03.16.21

EPO and Microsoft Collude to Break the Law — Part XI: Close Encounters With the Trust-busters…

Posted in Antitrust, Europe, Law, Microsoft, Patents at 9:17 pm by Dr. Roy Schestowitz

Previous parts:

Microsoft antitrust

Summary: A look some of the confrontations between Microsoft and anti-trust regulators

Microsoft’s run-ins with European data protection authorities are only half the story.

Over the last three decades, the company has also been scrutinised by anti-trust authorities around the world, including the following:

• US Federal Trade Commission / Department of Justice (1994)
• Brazilian Board of the Administrative Council for Economic Defense (1998)
• European Commission (2004)
• Japanese Fair Trade Commission (2004)
• South Korean Fair Trade Commission (2005)

The most high-profile of these investigations were those conducted by the US Department of Justice (DoJ) and the European Commission.

In the US the Microsoft anti-trust case started rolling after an inquiry by the Federal Trade Commission in 1991 as to whether Microsoft’s conduct constituted an abuse of monopoly on the PC operating system market. The investigation was closed after the voting in the Commission ended in a tie.

However, the US DoJ opened its own investigation in the same year. This resulted in a settlement on 15 July 1994, in which Microsoft agreed not to tie other products to the Windows operating system. Microsoft still remained free to provide “features” alongside the operating system.

“The most high-profile of these investigations were those conducted by the US Department of Justice (DoJ) and the European Commission.”The real action started when the DoJ and the Attorney Generals of twenty states sued Microsoft in 1998 for unreasonably restraining competition by expanding and abusing its monopoly position and for breaching the 1994 settlement, by tying its web browser, Internet Explorer, to the Windows operating system.

On April 3, 2000 Judge Jackson of the U.S. District Court for the District of Columbia issued a ruling that stated that Microsoft had violated sections 1 and 2 of the Sherman Act. Judge Jackson ordered the break-up of Microsoft into two separate units, one to produce the Internet/WWW browser and one to produce the operating system.

The case dragged on through the appeal courts until 2001 when the DoJ and Microsoft reached a settlement which enabled Microsoft to avoid the threatened break-up of its operations.

Microsoft monopoly
Microsoft’s anti-competitive activities also attracted the scrutiny of the EU Commission

Meanwhile on the other side of the Atlantic, the European Commission started its own investigation into Microsoft’s activities after receiving a complaint from Sun Microsystems in 1998 asserting that Microsoft refused to supply interoperability information.

“The case dragged on through the appeal courts until 2001 when the DoJ and Microsoft reached a settlement which enabled Microsoft to avoid the threatened break-up of its operations.”During the course of its investigation, the Commission broadened the scope of its inquiry to include, amongst other things, Microsoft’s conduct in relation to its Windows Media Player.

That investigation resulted in a preliminary finding, issued in August 2001, stating that Microsoft had abused its dominant position by hindering the interoperability between its operating system and third-party workgroup server operating systems and by tying its Windows Media Player to the Windows operating system.

In March 2004, the EU Commission ordered Microsoft to pay € 497 million (USD 794 million), the largest fine ever handed out by the EU at the time, in addition to the previous penalties, which included 120 days to divulge the server information and 90 days to produce a version of the Windows operating system without Windows Media Player.

Microsoft initiated an unsuccessful action for annulment with the Court of First Instance (CFI) which rendered its final judgment on 17 September 2007. A compliance agreement between the Commission and Microsoft was reached on 22 October 2007.

Microsoft fines
EU fines for anti-trust violations were small potatoes for cash-rich Microsoft

To put things into perspective here, it’s worth recalling that, according to the Wall Street Journal in a report published in 2006, the total amount of the fines imposed on Microsoft by the EU was around USD 0.97 billion, a relatively small amount in comparison to the USD 4.93 billion paid out by Microsoft to major rivals, such as Sun Microsystems and IBM, in order to persuade them to drop other anti-trust claims. Both of these amounts are in turn dwarfed by Microsoft’s massive cash reserves, estimated at USD 34.8 billion in 2006.

“That investigation resulted in a preliminary finding, issued in August 2001, stating that Microsoft had abused its dominant position by hindering the interoperability between its operating system and third-party workgroup server operating systems and by tying its Windows Media Player to the Windows operating system.”In March 2009 it was reported that the EU was scaling back its monitoring of Microsoft’s adherence to the 2004 antitrust ruling because “the company’s good behaviour meant that full-time supervision was no longer needed”.

Since then Microsoft has for the most part managed to stay off the radar of anti-trust authorities although there have been occasional complaints filed against it for allegedly anti-competitive behaviour, for example the complaint filed by Moscow-based cyber security firm Kaspersky Lab in 2017 which was subsequently withdrawn following an amicable settlement.

More recently in July last year news broke of a fresh anti-trust complaint against Microsoft filed with the European Commission by Slack Technologies.

“Unless an amicable settlement is reached – which seems unlikely in this case – it could well be that Microsoft’s controversial “software bundling” practices will be back in the headlines again.”The essence of Slack’s grievance is that Microsoft has illegally tied its Teams product into its market-dominant Office productivity suite, force-installing the software for millions, blocking its removal, and hiding the true cost to users. Slack has called for Teams to be separated from Office 365 and for a market rate to be charged for the service.

Unless an amicable settlement is reached – which seems unlikely in this case – it could well be that Microsoft’s controversial “software bundling” practices will be back in the headlines again.

In the next part we will see how the US DoJ’s scrutiny of Microsoft has not been limited to the investigation of anti-competitive practices but has extended to alleged infractions of the US Foreign Corrupt Practices Act. █

EDPS Documents About Microsoft’s Privacy Violations and Much More to Come Regarding the EPO’s Privacy Scandals

Posted in Europe, Law, Microsoft, Patents at 8:43 pm by Dr. Roy Schestowitz

PHP code

Summary: More details or an in-depth look into Microsoft’s privacy violations, which the abusive monopolist has been hoping to distract from by funnelling enforcement resources into other companies

FURTHER TO Part X of the ongoing series, which touches a sensitive subject to be covered well into spring, we’ve decided to produce HTML versions of the respective PDFs from EDPS. First there’s this press release [PDF], entitled “EDPS investigates contractual agreements concerning software used by EU institutions” and available as HTML here or as text here. There’s also the report [PDF], shown as an EDPS HTML presentation/slides/pages here or as text here. Later today we plan to publish Parts XI-XII, which themselves have some associated documents. “As for part 9-15,” an associate saw the parts explained, “Microsoft has successfully steered the EU’s limited anti-trust resources away from itself and onto Google/Alphabet via its proxies. Now that the EU has begun against Google/Alphabet, it has no time or money to investigate Microsoft ongoing crime.”

“Later today we plan to publish Parts XI-XII, which themselves have some associated documents.”We’ll have more than those 15 parts and there are future series on the way as well. “In parts 1-8,” the associate noted, “the ‘audit report’ alluded to would be of great value, but probably does not actually exist.”

It’s even worse! Stay tuned…

Very privateThe EPO is meanwhile clogging up the media with pure fluff. As noted in our latest Daily Links, Juve is producing EPO puff pieces, joined by some “Establishment” press in Germany and Chinese media. Some of the comments on this latest post from AstraZeneca Kat are also noteworthy. One person (comment) asks: “Should the President of the BoA self-recuse: Who selects the actual members of the EBoA handling the referral? The business distribution scheme seems to be “flexible enough” to select the actual members according to the desired outcome of the referral…” (more of the same here).

