Summary: Apple products get banned (for the time being) after Apple decided to attack Linux-supporting competitors and then received some blowback

APPLE’S opening of a jar of worms has led to reactionary lawsuits that sometimes trouble Apple and discourage the original strategists (those in favour of suing Android). Some of Apple’s legal leadership has already left or was fired. We covered this at one time.

According to the corporate press and the Irish Times, Apple has its day in court and the outcome is not as Apple originally planned:

Motorola Mobility has won a second German patent ruling against Apple over its iCloud service allowing the company to block sales of devices including iPhone and iPad if they use the software that accesses it.

Apple started this whole war and there is an attempt at deterrence from the defendants. Citing a Microsoft lobbyist, ZDNet tells the distorted version of the story, where Google and Motorola are somehow the “aggressors”. To quote:

Apple was forced to remove several iOS devices from sale on its German online store on Thursday as a result of its patent battles with Motorola.

The iPhone 3GS, iPhone 4 and 3G iPads are currently not available from the company’s web store in Germany following a ruling in favour of Motorola relating to FRAND-pledged patents declared essential to 3G standards.

With more rumours based on Apple patents (like this one) we expect Apple to carry on with its patent strategy, living and dying by the sword (the man behind this strategy is already dead). Apple does not even get sympathy from people who claim to like Apple products:

I like Apple products. God knows I own and use enough of them. But, I hate their out-sourcing business practices and their world-wide anti-Android lawsuits. So, when I learned this morning that Motorola Mobility had won a permanent injunction against Apple’s iCloud service in Germany because of a patent violation and Motorola had followed that up with another patent victory, which has forced Apple to take all its older phones, 3G and 4 and all iPads off its German online store (German language link), I was pleased.

Apple has made enemies it did not need to make. █

Summary: PR spin from Novell and money-grabbing moves that promote proprietary software rather than Free/Open Source software

OVER in YouTube, Novell keeps advertising Vibe [1, 2, 3], but how long might it take to see the Windows bias of this product? Well, here we have it right from Novell’s own mouth:

Novell Vibe Add-in for Microsoft Office lets you create or update a document in Vibe directly from MS Office. The new Vibe Add-in feature is integrated into the MS Office environment so users can seamlessly edit and save files directly into Vibe in near real time without leaving the comfort of their MS Office environment.

We previously showed how other Novell communication products got integrated with Microsoft Skype, a reminder of which is here.

Novell’s other products now target Macs, but still, not a word about GNU/Linux. To quote a press release about GroupWise 2012 and something else about Mac support, GroupWise now boasts “iPad support”. More of that Mac hype can be found here, in one among few Novell announcements that we can find. The point we are trying to make is, Novell does nothing to advance GNU/Linux or even Open/LibreOffice in the enterprise. This was very different before the deal with Microsoft. In fact, Novell gave its patents to Microsoft and Apple.

As we find in the news, more GroupWise customers are ditching the platform. Here is one new example:

Utah will be moving off Novell GroupWise, which currently is being used by the state’s executive branch. Novell is based in Provo, Utah.

Even Utah rejects Novell. What a blow. Considering the roots of Novell, this is symbolic too. This other new article states that:

When Macomb County officials a year ago began researching the best method to replace its existing Novell GroupWise technology, the Sheriff’s Office expressed concerns over security.

“I’m all for saving money and doing what’s right on the taxpayer side, but until we have assurances that information is going to be sent securely, we’re going to stay on the GroupWise platform,” said Sheriff Anthony Wickersham, who is concerned about emailing criminal information, driver’s license records and addresses.

GroupWise is not secure either. It’s all very perceptual and Novell used FUD in this case.

Here we have another company that tells us about Novell getting quite rusty in the enterprise:

Much interest in Resara Server has come from Netware users, who are under pressure to modernize their networks. With Novell’s future uncertain, and the prospect of a costly investment in Suse Linux Enterprise or Microsoft Active Directory, Resara Server offers an attractive and cost-effective exit strategy. “The direction of Novell’s products in recent years required us to look at other options”, says Daniel Hedblom, System Administrator for the Sollefteå school district in Sweden. “We moved to Suse from Netware, but the resource needs for mono and .net made Zenworks unusable for us. Resara Server and Samba4 is a much cleaner solution, and we are glad to have found it”.

Novell’s future is indeed “uncertain”; the company itself was sold and the buyer is grappling with debt while GroupWise, for instance, keeps losing customers and the spin department says that there is momentum even where there is none (GroupWise is being ditched in large deployments). To quote:

It’s a new day for Novell and GroupWise, and the future is bright.

It’s nonsense. It’s Novell’s “PR blog” and it shows. Over at YouTube too it’s just a lot of promotional/marketing videos for GroupWise [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11] spread artificially by marketers rather than users. A look at Novell news summaries [1, 2] reveals more of a rotting company which is now clinging onto proprietary software (even Microsoft and Mac promotion) for cash. Novell deserves no sympathy from the FOSS world. It had its good days but in 2006 it defected. █

Summary: Response to reputation laundering from Wired Magazine, the latest nonsense from Microsoft’s lobbyist Florian Müller, an update on Microsoft’s trolling against Android, and a little more of Apple’s

WE are quite cynical about the corporate press. It has become abundantly clear that journalism is dying and instead it gets accommodated/replaced by the PR industry, working at the behest of rich people with an agenda and a nickel for any press still willing to bend over (independent press is likely to perish in the process). Like a husband who tells the policeman or the judge that he deeply loves the woman whom he beats up daily, Bill Gates/Gates Foundation would love for us to believe that he is a master of Open Source. Yes, and Cade Metz trying to portray these racketeers as friends of Open Source (whitewashing Gates at the same time). Why would anyone with integrity do reputation laundering for a criminal and his company that commits acts of extortion? Even Gutierrez gets characterised positively:

But that afternoon was different. At the invitation of the company’s chief legal minds — Smith and Gutierrez — Ramji sat down with Gates, chief software architect Ray Ozzie, and a few others to discuss whether Microsoft could actually start using open source software. Ramji and Ozzie were on one side of the argument, insisting that Microsoft embrace open source, and Gutierrez offered a legal framework that could make that possible. But other top executives strongly challenged the idea.

Then Bill Gates stood up.

No, Bill Gates has been attacking Open Source for a very long time. Remember that Letter to Hobbyists? And all those court exhibits we showed? We oughn’t allow history to be rewritten like this. Over at Free Software Daily, the modified headline of this article states “Meet Mobster Bill Gates, the Man Who Charges Open Source Software even if is free Android Linux” (the original is troll article that attracted many comments, for being more inflammatory than sane).

Microsoft is currently feeding patent trolls in order to attack Linux. Microsoft does not have enough ammunition to attack Linux, so it uses help from the outside.

Pamela Jones, over at Groklaw, writes more about the case that seeks to expose MOSAID, a patent troll that Microsoft is feeding. To quote part of the analysis:

B&N and Microsoft have come to an agreement about Steve Ballmer’s participation in the Microsoft v. Barnes & Noble action at the ITC. They were arguing about it, and they’ve now agreed that Ballmer will not have to testify live at the ITC hearing, currently scheduled for February. Instead, B&N will present designated portions of his deposition, and Microsoft’s lawyers have sent a letter [PDF] to the ITC stating officially that it withdraws its motion for a protective order, attaching to the letter a proposed schedule on the parties’ next steps in figuring out exactly what each side wants in the way of details. This means there will be no further motion practice on the live testimony issue.

[...]

Microsoft is also opposing Barnes & Noble’s request that the record be held open to include Nokia and MOSAID’s evidence, if Barnes & Noble is finally able to get it. And they parties continue to try to whittle into shape what each may use as evidence.

Lots of sealed filings, once again. But don’t worry. By hook or by crook, we usually find out in due time what the filings were about.

I had a chance to talk to Andy Updegrove, of Standards Blog, who as you probably know is a lawyer who does patent work in the standards area. I wanted to pick his brain, because the 2000 patents Nokia sold to MOSAID relate to standards, according to their statements. Just how many patents could possibly be required for a phone to be built? Surely not 1,200 out of the 2,000, I was thinking. Yet, that is the claim.

[...]

He suggested that we read some Department of Justice ‘business review letters’ on patent pools, because a patent pool is an example of multiple patent owners getting together to agree on a price for technology required to implement a standard. That’s not exactly what Microsoft, Nokia and MOSAID say they are doing, but we’re getting warm. You get to read in the letters the way the pool participants set the pool up, what safeguards they took (in the request letter), and the way the DoJ analyzed the request and either approved, qualified, or rejected the request. The controls traditionally include hiring a third party expert to review each supposedly essential claim and determine whether it’s valid, whether it’s essential, and what it’s worth relative to the other essential claims. So he thought we might find it interesting to look at what a legal pool looks like, and then we can contrast that to the actual conduct that is being alleged here.

This case has not been decided yet, but it does help shed a lot of light on Microsoft’s racketeering.

The known Microsoft boosters and even lobbyists (whom they cite) try to make us believe that it’s all over and Microsoft is innocent. Some people fall for it. They also push this tripe into Slashdot with all the bias and misdirection. As Homer put it in USENET, we should just ignore the Microsoft lobbyist. To quote: “Note this is only the conclusion drawn by Microsoft’s pet shill, Florian Müller (who’s now openly on Microsoft’s payroll), and he drew this stunning conclusion from just the /title/ of a docket he doesn’t even have access to, because it’s still under seal.

“It’s also, as the title suggests, just an “Initial Determination”, and may yet be disputed by the DOJ – a fact Müller chose to ignore. He also chose to ignore several of B&N’s valid complaints that might yet cause
the DOJ to overturn this conclusion, even if it turns out to be true and “final”, such as Microsoft deliberately withholding prior art in its various patent applications, and using NDAs to cover up extortion, under
the pretext of “secrets” that are in fact a matter of public record (as all patents are required to be by law). But instead he portrayed B&N’s complaint as futile, because:

“For example, Barnes & Noble claimed that Microsoft asked for excessively high patent license fees, but the OUII quoted passages from U.S. law (statutory as well as case law) that clearly said that patent law doesn’t require a patent holder to grant a license on any terms.”

“Then he completely ignores all the other key points (above). This seems to be the entire basis for his pessimism (or I should say “optimism”, since it’s clear whose side he’s on).”

Microsoft is feeding lobbyists and trolls and it’s easy to see this. Apple is said to have been sued by trolls again, but since Apple itself acts like a patent troll we have no sympathy for it. To quote:

A patent troll is going after Apple for patent infringement of an “electronic alignment system”.

Apple’s spiritual leader’s friend, Larry Ellison, is still attacking Android with patents that he got from Sun. Google gets another opportunity.

Mr. Pogson summarises: “Google argues that Oracle’s experts are not expert as they had no intimate knowledge during deposition.”

Basically, it seems like Oracle’s patent case against Android will be coming to an end. Maybe a copyright allegation alone will be left, so think along the lines of SCO.

