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06.09.15

PATENT Act Comes to US Senate, But It’s Corporations-Leaning, Just Like Senate

Posted in Law, Patents at 6:10 am by Dr. Roy Schestowitz

City horizon

Summary: Politicians are willing to approve changes to law which further empower large corporations that are funding politicians like themselves

IT IS hard to feel excited about the PATENT Act, which we wrote about before [1, 2, 3]. It’s just that it doesn’t matter much for the large majority of the population. It is a bogus ‘reform’ for corporations’ sake, as one can rather easily see.

“Not only patent trolls are the problem.”Over the past 24 hours a lot of people wrote about the PATENT Act because an important step was looming. Articles like “PATENT Act puts trolls in their place” or “PATENT Act is a bridge over patent trolls” sought to push the piece of legislation forward. There are other points of view, which may also be legitimate, such as “Patent legislation will destroy inventive small businesses” (not that small businesses should ever rely on patents in their strategy). “Congress Should Address Patent Trolls,” wrote one person, noting:

Actually, aside from the filing the lawsuit part, none of that is true. It would be if Congress passed the PATENT Act, legislation from House Judiciary Committee Chairman Bob Goodlatte, R-Va., that seeks to limit patent trolling and bring some order and predictability to the patent enforcement process.

But the problem is far broader than that. Not only patent trolls are the problem. They are more of a symptom of the real problem.

“As long as Senate or Congress are so heavily dependent on corporations for funding of their members not much will change, except in favour of the rich and powerful.”We now know that the Senate Judiciary Committee approved the PATENT Act [1, 2, 3], but don’t waste time celebrating or following the PATENT Act too closely. It is not a reform for people, only for large companies, much like previous so-called ‘reforms’.

There is a new article titled “No, the America Invents Act did not cost ‘the economy’ $1 trillion” and it says that “some are still litigating the merits of the last significant patent reform Congress passed, 2011’s American Invents Act. Of particular interest, in some quarters of the intellectual property world, are its provisions expanding the inter partes review procedure, which has allowed many more entities to challenge the validity of patents issued by the U.S. Patent and Trademark Office.”

As long as Senate or Congress are so heavily dependent on corporations for funding of their members not much will change, except in favour of the rich and powerful. We have not yet seen any real reform in the making. No politician is even proposing such a reform.

06.03.15

When Patent Lawyers Attack the Messengers for Stopping Software Patents, Ignoring Patent Law’s New Post-Alice Reality

Posted in America, Law, Patents at 8:15 am by Dr. Roy Schestowitz

“Distrust any enterprise that requires new clothes.”

Henry David Thoreau

Summary: Analysis of recent articles from patent lawyers, highlighting their bias and disregard for facts in this system which has become increasingly intolerant toward software patents

TECHRIGHTS has very serious concerns about media coverage of patent matters. The corporate media is still stuffed with lawyers, acting as experts despite a conflict of interests or vested interests (informing versus profiting). Asking patent lawyers about patent law is like asking oil and coal executives about global warming and preferable energy sources.

We have closely watched patent lawyer’s Web sites, blogs, and news sites ever since the Alice case was concluded (one year ago at SCOTUS level). It wasn’t quite over because then, almost immediately, there was a trial in the media, whereupon opinions on the outcome were publicly distributed and consensus was being shaped, mostly by biased lawyers. The comical thing about it is that lawyers twist the truth or distort the truth in order to defend their business, which involves bending the system or finding loopholes for getting around the rules (that is what people often pay lawyers for).

We were hardly astounded to learn that yet more software patents have died because of the Alice case. As Akin Gump Strauss Hauer & Feld LLP put it: “To determine whether the asserted patent fails to claim patentable subject matter under § 101, the court applied the Federal Circuit’s two-step Alice test.”

This is an example of coverage which is rare because patent lawyers rarely cover legal cases where software patents get eliminated. As we have demonstrated many times before, they would rather emphasise cases where software patents withstand a court’s scrutiny. It’s lie by omission. It’s worse than half-truths.