This is about ViCo oral proceedings, including privacy aspects (violations). Given past experiences, we ought not expect real answers. Just affirmation of the will of the Office President…

Later today we’ll come back to covering the privacy aspects. █

The ‘Hey Hi’ of António Campinos Will Survive This

Posted in Europe, Humour, Patents at 1:14 pm by Guest Editorial Team

Summary: “Currently topping the charts at the EPO,” said the person who sent us this smash hit by EPO President António Campinos

“Dance, peasants!”

Sattriya Dance

Photo credit: By Sattriyadance critic – Own work, CC BY-SA 3.0.

Links 16/3/2021: KDE Plasma 5.21.3 and LibreELEC 10 Beta

Posted in News Roundup at 12:29 pm by Dr. Roy Schestowitz

GNOME bluefish

Contents

  • Leftovers

    • The Invisible Professor

      I’d never been invisible before. As the youngest of three children growing up in Forest Hills, Queens, I received extra attention from my parents, or so my sister and brother regularly tell me. In college, at SUNY Albany, I spoke up in class, acted Shakespeare on stage, and flirted at parties. People listened, applauded and recoiled as they would with any visible person. I saw my reflection in mirrors and my shadow on sunny days. In short, I was seen.

      In graduate school at Princeton, I called professors by their first names and asked them challenging questions in class. That got me noticed, and almost kicked out. And by the time I began teaching art history at Occidental College in Los Angeles in 1984, I was an art critic and aesthete. My knowledge, taste and affectations were like the coat, hat, gloves, sunglasses, bandages and prosthetic nose worn by the character Griffin in H.G. Wells novel, The Invisible Man, and by Claude Raines in the 1933 film by James Whale – they made me conspicuous.

    • Love, God, and Bergman

      This is the conclusion of David, father of Minus and Karin. The fourth character in the film is Martin, Karin’s husband. Karin loses her mind as she begins to see God in real life. Her hearing becomes very acute and she becomes aware of things she shouldn’t be aware of, such as the form of God in the real world, and the contents of her father’s diary, which voices inside of her tell her to read.

      Karin’s father takes the antipodal position on God. He cannot see or feel God in any form but can experience love, and concludes this love must be God. Is this faith? Can faith really be in something one can see, such as love? If we can see God does this mean we have no faith?

    • Health/Nutrition

      • Farming: A Dirty Truth

        An inflexible Truth: Humans on planet Earth confront a more or less central issue. Heat generating mammals of our sort require regular energy inputs to maintain that Goldilocks-Style 98.6 F body temperature and propel our life functions. So we eat—— regularly if we can.

        Since there seems to be food in grocery stores currently, questions of food production and the resources required seem….. well….. boring and peripheral. With Oprah’s MeghanLament sucking all the oxygen out of the media room, something as mundane as soil health is unlikely to gain altitude in the Twitter-verse.

      • Cuba Working on a ‘People’s Vaccine’: the US and the world should get behind it

        Cuba’s humanist approach  when it comes to health was not new to me. In 2013, I co-directed a documentary on a free hospital in northern Honduras. The doctors there, all from afro-indigenous Garifuna communities, had been trained in Cuba at the Latin American School of Medicine (ELAM) for free. Cuba created the ELAM in 1999 to train doctors from the poorest regions of countries around the world (including the U.S.), providing full scholarships of six years tuition, room, and board, with the hope that these doctors would return and provide accessible and preventative healthcare in their communities. The ELAM was born as a response to the devastation of Hurricane Mitch in 1998, and has trained tens of thousands of doctors from over 110 countries since then.

        Cuba is now poised to play an important role in global efforts to curb the pandemic. New variants in South Africa and Brazil, all with yet unknown implications for vaccine effectiveness, have shown us that any effort to achieve herd immunity is only as good as it is accessible equitably across the globe. Yet, as predicted, the global north is outpacing the global south dramatically in vaccination.

      • More EU Nations Suspend Use of AstraZeneca Vaccine Over Blood-Clotting Concerns

        While the WHO maintains the vaccine is safe, Germany’s health minister said Monday the halt “is a purely precautionary measure.”

      • Fighting covid with fire The Nikola-Lenivets Art Park’s Maslenitsa festivities, in photos

        Over the weekend, Russia celebrated the closing of Maslenitsa — an end-of-winter festival that combines elements of folk and religious traditions. For its 2021 festivities, the Nikola-Lenivets Art park, located in a village in the Kaluga region, chose the theme of the coronavirus pandemic. Attendees took in a performance by Moscow artist Sergey Pakhomov (a.k.a “Pakhom”) and the festival ended with the ceremonial burning of a wicker “Vaccination Tower,” which was built to resemble “a giant vial or a covid-cannibal castle.” “As soon as we burn it, the disease will subside and everyone will be healthy,” said the artist who created the tower, Nikolai Polissky, who founded the art park. Here’s an inside look at the celebrations in Nikola-Lenivets.

      • No, the mRNA in the Pfizer and Moderna COVID-19 vaccines does not cause cancer by targeting tumor suppressor genes

        The topic of this post might be a bit niche, but, given my background in molecular biology research, particularly earlier in my career, every so often I like to take on a topic that’s a bit “niche,” particularly if it is relevant to medical misinformation being promoted online, and even more so if it’s relevant to medical misinformation about COVID-19 and COVID-19 vaccines being promoted online. Many have been the times that I’ve mentioned how, with respect to the new COVID-19 vaccines, everything old is new again. At the risk of being repetitive (but also providing the benefit of your not having to click on a link to see what I’m talking about; that is, unless you want to), antivaxxers have falsely spread misinformation and conspiracy theories claiming that COVID-19 vaccines kill; render women infertile; cause autoimmune disease; “reprogram your DNA“; aren’t needed because COVID-19 is not only not a serious disease but is a “casedemic” based on overly sensitive tests; can cause Alzheimer’s disease; can cause prion disease; and/or are loaded with “toxins” (in this case, the lipid nanoparticles that contain the mRNA used in the vaccines). To these old antivax tropes was added the claim that the mRNA-based COVID-19 vaccines are not really vaccines at all but rather “experimental gene therapy”. (No, they’re vaccines.) Just about the only claim that antivaxxers haven’t made yet about COVID-19 vaccines is that they cause autism, and that’s only because there are as yet no COVID-19 vaccines approved for use in children and babies and no mass vaccination program of children. Just wait until there are, and you’ll see that claim too. I’ll give you a brief preview: Cancer and tumor suppressor genes.

    • Integrity/Availability

      • Proprietary

        • Security

          • WeLeakInfo Leaked Customer Payment Info

            A little over a year ago, the FBI and law enforcement partners overseas seized WeLeakInfo[.]com, a wildly popular service that sold access to more than 12 billion usernames and passwords stolen from thousands of hacked websites. In an ironic turn of events, a lapsed domain registration tied to WeLeakInfo let someone plunder and publish account data on 24,000 customers who paid to access the service with a credit card.