OIN is meanwhile growing strong:

OIN today announced a remarkable increase in the size of its community of licensees during 2011 as licensees seized the opportunity to benefit from the value of the growing OIN community and the freedom of action enabled by OIN’s royalty free licensing program. During 2011, OIN’s community grew to over 400 corporate licensees, a more than 60% year over year increase. OIN licensees, which include founding members and associate members, benefit from the leverage provided by a patent portfolio dedicated to the protection of Linux and access to enabling technologies through OIN and shared intellectual property resources.

What’s baffling is that Oracle is in the OIN. It never ought to have attacked in the first place, but maybe it was a favour to the thermonuclear CEO, Larry Ellison’s “best friend” (by his own words). It is not a far fetched hypothesis. █

Summary: Another quick look at the patent play against Android/Linux and who is behind it

Regarding a story that was mentioned here before (because Microsoft lobbyists were trying to spin it ) Muktware states that it should really be blamed on Apple’s own aggression, not on Google or Android:

Apple has created a hostile environment in the mobile world by dragging almost every Android player to the court. We are noticing that Apple has started to lose legal battles in the courts, which is a good sign for the growth of the industry. Apple has used every kind of patents they can, even the rectangular design of a tablet, to exhaust their competitors and monopolize the market. Now, the tables have turned, Motorola, the inventor of cell phones has sued Apple, seeking an injunction against the iPhone4S and the iCloud.

This is a deterrent against Apple’s attacks. Nokia, having signed a deal with Apple and Microsoft, proceeds to feeding patent trolls as we covered last week:

Nokia sells more than 450 patents to patent troll

Following a long history at the forefront of the wireless industry, Nokia holds more than 30,000 patent licenses and applications. On Thursday, the Finnish vendor’s portfolio was confirmed to be slightly lighter as patent troll Sisvel International announced that it had acquired more than 450 Nokia patents.

It would not be shocking if Sisvel went after Android vendors, along with MOSAID (also fed by Microsoft/Nokia). Nokia is controlled by Microsoft and Apple signed an agreement with Nokia last year. Nokia itself, led by a mole from Microsoft, keeps imploding based on this news:

Nokia’s Windows Phones not selling

Nokia Oyj reported a 73 per cent fall in fourth-quarter earnings as sales of its new Windows Phones failed to dent the dominance of Apple Inc.’s iPhone or compensate for diving sales of its own old smartphones.

Apple itself cannot quite get its way causing an embargo against Android; there are new software patents coming from Apple, but patent proxies (perhaps Oracle too) are likely to come. Here is a new article that speaks of a new Apple patent: “This SDK would act as a sort-of “interpreter” of language between a mobile device and another gadget. It would make it possible for accessory makers to build apps for the iPhone or iPad that could communicate directly with their devices. For example, it would be like using your phone to control a desktop radio.”

A Microsoft lobbyist, Florian Müller, is working to weaken (at least in the press) the case for Android by feeding Android-hostile claims (fuelled by Apple), but fortunately enough not many journalist pay attention to him anymore (all the stories, including this latest one are consistently anti-Android). Perhaps they finally realised who was paying his wage. He is still a lobbyist for hire. █

Summary: Android-hostile patent wars are fought well by Google and its partners, which have Microsoft-funded lobbyists try to portray them as aggressors (for reactive moves)

Google’s fight to keep Android free faces barriers from CPTN members (Novell’s patents) and their proxy trolls, amongst others. According to this latest update from Groklaw‘s Professor Webbink, Google is getting its way against Oracle:

The court has sided with Google on two of the three remaining claims construction issues. In an order (704 [PDF; Text]) issued yesterday the court interpreted two terms to have the meaning ascribed by Google and overruled the definition advanced by Oracle. The court has elected to leave the third term for consideration at trial, if necessary.

With respect to the ’476 patent, the court found the term “computer-readable medium” to include transmission media as suggested by Google. Oracle had wanted to limit the definition to storage media. By seeking a broadened definition one presumes that Google is aiming to increase the likelihood that the claims will be found invalid. In finding in favor of Google the court pointed to the explicit definition of the term “computer-readable medium” as set forth in the patent’s specification, a definition Oracle wanted to ignore.

Oracle is said to be retreating from the patent angle because it is failing. It had been baffling that Oracle chose to sue Android/Google until we saw in a credible source what Larry Ellison's best friend planned to do. Steve Jobs vowed to even spend tens of billions of dollars just suing Android (if necessary) and so far Apple is said to have spent $0.1 billion or more:

The never-ending war on Android has cost Apple more than $100 million, according to latest estimates. While a huge chunk of that money was spent (read wasted) in claims against HTC.

Motorola, which Apple attacked, is fighting back against Apple (probably as means of deterrence) and Charles Arthur is still flirting with a Microsoft lobbyist over at Tweeter and beyond. The lobbyist (Microsoft-funded lobbyist Florian Müller) is using him to incite against Google and Android. No disclosures in those posts about Florian’s paymasters. The Guardian, now funded by Bill Gates, helps the lobbying efforts of Microsoft. How sad. Here is one better report on the subject:

Motorola Mobility, which is seeking regulatory approval to be bought by Google Inc, has filed a new lawsuit against Apple Inc accusing the iPhone maker of infringing its technology patents.

While Bloomberg keeps the usual corporate bias (still promoting intellectual monopolies in new ways) there are more reasonable sites like a Red Hat site, OpenSource.com, which has just published this new article about patent trolls. To quote part of the article:

When well-known, richly compensated patent lawyers switch from representing world-class tech companies to servicing “non-practicing entities,” something’s up. Could the sordidness of a business based on bringing patent lawsuits be outweighed by large amounts of cash? At least for some, apparently yes.

This week Ashby Jones wrote for the Wall Street Journal about two specific patent lawyers, John Desmarais and Matt Powers, as representative of a larger shift in the practice. Each of them was once an attorney for large companies, protecting those companies’ patent interests in court. Desmarais’ software-related clients included IBM and Verizon; Powers has represented Cisco, Oracle, Microsoft, and Apple. But today they have joined the ranks of “patent trolls,” the colloquial term for “non-practicing entities” (NPE), which exist only to pursue the monetary benefits of aggressive patent-infringement lawsuits.

Ideally, patents protect and motivate innovation as well as benefit future innovators. They can be an important business justification in fields where R&D is expensive, like pharmaceuticals. They put the details of an innovation into public view, inspiring improvements and making a record of its existence, both for historic record and the benefit of future inventors. Thus, companies once used patents to protect what they had put significant resources into creating. Likewise, patent lawyers would work for those companies to defend their patents. Now there are those who are interested only in the financial gain and not in protecting innovation–like Desmarais and Powers.

But this approach is contrary to the intent of the patent system. Worse is when, as the WSJ highlights, some companies sell their patents to an NPE to prevent them from being in the awkward position of suing customers or partners. This practice puts the patent’s advantages in the hands of a non-creator, who almost certainly does not hope to inspire, much less be responsible for, future innovation. Instead of benefiting innovators and the public, going on the patent offense benefits only the bank accounts of the trolls.

Recently, Red Hat was attacked by a patent troll that was passed 2,000 or so patents with help from Microsoft. Here at Techrights we’ll keep a close eye on that. We have also queried Red Hat’s legal team and expect a response soon. █

Summary: A collection of news about the litigious challenges from monopolists against Linux in the mainstream

THERE IS something about the patent system that nobody can miss. Its main proponents and benefactors are those greedy patent lawyers who want to put their tentacles on real work and tax it. People who file those are typically those patent lawyers who somehow convince technical people that they need a monopoly. In the case of multinational mega-corporations, those monopolies might make business sense, but what about the rest of the businesses?

Patent trolls further complicate the situation because all they do is raise the price of everything and promote no agenda of a producing company (quite the contrary in fact). One new article asks, are “Legal: Ecommerce Owners Liable to Patent Trolls?”

To quote:

There has recently been an increase in the number of patent claims against website developers and operators. The claims are based on “business method” and software patents for various functions of a website, such as drop-down menus, site search, and other common functions. Many of these functions are in common use by many developers, who do not know that the software or method they are using is covered by a patent. Many of these patents are old, and developers have furthered website development using their functions to create new technologies, which are still covered by the patent. In addition, searching patent registrations to determine if your website is infringing on an issued patent is difficult, time consuming, and expensive. “Patent trolls” are patent owners that take advantage of the difficulties of finding a patent, and lie in wait for someone to use their technology without realizing it is covered by the patent owners rights under their patent.

The USPTO has widened the scope of patentability to the realms of the absurd. Sun Microsystems engineers used to joke about it and see how absurd a patent application can pass muster. Later on their patents ended up in Oracle’s hand to attack Linux/Android. Regarding this case, Groklaw writes:

With that short statement [PDF] Oracle advised the court today that it will undertake a third attempt to produce a satisfactory damages report and that it will do so in compliance with the orders of the court. I have no doubt they will produce the report. Whether they will be able to restrain themselves in the manner directed by the court remains to be seen. If past history is any indication, don’t hold your breath.

Oracle is trying to make Android more expensive. Along with Oracle we have Microsoft and its proxies doing the same thing. One patent troll, MOSAID, is quite clearly such a proxy and Groklaw has this to say about its case against Red Hat:

Facing numerous filings that either seek to dismiss MOSAID’s claims altogether or to block MOSAID from filing a second amended complaint, MOSAID has now responded with a raft of responses. Of course, MOSAID believes the law is on its side and that all parties should remain in the conjoined suit and all of MOSAID’s new claims added in the second amended complaint should be permitted. How the court decides these issues will largely determine whether this ends up as one suit or multiple suits. In any case, don’t expect MOSAID to back down.

Let’s remember Microsoft’s involvement in passing thousands of patents to MOSAID. Then there’s Apple, which launched attacks on Android/Linux (starting with the Apple vs. HTC case), but as another court loss is reached it seems possible that Apple cannot do much:

The lawsuit that Apple slammed HTC with is over and $100 million in legal fees later, Apple have nothing to show for it. Apple have been known to protect their design patents fiercely and in some instances, irrationally and for many who have been following the HTC lawsuit, the same thoughts ring, what exactly was Apple hoping to achieve through the lawsuit?

To quote another report:

The decision was an appeal of a ruling from a lower regional court in August 2011, requesting a temporary injunction. At the time, Apple did win a temporary injunction in the Netherlands. However, it was based on a photo gallery scrolling patent and not design-related patents, which were ruled not to infringe in the ruling on Tuesday.

The British press covered this as well [1, 2], not to mention Android sites that wrongly characterise a Microsoft lobbyist as a FOSS advocate:

After a solid year of courts beckoning to Apple’s call, it would seem that sanity is returning to European benches. Taking a queue from Germany, which is set to reject Apple’s patent case over the revised Galaxy Tab 10.1N, a Dutch court rejected Apple’s final appeal to get Samsung’s tablet banned from sale in the Netherlands. Free and Open Source Software advocate Florian Mueller reported the legal news on the FOSS Patents blog. The appeal denial is the latest in a string of many Apple defeats and few victories in the last few months.