“Patents have become land mines (notoriously broad and inaccurate) rather than a form of protection from imitation/ripoff artists.”Another site, a lawyers’ site called Law 360, says that “co-founder of an online diamond sale facilitator wants the startup’s lawyers tossed from a case accusing him of stealing its proprietary software, arguing in New York federal court Wednesday that one lawyer represented him for 16 years and the other is bound to be a witness.” The phrase “stealing its proprietary software” serves to remind us that lawyers view software as a property that can be stolen, not merely copied. Another article from Law 360 focuses on Alice , turning to the software patents-friendly Court of Appeals for the Federal Circuit (CAFC). Titled “A Look At Everything The Fed. Circ. Has Said About Alice”, the article serves to echo the pro-software patents arguments rather than remind us of the findings of the Court it got escalated/elevated to (the highest court in the US), by means of an overruling appeal.

The National Law Review says that “Another Sequenom Patent Appeal Heads To The Federal Circuit” and we are assuming that everything will be done by this court, as always, to legitimise the patent and by extension many like it. If only more lawyers’ sites were sincere enough and objective enough to cover the many known cases where software patents are dropping like flies…

McDonnell Boehnen Hulbert & Berghoff LLP, another law firm, has just published “Software Patents Are Still Very Useful Despite Alice, But Are Business Method Patents?” What a loaded headline. Actually, software patents lost in a very big way, much more so than after the Bilski case.

Gene Quinn, a vocal proponent of software patents, went the furthest (among the patent lawyers). In no effort to come across as professional or polite (or even moderately diplomatic for the courts’ sake), he starts a long series of personal attacks on the intelligence of SCOTUS Justices as if he, a patent lawyer, is all that technical himself. “Naked Emperors” he calls them, stating:

Given that we live in an age of software innovation, where 50% or more of all innovation is in one way, shape or form related to software, why are many Article III and Administrative Judges declaring that software is not patent eligible? Perhaps a more important question is why is Congress letting these Judges get away with what they are doing? There is no legislative support for the existence of any so-called judicial exceptions to patent eligibility, yet Article III and Administrative Judges are striking down patent after patent in this economically vital area.

His arguments are clearly flawed and are easy to debunk (for instance the poor assumption that expansion of scope must follow digitisation of existing processes), but what we wish to highlight is the rudeness, arrogance, and poor attitude from some patent lawyers who view themselves as flag-bearers.

Another lawyer, a good lawyer (fighting for ethical software and against patents on software), expresses concern about a new ruling regarding willful or unwilling infringement of patents, noting: “Most engineers are aware that patent owners can sue those that infringe their patents. It may surprise them, however to know that a patent owner can also sue someone for only “inducing” another to infringe their patent. Luckily, in both cases, the patent owner only has a right to sue if the other party acted “knowingly.”

“As you might expect, the circumstances and facts that are deemed to prove knowledge are the subject of much litigation and many legal opinions. Recently, the U.S. Supreme Court added another decision to the pile, and a distinction that the court drew on this question may surprise you. It should also particularly concern open source software developers…”

As a lawyer for the Linux Foundation, Andy Updegrove analyses the threat this poses to Free/Open Source software and he reminds of the injustices in current patent law, be it because of patent scope or the definition of infringement. Patents have become land mines (notoriously broad and inaccurate) rather than a form of protection from imitation/ripoff artists. A reset of this who system is well overdue, but large corporations won’t permit it. Nor will patent lawyers who make a career out of this sordid mess…

05.31.15

Supreme Failure: With SCOTUS Approval of Patent Trolls and a Push by Justice Department to Reinforce Copyright on APIs (at SCOTUS Level) the Future Looks Gloomy

Posted in Law, Patents at 4:06 pm by Dr. Roy Schestowitz

US Supreme Court darkens the future

US Supreme Court

Summary: The patent system goes wild in terms of scope, the nature of the plaintiff (merely purchasing patents), and the extension of patents to monopolies on named APIs (by virtue of deranged interpretation of copyright law)

WE are deeply disturbed to see Federal-level interventions and rulings in favour of the patent industry, including the most parasitic elements of it. People must learn the reality of these injustices and rise up in opposition before it’s too late. The gap between the rich and the poor rapidly widens because of these outrageous moves, which involve passage of ownership, not just physical ownership but also monopoly on simple ideas.