          • Microsoft Teams, Exchange and more went down for four hours on Monday

            Microsoft Teams went down for around four hours on Monday, alongside Azure and other Microsoft 365 services. Microsoft blamed the issues on “a recent change to an authentication system” took some Microsoft 365 services down. A roll back to the change took longer than Microsoft expected, with the company confirming at 12:35AM ET that “impact has been largely mitigated.”

          • Microsoft could be set for a US government windfall [Ed: Microsoft is being rewarded again for its crimes; taxpayers subsiding criminals against their will]

            Nearly a quarter of the Covid relief funds set aside for cybersecurity defenders will be going to Microsoft though some US lawmakers have voiced concerns that they don’t want to increase funding for the company after it suffered two high-profile hacks.

            As first reported by Reuters, Congress allocated the funds in its new Covid relief bill after two major cyberattacks took advantage of weaknesses in the software giant’s products to penetrate the computer networks of government agencies as well as those at tens of thousands of companies. Not only do these two hacks pose a major national security threat for the US but lawmakers also say that Microsoft’s faulty software is making the company more profitable.

          • Privacy/Surveillance

    • Defence/Aggression

      • As Saudis Suck Up Weapons, US Accounts for Over 1/3 of All Global Arms Sales

        New analysis shows U.S.-based war profiteers have supplied increased demand by Qatar, Egypt, the Saudi Kingdom, and others in the Middle East over the last five years.

      • Ten Problems With Biden’s Foreign Policy – and One Solution

        The Biden presidency is still in its early days, but it’s not too early to point to areas in the foreign policy realm where we, as progressives, have been disappointed–or even infuriated.

        There are one or two positive developments, such as the renewal of Obama’s New START Treaty with Russia and Secretary of State Blinken’s initiative for a UN-led peace process in Afghanistan, where the United States is finally turning to peace as a last resort, after 20 years lost in the graveyard of empires.

      • Opinion | The Bloody Truth About Drones: We Need an International Convention on Drones

        Drones are neither as cheap, targeted, or bloodless as advertised. They’re ripe for international arms control. 

      • The Perils of Military 5G

        A key aim of the U.S. military is utilizing 5G for “re-targeting” the hypersonic missiles it has been developing—missiles that fly at five times the speed of sound so guiding their trajectories must occur with extreme rapidity.

        A “5G SpaceX Satellite Protest” is to be held Friday, March 19 at the headquarters of SpaceX in Hawthorne, California. SpaceX, of which Elon Musk is founder and CEO.

      • Martial Law Extended in Myanmar After Junta Kills More Than 50 Protesters

        “Junta leaders don’t belong in power, they belong behind bars,” said United Nations special rapporteur Tom Andrews.

      • Myanmar: a Defiant Nation, Still Denied Justice

        The army are inveigling and paying villagers and retired military personnel to go and batter anti-coup protesters, in a darkly satirical take on astroturfing straight out of the special playbook run by cash-rich demagogues controlling billions of dollars in illegal and legal assets.

        Here’s what one well-connected Maqshosh contact, who did not wish to be identified for obvious reasons, told us about the so-called ‘counter-protesters’: ‘These are paid thugs. In some cases they are villagers who have no idea what they are being hired to do. They’re told they’re going to dance rehearsals or a religious ceremony and aren’t told what they’re really doing until they get to the city. In one case, when they found out, some got really embarrassed and started crying.

      • Kansas City PD Presentation Says Every Shooting Investigation Is Handled The Same Way… Unless It Involves A Cop

        The Kansas City Police Department has managed to turn a few heads — and not in the good way — with an internal PowerPoint that may as well have been titled “So, You’ve Killed Someone.” The document was obtained during discovery in a wrongful death suit against the KCPD. Back in 2019, Officer Dylan Pifer shot and killed Terrance Bridges, claiming he thought Bridges was trying to pull a gun from his sweatshirt pocket. No gun was found on Bridges.

      • Brother of Syrian deserter brutally murdered by suspected ‘Wagner’ mercenaries seeks criminal investigation in Russia

        A Syrian national has filed an application with the Russian Investigative Committee seeking the launch of an investigation into the alleged mercenaries from the Wagner private military company (PMC) suspected of murdering his brother in Syria in 2017, reports the Memorial Human Rights Center. 

    • Environment

      • ‘Historic and Hopeful Moment’: Senate Confirms Haaland as Interior Secretary

        One campaigner called her confirmation “a tremendous win for Indigenous communities, the waters, parks, and lands across our country, and the climate.”

      • Study Finds Redlined Areas Face Greater Flood Risk From Climate Crisis

        “Decades of segregation and economic inequality shoehorned many people of color—especially Black Americans—into living in neighborhoods that are more vulnerable to climate change.”

      • World’s coastal cities face risk from land and sea

        As the tides rise ever higher, the world’s coastal cities carry on sinking. It’s a recipe for civic catastrophe.

      • Opinion | A Tale of Two Cities: One Planning for the 2050s, the Other for the 1950s

        If a climate emergency resolution is to mean anything or is to be taken seriously, it must mean that the government in question puts a halt to the expansion of fossil fuel infrastructure expansion within its jurisdiction.

      • Energy

        • U.S. Lawyer Steven Donziger Speaks from House Arrest in NYC After Suing Chevron for Amazon Oil Spills

          Decades of reckless oil drilling by Chevron have destroyed 1,700 square miles of land in the Ecuadorian Amazon, but the company has refused to pay for the damage or clean up the land despite losing a lawsuit 10 years ago, when Ecuador’s Supreme Court ordered the oil giant to pay $18 billion on behalf of 30,000 Amazonian Indigenous people. Instead of cleaning up the damage, Chevron has spent the past decade waging an unprecedented legal battle to avoid paying for the environmental destruction, while also trying to take down the environmental lawyer Steven Donziger, who helped bring the landmark case. Donziger, who has been on house arrest for nearly 600 days, says Chevron’s legal attacks on him are meant to silence critics and stop other lawsuits against the company for environmental damage. “Chevron and its allies have used the judiciary to try to attack the very idea of corporate accountability and environmental justice work that leads to significant judgments,” Donziger says. We also speak with Paul Paz y Miño, associate director at Amazon Watch, who says the new attorney general should conduct a review of the case and the dubious grounds for Donziger’s house arrest. “The real thing that’s going on here is Chevron is attempting to literally criminalize a human rights lawyer who beat them,” Paz y Miño says.

        • Jane Fonda Arrives in Minnesota to Back Line 3 Opponents

          “We’re here to try to stop it,” the famed activist and actress said of Enbridge’s crude oil pipeline.

        • Argentina’s Illegal Oil and Gas Waste Dumps Show ‘Dark Side’ of Vaca Muerta Drilling, Says Criminal Complaint

          The raid on the Argentine waste company Comarsa by the office of Environmental Crimes and Special Laws, a unit under Neuquén’s chief prosecutor, was prompted by a lengthy criminal complaint filed to the office just a few days earlier by a group of environmental lawyers. Within the complaint, the lawyers document what they describe as a decade-long illegal accumulation of toxic fracking waste at multiple sites in the city of Neuquén, the largest city in Patagonia with a population over 300,000. The sites are located within the city and also on the outskirts of Añelo, a small desert town of 8,000 about an hour and a half drive northwest of Neuquén and the unofficial drilling capital of the Vaca Muerta.