Florian is definitely not a FOSS advocate; he is the exact opposite, but he names himself to confuse. He is paid by Microsoft to attack FOSS causes. █

Summary: The duopoly which is Apple and Microsoft faces new legal challenges while the patent assault heats up

APPLE’S growth is impeded by the rise of Android. The dead CEO vowed to destroy Android, so we have no sympathy for him or for the cult he created. In fact, we urge people not to buy from Apple until or unless it stops suing (to embargo) its competitors, notably Linux/Android.

In a new post from Muktware we read about the latest lawsuit against Apple, this time for anti-competitive behaviour (again):

Apple Sued For Anti-Competitive Practices

A federal antitrust class action lawsuit has been filed against Apple accusing the company of billing iPhone customers for voice and data services even after they cancel it. They also Apple of stifling competition and increasing prices for software apps by charging developers an annual ‘application’ fee.

The Courthouse News reports that lead plaintiff Eric Terrell accuses Apple of ‘unlawful anticompetitive activities,’ and claims that consumers did not contractually consent to Apple and AT&T’s 5-year exclusivity agreement.

Fortunately, Apple’s behaviour is likely to just drive people away to Linux and even the lawsuit from Oracle (perhaps in part motivated by Apple’s CEO) won’t be able to stop it. The Oracle case is just another SCO and the outcome might be the same, except for the bankruptcy.

Microsoft too has been flirting and collaborating with Apple's lawyers, according to recent reports. Microsoft engages in illegal tactics and conspiracy to harm a potent rival. Having been faced with a legal challenge,Groklaw claims that the plot is being unravelled and Microsoft’s attack through Nokia becomes too hard to deny. To quote:

Nokia continues to struggle mightily to get free from Barnes & Noble’s discovery requests. Barnes & Noble, you’ll recall, succeeded in persuading the ITC to recommend that Finland help it to do depositions of some Nokia executives, including Stephen Elop, and also get its hands on some documents that Nokia isn’t willing to provide voluntarily.

So the necessary request documents were sent to Finland, and then Nokia started going wild with efforts to block. And it continues to do so, telling the court all the steps it’s taken, and asking ITC to quash the Barnes & Noble motion or in the alternative to advise Finland that it can’t provide any discovery until the motion is ruled on. Nokia also has complaints about what it represents to both Finland and the ITC as being Barnes & Noble’s misstatements about the case.

And now Microsoft has asked the court to quash a motion to depose Steve Ballmer. It’s under seal, but I’m sure we can guess at its contents. After all, we’ve seen companies try to keep their executives from having to get involved in litigation before, and so far, they all had to testify. Remember SCO v. IBM? Sam Palmisano had to testify because he had “unique personal knowledge”, or so the judge believed. If the CEO knows things other people don’t, no matter how busy he is, he will likely have to testify. I’m sure Microsoft lawyers know that, so in the alternative, they ask that he be allowed to testify by videoconference.

We warned about this right from the start. It is good to see action being taken to expose this at the courts and set obstacle.

In other news, RIM, whose key executives leave, finds itself sued over patents again. Guess who’s suing again?

Ottawa-based Wi-LAN Inc. has launched a patent suit against Research In Motion Ltd., adding to the challenges facing the troubled BlackBerry maker.

The mobile patent wars are becoming nasty and when Microsoft passes ammunition to patent trolls (proxies) there needs to be a lot more investigation. it’s not as shallow as it may seem. █

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

–Bruce Perens

Summary: Apple and Microsoft use legal instruments to perturb the market and disrupt fair competition

ACCORDING to this new report from The Register, Apple is up to no good and it does not go unnoticed. EULA tricks are no longer just Microsoft’s weapon of choice; Apple too is doing it:

Budding authors attracted to Apple’s latest content-creating tool should tread with care lest the small print locks them in tighter than they’d imagined.

The End User Licence Agreement, to which users consent by using the software, requires the output of iBooks Author be distributed only through Apple’s retail operation – with Cupertino getting its customary 30 per cent cut – to ensure that only Apple students get the benefit of Apple’s largess.

This is an example where lawyers — not engineers — try to tilt the table. Another recent example of this is UEFI requirement that Microsoft crafted to exclude Linux and Android on ARM-based machines. To quote a good new report on this subject:

Matthew Garrett, the Red Hat engineer who originally raised the issue of UEFI Secure Boot and Linux, points out in a new posting titled “Why UEFI secure boot is difficult for Linux” that, despite Microsoft’s recent changes to its UEFI Secure Boot requirements, there are some major challenges left if users want secure-booted Linux.

[...]

The concerns over how Microsoft plans to make use of UEFI’s Secure Boot on ARM processors has also continued. A number of commentators and the Software Freedom Law Center reported that Microsoft had barred ARM devices which run Windows 8 from booting Linux. These requirements are in the current Microsoft Hardware Certification Requirements document, but were known about in September 2011 when the initial fears about UEFI were raised; Microsoft’s plans were detailed in presentations about its “Logo Requirements” at the time.

A couple of years ago when Microsoft promoted its chief racketeer (a lawyer) it became evident that Microsoft realigned itself as a legal manipulation firm.

As another site has just put it:

Back in October 2011, the Free Software Foundation speculated on the possibility that Microsoft might be trying to block out other operating systems from loading within a computer, using a new concept known as the Unified Extensible Firmware Interface (UEFI). Microsoft showed it off a couple of months back, booting up Windows 8 in eight seconds. Linux users: Should you be concerned?

[...]

Surely enough, Microsoft was watching the dilemma and responded to the issue, saying that there’s already an option within their hardware prototypes to disable secure boot attempts from the motherboard. We’re still not sure, though, whether you’ll be able to run Windows 8 with secure boot disabled. Microsoft has admitted indirectly, however, that the option could turn up missing on certain platforms that weren’t released by the company. In other words, any OEM can choose to omit the option to disable secure boot, making this the first step towards a world without a free OS.

How convenient to Microsoft.

Matthew Garrett’s views are explained in this new article:

BIOS, the archaic firmware that sits between a computer’s hardware and the operating system, is set to be replaced by the Unified Extensible Firmware Interface (UEFI). The move is intended to improve security, but a leading kernel developer says UEFI is “awful” for Linux.

This is not a technical war but a legal war that uses technical means and dotted lines to execute competitors. Where are the regulators? █

Summary: Reports insinuate that Oracle might drop its patent claims against Dalvik in Android/Linux

WE previously hypothesised that Oracle’s tactless attack on Android/Linux/Dalvik was in part motivated by the sociopath who runs Oracle. Larry Ellison’s best friend was Steve Jobs and we all know how Jobs felt about Android. Now that Ellison need not impress Jobs and his case against Android is collapsing one patent at a time, it is being reported that Oracle might settle although Google will not let this happen. As Groklaw says angrily:

What part of the word NO does Oracle not understand? Why is it that legal counsel for Oracle is incapable of complying with a simple, straightforward request from the court? Why does legal counsel for Oracle believe it must rehash, time and again, arguments that have already failed to satisfy the court? If you have answers for any of these questions, you might want to give Oracle a heads up.

IDG says that Oracle now offers to drop the patent charges: [via]

Apparently fed up with delays, Oracle said it is willing to drop its claims of patent infringement against Google if the court will hear its copyright complaints soon.

Sadly, this report from IDG quotes a Microsoft lobbyist with a campaign against Android. This too he is trying to spin as bad news for Android, but he does so poorly. Maybe Microsoft should give him a pay cut. █

Summary: The traitor Novell continues to be granted more patents, which we already know get funnelled to enemies of Linux through shells like CPTN

THE mobile market is further strangled with yet another patent.

According to this, OTI gets a patent monopoly on the following function:

OTI Receives US Patent for Contactless Smart SIM

[...]

This latest patent, entitled “Contactless Smart SIM”, was issued on January 3, 2012, and covers the capabilities necessary to turn existing mobile handsets into Contactless / NFC capable devices through the incorporation of a SIM card and a specifically designed antenna, all while keeping the phone and operating system fully agnostic.

There are also new Novell patents, granted after the company got bought. Here is one:

Information card overlay, patent No. 8,083,135, invented by Andrew A. Hodgkinson of Pleasant Grove, and James M. Norman of Pleasant Grove, assigned to Novell, Inc. of Provo.

Novell is also mentioned in new patent roundups such as [1, 2, 3, 4] (January 4^th to 12^th, behind paywall). The Utah press writes this:

Identity-based network mapping, patent No. 8,091,119, invented by Jeremy Ray Brown of Orem, and Lloyd Leon Burch of Payson, assigned to Novell Inc. of Provo.

So Novell continues to pile these up. As we know, Microsoft and Apple got patents from Novell, so what Novell is doing it is dangerous. █

Summary: Microsoft’s extortion of Android leads to passage of patents to Google, Apple loses its cases against Android, and Oracle too is gradually losing the argument against Dalvik

WE recently addressed the transfer of patents from OIN member IBM to OIN member Google (it is reported on as though it’s a sale) and we continue to see this sort of arms trade being done under a cloak of secrecy. One conspiracy against another, eh? To quote this new example:

Cryptography Research, Inc. (CRI), a division of Rambus, Inc., and CPU Technology, Inc. have signed a patent license agreement regarding the use of CRI’s patented innovations in CPU Tech products. This agreement covers the use of CRI’s patented countermeasures to differential power analysis (DPA) attacks for CPU Tech’s tamper-resistant products, including the Acalis® family of secure processors. This license also covers software developed by CPU Tech customers when executing on licensed CPU Tech chips.

These are software-related deals that involve submarine patents. Rambus, the company behind all this, is an atrocious aggressor [1, 2, 3, 4, 5, 6, 7, 8, 9, 10]. In many ways, years ago we compared the practices of Rambus to those of Microsoft, which no longer makes stuff that can sell; instead, Microsoft wants to compel people to pay up for something they do not want and never chose. Right now Microsoft is trying to force buyers of Android phones to pay Microsoft for a “licence” and LG signed the latest deal of this kind. Here are some interesting observations or theories from Muktware:

Is Android Part Of Microsoft’ Windows Phone License?

[...]

Let’s see what Microsoft deputy general counsel Horacio Gutierrez has to say, “We are pleased to have built upon our longstanding relationship with LG to reach a mutually beneficial agreement.”

This statement is very important: “built upon our longstanding relationship”. If we look at Microsoft’s Android deals you will notice a pattern. Microsoft has succeeded in cracking deals with those players who are already Microsoft customers. Samsung, LG, HTC are all Microsoft partners as they use Microsoft OS in their devices. Why is Microsoft not excited about telling the world that their ‘longtime partners’ Samsung, LG or HTC will be putting Windows on their phones? Because, the Android deals could very well be the Windows deals painted as Android deals.

Here is a hypothetical scenario:
Microsoft Executives to LG: “We want you to commit to putting Windows Phone OS on x number of your devices. If you do commit that we won’t raise any Linux patent issues. In fact with Windows Phone License you will also get Android protection.”

What will LG do? Its a win win situation for them. They are getting Android protection for free with Windows phone license. Why will they even consider raising issues about patents.

Now how to hide the fact that it was a Windows phone deal, ‘sign an NDA’ so that the rest of the world won’t know the reality.

