Summary: Explanations given to clarify that Linux is not under siege and that OIN helps deter Microsoft, leaving it using patent trolls and proxies for the attempted taxation of GNU/Linux
Microsoft feeding patent trolls with “anti-Linux patents” (not our own term but a term that was widely used at the time) is not a conspiracy theory, thanks in part to proof obtained by the OIN and the Linux Foundation [1, 2, 3, 4, 5, 6]. As we showed before, the patent troll-led MPEG-LA is batting for Microsoft’s and Apple’s benefit, directly aiming at Google as well (there is reactive defence from Google). Google’s GNU/Linux servers, the free codec, the free Web browser, and Android are some of the lucrative targets these days. It is a subject which we tackled repeatedly over the past week [1, 2, 3], more latterly because of Microsoft Florian and his FUD about a patent ruling which will most probably be overruled.
Here are some interesting details about the source of the lawsuit:
Can’t let it pass without comment: A mystery-company called Bedrock Computer Technologies sues Google in the Eastern District of Texas for infringing on a patent. And that patent names Linux! It’s also going after Yahoo, MySpace, Amazon, PayPal, Match.com, and AOL (What??? Does AOL use Linux?).
You can just about throw a dart and hit a tech blog reblogging the story today, but I like Steven J. Vaughan-Nichols & Paula Rooney’s take on it the best: “Idiotic Anti-Linux & Google Patent Decision” says it all.
It’s almost a parody of a patent troll case. “Bedrock Computer Technologies” has a website, and what’s on that home page? A showcase of technologies for sale by them? A shopping-cart section where you can actually buy something from them? Nope, just an Art-Deco logo straight out of Atlas Shrugged, linking to an email drop – I take it whomever’s job it is to read the mail from that drop is having a jolly time hosing it out today. Bedrock is a patent troll, and they don’t give a thin damn who knows it.
Given the geography of the case and given the depth of Google’s pocket, this is more noise than signal. This will go away. It is a timely lesson, however, regarding the ridiculousness of software patents and it can rekindle this important debate.
Well, guess what? Even Microsoft boosters acknowledge that it’s not as serious as Microsoft Florian tried putting it and Groklaw has this productive suggestion and constructive response which seeks to eliminate software patents as a whole. It is the only real solution. From the introductory summary:
This article provides a detailed factual explanation of why software is mathematics, complete with the references in mathematical and computer science literature. It also includes a detailed factual explanation of why mathematics is speech, complete once again with references. My hope is that it will help patent lawyers and judges handling patent litigation understand these fundamental truths, so they can apply that technical knowledge to their field of skill.
Case law on software patents is built on a number of beliefs about how computers and software work. But as you will see, when you compare the technical facts presented in this article and in the authoritative works referenced, with expressions in case law on how computers and software work, you will find they are often in complete opposition. I believe this is a foundational problem that has contributed to invalid patents issuing.
If you are a computer professional, I hope you pay attention to another aspect of the article, on how the lawyers and judges understand software. This is critical to understanding their point of view. After reading case after case on the topic, I have concluded that the legal view of software relies on beliefs that are in contradiction with known principles of computing. Computer professionals explain their profession based on an understanding that is, on its face, the opposite of a few things the legal profession believes to be established and well understood facts. Moreover, the law is complex and subtle. Computer professionals don’t understand it any better oftentimes than patent lawyers understand software, and so they can make statements that make no legal sense.
I believe that coming to a clear and fact-based definition of what an algorithm is can help both sides to communicate more effectively. So let’s do that as well.
Brian Proffitt says that there is “no reason to worry about Linux” because this patent verdict can be overturned quite soon. To quote his column:
I was on the road in Boston late last week, and thus was unable to easily write something up on the April 15 jury finding in the case of Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al.