Florian Müller, a booster of Oracle against Android, covered the White House's attack on Android and on software developers, urging the SCOTUS to allow/endorse patentability of APIs (by denying an appeal).

“The gap between the rich and the poor rapidly widens because of these outrageous moves, which involve passage of ownership, not just physical ownership but also monopoly on simple ideas.”The SCOTUS also helps trolls (against Cisco) right now, as demonstrated by a decision that even British patent lawyers are denouncing. “Commentators have picked up on the identity of the patentee,” wrote IP Kat, “a troll/patent assertion entity/non-practicing entity/etc – as being the headline grabber in this case, if only to paint a picture of General Counsel throughout Silicon Valley being on the edge of their seats awaiting this decision. However, the Court’s comments in this respect were limited. The Court said that they were well aware of the industry that had developed in which patents were being used primarily for obtaining licensing fees. Such conduct can create a “harmful tax on innovation”. However, because no issue of frivolity had been raised by the parties in this case the Supreme Court did not comment further, except to reinforce the power that the district courts have in dissuading frivolous cases.”

I personally find the US patent system very intimidating. The rulings are almost always made in favour of Big Business interests; if not soon, then some time later. Based on these two new reports, Samsung now goes further with Android by patenting software. This is a software patent pertaining to computer vision, which is my area of research. It’s all reducible to math and the US allows this math to be patented and monopolised. Yesterday I saw the article “Auction Co. Can’t Shake Suit Over $2M Software Patents”. How can software patents be sold for so much? How can they be sold at all? This beats the purpose (original purpose of the patent system) because patents just become passable weapons. To quote the article: “A California judge on Friday tentatively refused to toss an inventor’s suit alleging an auction company botched its handling of video technology patents she held with her software programmer ex-husband by selling them for vastly less than their $2 million minimum value, ruling the auctioneer had a fiduciary duty to the inventor.”

“The rulings are almost always made in favour of Big Business interests; if not soon, then some time later.”These “handling of video technology patents” are software patents, which again cover math. This is clearly a problem, but groups like the EFF continue losing focus. They should tackle scope of patents, not ‘quality’ of pertinent patents or patent trolls.

Consider this latest post from Adi Kamdar (EFF). “What a waste of resources,” iophk wrote to us. “It is the ability to patent the wrong things that is the core of the problem not ‘bad’ patents or ‘trolls’, though they are also a problem.”

Kamdar wrote:

Amidst the clamor of surveillance reform and TPP Fast Track negotiations, Congress is still finding time to work out the kinks of patent reform. One of the big topics of the day: inter partes review (IPR). This procedure lets third parties (like EFF) challenge bad patents (like the one used to go after podcasters).

We joined Engine, Public Knowledge, and R Street in sending a letter [PDF] to the Senate Judiciary Committee urging them to strengthen the IPR procedure, making it more accessible to and a more powerful tool for those of us acting in the public interest.

The EFF is once again wasting its time fighting “bad patents” rather than software patents.

In other news, there’s this new article which talks about copyrights, trademarks and patents collectively, referring to them all as “Intellectual Property”. The part about patents says: “A common question that is often asked by founders is whether they can get their software patented.”

Software as a whole cannot be patented, but parts of it, in few parts of the world, can probably be patented.

The article says: “The short answer to this is “no- software cannot be patented per se,” i.e. a computer program is not independently patentable.” If the Justice Department gets its way, not only part of a program will be a monopoly but also APIs (covered by copyrights). It often seems like everything just gets worse, not better. Maybe this whole patent system (or by extension the so-called ‘IP’ system) needs a revolution and a reset.