Ghabuntu explains why Microsoft’s WP7 is failing and notes that:

5. The OEMs just love Android: Why? Because it gives them the power to differentiate themselves completely from their competitors. Given its open nature, it is always easy and safe to model Android into anything one can think of, an example being what Amazon did with it on its Kindle Fire tablets. Which company would not love such an offering? It’s little wonder that even the home pages of almost all the device makers readily feature Android phones, with WP7 a few clicks down the menu. I don’t know the extent of customization Microsoft allows the OEMs, but it sure will not be on the scale Google gives them with Android.

Dr. Moody explains why on tablets too it is Android which is likely to win:

You don’t have to be a marketing genius or industry pundit to foresee that tablets will be an extremely hot sector in 2012. The launch of Apple’s iPad in 2010 largely defined the category, just as the launch of the iPhone defined a new kind of smartphone in 2007; in 2012 we will probably begin to see Android tablets start to gain major market share just as Android smartphones have done this year.

Currently, the tablet is something of a cross between the hipster tech toy of choice and a trivially easy-to-use computing device for couch potatoes. But those early sectors are incidental to the tablet’s real potential to revolutionize education, particularly in emerging economies.

The devices are perfect: they are compact, connect to the Net wirelessly, run off battery power for hours and can be used by children and adults alike with little or no training. There’s just one problem, of course: the typical tablet’s high-end pricing – hundreds of dollars – places it so far out of reach for most of the world’s population that it might as well not exist for them. That is what makes India’s Aakash tablet – basic cost around $50, but only $37 for Indian students thanks to a government subsidy – so remarkable, and so important.

For those who think that Apple can just sue Android out of existence, here is some news [1, 2, 3] that should worry Apple because “[t]he US International Trade Commission (ITC) has ruled against Apple in its patent suit against rival mobile vendor Motorola.”

The CPTN members (Novell patents) just cannot seem to keep Android away, no matter the number of lawsuits they launch along with predictions (FUD) of doom and gloom. As Mr. Pogson shows:

It’s always fun to see the school-yard bully take his lumps:

* ITC: Motorola does not violate Apple patents
* Oracle v. Google – Rock, Meet Hard Place
* Barnes & Noble Opposes Microsoft’s Motion for SJ on Patent Misuse Defense ~pj

Here is the latest from Groklaw: [via]

Judge Alsup is also not buying Oracle’s minimalist argument on how long the trial will take. He says it will be a two-month trial. And a possible date for the trial is a moving target because the rest of Judge Alsup’s docket continues to fill up, i.e., other trials continue to be calendared, further delaying the scheduling of this trial.

Of course, a further delay has the added impact of allowing the reexaminations before the USPTO to run their course, and the last we looked those reexaminations were not favoring Oracle.

Rock, meet hard place. In the other filing of the day we see Google’s (final) supplemental brief [PDF; Text] in support of its Motion in Limine No. 3 – the motion to exclude portions of the Cockburn report. Although this brief is not particularly timely (for us as readers) given that Judge Alsup has already ruled on the matter, it is noteworthy with respect to the main thrust of Google’s argument, i.e., challenging Oracle for continuing to ignore the actual Google arguments and trekking off on unrelated and irrelevant matters. No doubt we have seen this behavior before by Oracle counsel, but what reinforces it in this instance is the fact that Judge Alsup recognizes the Oracle behavior himself. Thus, the ruling against Oracle on the Cockburn report.

However, Google goes even further in this brief. Google argues that Cockburn never investigated or understood the real deal on the table between Sun and Google back in 2006. In a supplemental filing Google provides a Sun slide presentation [PDF] on the discussions, and it is fascinating. It would appear from the presentation that Sun wanted the deal with Google badly. It is also clear that the deal on the table would have been Java compatible, thus undercutting the fragmentation argument that Oracle keeps making to support a higher damages claim.

Oracle has other ongoing patent cases based on this new report:

JDA Software powered its way through 2011 to post decent financial numbers despite the legal battles it fought with Oracle over patent infringements and a lawsuit it inherited with the acquisition of i2 in August 2010.

We keep insisting that Oracle may have attacked Android because Steve Jobs is Larry Ellison’s best friend. Oracle, Apple, and Microsoft are all CPTN members, which ties it all together with Novell and its sellout again. We were right all along about those patents. █

A

pple is trying to claim ownership of the appearance of a person, based on this recent article. The hype-selling company also attacks Linux over the false allegation that Android is a copy (even though it predates the iPhone). SJVN insists that Apple does not have a good case against Android:

While Apple has been attacking Android smartphone and tablet vendors in the courts around the world, I don’t see any reason to think, as Whitmore does, that Apple will be able to slam dung their way to victory. Indeed, Apple’s number one smartphone rival, Samsung, expects record profits despite Apple’s lawsuit attacks from Germany to Australia and back again.

We urged people to boycott Apple for this. There are other reasons to boycott this delusional cult, which engages in extortion just like Microsoft and at least gets sued for it:

SPANISH TABLET maker Català Energy and New Technologies (NT-K) has filed a lawsuit against Apple for alleged extortion.

More about Apple’s extortion here:

Tablet maker Nuevas Tecnologías y Energías Catalá, the company behind one of Apple’s rare court defeats, is now taking the fruity tech titan to court for extortion.

Apple alleged that the teeny-tiny company’s tablet, sold in Spain under the NT-K brand, was a forged iPad, and on that basis convinced custom officials to impound shipments of the rival gear coming into Spain. Those shipments ended up sitting in a warehouse for a year, costing NT-K dearly, and now it wants to see Apple hauled up for extortion as well as recovering some damages.

Incidentally, there is a new article about Apple’s bad reception in Beijing:

Apple Beijing store egged in botched iPhone 4S launch

Apple closed its flagship store in Beijing after frustrated fanbois rioted and pelted the windows with eggs when they were told the shop didn’t have the iPhone 4S.

A crowd of 500 people waited outside the Sanlitun Apple store in Beijing yesterday morning for the Chinese launch of the iPhone 4S, and the mood turned ugly when they were told by staff that the shiny shop didn’t have the new mobe and wouldn’t be opening that day.

Many had waited overnight in temperatures that dropped to -9°C. The frustrated Apple fans started hassling security guards and throwing eggs at the windows of the store in the high-end mall before they were cleared off by the police.

According to Reg Hardware Awards 2011 (just released), Apple iPhone 4S is “the most disliked offering in the Mobile category” whereas the winner (“Smartphone of the Year”) if the Linux-based Samsung Galaxy S II. Apple just cannot keep up, can it? It’s no excuse for frivolous litigation. █

–Larry Goldfarb, BayStar, key investor in SCO approached by Microsoft

Summary: MOSAID and Oracle as seen in the context of Android; more new rants about the USPTO, which loses support from the US public

OUR resource page about MOSAID is being expanded as it becomes increasingly evident that Microsoft uses it as a proxy.

Groklaw has been following this patent troll since it took on Red Hat and according to this update, MOSAID’s case becomes ever more bizarre:

If you were a patent holder contemplating suing a bunch of companies for patent infringement, what’s the first thing you would want to know? Do you think maybe it would be that you actually own the patent(s) you are asserting. That thought obviously never crossed MOSAID’s mind when it brought suit back in August against Red Hat, IBM and others. (See Mosaid v. Red Hat – A new patent infringement complaint aimed at Linux).

And if that weren’t bad enough, your attorneys then demonstrate they have no clue that the America Invents Act (patent reform act) was signed into law on September 16, 2011, or that pleading patent infringement requires something more than saying I own a patent and you infringe it. These guys can’t get anything right.

Of course, what makes it all the worse is that MOSAID Technologies is that patent troll that has now climbed into bed with Microsoft and Nokia to try and cause more havoc with Android. There are a number of things I love about Canada – MOSAID is not one of them.

Let’s recap the history of this litigation. MOSAID brought its original complaint (PDF; Text] for patent infringement on August 9, 2011, against Red Hat, IBM, Alcatel-Lucent, Adobe, Juniper, VMWare, and NetApp. That original complaint asserted two U.S. patents: 6,505,241 (’241), allegedly infringed by Adobe, Alcatel, IBM, Juniper, and NetApp; and 5,892,914 (’914), allegedly infringed by Red Hat. Interestingly, although VMware is identified as a defendant in the heading and as a party to the suit, the complaint contains no specific allegation that VMware infringed either of the patents, despite the fact that VMware’s vFabric GemFire Platform is identified as an infringing product. Screw-up number one.

On September 16, 2011, President Obama signs the America Invents Act into law. More on that in a bit.

On September 27, 2011, purported defendants IBM, Juniper, Adobe, Alcatel-Lucent, NetApp, and VMware wrote to MOSAID informing MOSAID of its second big mistake – MOSAID didn’t own the ’241 patent. Oops!

After receiving the Complaint, defendants discovered that MOSAID could not assert the ‘241 patent because more than three years earlier—on June 30, 2008—MOSAID’s predecessor-in-interest, Network Caching Technology, LLC, had dedicated the entire patent to the public pursuant to 35 U.S.C. § 253.

Screw up number two!

For those who are new to it, MOSAID tried to get Nokia patents (with Microsoft’s help) through some dodgy route in a tiny European country. B&N complained about it. It saw what was happening there and the obvious target is Android/Linux.

The patent system is a big sham and the hype we see about patents in the news ought to stop because it kills the real, i.e. producing, industry. Ed Lazowska, writing for Xconomy, is one of the latest to complain about the patent system. He writes:

Just about everything about the system is broken. In my view it is working strongly against real innovation. Major companies amass enormous portfolios of questionable patents that they can use to bludgeon one another (until they sign cross-licensing agreements, at which point only the little guys are left to be bludgeoned). Organizations that are not in the innovation business acquire portfolios that they assert for profit alone. I have absolutely nothing against the licensing of substantive innovations by those in the innovation business, whether by major companies or little guys . But much of what goes on today does not fall into this category, and something needs to change. I am not sufficiently expert to make appropriate detailed proposals, but I am sufficiently expert to smell a rat.

Yes, this man is getting it. Then there are rats like Tuxera, which acts more like a Microsoft proxy (we are still working on it by speaking to XFS copyright holders). There is this new press release about this rat which helps Microsoft put a patent tax on Android and Linux. To quote:

Marvell and Tuxera’s joint solution is designed to reduce overall development cost and enable faster time to market for customers’ NAS platforms..

Only if your aim is to make Microsoft the standard (Microsoft’s file systems). This is one of the ways Microsoft currently extorts backers of Android, according to what we learned from the OIN (ActiveSync is another vector, but it’s under NDAs). Then there is Oracle’s attack on Android, the latest on which is summarised as follows:

A judge’s ruling on the Android Java patent battle between Google and Oracle has given both battling companies some wins and some losses. A potentially embarrassing email by a Google engineer has been allowed in as evidence. On the other hand, Oracle has been limited in its ability to introduce other evidence for its claim that Google has infringed on its Java language patents.

