“Software patents are a huge potential threat to the ability of people to work together on open source.”
Summary: The real patent battle is fought not in Congress (with corporate lobbyists) but in the courtroom, with a growing number of outcomes which are favourable to Free/libre software
SOFTWARE PATENTS are severely damaged in the US, especially following the Alice case (ruled by SCOTUS one year ago). The latest cases, which we covered this month, serve to show that software patents are dropping like flies in the courtrooms, even when landing on courts that are historically very friendly towards software patents.
“District courts used Great Atlantic to invalidate patents en masse, much like is done today after Alice,” Patent Buddy wrote the other day. Nevertheless, the corporate media focuses on other matters.
“It looks as though software patents are rapidly dying.”Joe Mullin has revealed that yet more software patents have just died and not a patent troll was behind them. “Rovi,” he explains, “provides digital entertainment guides to cable companies and others and has long used its patents to enforce its dominant position in the market. That strategy has come in for criticism, with Rovi’s patents being viewed as covering the basic idea of an electronic TV Guide. That was especially true when Rovi used its patents to go after Internet companies that wanted to make their own guides and not take Rovi content, like Hulu and Amazon.”
Well, these patents are now dead and Wall Street-centric media says that the company is downgraded. “Multichannel video programming distributors may face the same struggles in court,” says the author, “but those patents are less abstract than software patents, according to analysts.”
Mullin wrote also about Newegg (yet again), showing that it won a patent case that had been brought against it by TQP. “Two weeks after online retailer Newegg filed a petition complaining about “excessive and unreasonable” delays in getting a final judgment in its patent case,” explains Mullin, “the judge in that case has handed Newegg a big win.”
It looks as though software patents are rapidly dying. Every death of a software patents can become precedent for future cases involving software patents and the higher the court, the higher the impact. One lawyers’ site tries to frame this as a “troll” issue, talking about “the projected cost [7 billion dollars] of litigation filed by non-practicing entities, or patent trolls, in 2015.”
What about non-trolls (or very big trolls that the media won’t call “trolls”)? Some media circles are trying to tell us that Microsoft alone makes billions of dollars from extortion against Android alone. The main problem is the patents, not the entity asserting these patents.
Speaking of Google, which is an important example because Microsoft is still attacking it using patents (trying to force Android makers to bundle Microsoft software), there is a new effort to combat patents using prior art. As corporate media put it, “Google is bringing its search powers to bear in hopes of doing what Washington seemingly can’t — roll back a wave of abusive litigation from companies that, according to their critics, simply want to line their pockets with ill-gotten settlement money.” There are many articles about it [1, 2, 3, 4, 5, 6, 7, 8, 9]. In the form of sourse code, not just publications, it ought to be possible to demonstrate prior art and invalidate a lot of software patents. There is plenty of prior art and duplication in the field of software because a lot of people are able to practice it (requires just a keyboard, no manufacturing).
“It sure looks like this whole cult of “IP” proves problematic not just for Free software but for software in general (monopoly on APIs for instance).”When patent maximalists (IAM) covered it they said Google’s “mission” it to “help raise quality standards”, but that’s nonsense. Google just doesn’t want this patent mess that is looming over Free software like Android. It’s not about “quality” of patents, it’s about patents. Google is still wrestling with Oracle (patents and copyrights) and as this new post put it a couple of days ago: “Out in the real world, the lawsuit between Google and Oracle is preparing to head back to a lower court after the Supreme Court said it would not take the case. At UC Berkeley yesterday, the repercussions of that decision were discussed, along with many other topics around patents and copyright law as they pertain to software, art and more.”
It sure looks like this whole cult of “IP” proves problematic not just for Free software but for software in general (monopoly on APIs for instance). Large proprietary software corporations such as Microsoft and Oracle are abusing so-called ‘IP’ to impede if not altogether destroy their emerging rivals. █
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Summary: The efforts to empower Microsoft’s APIs, even if by lies and strongarming
THE MEDIA, including Microsoft-connected sites, is openwashing Visual Studio right now [1, 2]. A mixture of misleading headlines and half-truths are the means. We recently showed a lot of Visual Studio openwashing [1, 2, 3]. This in itself is disturbing and it is part of a trend to watch out for.
Will Hill points out that “Something odd is happening between Oracle and Xamarin. Oracle is strong arming customers into “the cloud” with license audit threats. What’s really weird is psycho babble about Xamarin being some sort of force in mobile and that silly cloud stuff with millions of developers. As far as I remembered Xamarin was a nasty little Microsoft shell designed to keep Mono around after Novell collapsed (2).
