

Microsoft says that it has embraced “Open Source”, but as the OSI put it this week, “To Microsoft, Open Source means ‘Windows Encumbered’”

One of the most interesting things to happen in the past couple of years, is Microsoft’s embrace of Open Source. This means different things to various people I’ve spoken with at Microsoft. Some seem genuinely sincere. Some seem less so. What hasn’t changed is Microsoft’s behavior to the Open Source community at large.

* They have not retracted their patent FUD against Linux.
* They (a founding member of the BSA) did not speak out against the BSA/IIPA’s attempt to have the US government equate Open Source with piracy and as anti-capitalist.
* They continue to attack, with legal action or threats, any open source that competes with any of their core products.
* They continue to hijack standards boards with “standards” that are encumbered by patent or platform constraints.

Microsoft’s version of Open Source Software (MSOSS) means software licensed under an Open Source License which is encumbered with a dependency on SharePoint, Microsoft Office, Microsoft SQL Server or Microsoft Windows (Azure or classic). This underscores something critical that we have all learned over the past few years while on our journey towards freer technology. That is that Open Source licenses are NOT enough to ensure (corporate or consumer) end-user empowerment. We also need Open Standards and Open Data.

Last week we wrote about Europe’s Digital Agenda, which got subverted by Microsoft lobbyists so as to accommodate software patents [1, 2].

Microsoft has been using R&D Magazine to push its agenda and it is doing it again, as it has been been doing for a long time now. Here is Microsoft expressing its acceptance of the Digital Agenda, which it shaped using lobbyists who pretend to represent other interests. That’s just appalling.

Microsoft welcomes the “Digital Agenda for Europe,” announced earlier this week by European Commission Vice-President for the Digital Agenda Neelie Kroes, as a bold roadmap for action. We share the Commission’s view that technology is an enabler for economic growth, job creation, sustainability and social inclusion. As a company, we are fully committed to working with the European Commission and governments to realize the potential of Europe’s digital future.

As we pointed out before, the Digital Agenda had been broken and it still needs to be fixed. It’s not too late.

Microsoft equates software patents with “openness”. How convenient.

Legal Attacks

Last month we showed how Microsoft was attacking the Linux-based Android (HTC being the latest example to have surrendered) and here we see yet again how Microsoft is distorting terms, mixing legal intimidation with “openness”. It’s like claiming to do someone a favour by shooting him/her. “We need to smile at Novell while we pull the trigger,” Microsoft’s Vice President Jim Allchin famously said.

(Update, 2:25 p.m. A Microsoft publicist provided a link to a March blog post by company vice president and deputy general counsel Horacio Gutierrez that essentially says that Apple’s suit is for everybody’s own good: “The smartphone market is still in a nascent state; much innovation still lies ahead in this field. In all nascent technology markets, there is a period early where IP rights will be sorted out.” Later on in the post, Gutierrez opines that “Open innovation is only possible through the licensing of third party IP rights,” which makes me wonder what he thinks of the open, innovative and patent-free World Wide Web.)

“Microsoft Deal With HTC Could Slow Android’s Adoption,” says this article. That’s just what Microsoft wanted because Linux/Android is technically superior and sells better.

Here is Steve Ballmer quoted as saying that “there’s nothing free about Android”:

When asked about Android giving away Android for free versus Microsoft, which charges smart phone carriers, Ballmer took issue with that assessment, stating, “And there’s nothing free about Android. I mean at the end of the day as we certainly have asserted in a number of cases you know there’s an intellectual property royalty due on that. Whether they happen to charge for their software or not is their business decision.”

One reader of ours says that Microsoft is trying to sell two messages here: 1) Android is fragmenting; 2) Android is violating our patents.

The former message is being pushed by Microsoft evangelist Michael Gartenberg [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11], who keeps saying he is no longer an employee of Microsoft, which makes it easier for him to trash Microsoft’s competitors with little suspicion being raised (no disclosure, ever).

“First,” said our reader about Microsoft’s FUD, “it’s nobody is using it, then when the market base increases, it’s fragmenting.”

Here is Pogson responding to Gartenberg’s former boss, Steve Ballmer.

Android Is Free, Steve

In an interview with Fortune Magazine, Steve Ballmer stated “There’s nothing free about Android.” Wrong, Steve. Android is Free:

* anyone can run the software,
* anyone can examine the source code,
* anyone can modify the source code, and
* anyone can distribute the code unmodified or modified under the same licence that comes with the code.

It is probably safe to say that Microsoft is grasping at straws, but its litigation tactics might as well land some of its executives in jail (SCO comes to mind). Is Microsoft really a friend of “Open Source”? Who are they kidding? It’s all PR.

Then there is the Salesforce lawsuit [1, 2]. Microsoft claims that its software patents are “crown jewel[s]” — whatever that actually means when it comes to monopolies, but even pro-Microsoft sites are disappointed by Microsoft’s behaviour.

A few months back, my Foolish colleague Rick Munarriz regaled you with the tale of how Microsoft bullied Amazon.com (Nasdaq: AMZN) into a cross-licensing agreement, presumably because the e-tailer trampled upon its IP rights in the course of using Linux to service its Kindle. Mr. Softie has made similar accusations, to good effect, against everyone from Hewlett-Packard (NYSE: HPQ) to Apple to Novell (Nasdaq: NOVL), receiving similar deals in each case.

Forbes Magazine summarised it as follows:

With its new patent lawsuit against Salesforce.com, Microsoft is back to its old tactics.