We still believe that the lawsuit may have been motivated by Steve Jobs, who is Larry Ellison’s best friend. Apple will hopefully get spanked in the courtroom for patent violations, to the point where Apple will need to rethink its stance on patents. One of the major lawsuits against Apple is from the dying Kodak, which turned into a patent aggressor in light of its failures:

The 132-year-old photography icon has been pummeled by consumers’ switch to digital. Its fortunes deteriorated further last year, and it said in November that it could run out of cash in a year if it couldn’t sell a trove of 1,100 digital-imaging patents.

Given that Kodak keeps suing Apple, we hope that Kodak keeps those out of the hands of trolls and keeps giving Apple reasons to reconsider its patent strategy. █

Summary: A roundup of news relating to Android/Linux and patent wars against Android backers

THE WAR on Android (and to some extent Linux) is partly hinged on the case from B&N [1, 2, 3], which challenged the Nokia/Microsoft patent game:

In recent legal actions, Barnes and Noble is requesting access to the contracts/principals of the Nokia-M$ relationship through the ITC. Nokia has protested vigorously indicating they really want to keep matters hidden. Apparently Barnes and Noble feel M$ and Nokia are abusing their patents to stifle competiton…

Here is the main report about this, courtesy of Groklaw:

Nokia is throwing quite a fit about the ITC approving Barnes & Noble’s request that the ITC send a Letter of Request to Finland to ask the country to aid Barnes & Noble to depose five Nokia executives, including CEO Stephen Elop, and provide Barnes & Noble its list of requested Nokia documents.

Barnes & Noble, you may recall, is asserting that Microsoft, partnering with Nokia and MOSAID, is plotting “to use patents to drive open source software out of the market,” saying it is threatening companies using Android with an anticompetitive choice: pay Microsoft exorbitant rates for patents — trivial, invalid, or not infringed, according to Nokia — or spend a fortune on litigation. It wants discovery to try to prove its claims.

Here’s how Nokia took the news. In its Motion to Quash [PDF], Nokia tells the ITC that it immediately contacted Finland and filed objections, and it also contacted the Office of Unfair Import Investigations at the ITC to try to block. And now it asks the ITC to quash the Letter, or in the alternative wait to see what Finland does.

And in a second development, the ITC has denied Microsoft’s November motion to force Google to hand over business information about Android, which Google opposed, the Commission saying the requests were unreasonable and not relevant. There was also a second Microsoft motion to depose Google, and the same order grants that motion, which Google had agreed to anyhow. All this means the schedule of discovery in the case has changed, but so far, the hearing is scheduled to be in February. Considering the way Nokia is fighting to quash discovery, threatening an interlocutory appeal if necessary, I’m guessing that date is not going to be the actual date.

Plucky Barnes & Noble is fighting for itself, but this ITC case has the potential to effect the entire Android ecosystem. Barnes & Noble is shining a light on what it views as an anticompetitive plot, with patents just the latest Microsoft weapons of war, probably hoping that if the light is shining right on them, the plotters will be unable to fulfill their unholy scheme. Don’t forget that Barnes & Noble has also filed a complaint with the US Department of Justice’s Antitrust Division, so it isn’t just us chickens who are now watching this play out. That may explain Nokia’s determination to avoid discovery. I mean, if there’s no such plot, why fight this hard to avoid handing over the contracts?

Nokia has been hijacked. In many ways, Microsoft has already bought it and one new report notes: “After all, some analysts are pushing Microsoft to buy Nokia on the basis that, in the open source-led mobile world, OS licensing fees alone are no longer a viable model without accompanying hardware. Even Google, which achieves huge service revenues via control of Android, is tempted by the hardware/software model with its Motorola buy and Nexus launches. Becoming a software/IP firm may prove to be RIM’s only option in future, but it will be a strategy of last resort, and gaining critical mass for a new platform which has suffered from teething troubles even before its launch will be tough, and not a battle on which Samsung is likely to expend much energy.”

“According to a senior person at Nokia, the Microsoft-Nokia deal was a takeover, but just like in Novell’s case, Microsoft prefers to use the hijacked company as a proxy; it helps keep the regulators away.”According to a senior person at Nokia, the Microsoft-Nokia deal was a takeover, but just like in Novell’s case, Microsoft prefers to use the hijacked company as a proxy; it helps keep the regulators away. Romours that Microsoft will buy Nokia’s smartphone division are being disputed and the matter was mentioned in the latest episode of TechBytes, albeit very briefly.

Microsoft is using patents anti-competitively and it very recently settled a case. For background: “Datel originally took Microsoft to court in November 2009 after claiming a 360 dashboard update blocked its accessories from working. Among the things that were blocked was Datel’s Max Memory cards.

“Datel claimed that Vole was playing monopoly and using its powers to cut out competition.”

As always.

Microsoft keeps collecting patents [1, 2] and goodwill-washing some patent monopolies too. Bloomberg plays along with this patents frenzy and a lawyers’ site glorifies “IP” litigation as though lawsuits should be commended:

McKool Smith namepartner Mike McKool had just scored a $290 million jury verdict in a patent case his firm had taken on contingency. But because the losing party was Microsoft Corporation, McKool wasn’t celebrating just yet. The software giant is known for getting substantial damage awards in patent disputes slashed on appeal. Which is why, in May 2009, McKool urged his client in the case, Canadian software developer Infrastructures for Information, Inc. (i4i), to bring in the man McKool calls “the best”: Finnegan, Henderson, Farabow, Garrett & Dunner name partner Donald Dunner.

We covered this case here many times before.

Moving on to Apple, the company is said to have little incentive to drop its lawsuits against Android backers:

Ever wonder why Apple doesn’t seem keen on settling the Android patent lawsuits it’s involved in? It’s because there’s more money in winning.

On Monday, Deutsche Bank’s Chris Whitmore sent a note out to clients outlining the four possible outcomes for Apple in its various battles with Android device makers worldwide.

IBM seems to be helping Google defend Android and John Dvorak alleges that there might be legal action coming:

quick look at the description of the patents tells me that these are not just a bunch of defensive plays, but a few offensive ones that might allow Google to begin to sue Apple and Microsoft, since that seems to be the game everyone is playing.

We are aware of a brewing patent battle from Android backers against Microsoft and Apple. The madness of the patent system is further illustrated by a story in Murdoch’s paper while new patents on software [1, 2] are boasted about in press releases as though these are products.

Our focus in this cause will be to stop Apple’s, Microsoft’s, and their proxies’ patent lawsuits against Android. One shortcut route is to strike the problem at the root — the USPTO. In the coming week we’ll concentrate some more on patents. █

Summary: Apple gets unwanted attention for putting back doors in its software in order for authorities to intrude; more antitrust lawsuits (class action) brought against Apple

APPLE received a lot of flack (hot fire even) in recent day after it turned out that it had set up a backdoor for governments, validating many suspicions that we wrote about before. To quote Slashdot:

“In a tweet early this morning, cybersecurity researcher Christopher Soghoian pointed to an internal memo of India’s Military Intelligence that has been liberated by hackers and posted on the Net. The memo suggests that, “in exchange for the Indian market presence” mobile device manufacturers, including RIM, Nokia, and Apple (collectively defined in the document as “RINOA”) have agreed to provide backdoor access on their devices. The Indian government then “utilized backdoors provided by RINOA” to intercept internal emails of the U.S.-China Economic and Security Review Commission, a U.S. government body with a mandate to monitor, investigate and report to Congress on ‘the national security implications of the bilateral trade and economic relationship’ between the U.S. and China. Manan Kakkar, an Indian blogger for ZDNet, has also picked up the story and writes that it may be the fruits of an earlier hack of Symantec. If Apple is providing governments with a backdoor to iOS, can we assume that they have also done so with Mac OS X?”

This is an important development because with documents in our hands it will no longer be possible for Apple to duck serious allegations. Apple has more bad publicity coming as another antitrust class action is brought against it:

Four American iPhone users have launched a class action suit against Apple over its exclusive deals with carriers in the country and the way it runs the App Store.

Apple partnered with US carrier AT&T when it first brought the Jesus-mobe to stores in 2007, in a five-year exclusivity agreement that tied users to an AT&T SIM card with no option to use another network.

AT&T conspired with the government to spy, oppress and censor too. We wrote about this in previous years [1, 2, 3]. So AT&T and Apple have more in common than the common man (or woman) may realise. █

Summary: A roundup of patent news about Android/Linux and some of the latest events that relate to it

THE decline of Windows Mobile and all of its other identities (Microsoft keeps Sevenwashing it) has been so rapid that Windows is now a 1% player in a market that keeps growing and growing.

“Windows Phone reaps what it sows” says one journalist who explains it as follows:

Misunderstood, mocked by its competitors, blocked from the market, and little used by the average user.

Ten years ago, this would have been a harsh but fair description of Linux. Today, however, it’s seems perfectly apt to use these labels to describe a completely different bit of technology: the Windows Phone operating system.

Even Nokia cannot save Windows (on mobile phones), so all that Microsoft can do now is become a leech through patents, e.g. via MOSAID and its patent extortion operations (notably Android “licensing”). In this age of many lawsuits that we find in the news all the time we realise that this problem is systemic too. After all, Apple too uses a similar strategy.

Looking at the USPTO for a moment, Matt Asay notes that:

2011: new record in patent grants, tied to Obama’s PTO chief not increased filings zite.to/y1nABx <Cue Talking Heads “Road to Nowhere”

Glyn Moody’s remark on the same report is sarcastic:

because what the world needs is lots more intellectual monopolies

James Love (of KEI) says:

During patent reform legislation, WH claimed low quality patents are problems. But USPTO just issued a record number.

The FFII asks James: “How do they measure patent quality in the US?”

Here is the report they all link to. It’s from a pro-patents circle, known to many as Patently-O (Dennis D. Crouch), and it says:

The USPTO issued more utility patents in calendar year 2011 than in any year in history. The 2011 total – just shy of 225,000 issued patents – is only a small increase over 2010, but towers above all other historic figures. The previous record was set in 2006 with about 173,000 issued utility patents. The dramatic rise in issuance rate is not tied directly to an increase in filings (although there has been a small increase in new application filings). Rather, the two-year increase appears to be the result of regime changes instituted by USPTO Director David Kappos who took office mid-year 2009 after being nominated by President Barack Obama.

the USPTO is a bubble and a sham. The sooner people realise this, the sooner it will be toppled. It serves a conspiracy of monopolies, parasites, and patent lawyers who drive up the price of everything and deny the entry of new competition into the market.

When in the news we see searching as a patent and even business methods as a monopoly we cannot help feeling that one productive response would be to expose the system, not just pertinent companies that exploit it to the extremes and harm Free software more than anything else. The USPTO is very dangerous at all levels because there are lobbyists who use the “USPTO model” to expand this same model to other countries. This include the UK-IPO that we have here in England. As one person puts it, “All in the American mind? US and UK take different approaches to assessing mental act exclusions”; if the unitary patent is passed through, the US may have the whole EU (EPO) assimilate to the USPTO. Already, some software patents are being approved in the UK. This is a new example from the news:

Image processing software not excluded from patentability, IPO rules

An IPO examiner had previously ruled that the invention was excluded from patentability on the grounds that the invention consisted solely of a computer program. Hewlett Packard, the company trying to patent the invention, appealed against the examiner’s ruling and the hearing officer has now upheld that appeal on the basis that the invention uses mathematical techniques that are sufficiently technical in nature to avoid being excluded from patentability.