“I’ve asked Christine Hall on G+ what she knows about Xamarin and Oracle. Oracle pushing their customers onto Mono sounds like a suicide pact to me.
“Maybe they were dumb enough to push C# tools onto their database used [sic].”
–Will HillRemember that Xamarin has been one of Microsoft’s tools for openwashing both .NET and Visual Studio.
“No response from Christine Hall yet,” Hill added today. “The name Xamarin left an unpleasant buzz in my head, so I did a Techrights search and remembered who they were. I thought, “that can’t be those Mono monkeys, they don’t do that.” Then I dug to the stock fraud site and, yep, that’s who they are talking about. There’s still room for it to be a typo, but I’d laugh and laugh if Oracle were to saddle their “cloud” with C# or Mono via Xamarin.
“Maybe they were dumb enough to push C# tools onto their database used [sic]. I’ve seen it in medical software because one of the vendors is a terminal Microsoft used.” [sic]
We shall update this post with any additional information or clarification. █
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Fool of the day
Photo via Wikipedia
Summary: US Solicitor General Donald Verrilli urges the Supreme Court (SCOTUS) to let APIs be covered by copyrights, rendering almost every program a potential copyright violation
YESTERDAY we received some disturbing news from iophk, who sent the official page and original material pertaining to Google’s fight against API copyrights — a subject that we covered here before. It’s like an extension of the patent threat to Free software.
“Superficially,” Simon Phipps wrote, “the Solicitor General’s advice to SCOTUS to find against Google and reject its appeal looks like bad news. But there are some substantial straws to grasp” (see the role of the Obama administration and the Justice Department). That is very disturbing because non-technical people, who never wrote a computer program in their entire life, want API monopoly and they are actively interfering with the process of courts of justice, even the highest court, the Supreme Court (SCOTUS).
“People in suits (sometimes with ornaments and white wigs), who obviously don’t know how computers work, always get to decide on what’s allowed and what’s not allowed.”SCOTUS now helps trolls and even says “patent troll”, which means that it knows what it’s doing. Jeff John Roberts from the corporate media which helps trolls (Fortune) wrote: “The term “patent trolls” is controversial, mostly because certain companies object to it. Now, a Supreme Court Justice has embraced it.”
Trolls are going mainstream with help from the top judges. What a corrupt system. It is inherently rigged against Free/libre software, even once it has managed to beat the FUD, the lobbying, etc. People in suits (sometimes with ornaments and white wigs), who obviously don’t know how computers work, always get to decide on what’s allowed and what’s not allowed. They are figureheads because they are influenced behind the scenes. It’s unthinkable, but that’s how it goes.
Marc Andreessen (the man behind Netscape) wrote: “Obama administration to software programmers: Drop dead!”
Even the Microsoft booster from Business Insider (owned in part or at least funded by Marc Andreessen) wrote about it, stating that “Oracle won another battle in its epic war with Google, and the whole computer industry is nervous about it”.
Our reader iophk wrote: “In a foaming at the mouth rabid desire to screw Google for any and all activity they are going to get the rest of us as collateral damage if APIs become copyrightable in the US. It boggles the mind. The very purpose of APIs is violated.”
This is what it looks like when a government is clueless about technology and is lobbied (at times bribed) by large corporations such as Oracle. █
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Nontechnical people in black gowns and white wigs to decide on huge things
Summary: The US Supreme Court may soon start dealing with a legal assault on Android and in the process hopefully end the notion of copyright on APIs
SOFTWARE bully Oracle, which pretty much put to rest all of Sun’s Free software except few successful items (e.g. MySQL and VirtualBox, but not OpenOffice) and now attacks Java’s integrity by preventing deviations using abuse/misuse of copyright law, is still at it. The Court of Appeals for the Federal Circuit (CAFC), one of the most ridiculous and insidious courts in the world (both corrupt and biased), let Oracle have its way against Android, essentially sending a warning shot not just to those inspired by Java but everyone who reuses names of/in interfaces. This is dangerous and it is heading for judgment by the highest court, SCOTUS.
“Just like software patents, here we have something that both Free software and proprietary software developers should be united against.”According to some articles about SCOTUS, such as this report from Steven J. Vaughan-Nichols, the case that can affect so many programmers is potentially to be decided by the same court that recently defanged a lot of software patents (much to the regrets of the USPTO). Vaughan-Nichols writes: “Google has had enough of its long-running legal battle with Oracle over whether application programming interfaces (API)s can be copyrighted. The search giant has asked the Supreme Court of the United States (SCOTUS) to bypass further battles in lower courts and address the API copyright issue once and for all. SCOTUS, in return, is soliciting the Obama administration for its view of the case before moving forward.”