That’s the catchy name for the patent infringement lawsuit launched in 2009 by Tyler, Texas-based Bedrock against Softlayer and CitiWare Technology Solutions, LLC, two Texas-based software companies, and a few firms that are decidedly not from Texas: Google Inc., Yahoo! Inc., MySpace Inc., Amazon.com Inc., PayPal Inc., Match.com, Inc., AOL LLC and CME Group Inc. The suit alleges that a patent that Bedrock owns, US 5,893,120, is infringed by the defendants in the suit, because such a method is employed by the Linux operating system and as major users of Linux, the defendants are liable for damages.
Back on April 15, after a five-day jury trial, the Federal jury in Tyler, Texas indeed found in favor of Bedrock and specified that Google owed the company a huge, staggering amount of $5 million in damages. (Yes, that was sarcasm.)
Patent law followers will note the location of the trial venue. The United States District Court Eastern District of Texas is well-known as a favored district for patent infringement suits. It is no coincidence, surely, that Bedrock’s founder David Garrod opted to start his company, which exists only as a holder of patents like 5,893,120, in such a patent-friendly location.
Proffitt’s former colleague, Sean Michael Kerner, reminds us of the role played by the OIN, which has no built-in immunisation against patent trolls (e.g. those whom Microsoft feeds), unlike large companies that wage patent wars under different rules. To quote Sean:
Patents remain a source of risk for the open source ecosystem, though the Open Invention Network (OIN) is doing its’ part to help reduce the risk.
The OIN launched back in 2005 as a group tasked with acquiring patents and then licensing them back to the open source community on a royalty-free basis.
OIN has continued to grow over the years, and for the first quarter of 2011, the group grew by over 70 new licensees including HP, Facebook and Juniper Networks.
Since those who bemoan Linux (and constantly spread patent FUD about it) also smear the OIN, surely there is something about the OIN which worries Microsoft; it acts as a deterrent. For example, Microsoft is not suing OIN members for patent violations, assuming they join early enough, unlike TomTom. The monopolist can use patent trolls to file these lawsuits however. Microsoft is, after all, the genesis of the world’s biggest patent troll. It cannot deny this fact. █
“In a world where there are $500 million dollar patent infringement lawsuits imposed on OS companies (although this is not completely settled yet), how would somebody like Red Hat compete when 6 months ago they only had $80-$90 million in cash? At that point they could not even afford to settle a fraction of a single judgment without devastating their shareholders. I suspect Microsoft may have 50 or more of these lawsuits in the queue. All of them are not asking for hundreds of millions, but most would be large enough to ruin anything but the largest companies. Red Hat did recently raise several hundred million which certainly gives them more staying power. Ultimately, I do not think any company except a few of the largest companies can offer any reasonable insulation to their customers from these types of judgments. You would need a market cap of more than a couple billion to just survive in the OS space.”
–SCO’s Strategic Consultant Mike Anderer
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Summary: Champion of anti-competitive practices wants laws that further assist those practices
THE company from Redmond never changed. It’s just an abusive monopoly which subverts the law in order to perpetuate this monopoly and evade prosecution when it breaks the law. As the i4i case (that’s still in the news) helps show, Microsoft wants the law to bend over and always serve Microsoft, even become temporarily void when Microsoft breaks some particular law such as patent law. Watch how Microsoft’s lobbying blog is once again pushing monopolies, this time on design. They try to use some cynical joke called “World Intellectual Property Day” (there is no such property) to push for further restrictions, using the same blog where they lobby for software patents:
Strong design protection in the online environment will help drive continued innovation and differentiation in the cloud.
They even use the “cloud” buzzword to pressure in favour of more monopolies. Who are they kidding? What an unethical company. See, that’s what distinguishes companies like Google, for example, from Microsoft. Google is in many ways going against all those intellectual monopolies (copyright maximalists, artificial limitations and restrictions, patent lawyers, etc.), whereas Microsoft wants more protectionism. It’s all about taking from society as much as possible when it comes to Microsoft. In fact, recall what Bill Gates and Steve Ballmer wanted to do to their colleague when he was ill. Ballmer may have just validated the story by making these statements:
On his recent discussion with Steve Ballmer about the book: No one has disagreed or contradicted any fact or any memory to me. … Steve said, “Yeah, those things did happen, some of those things did happen,” like I recount. I think obviously if you’re in a leadership position at Microsoft, and I’m giving my critique of the future, or the challenges for the future, I guess I should say, those are areas that Steve’s focused on, and is sensitive about, and he talked a little bit about that.