Under the UK’s Patents Act inventions must be new, take an inventive step that is not obvious and be useful to industry in order to qualify for patent protection. An invention cannot be patented, according to the Act, if it is “a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer … as such”.

Henrion from the FFII writes that:

The problem with the patent system at the moment is that it’s being applied to intangibles: software and user interfaces­

Here is one new example of it:

Lakeside Software, a leader in business intelligence solutions for IT professionals, today announced that the company has expanded its patent portfolio with the granting of a patent for the management of data across multiple computer systems.

Data too has patents on it now? How far will this go? And how abstract a computation is going to be deemed patentable? Oracle pushed copyrights and patents to the edge when it suggested that APIs too can be patented, which they probably can in the US.

We already know that the age of bankruptcy is an age of patent wars and Sun’s sale to Oracle had its “defensive” parents turn into hostile. Novell’s patents were sold to Microsoft and Apple, too (both companies are FOSS-hostile and litigate against Linux/Android). Here is the new story of another company that ran to the courtroom amid its demise: “The newspaper quoted unidentified people as saing Kodak could seek protection in the next few weeks if an effort to sell a collection of digital-imaging patents falls through.

“Kodak has sold patents valued at millions of dollars over the last several years in a bid to shore up its ailing finances.”

It’s actually a strong case against patents because companies become just a pile of orphaned patents (Novell included), and in turn this fuels wars, not sparking any innovation at all. Disregard the pro-patents propaganda from lawyers’ Web sites and instead watch why they like patents (starting 2012 with patent lawsuits). As one columnist in IDG put it:

When Netscape went public in the fall of 1995, few of us understood that we were entering an era of constant and accelerating change. Since then, 16 years of Moore’s Law has given us powerful and cheap hardware. The open-source software movement has made software that’s worth millions of dollars freely available to anyone who can click a mouse. As one can see, reducing these natural barriers to entry has made it easier to start a Web services business. These same trends have had an interesting effect on intellectual property strategy.

[...]

Open hostility toward patents from the open-source community and 10 years of judicial infighting over the patentability of “business methods” and other Web 2.0 technologies didn’t help matters. Many Web 2.0 companies underinvested in patents, when they should have increased their efforts to secure legal barriers to entry to offset the reduction in natural barriers to entry.

Actually, patents do not work for small players. That’s just the lie sold to us by the 1% (or less) who benefit from patents. Here is some more London-based propaganda dressed up as a press release:

The Decision Model is revolutionising Enterprise Decision Management by modeling the business logic (rules) behind key operational and strategic business decisions (http://www.azinta.com/Services/the-decision-model-solutions.html). The recent award of a US patent for The Decision Model to Knowledge Partners International (KPI) triggered an intense debate resulting in some commentators claiming that The Decision Model patent is an IP trap. Suleiman Shehu, the CEO of Azinta Systems – a KPI Consulting Partner, analyses the reasons for this debate and presents the evidence why The Decision Model patent is not an IP trap.

Decision-making as a patent. How about that, ladies and gents?

Moving back to the impact on FOSS, although Apple gets sued for patent violations, the company persists with its support for that same rotten system. “Last week,” says one article, “Apple applied to the US patent office to register facial recognition software…”

This affects me personally and professionally, too. “So instead of sliding to unlock the iPhone, iPad, or iPod Touch, one could simply point it at one’s face,” notes this article, among others that we mentioned in December. The point they are missing is that Apple gets a monopoly here. It is not good for anyone. Microsoft’s identity change to “patent aggressor” is on route as well [1, 2] (software patents). They are goodwill-washing it through gullible Web sites. With phrases like “patent helps”, there is clearly not a realistic expectation. And in the face of infographic propaganda from taxmen of technology (lawyers) we fortunately see some infographic sanity and we are able to see to what degree Android is the victim here (victim of Microsoft, Apple, and some of their allies). Google does not get patents anymore; in fact, “Google stopped submitting patents to the USPTO” because it’s pointless. To quote: “Software patent wars have always existed: companies fought them (or paid up), sometimes quietly, sometimes making a big fuss. However, something has changed over the last year or so: people started getting directly affected by software patents (ask anybody wanting a Samsung Galaxy Tab in Australia for Christmas 2011…). Lately, two things came to my attention: Google acquired 200 patents from IBM. But, more interestingly: Google hasn’t filed any patents over the last several months.”

Google does not apply for patents; it buys/gets them instead, usually from IBM [1, 2, 3, 4] under secret terms. An article for background can be found here:

Last year, IBM sold Google 2,000 or so patents ranging from mobile software to computer hardware and processors.

As other reports put it:

Google’s quest to build a strong patent portfolio continues with IBM assigning a further 222 patents to the search and advertising company. Details of the transaction have not been disclosed by either party, but the USPTO database shows the patents being transferred on 30 December 2011. This is not the first time Google has acquired IBM patents; over one thousand IBM patents were transferred to Google in both July and September 2011.

Some say that IBM is trying to defend Linux/Android in this case. “A trial date has been set in Oracle v. Google, or more accurately, an earliest trial date has been set,” writes Mark Webbink, who remarks on this bit of news:

SAN FRANCISCO (Dow Jones)–Google Inc. (GOOG) and Oracle Corp. (ORCL) have been scheduled to go to trial over an intellectual-property dispute related to Google’s mobile phone software in March, a development that could start to draw the lengthy spat between technology giants to a close.

There is a theory that Google’s new patents from IBM are capable of helping in this case (IBM is an Oracle competitor), but as the FFII points out, “Arms trading is a sustainable business but still mere economic efficiency waste.”

We shall assume that IBM’s interests in this case are in alignment with Linux interests. As we explained some days ago, there is apparently also an Android lawsuit (if not several) brewing against Microsoft and Apple. It’s getting rather interesting. █

Summary: Apple alienates Apple fans, gets sued in the process

Apple is being accused of starving French reseller of hot stock, according to The Register. There is even a lawsuit as the “iPhone maker hauled into court over throttled supplies… Apple squeezed supplies to a top reseller and used its own retail stores to gain an unfair competitive advantage, claims a French shop chain that is taking Apple to court in Paris.”

To quote further, “eBizcuss, the largest reseller in France, said that Apple favoured its own stores over theirs when it shipped out new and hotly demanded trendy tech gear.

“A throttling of Apple deliveries, particularly reduced shipments of the iPad 2 and Macbook Air, cost the store a 30 per cent fall in revenue in quarter three this year, eBizcuss CEO Francois Prudent told Le Figaro (English report). Apple’s own retail outlets continued to receive stock. More recently the reseller, which has 16 locations across France, was unable to get any stock of the iPhone 4S.

“This was despite eBizcuss spending $6.5 million bringing its point-of-sale system up to the standard that Apple requested. Apple was also unfairly undercutting their distribution partners on price, alleges Prudent, with Apple offering corporate customers prices lower than they were giving to the reseller shops.” (source)

“As one commenter put it,” says Homer, “they shouldn’t get into bed with a company like Apple then expect not to get shafted. They also shouldn’t put so many of their eggs in one basket, such that when they do get shafted, they don’t have anything to fall back on. A quick look at their Website (iclg.com), suggests they’re pretty much an Apple closed-shop. Idiots. Maybe if they tried something else, like say that line of smartphones that has greater than 50% of the market (what’s it called again?) they wouldn’t have been shafted and/or could’ve told Apple to go screw itself.

“The CEO was probably a dazed Apple fanboy. I bet he isn’t now though.”

In other news, Apple is being sued by users too:

Apple Sued By Users In America

Apple is facing legal trouble at the home turf. Apple users are saying that the company hid the fact that they will be locked into AT&T service and will be blocked access to third-party application downloads.

According to Courthouse News Service, “The four lead plaintiffs say they bought iPhones when they were first released in 2007, but they did not know that Apple had a secret five-year exclusivity agreement with AT&T that would prevent them from switching carriers.”

Maybe they should turn to Android/Linux. █

Summary: News about patents with emphasis on the duopoly’s fight against Android/Linux

THE disdain for patents is growing much greater partly owing to the cases against Linux/Android.

To start with the good news, Oracle’s setback is now in the press, not just FOSS/technology sites. To quote:

Oracle’s Patent Claims Against Google Get Rejected

The U.S. Patent and Trademark Office rejected several patent claims being brought against Google by Oracle last week. Oracle (NASDAQ:ORCL) sued Google (NASDAQ:GOOG) last year claiming that Google owed it $6 billion for parts of Java software that were used in the Android operating system. Oracle initially claimed 132 infringements against seven total patents, but upon the judge’s request, the company has whittled down the list to just 50 complaints.

Here is the bigger piece of good news that we found today. Microsoft and Apple might soon be sued by Android makers to deter against those lawsuits that the duopoly launched:

According to Digitimes “A number of handset makers in China, including Lenovo, ZTE, TCL, Coolpad and Konka, has formed an alliance in preparation to counter possible patent infringement lawsuits to bring upon by international players, according to industry sources in Taiwan.”

It’s time for Android manufacturers to come together and create an alliance to fight Microsoft and Apple’s patents attack. If an alliance is formed it will bring an end to the new strategy of Apple and Microsoft — “why innovate when you can litigate.”

Here is another good new article:

Don’t mess with these tech giants or they’ll drag you to court! Apple and Microsoft have made it clear they will not tolerate any infringing of their patents. Both software companies have been awarded legal victories in separate court cases involving violation of their respected patents. Interestingly, both suits indirectly targeted the search engine giant Google.

Over at Wired, 2011 is proclaimed to have been a bad year:

2011: The Year Intellectual Property Trumped Civil Liberties

Online civil liberties groups were thrilled in May when Sen. Patrick Leahy (D-Vermont), the head of the powerful Judiciary Committee, announced legislation requiring the government, for the first time, to get a probable-cause warrant to obtain Americans’ e-mail and other content stored in the cloud.

But, despite the backing of a coalition of powerful tech companies, the bill to amend the Electronic Communications Privacy Act was dead on arrival, never even getting a hearing before the committee Leahy heads.

In contrast, another proposal sailed through Leahy’s committee, less than two weeks after Leahy and others floated it at about the same time as his ECPA reform measure. That bill, known as the Protect IP Act, was anti-piracy legislation long sought by Hollywood that dramatically increased the government’s legal power to disrupt and shutter websites “dedicated to infringing activities.”

Apple is meaning accumulating more patents [1, 2, 3] on features that were implemented before by others while in the Indian press we learn that the patent question returns:

Erosion of privacy and personal freedom on online media drew worried mention at the just-concluded Fourth International FOSS (free and open source software) Conference-Kerala here (FOSSK4).

The declaration adopted at the end of the three-day conference called for appropriate legal measures to address increasing instances of this menace.

It also asserted the importance of FOSS in stimulating individual, collective and social creativity in a variety of domains ranging from culture, and the arts to music and digital content.

It voted with its feet for rejection of software patents as these tended to stifle innovation in software.