05.28.15

The Supreme Court of the United States Helps Patent Trolls

Posted in America, Law, Patents at 5:44 am by Dr. Roy Schestowitz

Fly

Summary: In an unforeseen kind of ruling, the same court which slapped down a lot of software patents last year is now legitimising the actions of a patent troll

Joe Mullin wrote about Patent Troll Tracker quite some time before he became a widely-recognised journalist focusing on patent trolls and some other patent-related matters. Patent Troll Tracker was later ousted with a bounty on his head (coming from a patent troll). Patent Troll Tracker was a patent lawyer from Cisco, which had attracted many trolls to it. Based on this new report from Mullin, Cisco has just lost to a troll at SCOTUS level (the highest possible level, which is also expensive). As Mullin put it: “The Supreme Court issued a ruling (PDF) today in Commil USA v. Cisco Systems, one of two patent cases it heard this term. On one key issue, the opinion favors Commil, a “patent troll” that won a $64 million jury verdict against Cisco. But other findings mean that the non-practicing entity won’t be getting a payday any time soon—and a final section of the opinion is wholly dedicated to reminding judges to sanction misbehaving patent plaintiffs, something that didn’t even come up in this case.

“In the Commil USA v. Cisco Systems case, a 6-2 majority of justices held that defendants in patent cases can’t evade claims of “induced infringement” by arguing they had a “good faith belief” the patent was invalid. That overturns an appeals court decision favoring Cisco. Justice Stephen Breyer was recused from the case.”

This is very bad because only one year after the Alice case we are now seeing SCOTUS leaning in favour of patent trolls, not just rubbish patents. SCOTUS is, in some sense, feeding the trolls here.

“Stop Feeding the Patent Trolls,” says the headline of a new article, explaining: “At AngelList, we’ve spent the last several years creating a platform for startups and founders to connect with their peers, secure seed investments and recruit employees. We’re passionate about what we do, which is why it’s all the more upsetting to see fledgling businesses continue to take unnecessary and costly hits from greedy patent trolls.

“What SCOTUS has just done is only going to further legitimise trolls.”“For years, patent litigation has drained small businesses of resources that would otherwise be used for research, investment and job creation. Specifically, flaws and loopholes in the current law allow patent assertion entities (PAEs), also known as patent trolls, to exploit the system and claim rights to patents without ever having made a product or provided a service to any customers. Congress’ inaction has led to billions of dollars spent on frivolous patent suits, needlessly costing the economy and consumers.”

There is then a reference to the PATENT Act, which only tackles small trolls but not big trolls. “The Protecting American Talent and Entrepreneurship Act of 2015,” says the author, “is sponsored by both sides of the aisle, including Senators Grassley, Leahy, Cornyn, Schumer, Lee, Hatch and Klobuchar.” It is also sponsored by the large corporations that are funding these politicians.

Let it be clear that patent trolls truly are an issue, but they are not the only issue and they benefit from the vast extent of patents on software. Various sites that focus on patent trolls (and patent trolls only) amplify the claims of those famed academics who focus only on trolls, for example Michael Meurer and Bessen. As Matt Levy put the situation, it was “Bessen that estimated that NPEs cost U.S. businesses at least $29 billion dollars in 2011.” Levy previously related a SCOTUS approval of Form 18 abandonment to patent trolls. 9 days ago he wrote: “In a blog post last year, I wrote about about the prolific patent troll eDekka, which filed well over 100 complaints in 2014. Not one of them gave any useful information to the defendants. Most of the complaints were filed in the Eastern District of Texas.”

Eastern District of Texas is where a lot of patent trolls operate from and the environment sure became fertile for their racketeering. What SCOTUS has just done is only going to further legitimise trolls.

IP Troll Tracker (not to be confused with Patent Troll Tracker) recalls one of the most notorious trolls out there, Erich Spangenberg, saying that there is alarming embellishment of what trolls like him are doing. “In another alarming chapter of the “saved from a troll by a troll” play book,” she writes, “Jump Rope misses the rope itself and jumps straight into bed with Erich Spangenberg. Like Ditto before him, Mr. Braxton of Jump Rope found himself in the unfortunate position of having to take investment money from one of the founders of the business model that put his company in jeopardy to begin with.”

Here is Mike Masnick at TechDirt put it: “The story tries to play this out like a “patent troll done good,” but it’s horrifying. It’s one patent troll beating up on a startup, and then allowing a second one to come in and vulture up the leftovers. It’s certainly not good for innovation in any way.”