Guess who is using intellectual monopolies against Google right now? Microsoft has helped fuel copyright battles against Google and now it launches patent attacks on Android, too. A lot of sites will insist that Google and Microsoft are fundamentally different because at Microsoft, scarcity has always been the business model; for Google it’s abundance. What is better for the public (over 99% of which is not lawyers)? █
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Summary: GNU/Linux is driving Windows off the road, gradually but surely; Microsoft continues to deceive nonetheless
AS we repeatedly show and remind our readers, Windows-related profit is on the decline, so Microsoft resorts to cheating in the SEC filings, pushing into newspapers all sorts of fake numbers. Katherine from IDG and ECT explains that “Linux Wins Big” as “Microsoft Reveals Windows Decline” and she provides supporting evidence:
3. Microsoft Reveals Windows Decline
Microsoft is nothing if not a master at trumpeting its own horn, and recently it’s being doing just that over the 350 million copies of Windows 7 it says it has sold since the software’s debut.
One thing it apparently forgot to mention, however, is that that’s not so good. In fact, it doesn’t even keep up with the total number of PCs sold, as my Infoworld colleague Woody Leonhard noted today.
One needs to add that it’s not Vista 7 , it’s just licences issued/assigned (not necessarily used) and it includes Windows XP, which Microsoft counts as Vista 7 in order to game the numbers. It is easy to see why Windows is losing inertia. As one of our new regulars in IRC put it in his blog recently, Windows is broken and the “Windows ecosytem is broken”, too, whereas Google’s Android, for example, is doing extremely well and growing rapidly.
Over the years that I have provided IT support, I have always pointed out the options available i.e Mac, Windows, Linux (and in some cases a BSD). Familiarity tends to sway users towards Windows despite the problems. Another issue tends to be that “the must have” application for which no alternatives exist (except for other proprietary apps) are only available on Windows. When I dig a little deeper into how these apps are written I tend to be horrified at how they are put together. In the VB6/.net etc etc world sometime Client/Server can mean “lets map the executable to the server, run it over the network and tell the customer to get a faster network/computer/switch if it doesn’t work properly” .
One thing that is becoming increasingly common is to find that many of these apps are still written with legacy develop environments or libraries which is translating into not working well or at all in Vista & Windows 7. It seems to be that many of these apps aren’t coping well with the transition from smb 1 to smb 2 – strangely the average Windows techy appears to have no concept of this. My work with Samba has recently been helping me solve Windows problems!
So to translate the above into something less “geeky” – The Windows ecosystem is broken, littered with layer upon layer of legacy must have software. Its the more established businesses which suffer more from this, newer businesses with less software baggage do not have to weigh themselves down.
Adoption of Vista and its successors has been utterly poor in businesses and now that we discover some major wins for GNU/Linux in business desktops, there is reason to believe that a lot more of it is coming. In fact, based on information that cannot be made public just yet, a lot of desktops are going to see proprietary software stripped off. Sometimes it starts by running Free, cross-platform software on top of Windows, which in turn makes swapping the platform with GNU/Linux quite trivial. Microsoft knows that. █
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Summary: A quick note about “Bytes Media” and the possibility of adding “Techrights Legal” to counter a new type of attacks on GNU/Linux
TIM and I have been working on a new site which helps unify our work from the past few years. It is intended to avoid confusion and to also more properly separate between the different areas and activities, e.g. wiki, recordings (video/audio), IRC, opinions, legal documents, and analysis. The site is more of a placeholder at this moment and it is still under construction.