We wrote a lot about software patents in India quite a lot a few years ago when the issue was debated at a legislative arena.

The Irish press notes that patent lawsuits are “back in fashion”:

LITIGATION IS nothing new as a business tool – even the ancient Greeks had laws protecting trademarks.

But by any measurement, 2011 was an extraordinary year in terms of technology companies resorting to legal fisticuffs, particularly within one narrow sector: smartphones and tablet computers such as the iPad and Samsung Galaxy (which run on similar operating systems).

As in any brawl, usually just a few pugnacious characters start it. In this case, it has been Apple and Google aiming punches in disputes about patents involving Apple’s iPhone and iPad software, and Google’s open source Android operating system, which has found a home in an ever increasing range of mobile handsets and tablets in a market that Apple long dominated.

The British press says that Apple’s strategy against Linux/Android is not successful:

Jobs’ ‘nuclear war’ is not doing Apple any good – analyst

Apple’s patent wars will start to hurt shareholders if Apple continues to pursue its lawsuits against Samsung, HTC and Motorola, an analyst has said.

Kevin Rivette, a managing partner at 3LP Advisors LLC, told Bloomberg that even if Apple won its patent battles, it was playing a losing game. Legal fees aside, the “thermonuclear war” that Jobs launched against the Android manufacturers in a fit of rage circa 2009 isn’t stamping out Cupertino’s competition but the hostility engendered could stop Apple from getting access to new technology it needs.

Here at Techrights we made a call to boycott Apple until it stops suing like mad. We got some press for it, such as this:

Anti-patent group Techrights has called for a boycott of Apple products with the aim to get the fruity firm to drop its legal attack against both Linux and Android.

The organisation says that “The cult of Mr. Jobs loves to pretend that it invented the smartphones, CrunchPad-like tablets, and all things shiny.” This would be ok in some ways, but Apple of course has to act on these feelings, leading to attempts to not only sue organisations it sees as infringing, but to embargo as well.

The original post suggesting that Techrights boycott Apple products for the forseeable future, went on to say that this was an incredibly ballsy strategy for a company that “built itself on knockoffs.”

There was also coverage in other languages. SJVN writes about this status quo where competition becomes more about lawsuits and less about production. The corporate press carries on with “IP” propaganda and puts the issue among the top ten for last year.

A summary of 2011 controversies has this one listed:

Back in 2007, Microsoft first alleged that open source software infringes on at least 235 Microsoft patents. That allegation led to multiple companies including Novell (and now SUSE) signing patent deals with Microsoft.

In 2011, Microsoft’s patent focus seemed to sharpen on Android. Except for Motorola, Microsoft now has every major Android phone vendor in some kind of deal over intellectual property.

No, Microsoft did not pursue a ‘SCOsource’ type license going after individual Linux users or even distros. Microsoft has chased the money and gone after big consumer electronics vendors.Their ‘SCOsource’ is all about the big Android vendors.

In response to more Android FUD, Muktware writes:

I was not surprise when I saw a Forbes headline “Android: The Consequence Of Open” because Forbes is a known anti-Linux outfit. They were the ones who gave Microsoft the platform to spread the FUD that Linux infringes upon their patents which was blown away in a long article. I was not surprised when I found that Forbes story was based on a TechCrunch story written by an Apple fanboy called MG Seigler who writes made up anti-Android blogs when there is nothing good to write about Apple. Ironically both Todd and MG are contradicting themselves in a desperate attempt to attack Android.

There is a followup where Apple fans are blamed as well:

MG Siegler, the Apple columnist for TechCrunch, takes a pot shot on Android and Google when there is nothing good to cover about Apple. He tried to give Google a finger by posted a profile image with universally offensive finger. When Google gave him a finger by ‘allegedly’ removing the image, he went on war with Google. That was not enough, he supposedly started digging through tweets to find something to get some attention and found that one of the most popular tweets of Andy Rubin was missing. He created a hill out of a mole by writing a blog called “The Definition Of Open Is…Missing”.

[...]

This according to MG is against ‘open source’. Let me enlighten MG with the basic definition of open source. The primary definition of open source (I don’t know what MG mean by open!) is that a user must have access to the source and right to modify and redistribute it. How does deleting a tweet violates open-ness?

Anyway, since MG is clueless about how open source works let me tell you why Andy deleted the tweet. Because it was wrong. The command that Andy posted doesn’t work anymore. Since you can’t edit tweets the way you can edit your Google + post, the only sensible option was to delete it. A deleted tweet is far better than a wrong tweet.

Bilal Akhtar, one of the famous Ubuntu developers, commented on MG’s post, “Getting down to facts, +MG Siegler, Rubin deleted the tweet because that method doesn’t work any more. The commands are wrong, now that the Android source code isn’t hosted on git.kernel.org, but instead on android.googlesource.com.”

Over at the Bay area’s press, Apple’s strategy against Android is questioned:

Steve Jobs told his biographer that Apple would rather wage “thermonuclear war” with Google Inc. than make deals to share its technology with the maker of the Android operating system.

That was no empty threat. In the 18 months before Jobs died on Oct. 5, Apple sued HTC, Samsung Electronics and Motorola Mobility, the three largest Android users. It alleged that the phone makers stole Apple’s technology and asked courts to make them stop.

Apple is further criticised for more ridiculous patents:

Apple patent on “interface supporting application switching” = more evil monopoly

Matt Yglesias link here picks up a story on patents from Steve Landsburg link here.

The patent covers a “portable electronic device with graphical user interface supporting application switching”. The effect of the patent seems to preclude any other smartphone maker from doing the same thing.

The above is merely an accumulation of new articles. Soon enough we shall properly write articles on these issues. It’s likely to be our point of focus in 2012. █

Summary: Bad Apple is doing bad things in HADOPI land using blackmail (allegedly claiming it “it would pull its business out of France” unless its demands were met)

According to the following Cablegate cable, Apple uses a baclkmail tactics (threatening withdrawal) to affect — for the worse of course — copyright law in France. Quoting the relevant parts: “In press statements, Apple said that the French copyright law amounted to “state-sponsored piracy” and that it would pull its business out of France. This declaration had an unfortunate impact. It heartened claims by free-software advocates and politicians who said that the opening up of DRM would benefit makers of DRM systems by enabling them to prosecute competitors as facilitating piracy. U.S. Secretary of Commerce Carlos Gutierrez’s press comments saying that while he needed to take a look at the legislation, he supported protecting intellectual property rights were widely interpreted to be supportive of Apple, and French pro-interoperability groups reacted disapprovingly. The Odebi League, a citizen’s action group defending the rights of Internet users, told Apple to “mind its business and not meddle into the French legislative process” and pointed out that “if Apple wishes to do business in France, it has to respect the rights that the French enjoy.” Some senators said they regretted that Apple did not appeal to them directly and interpreted it as a lack of interest.”

Shame on Apple.

Here is the Cablegate in ite entirety:

UNCLAS SECTION 01 OF 03 PARIS 003153 

SIPDIS 

SENSITIVE 

DEPT FOR E, EB, EB/IPE, EUR/WE
DEPT PLS PASS USTR FOR JSANFORD/VESPINEL/RMEYERS
COMMERCE FOR SJACOBS, SWILSON
DOJ FOR CHARROP, FMARSHALL, RHESSE
COMMERCE PLEASE PASS USPTO 

E.O. 12958: N/A
TAGS: KIPR ETRD PGOV FR
SUBJECT:  FRANCE'S DIGITAL COPYRIGHT BILL: SENATE VOTES TO SOFTEN
INTEROPERABILITY BUT LOW PENALTIES REMAIN UNCHANGED 

REF. PARIS 01847 

¶1. This is an action request. See paragraph 13 

¶2. (SBU)  SUMMARY.  The French Senate approved in the early hours of
May 11 the GOF draft law on digital copyright, in a format which
leaves unchanged the National Assembly's decriminalized penalty
regime, the principle (if not the requirement) of interoperability,
and the so-called "Vivendi Universal Amendment" criminalizing
peer-to-peer software publishing.  The draft law adopted by the
Senate largely takes the sting out of interoperability by laying out
general guidelines -- which no longer require Digital Rights
Management (DRM) vendors to divulge industrial secrets to their
competitors -- and creating a new independent authority to decide on
the scope of interoperability and the "right to the exception for
private copy." The newly adopted text, known as the Law on Author's
Rights and Related Rights in the Information Society, generally
abbreviated as DADVSI in French is a step that would bring France in
line with the 2001 EU Digital Copyright Directive.Over the next
month, the text will likely go to a reconciliation conference at the
end of the month, and be signed into law before the summer. END
SUMMARY. 

Senate Approval And Next Steps
------------------------------
¶3.  (SBU) The DADVSI draft law was adopted by the French upper house
on May 11, with 164 votes in favor, 128 against, and 37 abstentions.
 All the votes in favor came from representatives of the right of
center government UMP party.  The text will now go before a joint
committee of both houses of the French Parliament to be reconciled,
and for final approval under the current Government "fast-track"
emergency procedure, which requires only one reading by both houses.
 Upon completion of the legislative procedure, the draft bill will
be submitted to President Jacques Chirac for signature some time
before the summer.  France, which had tabled implementing
legislation in November 2003, is the last country, with Spain, to
transpose the EU Copyright Directive. 

Exceptions to Exclusive Copyrights:
----------------------------------
¶4.  (SBU) Exceptions to exclusive copyrights, for public libraries
and archives, will now have to fulfil the "three-step test," i.e.
that they be confined to special cases, not conflict with a normal
exploitation of the work, and not unreasonably prejudice the
legitimate interests of the right holder.   Education and research
have been added to the restrictive lists of exceptions in the
Senate, following the threat of a campaign of civil disobedience "in
any way they deemed useful and relevant" by over 2000 members of the
French scientific community. 

¶5.  (SBU) The more traditonal exception for private copy, an
essential feature of French "droit d'auteur," which allows French
residents to freely make copies of works (except software) for their
private use (and that of their family and friends) has also been
refreshed. The number of copies allowed as part of that exception
will now be decided by a new high regulatory authority, in charge of
outlining the contours of the private copy exception as well as the
new interoperability principle.  The new authority will also work
hand-in-hand with the already existing Copyright Commission, which
sets the rates and conditions for the "tax on private copy" meant to
address the losses incurred by copyright holders. This tax is levied
on blank media (audio and video cassettes, CD, DVD, as well as
memory and hard drives in portable media players).  While most of
this tax goes to rightholders, a quarter of it, representing some 40
million euros a year (USD 50 million), is used to finance cultural
events and festivals throughout France. 