One might expect patent trolls to be vilified or cracked down on by now, but even the SCOTUS helps them these days. Some of the media paints them as innovators and some as saviors. Actions are now judged by the actor’s size, not the action.

Patent Lawyers Fight Hard for the Future of Software Patents

Posted in Law, Patents at 4:43 am by Dr. Roy Schestowitz

“People naively say to me, “If your program is innovative, then won’t you get the patent?” This question assumes that one product goes with one patent.” —Richard Stallman

An algorithm

Summary: Media that is dominated by patent lawyers and targets an audience of patent lawyers refuses to accept the post-Alice reality

THE USPTO is a sordid mess. As the previous article served to show, it attracts many opportunists and trolls. However, recent amendment of guidelines used inside the USPTO examination pipeline stopped many software patents, rendering them invalid while citing Alice (a relatively recent SCOTUS ruling). Both the court system and the patent system are now far less favourable or tolerant towards software patents.

“These patents are affecting not only Free software but also proprietary software.”As usual, patent lawyers’ sites are quick to shoot down the message and the messengers. Legal News Line says that a “new study shows first decline in patent litigation in five years”. It of course proceeds to refutation attempts. Other lawyers (McDonnell Boehnen Hulbert & Berghoff LLP in this case) are trying hard to shoot down claims that software patents are being stopped in the US. Here is their abstract: “A recent publication by PricewaterhouseCoopers announced that patent suit filings in 2014 had reduced by 13% from the prior year, and concluded that this “dramatic shift” was “[d]riven by Alice Corp. v. CLS Bank, which raised the bar for patentability and enforcement of software patents” (see “2015 Patent Litigation Study: A change in patentee fortunes”). This rather strong attribution has in turn driven a number of news outlets, such as IPLaw 360 and bloggers to pick up the story (see “Patent Lawsuits Took First Dive In Years, Report Says” and “Patent Litigation Study Should Cause Patent Reform Pause”).”

They say that this report “raises questions”, but actually it answers a question and tackles an issue. It’s a step towards the solution.

Another patent lawyers’ site, Managing IP, says that “Rumours of the death of software patents are greatly exaggerated” (well, they sure would hope so) and Gene Quinn (very vocal proponent of software patents, for he is a patent lawyer) asks, “Is there a future for software patents in an age of software innovation?”

What we are hoping to show here, as we did many times before, is that patent lawyers are very concerned about the death of many patents on software, not only at the court level but also, increasingly, at the examination level (where they can make a lot of money at the expense of software developers). These patents are affecting not only Free software but also proprietary software. Even Bitcoin, which strives to reform today’s monetary system, is said to be affected. As this report from the beginning of the month put it: “Bitcoin wallet company BitGo, Inc. is currently being circled by Redditors for its alleged attempts to patent the Bitcoin multisig technology.

“The San Francisco based company had submitted a patent request to the United States Patent and Trademark Office (USPTO) on February 4th last year, a document of which was published yesterday, on April 30th 2015. The document reveals BitGo’s application in which it is seeking a patent for a network device that is “configured to receive public keys, over an electronic network, of two or more second public-private keys,” something that is reportedly identical to the multisig functionality.”

They are patenting cryptological methods now. This is like patenting mathematics. It has got to stop at the examination level, not just at the courts (legal fees are obscenely high).

05.22.15

The Patents Production ‘Industry’ (Patent Lawyers) Still Fights Hard to Salvage Software Patents

Posted in America, Law, Patents at 1:03 pm by Dr. Roy Schestowitz

“Patent monopolies are believed to drive innovation but they actually impede the pace of science and innovation, Stiglitz said. The current “patent thicket,” in which anyone who writes a successful software programme is sued for alleged patent infringement, highlights the current IP system’s failure to encourage innovation, he said.”

IP Watch on Professor Joseph Stiglitz

Summary: A review of recent writings about software patents and patents on business methods in the United States, demonstrating that patent lawyers have gotten very vocal and sneaky (trying to evade the rules)

THE patent landscape in the US is getting a lot better, not because of any reform but because of a SCOTUS ruling in a case widely referred to as Alice. Brian Fung from the trend-setting media says “new patent lawsuits are down for the first time in five years.”