        • US Probe Underway Over Euphemistic ‘Clean Coal’ That Actually Increased Pollution

          The outcome of the congressional investigation could influence whether lawmakers vote to renew a multibillion-dollar subsidy, which expires at the end of 2021.

    • Finance

      • Opinion | A Bold US Infrastructure Plan Should Be the Great Economic Equalizer

        To build or not to build? That is the question.

      • The Stockton Experiment: How a Guaranteed Income Can Actually Solve Inequality

        Preliminary results from the first year are tantalizing for anyone interested in solutions to address rising inequality in the United States, especially as they manifest along racial and gender lines. Within the first year, the study’s participants obtained jobs at twice the rate of the control group. At the beginning of the study, 28 percent of the participants had full-time employment, and after the first year, that number rose to 40 percent.

        Sukhi Samra, the director of SEED, explained to me in an interview that although Andrew Yang, the former presidential candidate now running for mayor of New York City, helped popularize the idea of a universal basic income (UBI), the Stockton study of a “guaranteed basic income” (GBI) is subtly different from Yang’s proposal. “Where guaranteed income differs,” said Samra, “is that it’s usually targeted along income lines,” rather than given to everyone. “It’s more often touted as a tool for equity, especially racial and gender equity,” she added.

      • Opinion | 278 GOP Lawmakers Voted for Trump Tax Scam, But 0 Voted for Covid Relief

        The political lesson is that today’s Democrats can gain political majorities by raising the wages of both middle class and poor voters, while fighting Republican efforts to suppress the votes of likely Democrats. 

      • Opinion | The U.S. Government Should Promote the General Welfare

        After years of Republican governance or obstructionism, it’s refreshing when the U.S. government actually lives up to its promise of promoting the welfare of the entire society, rather than a privileged few.

      • The Simple Rules of Wealth Inequality

        That needn’t be. Ultimately, economic inequality comes down to the concentration of wealth at the top, and we can explain the dynamics of that concentration in a few simple rules — and one not so simple, but understandable, computation.

        Rule One: For those at the top, every tax is a wealth tax.

      • Spain to Experiment With 4-Day Workweek, ‘an Idea Whose Time Has Come’

        One leading advocate says Spain “will be the first country to undertake a trial of this magnitude.” 

    • AstroTurf/Lobbying/Politics

      • Honor the Tribal Vision for Bears Ears National Monument

        Ultimately, President Obama’s team lopped off more than half a million acres from the tribes’ proposal in the final designation, including Wilson Mesa, lands between White Canyon and Red Canyon, and the eastern slopes of the Abajo Mountains. These changes were made to appease local concerns, following public meetings senior Obama administration officials held with area residents. In the end, the concessions were fruitless, and the political backlash was immediate.

        The compromise didn’t buy any goodwill among the staunch anti-federal politicians in Utah. Many locals view nature as a resource to be dominated and exploited for commercial gain, not protected as a national treasure, and have an insular resentment of outsiders who come here for recreation. The compromise intended to build consensus instead stirred up opposition, winning no more allies than if the original tribal proposal had been adopted in the first place. Bears Ears turned out to be a repeat of the Clinton-era designation of Grand Staircase-Escalante National Monument, after which local economies swelled with the influx of tourism, yet anti-environmental resentment remained prevalent.

      • Opinion | MAGA Schadenfreude 101
      • Russian lawmaker Oksana Pushkina will not stand for reelection in her district in September State Duma race

        During this year’s parliamentary elections, lawmaker Oksana Pushkina from the ruling United Russia party will not stand for reelection in her current district, Odintsovo single-mandate constituency No. 122 (Moscow region). 

      • How a Colombian Ex-President Went to Bat for Trump in Florida

        Last year, the US got a small taste of its own medicine when several high-profile Colombian politicians from the ruling right-wing Centro Democrático party, including a former president, dipped their toes into the electoral waters of the Sunshine State. It has now been acknowledged in various US, Colombian, and international outlets that, both openly and behind the scenes, Colombian right-wing actors bet heavily on Trump’s campaign in Florida last year, and contributed to his victory in the state, despite Trump’s national loss.

        The seeds of this effort stretch back several years. Former president Álvaro Uribe (2002–2010), a right-wing leader whom US officials believed had ties to Colombian paramilitary groups responsible for human rights atrocities, has spent years forming extensive contacts with various Repblican politicians in Florida, from Senator Marco Rubio to freshman Congresswoman Maria Elvira Salazar, whom Uribe endorsed during her congressional campaign last year. Senators from Uribe’s Centro Democrático party — including Juan David Vélez and María Fernanda Cabal — openly campaigned for Trump, while Trump’s advisors, including Cuban-American Mercedes Schlapp, took a page from Uribe’s campaign playbook by helping to engineer anti-socialist messaging in an attempt to garner votes for Trump from Cuban, Colombian, and Venezuelan diaspora communities in South Florida. These efforts represent an unprecedented level of intervention by the Colombian Right in US politics and an effort by the Colombian government to expand its foreign policy ambitions by influencing electoral outcomes in other countries throughout the Americas.

    • Civil Rights/Policing

      • Iowa Journalist Cleared Of All Charges In Bullshit Prosecution Over ‘Failure To Disperse’

        The good news is that Iowa prosecutors’ attempt to jail a journalist for being present at a protest has failed. Andrea Sahouri — who was arrested while covering a George Floyd protest in Des Moines last summer — has been acquitted of all charges by a jury. But the fact that she was prosecuted at all is still problematic.

      • ‘Tidal Wave of Rage’: 100,000+ Australian Women March Against Sexual Violence

        “Evil thrives in silence,” said survivor and Australian of the Year Grace Tame. “But… it gives me hope because the start of the solution is also quite simple—making noise!”

      • FEMA Ordered to Help as Border Patrol Holds 3,000 Migrant Children Over Legal Limit

        A lawyer who interviewed children at a facility in Texas said that “one of them shared that he could only see the sun when he showered, because you can see the sun through the window.”

      • Opinion | US Policy Ignores Palestinian Human Rights

        Israel operates with impunity, while Palestinian actions have been scrutinized and condemned and their protests ignored or silenced.

      • Omar Leads Letter Urging Biden to End ICE Contracts With Local Jails

        The lawmakers’ letter decried detention abuses including “medical neglect, long-term use of solitary confinement, sexual assault, and lack of access to legal counsel.”

      • Russian court confirms that Alexey Navalny is in custody in Pokrov penal colony

        Russian opposition politician Alexey Navalny is in custody at Penal Colony No. 2 (IK-2) in the city of Pokrov in the Vladimir region. As reported by the Russian state news agency TASS, this was confirmed in a letter from Moscow’s 235th Garrison Military Court, which is set to consider the complaint filed by Navalny’s legal representatives over official inaction with regards to conducting an investigation into his August 2020 poisoning.

      • ‘Our friendly concentration camp’ Alexey Navalny confirms that he’s in custody at a notorious penitentiary in Pokrov

        On Monday, Alexey Navalny confirmed that he is in custody at Penal Colony No. 2 in the town of Pokrov, northeast of Moscow. His whereabouts were unknown over the weekend after the news broke on Friday that he had been transferred out of a detention center in the nearby town of Kolchugino. Navalny says he’s “doing well overall,” though he described the notorious penitentiary as a “friendly concentration camp.” According to his lawyers, with whom Navalny met on Monday, the opposition politician is set to remain in a quarantine unit for the next two weeks, after which he will be integrated with the prison’s general population.