Well, it is proceeding pretty much as expected. The British media put it like this:
The US Supreme Court hasn’t decided whether it will hear arguments in the long-running dispute between Google and Oracle over Java copyrights, and it has asked the Obama administration to weigh in before it makes up its mind.
An expert in legal matters of the Free software world recently  named this case one of the top 10 “FOSS legal developments of 2014″. It is probably one of the top “legal developments of 2014″ if not one of the top “technical legal developments of 2014″, especially when it comes to programming. The case affects not only FOSS. Just like software patents, here we have something that both Free software and proprietary software developers should be united against. █
Related/contextual items from the news:
The litigation surrounding Android continued this year, with significant developments in the patent litigation between Apple Computer, Inc. (Apple) and Samsung Electronics, Inc. (Samsung) and the copyright litigation over the Java APIs between Oracle Corporation (Oracle) and Google, Inc. (Google). Apple and Samsung have agreed to end patent disputes in nine countries, but they will continue the litigation in the US. As I stated last year, the Rockstar Consortium was a wild card in this dispute. However, the Rockstar Consortium settled its litigation with Google this year and sold off its patents, so it will no longer be a risk to the Android ecosystem.
The copyright litigation regarding the copyrightability of the Java APIs was brought back to life by the Court of Appeals for the Federal Circuit (CAFC) decision which overturned the District Court decision. The District Court had found that Google was not liable for copyright infringement for its admitted copying of the Java APIs: the court found that the Java APIs were either not copyrightable or their use by Google was protected by various defenses to copyright. The CAFC overturned both the decision and the analysis and remanded the case to the District Court for a review of the fair use defense raised by Google. Subsequently, Google filed an appeal to the Supreme Court. The impact of a finding that Google was liable for copyright infringement in this case would have a dramatic effect on Android and, depending on the reasoning, would have a ripple effect across the interpretation of the scope of the “copyleft” terms of the GPL family of licenses which use APIs.
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Summary: Challenging the clueless ruling from the Court of Appeals for the Federal Circuit in the United States (very pro-software patents and anti-computer science), notable programmers write to the highest court
The SCOTUS and CAFC don’t often agree about patents. One possible (and commonly named) explanation is that the CAFC is inherently corrupt after patent maximalists got hold of positions of power, whereupon hid their conflicts of interest. CAFC, especially in its current form, should not be allowed to exist. It’s rogue.
Ruling in favour of Oracle, CAFC recently made copyrights on APIs a dangerous precedent and computer scientists are rightly fuming, seeing how a bunch of ignorant lawyers make a mockery of anyone who understands how computers work. As IDG put it:
Computer scientists have asked the U.S. Supreme Court to reverse an appeals court decision that Java APIs, the specifications that let programs communicate with each other, can be copyrighted.
In a dispute between Oracle and Google, the 77 scientists argue that the free and open use of the application programming interfaces has been both routine and essential in the computer industry since its beginning, and depended on the “sensible assumption” that APIs and other interfaces were not copyrightable.
“When Google wrote its program-interface (API) for Android, the company made a strategic decision to mimic the method call structure of Java,” writes Dennis Crouch under a misleading headline. “In the Copyright [CAFC] lawsuit,” explains Crouch, “the district court held that the API method headers were not protectable under copyright. However, the Federal Circuit reversed on appeal — finding the Java API taxonomy copyrightable as a whole. In particular, the appellate panel led by Judge O’Malley rejected the idea/expression merger doctrine since there are many other ways that functionally equivalent method-calls could have been constructed besides those found in Java. “Merger cannot bar copyright protection for any lines of declaring source code unless Sun/Oracle had only one way, or a limited number of ways, to write them.””
Anyone with a bit of a clue about programming (which makes about every patent lawyers or judge unsuitable to comment) can say that this is a ridiculous case with pretty much no basis at all. Many famous computer scientists have already written to the Court about this. As TechDirt put it:
Perhaps the most interesting was put together by the EFF, and was signed by 77 computer scientists, including many of the most well-known and most respected computer scientists around, including Hal Abelson, Brian Behlendorf, Ward Cunningham, Peter Deutsch, David Dill, Dave Farber, Ed Felten, Mitch Kapor, Alan Kay, Brian Kernighan, Guido van Rossum, Avi Rubin, Bruce Schneier and Bjarne Stroustrup among others. There are a lot more, obviously, but those were just a few of the names that stood out.
Perhaps realising that fellow OIN members and Android users can attack Android itself, Google has meanwhile signed this defensive deal with LG:
LG Electronics and Google sign a 10-year cross-licensing agreement that gives Google access to wearable device patents while encouraging LG to continue marketing Android mobile devices.