There were plans underway to create something more decentralised around TechBytes, which will have Richard Stallman as a guest in a future show (and we’ll hopefully have a special episode about Mageia very soon). Recently we also considered creating another site, maybe Techrights Legal. Legal issues require someone who is trained in the area, so a subsite is still pondered, maybe for the purpose of hosting documents from PACER. We will see what happens next month when Groklaw goes into archival mode. █
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FUD attacks on Linux are increasing, particularly in “patent” flavour
Summary: The role played by Microsoft (and parts of the media it controls) in daemonising Linux, not just in the form of Android but Red Hat servers too
EVEN though the world has a lot to gain from Linux, there is a virtual coalition that has a lot to lose, so it really hates Linux. Microsoft is not alone among those haters, but it is a major part of it and it has a lot to lose. For example, if Linux becomes a dominant operating system on large devices that are not servers, then Microsoft’s Office franchise is at great risk.
It is abundantly clear that, just as in many cases, the media plays a major role in shaping people’s opinions and thus can affect outcomes, defining winners and losers based on who it sidles with. It is therefore not too shocking that a lot of former Microsoft UK staff occupied the MSBBC, which even in this new article about Stars completely fails to mention Microsoft and Windows as that would damage the brands. Likewise, the MSBBC is misrepresenting a legal case in order to create fear of Linux. It’s Maggie Shiels again and she calls Microsoft Florian “Intellectual property activist” while quoting his tripe. Why does she even quote him and his FUD? Anyway, Groklaw once challenged Florian Müller to say he does not get paid by Microsoft or a Microsoft partner and he refused to do so multiple times (about a dozen times). We know that he is injecting anti-Linux bias into the news by mass-mailing journalists, but good journalists should know how to avoid being used. The Register, for example, does not do it this time around. Dana Blankenhorn, who has been sympathetic towards Müller, berates him now. Yes, he does this despite the fact that he previously helped Microsoft Florian get his FUD a platform. To quote:
This did not stop some from taking Florian Mueller’s Oh Noes as gospel. Florian’s German, not Texan. He knows there are courts there who can be as loony as any in Texas, but the appeals process there is shorter, and what happens in Germany usually stays in Germany. (He’s also a very nice guy, as I learned when I visited him in Munich last year, where this picture was taken.)
But don’t let that stop a reporter from scaring the pants off people. Especially a lazy one. Don’t spend a half-hour with the Google, guys. Write first, and ask questions later.
Thanks to Dana and his honesty. He is not afraid of expressing him mind on this and maybe even change sides; “thought it was a good write up to counter the recent patent FUD,” wrote Barnie Giltrap, who gave us the link in IRC.
Watch how the MSBBC ignores Linux even in mobile unless there is something bad like a "virus" (malware) in it. There is clearly bias here and it is always against GNU/Linux; the BBC got slammed a few years ago when it finally, after many years, reviewed a GNU/Linux distribution and actually bashed it using unsubstantiated myths. Those who ignore the origin of the editorial team will probably think these convictions are very innocent and coincidental; they are not. We covered this thoroughly around 2008 when a lot of Microsoft folks took positions of power inside the BBC. The whole broadcaster is shooting itself in the foot by accommodating corporate bias, which is what it was designed to be resistant to. What we need are more independent sites.
Wayne has decided to write about Pamela Jones and he also mentioned some of the types who belittle and taunt her. To quote:
Her background as a paralegal meant that she knew about little details like Pacer, and could tell us about them. And things like how to ask for courthouse filings. She knew there were local court rules. We didn’t even know there were local courts. She knew about the need for lawyers to be admitted to the local courts to practice. The sort of details that if you hadn’t some experience with the legal system, you just wouldn’t know.
And let’s face it. Most of us had little experience with the legal system. Sure, at one time or another most of us had hired lawyers for one reason or another. Real estate. Wills. Business setup. But in most cases we hadn’t had to deal with the courts. Most legal issues never go near a court.
