PJ takes the burden of FUD
Summary: Critical assessment and in-depth research is seen with the return of PJ
THE WordPerfect case is being further analysed by Pamela Jones (PJ) over at Groklaw. Mark Webbink has not written quite so much recently, so it seems like Jones is back in charge as the dominant writer and FUD buster (which professor Webbink is reluctant to be). We draw inspiration from PJ and from Groklaw, so it is delightful to see her back. She says that the WordPerfect case carries on, as she noted the other day (the corporate press did not make it apparent). To quote the opening parts:
When Judge J. Frederick Motz ruled for Microsoft on its motion for judgment as a matter of law the other day, tossing out Novell’s antitrust case against Microsoft, he explained his reasons at length. One of them was that there was, he asserted, no evidence of any realistic middleware threat.
However, here at Groklaw, we’re continuing our project of trying to provide text versions of all the PDF exhibits from the Comes v. Microsoft antitrust litigation, and a volunteer posted an exhibit [PDF] he’d just transcribed, and as I was reading it to edit any mistakes, I started to say to myself, Hey, this contradicts the judge. My next thought was that maybe Novell never saw this exhibit. After all, one of the things that happened in this case was that neither party was able to easily find what the exhibits all were. There are thousands of them, and they were identifiable only by numbers, and numbers from other litigations. That’s why we started on the project, to make them more easily searchable.
But then I started to dig a little, and it turns out that Novell did offer the court this very exhibit. It’s Exhibit PX 44 in this PDF collection of exhibits, attached as an exhibit to Novell’s opposition to Microsoft’s motion for judgment as a matter of law.
The Comes exhibits sure prove handy, even years after they were released (owing in part to Grouch). In other news from Jones, Microsoft Florian, who is now paid by Oracle for FUD, keeps deceiving. To quote Jones:
The point isn’t the amount, $2 billion or $6 billion. It’s the emphasis over and over, as I’ll show you, that it could be *any* kind of billions. In the end, after the trial, Google didn’t have to pay so much as a penny.
Did you notice how he claims that what he wrote has been repeated in the media and read maybe billions of times? If all he did was factual reporting, that wouldn’t be such a problem, although I’ll have more to say about that at the end. But is it the case that his reporting was purely factual? Let’s see.
What Does the Record Show?
I wrote earlier today that I thought Oracle should have to pay at least some of Google’s costs from the trial, if only because I didn’t think Oracle should be allowed to cause so much unmerited damage and then just walk away. Let me show you what I mean by unmerited damage that shouldn’t be ignored by reviewing some of what FOSSPatents wrote about the case.
By my reading, FOSSPatents at least implied repeatedly that Google was a willful infringer, going so far as to assert that the judge held that suspicion himself, along with presenting multiple gloomy analyses of what the bad outcome for Google as a result could be.
Since he is paid by foes of FOSS, journalists should just stop paying attention to him. There are many blogs out there that are not influenced by money. At Techrights, ideology might have some influence but not money. The same goes for Groklaw.
Here is Jones’ analysis of the balance game: “Oracle has filed its expected Objections [PDF] to Google’s $4+ million Bill of Costs. I have it as text for you. “Denial of costs is proper,” Oracle argues, “where (1) the issues were especially close and difficult, (2) the case presented a landmark issue of national importance, (3) the judgment was mixed, or (4) the losing party litigated in good faith.”"
Notice that no “billions” are mentioned; Google wants its legal fees (“millions”) back; retracting all the FUD or getting compensated for it will never happen.
Oracle is also being criticised for its exploitative new trick against Linux contributors:
Oracle has made an interesting offer to companies using a free version of Red Hat Enterprise Linux: Switch to our free Oracle Linux instead.
Oracle hardly develops Linux. Now it has Solaris, too. Its best known Linux developer left and the open-source HPC language that Oracle inherited from Sun is being neglected. For Larry Ellison, it does not make sense if it does not make a lot of money.
The backlash against oracle [1, 2] for its attack on CentOS gets noticed and one quoted response goes like this:
CentOS penguins maul Oracle’s Linux migration pitch
Forum member Spearchucker fires back:
That ‘support’ word, right there, is the thing that makes me stay as far from Oracle as I can. It’s like “Dude, here’s the software. Have it, it’s cheap/free.” When things go wrong you get stung for exorbitant support/consulting fees, because, hey, you’re tied in. With nowhere to go.
The fact it’s Oracle behind Oracle Linux is the biggest sticking point. The CentOS penguins either don’t trust Oracle or hate it for throwing its weight around in the open source community, hurting their friends and other projects, and trying to control open source – the Hudson and OpenSolaris projects.