“Patents were deemed invalid and a criteria was established for removal of many software patents, not ‘creation’ of new ones.”Over the past year (since the Alice precedence was set) we have written a great deal about patent lawyers’ fears and their endless attempts to rewrite the rules or cheat the system (which is basically what their job is often about–finding and exploiting loopholes, sometimes misleading judges).

Corporate Counsel, a site of patent lawyers (as its name reveals if not gently indicates), is trying to tell us that “Software Patents Are Still Valuable”. Written by R. Flynt Strean, Michele M. Glessner and Zachary A. Higbee from Corporate Counsel, the article basically tells patent lawyers what they want to hear. Surely it’s music to their ears.

Another lawyers’ site, Law 360, says that the Court of Appeals for the Federal Circuit‘s “Eon Ruling Offers Map For Clear Software Patents”. To quote: “A recent Federal Circuit decision invalidating an interactive TV patent owned by Eon Corp. IP Holdings LLC is the latest ruling by the appeals court stressing the need to make software patents clear by including an algorithm and provides guidance for writing software claims that can withstand scrutiny, attorneys say.”

This is basically the giving of tips on how to patent software, despite many of prospective patents being ineligible.

Watch sites composed by lawyers (National Law Review in this case) ridiculing critics even of patent trolls as if patent lawyers support patent trolls, not just software patents. This one site wrote this about Alice: “Alice did provide, however, that if the subject matter “improves the functioning of the computer itself” or “any other technology”, such subject matter may be patent-eligible. In this way, one can see this as leaving open the possibility of finding computer software patent-eligible.”

They are reversing the actual outcome as positive. Patents were deemed invalid and a criteria was established for removal of many software patents, not ‘creation’ of new ones. The way lawyers like to frame it is a way that generally supports software patents, i.e. the opposite of what SCOTUS actually ruled on. These articles are full of lawyers’ tricks for patenting software despite the highest court’s ruling which serves to bar/limit them.

Watch this other lawyers’ site stating about CBM (covered business method): “As a § 101 analysis under Alice Corp. does not require the time and expense necessary to analyze prior art, swiftly launching a CBM petition that relies either solely or primarily on § 101 challenges presents a cost-effective approach with good potential for success. This is especially true in view of the limited estoppel particular to CBM post-grant reviews, which would allow for subsequent challenges under §§ 102, 103 and 112, at the district court. In addition, a CBM, unlike an inter partes review is not required to be filed within one year after a district court patent infringement suit is initiated. Note, however, that upon a final written decision, § 325(e)(1) estoppel will still bar grounds that the petitioner “raised or reasonably could have been raised” in pending or future PTO proceedings, this is true even if the parties settle.”

“To lawyers, everything that reduces the number of permissible patents is evil.”The pattern here is clear and we have omitted nothing that we’ve come across in our research (this month’s news). Lawyers who profit from patents are working very hard to get around the rules and continue to patent software, showing disregard not just for science but also for the highest court.

Here is one statement which we also found mystifying, under the headline “Patent Laws Are Getting Cloudy”: “While the cloud reduces the barrier to entry for innovation, moving from a hardware to a software model makes getting a technology patent more difficult, he added. He attributed this to biases in U.S. and European patent law.”

What biases? Ones that limit patenting of software? And for good reason? To lawyers, everything that reduces the number of permissible patents is evil. They view everything as a nail because they are hammers. All they care about is money and destruction (in courtrooms, where real products can be embargoed or castrated, companies can be driven to bankruptcy, and ideas come to be squashed). Don’t listen to patent lawyers if you want the facts; we know how they make their money. They create nothing but paperwork and court hearings.

05.18.15

The EPO’s Fight to Bring Software Patents Into Europe is One Step Closer to a ‘Victory’ (for Multinationals)

Posted in Europe, Law, Patents at 7:34 am by Dr. Roy Schestowitz

Roman empire giving up

Old cathedral

Summary: Opposition to the Unified Patent Court (UPC) is being crushed and Italy is one of the latest actors to have fallen in the battle

SO IT TURNS out that “Italy [is going] to join the UPC after decision of 5th May,” based on Benjamin Henrion’s rant. “Does Italy has a constitution?”