      • Rewriting Intermediary Liability Laws: What EFF Asks – and You Should Too

        If anyone tells you revising these laws will be easy, they are gravely mistaken. For decades, Internet users – companies, news organizations, creators of all stripes, political activists, nonprofits, libraries, educators, governments and regular humans looking to connect – have relied on these protections. At the same time, some of the platforms and services that help make that all possible have hosted and amplified a great deal of harmful content and activity. Dealing with the latter without harming the former is an incredibly hard challenge. As a general matter, the best starting point is to ask: “Are intermediary protections the problem? Is my solution going to fix that problem? Can I mitigate the inevitable collateral effects?” The answer to all three should be a firm “Yes.” If so, the idea might be worth pursuing. If not, back to the drawing board.

        That’s the short version. Here’s a little more detail about what EFF asks when policymakers come knocking.

        What’s it trying to accomplish?

    • Internet Policy/Net Neutrality

      • The Law Bytes Podcast, Episode 80: A Roundtable on the Canadian Challenges of Delivering Universal, Affordable Internet Access

        CBC News, Pandemic Highlights Internet Inequality in Canada

      • Comcast Lost $914 Million On Its New Streaming Service Last Year

        Despite bottomless pockets and all but owning state and federal regulators for the last four years, telecom continues to stumble with adaptation in the streaming video era. Verizon’s attempt to pivot from curmudgeonly old phone company to sexy new media brand fell flat on its face. AT&T’s plan to spend $200 billion on the Time Warner and DirecTV mergers to dominate the television space has resulted in them losing 8 million pay TV subscribers in just the last four years. In short, pampered telecom monopolies aren’t finding that getting ahead in more competitive markets to be particularly easy.

      • The House Has Proposed An Excellent Broadband Bill. Telecom Lobbyists Will Make Sure It Never Passes.

        Last week the House unveiled (a previous version of this story incorrectly stated the bill had been passed) the Accessible, Affordable Internet for All Act. The bill, which died last year after Mitch McConnell’s Senate refused to hold a vote on it, includes a lot of great things, including spending $94 billion on expanding broadband into underserved areas. There’s a ton of other helpful things in the proposal, like boosting the definition of broadband to 100 Mbps down (and upstream), requiring “dig once” policies that deploy fiber conduit alongside any new highway bills, and even a provision requiring the FCC to create rules forcing ISPs be transparent about how much they actually charge for monthly service.

      • Sacramento Might be Undergoing a Broadband Policy Reboot

        This blitzkrieg of legislative activity is understandable. California’s broadband market is undergoing a systemic crisis and market failures. More than 2 million rural Californians are trapped with Frontier Communications’ bankrupt lines. More than 1 million California students lack sufficient broadband access during this pandemic, causing a public education crisis that dwarfs most other states—forcing little kids to do their homework in fibered-up fast-food joint parking lots. And low-income Californians are systemically being skipped by incumbent fiber deployments, likely in violation of the state’s video franchise law banning socioeconomic discrimination.

        Senator Lena Gonzalez, the original author of EFF’s sponsored S.B. 1130, has introduced the next iteration of that effort with S.B. 4. We go into more detail about the legislation here. But, in short, the bill would affirmative embrace the small local government/non-profit model of broadband by creating a state-backed bond financing program that would enable them to take 30- to 40-year, long-term, low-interest loans to finance fiber. The legislation also makes more modest adjustments to the California Advanced Service Fund grant program, with a handful of concessions agreed to after discussions over a previous version of this bill. But, in concert with the bond program, these changes would still yield a powerful formula for ending the digital divide.

        Companion legislation in the Assembly led by Assemblymember Aguiar-Curry (A.B. 14) has also been introduced and indicates a merger of support from both California’s Senate and Assembly on the path forward. This is welcome news, and EFF intends to support both bills as they are brought together. Local governments, particularly in rural California, are eager to take matters into their own hands, having seen the successes of other local governments in states such as Utah. There, 11 local governments banded together to build open access fiber infrastructure to enable local private competition and multi-gigabit services.

    • Digital Restrictions (DRM)

      • Amazon’s Refusal To Let Libraries Lend Ebooks Shows Why Controlled Digital Lending Is So Important

        The Washington Post tech columnist Geoffrey Fowler recently had a very interesting article about how Amazon won’t allow the ebooks it publishes to be lent out from libraries. As someone who regularly borrows ebooks from my local libraries, I find this disappointing — especially since, as Fowler notes, Amazon really is the company that made ebooks popular. But, when it comes to libraries, Amazon won’t let libraries lend those ebooks out:

    • Monopolies

      • Rising Market Power—A Threat to the Recovery? [Ed: IMF warns against Pentagon-connected and taxpayers-subsidised technology monopolists]

        The crisis has hit small and medium enterprises especially hard, causing massive job losses and other economic scars. Among these—less noticeable, but also serious—is rising market power among dominant firms as they emerge even stronger while smaller rivals fall away.

        We know from experience and IMF research that excessive market power in the hands of a few firms can be a drag on medium-term growth, stifling innovation and holding back investment. Such an outcome could undermine the recovery from the COVID-19 crisis, and it would block the rise of many emerging firms at a time when their dynamism is desperately needed.

      • Even Murkier: Microsoft Says Some Bethesda Games Will Indeed Be Xbox, PC Exclusives

        Late last year, we discussed Microsoft’s acquisition of Zenimax, the parent company of Bethesda, and what it would mean for the studio’s beloved franchises. At particular issue, given that this is Microsoft we’re talking about, was whether new or existing franchises would be exclusive to Xbox consoles and/or PC. The communication out of Microsoft has been anything but helpful in this respect. First, Xbox chief Phil Spencer and Bethesda’s Todd Howard made vague statements that mostly amounted to: man, we don’t have to make Bethesda games exclusives and it’s hard to imagine us doing so. Only a few weeks later, another Microsoft representative clarified that while the company may have plans to make Bethesda games “first or best” on Microsoft platforms, “that’s not a point about being exclusive.” This naturally led most to believe that Microsoft might have timed release windows on other platforms, but wouldn’t be locking any specific titles down.

      • Patents

        • Mr Justice Mellor: ‘I never had a great desire to leave the bar’

          In his first interview since joining the bench, Mr Justice Mellor talks about why patent cases are not letting up, the importance of rounded expertise, and why he left the bar

        • Guest Post: The Open Source Hardware Association’s Perspective on GSK v. Teva

          To the Open Source Hardware (OSHW) community, the Federal Circuit’s October opinion in the ongoing appeal of GlaxoSmithKline LLC v. Teva (“GSK”), No. 2018-1976 (Fed. Cir.) was a wolf in wolf’s clothing. Some language in the panel majority’s opinion suggested an expansion of induced infringement liability to transform mere statements of equivalence made on promotional materials into triggers for liability. This language came dangerously close to swallowing an industry extolled for democratizing science and helping the United States overcome its PPE shortage in the heart of the COVID-19 outbreak. The Federal Circuit’s subsequent choice to vacate its initial opinion and re-hear the case signals that crisis may have been averted, but the close call was a reminder of the uphill battle open design faces despite the significant public benefits it creates. We cannot predict exactly what the Federal Circuit’s new opinion will look like, but as advocates for the OSHW community, we hope the panel treads carefully.