Another take says:

Instead of suing, why not just build better products? When customers use CRM they are looking to build an edge on their competition by improving relations. Microsoft should improve relations with all the time and money they spend suing their partners.

Microsoft also failed in advertising over the Web. No wonder it’s so fearful and jealous of companies like Google and Salesforce.

Three years after Microsoft agreed to buy Seattle-based digital advertising company aQuantive, the Redmond company’s ad revenues have barely budged, its online losses have soared, many of aQuantive’s top executives have left, and one of aQuantive’s biggest units has been sold.

It’s not the outcome once envisioned from the $6 billion acquisition, which remains the largest in Microsoft’s history.

We wrote about this last week as well.

History Rewritten by Recipient of Vista 7 Laptop

Here is Microsoft's friend Harry McCracken rewriting the past by saying “That history has surprisingly few examples of sustained competition between two giants, in part because one of the giants was so often Microsoft, who — back in the day — played hardball more ruthlessly than anyone, and usually against companies who made some truly boneheaded strategic missteps.”

“Boneheaded strategic missteps,” eh?

Why talk about Microsoft’s crimes that it was found guilty for? It’s so much easier to just blame others and pretend Microsoft was an innocent bystander. Comes vs Microsoft exhibits leave not a shadow of a doubt. McCracken also pretends it’s just part of the past and conveniently ignores Microsoft’s racketeering [1, 2, 3, 4, 5, 6, 7].

But on goes the PR campaign…

Microsoft also uses the “Open API” deception which their partner O’Reilly helps perpetuate.

Other Legal Cases

The firm called McKool Smith causes Microsoft quite a bit of agony. It’s one of those leeches in a system so flooded with patent litigation. Here it is bragging about its actions against Microsoft.

In naming McKool Smith as the top patent litigation firm in the southern U.S., the editors of MIP said the firm had “distinguished itself litigating patent infringement cases for companies like i4i and VirnetX Holdings. It has scored a number of wins against Microsoft, totaling nearly $400 million.”

Here is the latest article we found about the i4i case.

Microsoft is fighting a hard battle, but it is clear the courts and USPTO agree i4i’s patent for the XML feature is valid and Microsoft willingly infringed the patent. Microsoft apparently sees value in the XML feature and therefore should do one of three things:

1. create a work around and not use the XML feature

2. buy i4i outright

3. develop a partnership with i4i and pay them licensing fees for the technology.

There is also this update about the Microsoft vs. Alcatel-Lucent situation [1, 2, 3]:

Title: Microsoft v. Lucent Technologies
Docket: 09-1006
Issues: (1) Whether a jury verdict of patent infringement can stand when it is supported only by speculative evidence and lawyer argument, or whether the standards for entry of judgment as a matter of law that apply in all other federal cases should apply equally in patent cases; and (2) whether a new trial is required in a patent infringement case, as in all other cases, when the verdict is found to be contrary to the weight of the evidence.

* Opinion below (Federal Circuit)
* Petition for certiorari
* Brief in opposition
* Petitioner’s reply

Here is the latest from Acacia, which we all along suspected to have been paid by Microsoft:

Acacia Subsidiary Enters into License Agreement with Microsoft Corporation

Acacia Research Corporation announced today that its subsidiary, IP Innovation, LLC, has entered into a license agreement with Microsoft Corporation covering patents that apply to technology for enhancing image resolution. The agreement resolves a lawsuit that was pending in the United States District Court for the Northern District of Illinois.

This also appeared here. Essentially, Microsoft is paying Acacia some money and Groklaw has an opinion on it, namely: “IP Innovation is the same entity that just lost when it sued Red Hat and Novell over alleged patent infringement. Coincidence, I’m sure, that without even having to actually go through any litigation to the end, they get a Microsoft payoff. Maybe Microsoft realized they were guilty of patent infringement. Who knows? But it does smell just a little funny to me. I mean, not saying this is what happened, but what if? Let’s just imagine for a moment. Let’s say you wanted to sue Linux over and over and just run a Linux company into the ground, as Michael Anderer said Microsoft wanted to have happen. If you recall, Microsoft announced in 2003 that Linux would face years of litigation. But then BayStar and Anderer let it slip that Microsoft folks had inspired investors to help SCO in its battle against Linux. So imagine you are Microsoft. How do you funnel money to the folks who are to sue Linux next after that, especially now that SCO has lost ignominiously and is bankrupt?

“Let’s say you wanted to sue Linux over and over and just run a Linux company into the ground, as Michael Anderer said Microsoft wanted to have happen.”
      –Groklaw
“Here’s how my imagination works, when I put my evil-think hat on: why couldn’t you have an entity like IP Innovation sue Linux vendors *and* Microsoft, and if they win, they get money from the Linux vendor, and if they lose, Microsoft agrees to settle? Would that not be slick? Again, I’m not applying this imaginary strategy to anything in real life, but if I were a defense lawyer dealing with a patent infringement case brought by anyone against Linux, I’d surely look for that in discovery. Just saying. — Update: I can’t find any litigation against Microsoft by IP Innovation on PACER or on Google. I see others by other subsidiaries of Acacia, but none listed or even announced by IP Innovation. Perhaps someone else can find it.”

“On the same day that CA blasted SCO, Open Source evangelist Eric Raymond revealed a leaked email from SCO’s strategic consultant Mike Anderer to their management. The email details how, surprise surprise, Microsoft has arranged virtually all of SCO’s financing, hiding behind intermediaries like Baystar Capital.”

Bruce Perens

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