Contrast that with my sparring partner Florian ‘The Sky is Falling’ Müller (who can’t even spell his own name correctly – he spells it Florian Mueller). He’s always willing to give you the 100% benefit of his non-existent expertise. Out of all of the articles he has written on the Fosspatents blog which have made predictions I cannot remember a single one which was correct.
Or take Rob Enderle, who once told me in email that he knew that Linux programmers had ‘stolen Unix code’ and put it into Linux (sorry, I no longer have that email, the account went dead when we moved and our ISP messed up the transfer of our broadband connection). How many times has Rob been right in his predictions?
Or Maureen O’Gara who kept writing the most fascinating accounts of how The SCO Group was bound for victory, only to watch them sink like a stone. We now know from her deposition which was entered as evidence in court that she was being fed false information from inside the company. Some of her articles were demonstrably based on that information, which is why she got it so wrong. Rather than following the facts, she trusted the people, and it turned out that the people involved at The SCO Group weren’t very trustworthy.
Another reason has to do with PJ’s legacy. A lot of people have a lot of money tied up in companies like Microsoft. Many of you know that I’ve predicted Microsoft’s filing for Chapter 11 Bankruptcy in the fall of 2014. One of the reasons I made the prediction is the Network Effect.
Most people think that the Network Effect favors Microsoft, the industry leader, with a huge market presence. This is incorrect. What the Network Effect actually favors is an open market using open systems, using open standards, where Free Software Darwinism can drive innovation at faster and faster speeds.
PJ’s backing of the Gnu General Public License, the Free Software Foundation, the Creative Commons, and other forms of openness is dangerous to those who have their money invested in legacy businesses like Microsoft. It may also be dangerous to Apple, I think that it’s quite possible that Apple may peak within the next five years, and unless it adopts Steve Wozniak’s suggestions, may begin to fail.
In short, by being honest, and telling the truth as she saw it, Pamela Jones annoyed some rich and powerful people. Rich and powerful people don’t like being annoyed. They have a tendency to strike back.
There are more challenges ahead and even though Groklaw declares victory, there is a lot left to be done, especially now that entities like CPTN get formed, owing to Novell’s sellout. CPTN also includes SCOracle and Apple, which is apparently feeling the pinch from Linux even in tablets now, not just phones. To quote the sceptical Register: “The iPad sold 4.69m tablets, fewer than the 6.1m predicted by analysts or the 7.3m of the holiday quarter. It remains to be seen whether this is a short-term supply issue or an indicator of limited demand for the form factor.”
No wonder Apple is suing Samsung. But Apple does not have patent superiority. In fact, the CPTN too may get defanged, in which case it won’t do much to help Apple’s cause. The patents there won’t be effective against Linux, so both the FSF and the FSFE replied and the latter’s response opens with encouraging words:
Competition authorities in Germany and the United States today highlighted the fundamental role that Free Software plays for competition in the software market. After several months of discussions, the US Department of Justice (DOJ) and the German Federal Competition Office (FCO) have allowed a consortium of Microsoft, Oracle, Apple and EMC to acquire 882 patents from Novell only subject to conditions clearly intended to prevent their use against Free Software players.
“This is an historic step”, says Karsten Gerloff, President of the Free Software Foundation Europe, which was involved in the FCO investigation since the beginning. “The regulators acknowledge that Free Software is crucial to competition; that patent aggression can well be anticompetitive behaviour; and that fear, uncertainty and doubt serve to push smaller competitors out of the market.”
This is a struggle against big proprietary software, which naturally favours patent monopolies. In the next post we will explain and introduce our preparations for the next steps in this battle for software freedom. We might create another site for this. As in Sunday's morning post, this text is intended to gather links of interest and we encourage readers to follow them. In the future we plan to have in-depth analysis of issues rather than aggregation with commentary. I am currently writing 80 pages of technical text documenting computer science research, so my time contributing to Techrights is limited. █
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