          [...]

          Contrary to popular belief, legal education does not begin with learning the concepts of offer and acceptance in contracts, negligence in torts, or even well-pleaded complaints in Civil Procedure. No, legal education begins during recess period, when one friend (Charlie) encourages another friend (Skyler) to throw the only kickball over the school fence. When caught in the act, Skyler points the finger at Charlie’s encouragement, and the teacher must engage in a fact-finding mission to determine Charlie’s culpability. Depending on how actively Charlie encouraged Skyler, Charlie too may be spending Saturday morning in detention.

          The doctrine of inducement infringement in intellectual property law is no different. 35 U.S.C. § 271(b) states “whoever actively induces infringement of a patent shall be liable as an infringer.” Traditionally, § 271(b) has been interpreted as requiring more than mere knowledge: plaintiffs must show active steps taken by the defendant that encouraged direct infringement. See, e.g., Takeda Pharm. U.S.A., Inc. v. West-Ward Pharm. Corp., 785 F.3d 625, 631 (Fed Cir. 2015) (“Merely describing an infringing mode is not the same as recommending, encouraging, or promoting an infringing use, or suggesting that an infringing use ‘should’ be performed.”) (cleaned up). To further the recess analogy, Charlie might be in trouble for imploring Skyler to throw the ball over the fence, but probably avoids culpability by merely explaining how to throw a ball so high as to clear the fence.

          The ongoing pharma case GSK v. Teva—chronicled by PatentlyO here and here—has the potential to expand inducement liability to encompass far more than just “active encouragement.” But doing so would threaten the OSHW community, which would have deleterious downstream effects on innovation, crisis response, and the democratization of science.

          The panel majority’s original opinion found Teva liable for inducing infringement of GSK’s patent on Coreg to treat congestive heart failure (“CHF”). Relevant to the OSHW community, GSK’s patents on Coreg and its non-CHF-related uses had already expired. Nevertheless, relying heavily (as Judge Prost points out in dissent) on evidence that Teva’s promotional materials referred to its generic tablets as “AB rated” equivalents of the Coreg tablets, Teva was found liable for inducing infringement despite only instructing patients and doctors to use its product for off-patent (i.e., non-CHF) uses.

          The panel majority seemed to assume that doctors and pateints would combine the “AB rating” with instructions GSK (not Teva!) provided on how to use Coreg to treat CHF in finding Teva liable for inducement infringement. The panel majority’s reasoning indicates that a distributor of an unpatented product used for unpatented uses A and B could still be held liable if the product was also capable of being used for patented use C. This would be true even if the distributor of the product made no mention of use C in advertising or educational materials. This broad language lessens patent holders’ burden of proving inducement and could create liability for wholly innocent OSHW developers whose statements of equivalence relate to off-patented uses entirely sepearate from and uninterested in the patented uses.

          [...]

          As we hope to have made clear, the open source hardware community spurs innovation and supports the public interest by reducing the cost of scientific research and increasing manufacturing capabilities. Any good intellectual property regime means to serve these interests.

        • EPO Patent Index shows medical innovation driving patent applications [Ed: More puff pieces from media in the EPO’s pockets, saying nothing about corruption, 100% PR]

          Today, the European Patent Office has released its annual EPO Patent Index 2020. Given the tumultuous events of the past year, some patent attorneys in the European market expected a downturn in the number of filed patent applications and hearings before the EPO. However, the Patent Index 2020 indicates that the coronavirus pandemic has not had such a bad impact as first assumed. In fact, filed patent applications decreased by just 0.7% during 2020.

          In 2019, the EPO announced an amendment to its reporting cycle. The office now publishes its patent filing statistics annually every March as the Patent Index. However, in June the EPO will publish its operational results and development updates under its Strategic Plan. This was formerly known as the Annual Report.

        • Health care innovations drive patent applications in Europe [Ed: EPO has managed to even corrupt large publishers like DW, in order for them to print EPO puff pieces instead of news]
        • China files more European patent applications despite pandemic [Ed: It is not hard to see how the EPO ‘buys’ (bribes) the media for self-serving puff pieces. The real news is, Europeans are divesting and moving away from the EPO. It’s foreign companies that take over.]
        • BREAKING: Board of Appeal in T1807/15 continues with ViCo oral proceedings referral[Ed: EPO continues breaking the law using “pandemic” as pretext; First comment asks: “Should the President of the BoA self-recuse: Who selects the actual members of the EBoA handling the referral? The business distribution scheme seems to be “flexible enough” to select the actual members according to the desired outcome of the referral…” (more of the same here)]

          The Enlarged Board of Appeal (EBA) referral from T1807/15 concerns the legality of oral proceedings conducted via Video Conferencing (ViCo) without the consent of all parties (IPKat). There was some doubt as to whether the referral would actually go ahead, given that the party requesting the referral had already withdrawn their request. The Board of Appeal interlocutory decision in T1807/15 reveals that the Board of Appeal (3.05.02) has determined to continue with the referral. All eyes will now be on the EBA, and on whether they will accept the referral as admissible. In the meantime, until the issue of the legality of ViCo oral proceedings is clarified, parties anxiously waiting for their case to be heard by the Boards of Appeal could face further delays.

          [...]

          Patentees generally have more to gain than Opponents from delaying a final decision on the substantive issues of a case before the EPO. It might therefore have been expected that a request for a referral on the issue of ViCo would come from a Patentee as opposed to an Opponent. Surprisingly, however, the party requesting the referral in this case was the Opponent. Although, admittedly, both the Opponent and Patentee had previously indicated that they did not think the case suitable for ViCo oral proceedings.

          The Opponent requested the referral at the hearing on the grounds that mandatory ViCo oral proceedings violated their right to be heard. The Opponent also raised the general point of whether oral proceedings by ViCo was compatible with Article 116(1) EPC. The Opponent argued that “[t]he concept underlying Article 116(1) EPC was that the parties involved have the right to be physically present in a courtroom so that the Board members could get an immediate personal impression of the pleading parties”. Furthermore, it was argued that changes to the RPBA could not be used to amend the EPC (i.e. Article 116(1) EPC), given that revision to the EPC should be via a Diplomatic Conference (in arguments very reminiscent of G 3/19 (Pepper), IPKat)

          [...]

          So will the EBA accept the referral? Currently, all bets are off. However, even if the EBA side steps the issue in the particular instance of T1807/15, it seems highly likely that the question would be referred in another case, either because of genuine concerns with the ViCo format or as a strategy to delay a final decision on a patent. Finally, it seems to this Kat that the EPO has an interest in settling this matter as soon as possible, if they are to avoid the backlog of Board of Appeal cases growing even further. We can therefore predict a relatively speedy decision from the EBA.

        • Software Patents

          • $2,000 for Trinity Info Media prior art

            On March 2, 2021, Unified Patents added a new PATROLL contest, with a $2,000 cash prize, seeking prior art on at least claim 1 of U.S. Patent 9,087,321. The patent is owned by Trinity Info Media, LLC f/k/a Trinity Intel Media LLC, an NPE.