Oracle is not a friend of Linux and FOSS. It’s an exploiter of those, and that is different from being a “friend”. We sometimes get chastised for criticising Oracle, but many in the FOSS community will agree that Oracle has done more damage than good for FOSS. █
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Summary: Oracle and Microsoft, which are suing Linux-based platforms, are making money at the expense of community developers of Linux
THE recent FUD from Oracle got mentioned in many sites, so people will at least be aware of what Oracle is doing. Here at Techrights we strive to report on issues that the press hardly touches. One of those issues is Novell and in particular the disservice it does to FOSS since Microsoft is the major financial backer.
“What Oracle and Novell are trying to do is promote an expensive variant of Linux, where non-contributing entities that are moreover attacking Linux (and Android) actually make a profit from Linux.”SUSE brags about running on Europe’s fastest computer, for example, but little does it ever say about the fact that Microsoft receives a share of the profits. The great threat here — and the reason we have been so focused on Novell — is that Microsoft tax on GNU/Linux will become so prevalent that it is seen as the norm. To normalise extortion and racketeering is definitely possible as in the political arena, for example, many cases of economic warfare have already been trivalised, to the point where nobody is allowed to be critical of them, at least not in the mainstream.
What Oracle and Novell are trying to do is promote an expensive variant of Linux, where non-contributing entities that are moreover attacking Linux (and Android) actually make a profit from Linux. This is an outrageous situation, a case of adding insult to injury. █
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Roaring out loud
Summary: Oracle FUD targets competing distributions rather than non-Free operating systems such as Windows
RHEL clones are numerous and several of them are widely used. Over the years we wrote several articles about CentOS, which is probably the most widely used clone. It is hard to measure Free software usage with certainty, so let us merely assume that the main clone to compete with is CentOS.
Oracle has been trying to scoop up Red Hat clients, for its greed knows no boundaries. Now we see Oracle trying to do the same thing to a community project and as mentioned in Daily Links, FUD is involved:
I was quite surprised to see Oracle has a new page up, encouraging people to switch from CentOS to Oracle Linux.
For those that aren’t aware, CentOS is a completely free re-build of Red Hat Enterprise Linux. It’s a distribution our customers use a lot, both with our own CentOS 6 AMIs and on bare metal.
Let’s remember that Oracle is also spreading Android/Linux FUD by suing and making claims that the courtroom deemed inadequate. Oracle is planning to carry on suing, but Google fights on:
Immediately after Oracle’s renewed motion for judgment as a matter of law was denied by Judge William Alsup, Google has filed its own. Google’s renewed Rule 50(b) motion is about Count VIII of Oracle’s complaint regarding the rangeCheck function, 9 lines of code, which Google argues is de minimis as a matter of law. In the alternative, Google asks for a new trial on this issue. But like Oracle, Google states that it is filing this motion simply to preserve its appeal rights, now that Oracle has stated it will appeal.
What Oracle is doing shows an iron-fisted approach and total disregard for Linux-powered operating systems that cannot be exploited by Oracle. No wonder prominent Linux developers find greener pastures when they decide to leave Oracle. They find FOSS-friendly places. Not so long ago Oracle hired Microsoft Florian to spread FOSS patent FUD, this man’s expertise. █
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Monopoly (uniformity) versus openness and diversity
Summary: A mixed roundup of news and analysis affecting the growth of Linux
THE REALITY of “patent wars”, as a Microsoft-friendly site put it (especially in smartphones), is being realised by more and more people. “An infographic showing who is suing whom and who is selling patents to whom shows that patents are indeed a source of much friction and the only likely winners are the lawyers.” This is the description of this recent article which helps illustrate just how harmful patents have been, unless we take into account a patent lawyers’ perspective. In this post we’ll present some news with evidence-based material that can help support an appeal to authorities.
Over at Groklaw, the biggest lawsuit against Android is being covered only to say that: “The judge in the Oracle v. Google litigation has denied Oracle’s risible renewed motion for judgment as a matter of law under Rule 50(b), one day after Oracle filed its reply to Google’s opposition to it. No ruling in Oracle’s favor, therefore, will be forthcoming, and no new trial. Also, no hearing on the 26th. The judge didn’t need to hear them jabber on about all this in person, at further expense to both sides, before making his decision.”
“The judge in the Oracle v. Google litigation has denied Oracle’s risible renewed motion for judgment …”
–GroklawRecently, one writer questioned Larry Ellison’s motives for filing this whole bogus lawsuit. We have always suspected that his best friend Steve Jobs played some role in this decision. To quote the writer however: “IT SEEMS that Oracle’s lawsuit against Google over its use of Java in Android has fallen apart. Although the trial is still ongoing, and the judge has yet to hand down an important copyright ruling while the jury has yet to return its verdicts on patents and damages, if any – it’s already apparent that Oracle is unlikely to win billions or even millions of dollars from Google, and it’s possible that Oracle might lose entirely.
“This lawsuit is rather important, however, if only because it has raised the spectre that software APIs might be found subject to copyright. As many people have already noted, that would have dire consequences for interoperability and software freedom throughout the IT industry. It would put into play programming languages, the interfaces of software stacks and potentially even the internet itself.