IP Kat backs that up in this article, showing us that Europe going the way of the dodo when it comes to patents. Four years ago we commended Italy for standing up against the this polymorphic and nym-shifting charade (Unified Patent Court is the latest name), but the EPO fought against them for years; it fought for software patents in Europe.

IP Kat‘s criticism of the EPO carries on in other ways, but the news from Italy is covered as follows: “Now it seems that the legal challenges to the new system are coming to an end but, as Merpel suggests, the biggest challenge of all remains — the challenge of making this unknown, untried, hybrid system work in practice. The patent-granting and administration work is the easy bit: all depends on the functionality of the Unified Patent Court.”

Large multinational companies will soon be suing European companies using patents Europe-wide, imposing embargoes and raising costs considerably. Patent trolls can join these multinationals in the heist. Who does the Unified Patent Court serve if not wealthy globalists?

05.13.15

Open Source Revisionism of GNU and Free Software History

Posted in Deception, FSF, Law at 3:20 pm by Dr. Roy Schestowitz

Richard Stallman
Source: Conference by Richard Stallman, “Free Software: Human Rights in Your Computer” (2014)

Summary: Media mistreatment of the very roots of Free/Open Source software (FOSS), which is now approaching 35 years in age and increasingly thriving

IN recent weeks we have found several ‘news’ articles that gave us cause for concern. Some were shared with Richard Stallman, a regular reader of Techrights, for his views to be expressed and portions of the correspondence can be found here (cautiously redacted to reduce potential animosity/tensions).

It is not unusual, especially these days (age of openwashing), to see the label “Open Source” misused. Not too long ago we identified some very gross distortion of the term “open source” to essentially openwash Facebook’s surveillance ambitions, focusing on poor people. Facebook traffic has sunk pretty badly over the past year (based on Alexa it’s a massive drop), so Facebook is trying really hard to frame/paint itself as “ethical”, even when it tries to expand its surveillance to people too poor to get connected to the Internet. This isn’t altruism, it’s opportunism and malice. It’s definitely not “open source” and the dot org suffix (Internet.org) is clearly inappropriate, not just misleading. “Facebook mistreats its users,” Stallman explained. “Facebook is not your friend, it is a surveillance engine.”

There was also an effort to delete GNU from history — an effort that has gone rather aggressive. Stallman was in the process of speaking to editors who jad allowed this to happen (dumb lawyers called GNU and Stallman’s text “Open source Manifesto” in the article “Open source Manifesto turns 30″). Stallman asked me to show him the original publication site and tell him how to write to them. It wasn’t too clear whether to write to the editor/site or the author/law firm. The former can issue some fixes/corrections, we tend to think, superseding what was contributed by lawyers. The article comes from a formal publication which often publishes patent lawyers’ pro-software patents columns (we have seen over 100 of them over the years). The target audience is lawyers. The latest is no exception to the rule. It is an article by Leech Tishman Fuscaldo & Lampl LLC and the Web site is London-based, with Andrew Teague as the Associate Publisher, Mark Lamb as the Publishing Director, and Chris Riley handling subscriptions. When it was first published Stallman was eager to contact “Either one, or both! [editor and writer] But the sooner the better.” No correction has yet been published. It’s nowhere to be found.

GNU and Free software are 30+ years old. A lot of people contribute to the misconception that it all started when Torvalds released Linux or when the term “Open Source” (not open source intelligence) was coined by the likes of O’Reilly. Watch the “Open Source” O’Reilly nonsense starting the clock more than 10 years later than GNU: “Twenty years ago, open source was a cause. Ten years ago, it was the underdog. Today, it sits upon the Iron Throne ruling all it surveys. Software engineers now use open source frameworks, languages, and tools in almost all projects.”