Penalties Remain Unchanged
--------------------------
¶6.  (SBU)  The system of "gradual sanctions", i.e. decriminalized
fines, has been confirmed by the Senate as "fair and balanced" --
despite efforts by one Senator and former Minister of Trade and
Industry, Gerard Longuet, to switch from what he described as
"organized indifference" to stiffer sentences.  Culture Minister
Donnedieu de Vabres reiterated on this occasion that the purpose of
the bill was not to go after offenders but to ensure the protection
of works.  As a result, non-commercial downloads are subject to the
lowest fine in France's Penal Code (38 euros), the equivalent of a
traffic ticket,  instead of the original three years' imprisonment
and 300,000 euro fine proposed earlier by the GOF.  These heavy
penalities in the first GOF draft bill created a major outburst in
the National Assembly, eventually leading to the adoption of the
radical "global licence."  In the words of one Socialist and
technologically savvy member of the National Assembly, it would be
wrong "to describe the eight million people who have downloaded
music from the Internet as delinquents."  On May 11, the Culture
Minister announced that an "index" of all protected works would be
set up to enforce the three goals of the bill: respect of copyright,
private copy and interoperability. 

Softening Interoperability
--------------------------
¶7.  (SBU)  The Senate has proposed largely weakening the National
Assembly's radical ideas on the DRM technology.  Two amendments in
the National Assembly's version had stated that providers of DRM
systems should provide the necessary technical documentation to ANY
party needing it to ensure that interoperability, including the
source code.  This was interpreted as a direct attack on Apple's
iTunes platform and their iPod players. 

¶8. (SBU)  In press statements, Apple said that the French copyright
law amounted to "state-sponsored piracy" and that it would pull its
business out of France. This declaration had an unfortunate impact.
It heartened claims by free-software advocates and politicians who
said that the opening up of DRM would benefit makers of DRM systems
by enabling them to prosecute competitors as facilitating piracy.
U.S. Secretary of Commerce Carlos Gutierrez's press comments saying
that while he needed to take a look at the legislation, he supported
protecting intellectual property rights were widely interpreted to
be supportive of Apple, and French pro-interoperability groups
reacted disapprovingly.  The Odebi League, a citizen's action group
defending the rights of Internet users, told Apple to "mind its
business and not meddle into the French legislative process" and
pointed out that "if Apple wishes to do business in France, it has
to respect the rights that the French enjoy."  Some senators said
they regretted that Apple did not appeal to them directly and
interpreted it as a lack of interest. 

Creating A New Regulatory Authority
-----------------------------------
¶9.  (SBU)  The Senate bill proposes a new regulatory authority to
examine the question of private copies and interoperability.   This
new seven-member High Authority, modelled along the lines of
France's independent regulatory bodies in the electricity and gas
sectors (CREG), and in the telecoms and electronic commerce sector
(ARCEP), replaces the much-decried "college of mediators" initiated
by the National Assembly.  Its responsibilities, much like its
guidelines, have been left as open as possible to allow for the fast
pace of technological change.  At the same time,  prodded by
embattled Culture Minister Donnedieu de Vabre and Villepin
administration, the Senate Cultural Affairs Committee developed a
text designed to meet as little opposition as possible from the
National Assembly once in the joint committee for conciliation.
These considerations explain the current text's willingness to pass
the difficult decisions on to the new authority. 

Previous Support For Interoperability and Copying
--------------------------------------------- ----
¶10. (SBU)  Public discussion of DRM and its effect on the private
copy exception have been particularly vivid in France.  French
consumer associations initiated and often won court cases where DRM
restricted private copying -- a sacrosanct exception under French
copyright law.
Over the past three years, French consumer organizations have
initiated a number of court cases dealing with complaints of
consumers about CDs and DVDs that could not be copied and ripped
because of technical protection measures in place. In dealing with
the cases, French courts had developed the argument that the ability
to play a CD or a DVD on different devices constituted an essential
characteristic of a CD or DVD, and that producers of such devices
could be held liable for misleading the consumer in case of
incompatibilities.  This first step towards establishing the right
to interoperability was confirmed earlier this year, when a Paris
Court of Appeals concluded that DRMs must respect the private copy
exception. 

NEXT STEPS
---------- 

¶11. (SBU) Next steps include the drafting of implementing
regulations, which would also give the GOF (and stakeholders) an
opportunity to tweak the legislation, particularly regarding
penalties and sentencing.  This is expected to take place over the
summer.  The GOF will draft and implement these by decree. Other
possibilities for modification, according to lawyers, include a
constitutional challenge, which could come on any number of
articles. We understand that the Commission will eventually examine
all the EU member-states' transpositions of the directive at some
point over the next year.  Finally, the GOF notes that the law has a
"review clause" of 18 months, requiring the government to provide
the Parliament with an evaluation of its efficacy.
COMMENT AND ACTION REQUEST
--------------------------
¶12.  (SBU).  France is one of the last countries to fulfil its
obligation to transpose this 2002 EU Directive.  In making only a
minimal effort, many Senators seemed to be acknowledging how quickly
technology had moved since then 2002, and during the debates, French
Parliamentarians underscored the irony of a belated implementation
of a directive which the EU Commission is reportedly already in the
process of re-examining.   In our conversations over the last weeks
where we raised our serious concerns over the quality and direction
of this controversial bill, French government officials and
observers had sought to reassure us and other stakeholders. We were
told (see reftels) that the Senate version would address many if not
most of industry's concerns. Senate legislative staff was thought
more pro-business, more technologically savvy, and less ideological.
Industry observers, many of whom where involved in a low-profile but
intense effort to reshape the bill with key amendments were
optimistic as well. Working with French industry allies, they
proposed close to 300 amendments. However, with the President and
Prime Minister under political siege, the government and the
majority party were in a hurry to get this complicated and
troublesome bill off their to-do list. By placing the bill on a
legislative fast-track, the government could be assured that the
conciliation conference would be over quickly. This political
pressure resulted in some improvements, such as interoperability,
where industry analysts are somewhat relieved at the results, but a
number of crucial elements remain unchanged, notably the lack of
deterrent penalties. 

¶13. (SBU) COMMENT AND ACTION REQUEST.  The next six months will
provide some limited opportunities to fine-tune the bill, notably in
the drafting of implementing regulations, which the GOF can issue by
decree.  Other options would be to raise examination of the
legislation in light of other EU member state transpositions as well
as WIPO and TRIPS commitments.  Post would appreciate Washington's
cleared interagency guidance, including any legal analysis regarding
the legislation's impact.   End Comment. 

Stapleton

If there was threat that Apple “would pull its business out of France,” let them. Better yet, boycott the company in France. █

Summary: The attacks on Android fuel a debate about the role of patents and also suggest that the USPTO fails to fulfil its role

THE US patent system has become the centre of attention for many who are looking to remove FOSS barriers. This system is increasingly perceived as undesirable by the American (as in US) public and we need to constantly show this to spread these realisations.

Google was recently granted a patent on driving, as we mentioned the other day. Here is what Against Monopoly has to say about it:

Matt notes that the world gains from this in terms of safety and efficiency. However he questions the patent grant on the grounds that another monopoly has been established by stealth. Fortunately, the patent will be worthless once the world switches to full time computer control of the car. But in the meantime, we will all pay in higher prices.

On the other hand, Google is mostly a victim of this system because its major operating system, which is based on Linux, came under attacks that Google never provoked for. There is good news on that front though:

• Oracle v. Google – A Last Minute Present to Google from the USPTO

• U.S. takes bite out of Oracle’s Google lawsuit

  Oracle has been dealt a blow in its ongoing patent infringement case against Google.

  Late last week, the U.S. Patent and Trademark Office rejected several of the claims in a patent that Oracle has cited in its infringement case against the search giant. According to Groklaw, which obtained the notice, 17 of the 21 claims in Patent No. 6,192,476 have been rejected by the USPTO, following a re-examination the agency conducted earlier this year.

In addition, there are patent attacks coming from Apple and Microsoft, which just like several other companies keep attacking the Internet with SOPA. Steven J. Vaughan-Nichols remarks on “Go Daddy’s SOPA Entanglement” and Muktware takes notice:

Go Daddy took a u-turn from its stand on SOPA as the Internet community started boycotting GoDaddy and companies started transferring domains to non-SOPA supporters. Muktware has also initiated the domian transfer from Godaddy to Gandi.net (Hacksheet has already been transferred).

Following our article calling for a boycott against Apple (it got Slashdotted and made the news) there is also a call from Mukware to boycott Apple and Microsoft for their SOPA support.

To quote the call: “Go Daddy burned their fingers when they decided to sell their soul to the devil. More than 21,0000 conscious users migrated to other services. Go Daddy changed its ‘stand’ the same day, which seems to be nothing more than PR strategy as Go Daddy ‘worked’ on crafting this act. If they oppose the act, they must run a campaign to ensure that SOPA is not passed. That’s what it means by ‘opposing’ the bill and not by secretly supporting it via PIPA and Protect IP. Go Daddy paid heavily as ‘informed’ and concerned Go Daddy users revolted and threatened to switch to other registrars.

“There are two monopolies which are endorsing SOPA, Apple and Microsoft.”
      –Muktware“How about the other SOPA supporters? Will you be boycotting them? There are two monopolies which are endorsing SOPA, Apple and Microsoft. Apple has not said anything in support of SOPA. But, the company either way doesn’t care about anything beyond its own profits. Apple itself is a censor police where it runs its own version of SOPA. Microsoft, on the other hand, has been openly supporting such biils.”

Further down it says: “The ‘informed and concerned’ Internet community revolted against Go Daddy and brought it to its knees. Are you ready to boycott Microsoft and Apple?” Well, we at Techrights implicitly suggested this for quite some time. Novell too is in the boycott list. Those companies also spread FUD about Android. Tim Carmody wrote an article titled “There Is No Such Thing as Android, Only Android-Compatible”. In it he rebuts Microsoft talking points from its talking heads (like Bott) by explaining that “fragmentation” is actually compatibility. His conclusions: “Ultimately, though, I can’t decide if this is a real problem for Google and Android or potentially a huge advantage. In the short term, it’s been an advantage; It’s let the operating system, user base and developer community grow in a hurry. In the long term, though, it doesn’t seem like Google can continue to maintain tight control of the source code during development and promoting its latest and greatest developments, and then let just about anything go once it’s released while letting less-favored products drift away.

“Soon, we’ll have to sever those two questions — what’s good for Android, the family of broadly compatible devices, as well their users and developers, is bound to come into conflict with what’s good for Google, the search and software company who continue to develop Android and put it into the world.”

Here is an article on the patent war against Android. It’s from the Boston press and it says:

A patent lawsuit won last week by iPhone maker Apple Inc. represented a single victory in a global legal war, with giant corporations fighting for control of the technologies behind smartphones and computers, potentially resulting in less appealing devices or higher prices for consumers.

Technology firms like Google Inc., Samsung Corp., Microsoft Corp., and especially Apple – which is one of the most active combatants – are embroiled in about 100 patent lawsuits in at least 10 countries. The stakes are high: potential domination of the multibillion-dollar market for smartphones, tablet computers, and the software that runs them. One successful lawsuit could generate millions in patent licensing fees for the victor, or it could force a rival firm to modify the way its devices work – even removing features users treasure.

“Patents=nuclear weapons in arms race. Inhibiting innovation. Tech patents should be abolished-Only make sense in slow-moving industries,” wrote Vivek Wadhwa, an influential writer/academic who occasionally writes on the issue. Hopefully we are aproaching the points where public opinion will have the law overwritten in the US. █