Android is by far the best selling platform right now, so no wonder it comes under fire. Since it is inherently Open Source (AOSP) and even Free software for the most part (it uses and contributes to Linux), we do care about this case a great deal and will keep on following it as a matter of priority. █
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Summary: Google takes its fight over API freedom to the Supreme Court in the Unites States and it also takes that longstanding patent harassment from the Microsoft- and Apple-backed troll (Rockstar) out of East Texas
“Google makes a series of compelling points in its petition,” writes Simon Phipps in relation to Google’s defence against Oracle (SCOracle, continuing the tradition of SCO’s copyrights misrepresentation). Google has found some material errors in interpretation of laws/cases, citing the corrupt CAFC with its utterly ridiculous ruling that we covered at the time. “These points alone seem strong to me,” says Phipps, “[b]ut Google also says CAFC has made a serious error that ignores the precedent of earlier SCOTUS decisions and violates the distinction between copyright and patent as monopolies.
“On the first point, Google refers back to the SCOTUS Lotus v Borland case in 1996. Google points out that “methods of operation embodied in computer programs are not entitled to copyright protection,” then asserts that the Java class APIs are a method of operating the Java class implementations. Since Android’s implementations of the Java APIs are Google’s original work, the company claims copyright does not apply.”
Oracle in the mean time is grabbing some talent from Google and it is not yet clear if there will be a SCOTUS case (the request for appeal may be denied). It is clear that CAFC does not understand software APIs or maybe it is just too corrupt (which becomes an accepted view these day), so this appeal has merit. As Pogson explained: “Copyright should not apply to other’s works. If you write software to work with some API, no other authour should be able to forbid that or to tax that. Yet, that’s what Oracle wants to do and they found a lower court that agreed with that despite that being an illegal extension of copyright to others’ work. Stranger still, Java is FLOSS…”
Here is some of the earliest coverage:
The legal fracas started when Google copied certain elements—names, declaration, and header lines—of the Java APIs in Android, and Oracle sued. A San Francisco federal judge largely sided with Google in 2012, saying that the code in question could not be copyrighted. But the federal appeals court reversed, and ruled that the “declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection.
This goes beyond patents and into copyrights on ideas/words. Oracle should not be allowed to win this as the is not just about Android but about software development in general.
Do remember that Oracle is in a pact with Microsoft and Apple when it comes to patents. They share control over CPTN, which is made out of Novell’s patents. There is a similar arrangement around Rockstar, which also involves Apple and Microsoft (Apple, Microsoft, Ericsson, RIM and Sony is the complete list). Joe Mullin says that Rockstar too is still harassing Google (Android) and Google has just managed to take the lawsuit of of the capital of trolls, East Texas:
It’s been nearly one year since Rockstar Consortium, a patent holding company owned in part by Microsoft and Apple, launched a major patent assault against Google. Now, the issue of where the case will be heard has finally been resolved—in Google’s favor.
Google took the case to the nation’s top patent court to get it out of East Texas and back to its home state, California. The matter of venue isn’t a mere sideline skirmish. East Texas courts are generally considered tough on patent defendants, with few cases resolving on summary judgment, stringent discovery rules, and last-minute scheduling decisions. Google’s Texas case was scheduled to be heard in front of US District Judge Rodney Gilstrap, who hears far more patent cases than any other district court judge in the nation.
The war against Android is a big deal for those of us who care about Free software and GNU/Linux. Let’s not lose sight of the fight against this kind of abuse. Public apathy helps crooked judges and abusive companies like Oracle, Microsoft, and Apple. █
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Summary: Now that a relatively high court in the US views APIs as a recognised monopoly we face new risks and Mono is on very shaky ground
The other day when we wrote about patents as an issue with huge implications to FOSS we took note of Microsoft- and Oracle-backed tools such as CPTN (Novell’s patents), which OIN is quite pointless against. OIN is wrongly assuming a particular strategy of patent litigation will develop, even though companies like In Microsoft and Nokia dodge to proxies like MOSAID. Here is a new piece about OIN which focuses on hardware:
The next big intellectual property battle has been forming over hardwired and programmable chips made for mobile devices that leverage Linux code. However, the Open Invention Network has strategically deployed forces to keep Linux-powered smartphones, tablets and other computer technologies out of harm’s way. Its goal is to create a patent litigation no-fly zone around embedded Linux.
OIN does not appear too have done much — if anything at all — to stop litigation of this kind. To make matters worse, look what members like Oracle have been doing, leveraging copyright to attack other OIN members.