Rachel Roumeliotis is advertising OSCON 2015 (OS stands for “Open Source”), but she should know about GNU and its age. These people conveniently start the clock when O’Reilly and his henchmen got involved. They want all the credit and they want people not to speak about freedom. Eben Moglen already ranted about this, right on stage in an OSCON event nearly a decade ago.

“This shows how “open source” misses the point,” Stallman wrote to us. “If the frameworks, languages and tools they use are free software, that is good for their freedom. But if what they develop with those is nonfree software, it doesn’t respect our freedom.

“So open source “won” by ducking the important battle.”

Well, the “we already won” attitude (or notion) helps a defeatist’s approach; why fight for more freedom if “we won”? That’s what those people (even developers) who open a MacBook or some ‘i’ device want to happen; some would further insist that Apple and Microsoft are now “open source” players, so “game over”…

We have noticed that Microsoft is now googlebombing with “Windows open source”, promoting the ludicrous notion that it’s now “open” (or gratis), or that it will be so one day. It started about a month ago, maybe two; dozens of articles have served this PR strategy. we wrote some rebuttals and will write another one this weekend. There is a gross distortion of what actually happened and what is happening.

“Stallman was unhappy about the increasing prevalence of proprietary software,” said the aforementioned article From Lexology, “software protected by copyright law and usually licensed on a commercial basis by its owners.”

Yes, but Free software too is protected by copyright law, it’s just twisted into copyleft. “Source code is sometimes licensed under GNU GPL terms,” says the article, “a form of
“copyleft” rather than copyright.”

OK, so surely they know what Free software is and where it comes from. Why proceed with statements like: “The “open source” movement emerged in GNU’s wake. As with GNU, users of
open source code can look at the source code and modify it. However, unlike with GNU, they are not required to share their developments with the world at large.”

“We have noticed many articles throughout this past year or so — including some from Linux Foundation staff — that basically start history in 1991 as if GNU/Linux came out of a vacuum or from Torvalds’ bedroom.”Actually, unless they are using something like the BSD licence, they usually must. Then there are issues like SaaS, which are addressed by the AGPLv3, among other licences. But either way, Free software remains Free software, there is no justification for renaming it “Open Source” and calling the GNU Manifesto “Open source Manifesto”. It’s insulting to those who started the whole thing and wish to receive fair coverage or attribution, at the very least.

The Lexology sites presents some other issues, mostly to do with access, not just paywalls. Stallman asked: “Can you email me the full text of that article? I tried to fetch the page and what I got did not include the text.”

Stallman said he “wrote to them”, but more than a month later the article remains uncorrected, not updated, etc.

Another big load of revisionism (changing history) uses the “Open Source” label to delete GNU from history. Published last month, the article titled “At Birth, Open Source Was About Saving Money, Not Sharing Code” focuses on Torvalds (see feature image) and frames the movement as one that is centered around money. Stallman asked: “Is that someone opinionated who won’t listen to me?”

It is of course worthless asking for a correction when you know in advance none would be made. It later turned out to be part of a broader series of articles, some of which did cover GNU. I personally read several hundreds of items from the author and he’s more into ‘practical’ benefits, so I don’t think it would be worth arguing over. Some people just aren’t fond of freedom in the context of computing.

We have noticed many articles throughout this past year or so — including some from Linux Foundation staff — that basically start history in 1991 as if GNU/Linux came out of a vacuum or from Torvalds’ bedroom. Quite frankly, we think it’s an insult to history. We deem it negligent at best. Of course it leads people to deducing that the success of the system in its entirety is owing to the great “Linux values”, not GNU philosophy.

In summary, in our threads of communication with Stallman we were able to reaffirm that there were factual issues in the “Open Source Manifesto” article (it speaks about the GNU Manifesto) and despite Stallman’s request for correction, nothing has been done by the publishers. It’s like people just don’t wish to speak favourably about freedom in computing. Mac Asay, a Mormon (i.e. more superstition a religion than most other religions), compares Free software people to dangerous religions — a typical smear directed at a largely secular Free software community. Perhaps there are just those who are impossible to please because they are inherently opposed to control over one’s machine and would rather buy digital prisons from Apple than work a little harder to gain control or acquire freedom-respecting tools.

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