            The ’321 patent generally relates to a system that provides an on-line network of friends that are determined through polling each of the users. It is currently being asserted against Hornet Networks, Raya App, The League App, Covalent, and Coffee Meets Bagel.

      • Copyrights

        • Her Story: Transforming Open Through Feminism

          Our hope is that these conversations will inspire you to reflect on your own stories and ideas. We also hope it will motivate you to think about how you can help make open sharing more inclusive, equitable, and sustainable. Put simply, we want to make sharing better—to do that, we need your help.

        • Linking after VG Bild-Kunst … in a table

          A week ago, The IPKat reported and commented on the important decision of the Grand Chamber of the Court of Justice of the European Union (CJEU) in VG Bild-Kunst, C-392/19.

          In that judgment, the CJEU admitted the possibility for rightholders to restrict linking by contract, provided that any such restrictions are imposed and/or implemented through the adoption of effective technological measures, in accordance with Article 6(1) and (3) of the InfoSoc Directive.

          According to the CJEU, this requirement – which, as I wrote, might raise questions of compatibility with the no formalities rule in the Berne Convention – is prompted by the need to “ensure legal certainty and the smooth functioning of the internet”.

          Readers may be aware that, over the past few years, I have developed IP and study aid materials (they can all be accessed here) primarily aimed at my students. Among them, there was a table – first published on The IPKat here – summarising the treatment of linking after the seminal CJEU decision in GS Media [Katposts here].

Why We Don’t Expect the Media or Patent ‘News’ Sites to Cover or Even Just Mention EPO Data Scandals

Posted in Europe, Patents at 10:31 am by Dr. Roy Schestowitz

EPO spreads ‘candy’ to hacks and media operatives in ‘journalist’ clothing…

EPO and FTI

Summary: The EPO’s corruption of the media (or subversion of journalism) is an ongoing and unresolved problem; they’ve meanwhile proceeded to also bribing scholars, so critics are rare and barely visible

IT should be no secret that the EPO has much of the media which covers patents in its back pocket (as the old saying goes). To some degree, the same is true regarding corporate media, especially in Europe and with focus on Dutch and German media (media where EPO is physically based). Money was paid. We saw the ‘receipts’. There were strings attached to this money. There’s potential for more money. Over the years we too came under financial pressures to obstruct our publication; some of them we’ve covered here before…

To give just one example (alluded to in the image above), EPO management is paying IAM via PR firms such as FTI Consulting (IAM even admitted that FTI Consulting had paid it). IAM isn’t alone!

“Hopefully, perhaps some time soon, they will also run out of immunity.”The sad thing is, publishing houses are dooming their own credibility by sucking up to António Campinos in exchange for “access” (like softball ‘interviews’). They constantly pretend that Benoît Battistelli is a resolved problem and everything at the EPO is more or less fine now.

For those who wonder about “Merpel”, don’t blame Jeremy or Birgit or any of the original ‘Kats’. They too had come under pressure, but the sad thing is that they sort of gave up and left the blog in hands that slap down comments, especially those which allude to EPO corruption.

“Reunion with Alexandre Benalla and Nicolas Sarközy is definitely a possibility when impunity is over and investigations begin.”EPO is a classic example of Mafia-like institutions that have so much to hide that they’re willing to engage in Mafia-like tactics to silence the media (or any potential critic/exposer for that matter). Microsoft does the same thing (we’ve been covering many examples over the years).

Please keep the input (or the leaks) coming. We’re not afraid of the EPO’s “Mafia” and they have virtually no control over us. They’ve tried all sorts of dirty tricks. They’re running out of ideas. Hopefully, perhaps some time soon, they will also run out of immunity. Reunion with Alexandre Benalla and Nicolas Sarközy is definitely a possibility when impunity is over and investigations begin. █

EPO Promoting Illegal Software Patents Under the Guise of NET/Hey Hi

Posted in Deception, Europe, Patents at 10:00 am by Dr. Roy Schestowitz

Video download link

Summary: More shameless promotion of illegal software patents under the guise of “emerging technologies (NET) and artificial intelligence (AI)”; when will there be a mass revocation of them all? When judges at the EPO finally regain their independence?

SHORTLY after António Campinos had joined the EPO the Office bragged about spreading software patents to other continents and patent offices even though those patents aren’t even legal in Europe. Don’t they see how much of an embarrassment this is to Europe? Even the US, the ‘home’ of such patents (almost 50 years ago), is pushing hard against such patents. Every day in our Daily Links one can find reports about the Federal Circuit affirming Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) that squash software patents, citing 35 U.S.C. § 101/Alice (SCOTUS). Our next batch of Daily Links will be no exception. Even the software patents granted by the U.S. Patent and Trademark Office (USPTO) over the past 20 years are being thrown out, sometimes not by courts but an internal tribunal of the Office. It’s therefore safe to say that the EPO became a lot worse than the USPTO (in that particular regard, quality and compliance with patent law).

Got so drunk that I started granting patents on 'hey hi'Last night the EPO published (warning: epo.org link) another mysterious buzzwords salad, this time accompanying “Hey Hi” (AI) with some more fluff. Whether you call it “hey hi” or artificial intelligence (AI), it doesn’t mean very much. Nowadays almost every computer device or algorithm is being called “Hey Hi” or “Smart”; it doesn’t really mean anything anymore. Anything that does some “logic” is now synonymous with “Hey Hi”. To quote the EPO itself:

The IP5 NET/AI task force held its second meeting virtually from 3 to 5 March 2021 to discuss the main elements for a comprehensive IP5 NET/AI roadmap. The roadmap will guide the IP5 Offices’ joint endeavours in response to the challenges and opportunities arising from the increasing use of new emerging technologies (NET) and artificial intelligence (AI).

The task force was set up in 2019 to coordinate initiatives and develop a roadmap for possible joint projects in the areas of NET and AI. At its first meeting in early 2020, representatives from the IP5 Offices and WIPO developed a scoping document outlining candidate co-operation areas. The IP5 Heads of Office later endorsed this document in July 2020.

The video at the top discusses this. WIPO, which itself has its share of violations, is happy to see endless growth in number of patents irrespective of their impact on society. A lot of the “Hey Hi” reports are from WIPO and this hype has come from WIPO/UN as well.

Incidentally, hours ago the EPO admitted a decrease in the number of patent applications received (in spite of lowering the bar). (warning: epo.org link)

Instead, as usual, they only focus on the cherry-picked parts of the data that suit them better:

Statistics published today by the European Patent Office (EPO) show that innovation in healthcare drove patenting activity in 2020: Medical technology was the leading field for inventions in terms of volume, while pharmaceuticals and biotechnology were the fastest-growing areas.

Despite the pandemic, the overall number of European patent applications filed in 2020 was nearly on a par with the previous year’s, decreasing by 0.7%. The EPO received 180 250 patent applications in total last year, which was slightly below the record level attained in 2019 (181 532).