Here is Glyn Moody’s new take on this matter. He writes:
Last week, that “idea/expression dichotomy” was dealt a serious blow by a US court. Significantly, it is the same court – the Court of Appeals for the Federal Circuit (CAFC) – that is largely responsible for the software patent mess in the US.
Indeed, CAFC has been quite notorious for this. It is worse than even SCOTUS. Well, citing this older article, Mike Masnick explains that we should all be “recognizing that APIs shouldn’t be covered by copyright…as it makes people programming on your platform more valuable since they have more options and more flexibility. The big companies who don’t like this are being short-sighted. They’re trying to lock in developers, by forcing them to only develop for their platform, but in doing so, are inherently making their own platform less valuable.”
Now we are stuck in a mess of copyrights APIs, Jose warned us about such stuff years ago, in relation to Mono. Whatever Dalvik means to Java (Oracle) Mono may mean to .NET (Microsoft). We will revisit and expand on this another day. █
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Lawyers deciding on technical issues
Summary: The Court of Appeals for the Federal Circuit (CAFC) shows us yet again that it does not understand technology and its latest ruling is harmful to the technical community
YESTERDAY we wrote about the menacing CAFC ruling, which basically throws a lot of FOSS under the rug (by extension) for it alleges that APIs are copyrightable and that their reuse does not qualify as fair use. We have already criticised CAFC for being very pro-software patents and for being utterly clueless on technical matters on numerous occasions, so the latest decision from it oughtn’t be so shocking. As Ars Technica put it, “Google, which said it was exploring its legal options, decried Friday’s ruling. The Mountain View, CA-based media giant said the decision “sets a damaging precedent for computer science and software development.””
Google is correct and it will hopefully appeal this decision. What we have here is misuse of copyrights, SCO style, by Oracle.
TechDirt posted the best rebuttal to this decision, attracting hundreds of comments and revealing a lot of holes and mistakes in CAFC’s ruling (the text). Here’s a sample:
Appeals Court Doesn’t Understand The Difference Between Software And An API; Declares APIs Copyrightable
We sort of expected this to happen after the appeals court for the Federal Circuit (CAFC) held its oral arguments back in December, but CAFC has now spit at basic common sense and has declared that you can copyright an API. As we noted, back when Judge William Alsup (who learned to code Java to better understand the issues in the case) ruled that APIs were not subject to copyright protection, his ruling was somewhat unique in that it was clearly directed as much at an appeals court panel who would be hearing the appeal as it was at the parties. Alsup rightly suspected that the judges on the appeal wouldn’t actually understand the issues as well as he did, and tried to break it down clearly for them. Unfortunately, the three judge CAFC panel did not pay attention. The ruling is so bad that legal scholars are suggesting that it may be as bad as the horrific ruling in the Garcia case.
As for the ruling itself… well… it’s bad. The court seems to not understand what an API is, confusing it with software functionality. It also appears to misread Judge Alsup’s ruling, thinking that he’s mistakenly using a fair use analysis to determine whether or not something is copyrightable. But that was not the basis of Judge Alsup’s ruling. He very specifically noted that the “command structure is a system or method of operation under Section 102(b) of the Copyright Act and, therefore, cannot be copyrighted.” The CAFC panel doesn’t seem to understand this at all.
It seems fairly clear that the CAFC judges don’t understand the difference between an API and software. And thus they make a decision that makes no sense. There is no distinction recognized when it comes to the functionality of an API and how it’s entirely different than the purpose of the software itself. This is especially clear towards the end, in which the CAFC ruling misrepresents some discussions on whether certain functionality is best protected by patents or copyright. But the problem is that they misinterpret statements people are making about APIs, thinking that those statements were made about software as a whole. This is just a flat-out fundamental misunderstanding of what an API is, assuming that it’s just software.
Note that “[software]” thrown in before interfaces? Google is talking about whether APIs — “application programming interfaces” — are copyrightable. Not whether or not software is copyrightable. And yet the CAFC doesn’t even seem to realize this. Ridiculously, CAFC then uses its own misunderstanding and misquote, and points to some of the (many) arguments where people argue that patents are inappropriate for software to dismiss Google’s argument about APIs. It honestly doesn’t realize that it’s comparing two totally different things. What lots of people agree on: software shouldn’t be patentable and APIs shouldn’t be copyrightable, but software can be copyrightable and API functionality may be patentable. But by confusing APIs and software, CAFC totally misreads both arguments.
This will probably go to SCOTUS next (unless they decline to weigh in), but in the mean time it spreads uncertainty and doubt, harming not only Free software developers but developers in general. As TechDirt put it, “CAFC has mucked up another form of intellectual property law through a basic (and near total) misunderstanding of technology.” █
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