The EPO’s management, which is clueless, wants the public to think that the sole goal is to increase the pace of patent grants. As if a world in pandemic-induced closures would be miraculously be saved by yet more monopolies. Maybe they think people can also eat patents… █

EPO and Microsoft Collude to Break the Law — Part X: The Spectre of GDPR…

Posted in Europe, Microsoft, Patents at 8:57 am by Dr. Roy Schestowitz

Previous parts:

GDPR and Microsoft
More about Microsoft’s run-ins with European data protection authorities

Summary: António Campinos and his friends may have put the EPO in legal “hot water”, having already outsourced EPO data to a serial GDPR violator with a notorious track record in other aspects, too

In April 2019 it was reported that “the Spectre of GDPR” continued to haunt the hallowed halls of Redmond, this time in the shape of an investigation ordered by the EU Data Protection Supervisor (EDPS) into Microsoft products used by EU institutions.

The move by the EDPS was prompted by the outcome of the Data Protection Impact Assessment which had been commissioned by the Dutch Ministry of Justice and Security in 2018.

“The move by the EDPS was prompted by the outcome of the Data Protection Impact Assessment which had been commissioned by the Dutch Ministry of Justice and Security in 2018.”The EDPS noted that any EU institutions using the applications investigated by the Dutch authorities would face similar issues including “increased risks to the rights and freedoms of individuals”.

The report of the EDPS on the “Outcome of own-initiative investigation into EU institutions’ use of Microsoft products and services” was published on 2 July 2020.

The EDPS identified a number of serious issues calling for further action, including the following:

• The licensing agreement between Microsoft and the EU institutions was formulated in loose manner that effectively permitted Microsoft to act as a data controller which the EDPS found inappropriate.

• The lack of control by EU institutions over which sub-processors Microsoft used and the lack of meaningful audit rights presented significant issues which needed to be addressed.

• EU institutions were unable to control the location of a large portion of the data processed by Microsoft. Nor did they properly control what was transferred out of the EU/EEA and how. There was also a lack of proper safeguards to protect data that left the EU/EEA.

• EU institutions had few guarantees at their disposal to defend their privileges and immunities and to ensure that Microsoft would only disclose personal data insofar as permitted by EU law.

According to the EDPS, the EU institutions lacked sufficient clarity as to the nature, scope and purposes of the data processing carried out by Microsoft and the risks to data subjects for the purpose of complying with their transparency obligations towards data subjects.

The EDPS recommended that all EU institutions perform tests using a revised and comprehensive approach in order to monitor and stem the flow of personal data generated by Microsoft products and services and sent to Microsoft.

“The EDPS recommended that all EU institutions perform tests using a revised and comprehensive approach in order to monitor and stem the flow of personal data generated by Microsoft products and services and sent to Microsoft.”It remains to be seen whether or not the EDPS’ beef with Microsoft will be resolved in an amicable manner or whether it will result in the imposition of GDPR fines which, in serious cases, can be as much as 4% of a company’s worldwide annual revenue.

Microsoft has also had its fair share of grief with the data protection authorities in the EPO’s main host country, Germany.

Back in July 2019 it was reported that the data protection authority in the state of Hesse had issued a ruling that Microsoft’s Office 365 could no longer be used by schools following the closure of a German data centre which had been used by Microsoft to provide cloud services.

This ruling came after several years of domestic debate about whether German schools and other state institutions should be using Microsoft software at all.

To allay German privacy concerns, Microsoft had invested millions in a German cloud service, and in 2017 Hesse authorities agreed that local schools could use Office 365 as long as German data remained in the country. But in August 2018 Microsoft decided to shut down the German service which meant that, once again, data from local Office 365 users would be transmitted across the Atlantic.

“…in August 2018 Microsoft decided to shut down the German service which meant that, once again, data from local Office 365 users would be transmitted across the Atlantic.”In view of the changed circumstances, the data protection commissioner decided that there was now an unacceptable risk that users’ data could be accessed by US authorities.

More recently, in October 2020, it was reported that at the Conference of German Federal and State Data Protection Supervisory Authorities, a majority of Germany’s regional data protection commissioners supported a finding that Microsoft Office 365 did not comply with GDPR standards. They also made clear that changes were urgently needed to comply with the CJEU Schrems II judgment on cross-border data transfers.

Once again, it’s too early to say whether this matter will be resolved in an amicable manner or whether it will result in the imposition of GDPR fines.

However, for some time now German lawyers have been warning their clients about the potential financial risks of using non-GDPR compliant software, including many widely used Microsoft products.

For example, one Hamburg-based law firm published the following advice in July 2020:

“…for some time now German lawyers have been warning their clients about the potential financial risks of using non-GDPR compliant software, including many widely used Microsoft products.”“Using MS-Teams, Skype and other Office 365 services violates data protection law and may result in million Euro fines. That’s the conclusion of two papers recently issued by the Berlin Commissioner for Data Protection and Freedom of Information. There is urgent need for action in many companies now.”

Time will tell whether or not such warnings are justified. However, based on past experience Microsoft is unlikely to be given an easy ride by the German and other European data protection authorities and this may well have some unpleasant fallout for commercial users of its services and products.

In the meantime German scepticism about Microsoft has surfaced in the European Parliament.

In February 2020, Klaus Buchner – a university professor, physicist, and MEP for the green-conservative Ecological Democratic Party – submitted the following question to the EU Commission:

Subject: Microsoft Windows 10 in European local authorities

IT is part of our critical infrastructure, and in European local authorities as well IT means Microsoft Windows and Microsoft Office. It is as if European drivers could only buy cars made by one US manufacturer. As a result, European local authorities and European industry are totally dependent on a foreign monopoly supplier and are required to kow-tow to a foreign legal system and comply with foreign court judgments, which apply to Microsoft in the EU as well. To make matters worse, Windows 10 systematically transmits personal data to Microsoft. Little is known about how that data is used. The upshot is that local authorities may find themselves facing legal action for breaches of the data protection rules and the German Industrial Constitution Law. Background: ‘[...] The Data Protection Officers of the Federal Government and the Länder see little scope for using Microsoft’s Windows 10 operating system in accordance with the law […]’

Instead, standard programmes could be developed at EU level and made available to local authorities free of charge. This standard software could also be hosted in regional data centres in the EU and interested local authorities could transfer their IT operations to those centres. Of course, each local authority would be required to tailor the standard programmes to local needs and operate them independently, either from their own data centres or in an EU cloud.

1. Are there alternatives to monopoly costs and data protection problems?
2. Does the Commission see any scope for offering greater support for the use of free openware such as Linux and OpenOffice / LibreOffice?

The answer which came back from EU Commissioner Thierry Breton was for the most part the usual hot air which didn’t really address the elephant in the room.

“In the meantime German scepticism about Microsoft has surfaced in the European Parliament.”However, Breton took advantage of the opportunity to plug the Commission’s ongoing efforts to promote an “EU cloud initiative” which would “offer credible European alternatives to non-EU providers”.

And with that, we conclude our potted history of Microsoft’s long-running and continuing problems with European data protection authorities.

In the next part we will take a look at some “close encounters” between the software behemoth of Redmond and other regulatory authorities, in particular the trust-busters on both sides of the Atlantic. █

Meme/Teaser: Lipstick on EPO in the ‘Cloud’

Posted in Europe, Patents at 6:54 am by Dr. Roy Schestowitz

Clouds Hanging Above the EPO

Summary: The EPO‘s secrets (such as lies about privacy) will come out from beneath the cloud this month and next month

Photo: “Clouds Hanging Above the EPO”

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