“All kinds of APIs could suddenly become targets for the extraction of licensing fees and endless litigation. That could effectively destroy the entire software industry and stifle innovation for years, creating a terrible dystopia.
“While that depressing vision might not in fact develop if APIs are deemed copyrightable – and it seems unlikely that Judge Alsup will rule that they are, given that US copyright law has always considered them functional elements and not creative expression that’s deserving of copyright protection – that’s what Oracle has argued for in its lawsuit against Google.”
Oracle’s case is weak and meanwhile the main party benefiting from it is Apple. After the lawsuit against Google some said that software patents as a whole were discredited.
More recently, the judge in another case against Android explicitly questioned software patents (well done, Mr. Posner), noting in an actual column (rare for a judge) that “there are too many patents in America (that is his headline, see a printer-friendly version for future reference). “Recently,” says the judge, “while sitting as a trial judge, I dismissed a case in which Apple and Motorola had sued each other for alleged infringement of patents for components of smartphones. My decision undoubtedly will be appealed, and since the case is not yet over with it would be inappropriate for me to comment publicly on it.
“But what I am free to discuss are the general problems posed by the structure and administration of our current patent laws, a system that warrants reconsideration by our public officials.*
“U.S. patent law confers a monopoly (in the sense of a right to exclude competitors), generally for 20 years, on an invention that is patented, provided the patent is valid — that is, that it is genuinely novel, useful, and not obvious. Patents are granted by the Patent and Trademark Office and are presumed valid. But their validity can be challenged in court, normally by way of defense by a company sued by a patentee for patent infringement.
“With some exceptions, U.S. patent law does not discriminate among types of inventions or particular industries. This is, or should be, the most controversial feature of that law. The reason is that the need for patent protection in order to provide incentives for innovation varies greatly across industries.”
Over at Groklaw, another valuable reference was provided for the new work from Boston. To quote: “Jim Bessen and Mike Meurer have published their latest paper examining the impact of “patent trolls” (they politely refer to them as Non-Producing Entities or NPEs) on our national economy. Entitled The Direct Costs From NPE Disputes [PDF], the paper examines the direct costs of patent assertions by NPEs against operating companies, i.e., companies that actually make things to earn their revenues. More on the Bessen/Meurer paper in a bit.
“In the meantime, Prof. Colleen Chien of the Santa Clara University School of Law is conducting a survey on the economic impacts of patent litigation on the economy, and she could use your help. Prof. Chien is particularly interested in survey responses from start-ups and small companies. Respondents need not be patent holders or in the technology business. If you know of anyone who could provide a useful response, please encourage them to participate.
“Now, back to the Bessen/Meurer paper. Here are some of the highlights:
* The number of defendants in NPE patent suits doubled from 2009 (approximately 2,700) to 2011 (more than 5,800).
* Direct costs of patent assertions by NPEs are cost our national economy more than $29 billion dollars a year, and that tab also doubled from 2009 to 2011.
* Much of the burden of this NPE litigation falls on small and medium-sized companies. 82% of the defendants, accounting for 50% of the defenses, had median revenues of less than $12 million a year.
* They find little evidence to support the contention that NPEs promote invention. [Why am I not surprised?!]”
“They find little evidence to support the contention that NPEs promote invention.”
–GroklawSo now we have both judges (lawyers) and scholarly people (academics) telling us that the system is broken. In order to ensure this does not spread to Europe, please, our dear European readers, consider writing to politicians whom we named.
A month and a half ago we saw Kelora losing a patent for it being “obvious”, leading to the question, are “Software Patents In Danger?”. To quote: “As software patent litigation ramped up over the past few years, software patents have come under the microscope within the technical community. Many investors and technologists believe that software patents should be abolished all together, while others take the less extreme position that many software patents are obvious over known prior art (“prior art” being earlier publications that show a patent is obvious or not new). Courts are increasingly cognizant of these criticisms.
“Though it is unlikely that software patents are going away any time soon, as the recent summary judgment in eBay v PartsRiver (PartsRiver is now known as Kelora) demonstrates, courts are beginning to do a more thorough job of applying the obviousness standard to software patents.”
Right now we must work to squash software patents while at the same time ensuring we can compartmentalise and contain this virus, simply by preventing our politicians from being bamboozled. The evidence is overwhelmingly on our side. We need the voices though. As we’ll show in a later post, Microsoft lobbyists are paid to speak about patents on ‘our behalf’, at our expense, resulting in great disparity (or distortion) between public policy and public opinion. █
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Summary: Oracle, whose founder considers Apple’s Steve Jobs to be his “best friend”, is unable to tax Android (even by one cent) and Apple gets beaten in court also
THE Android/Dalvik case continues to be studied whilst Oracle is expected to appeal the ruling. For the time being, Android remains free from Oracle tax. Steve Jobs’ war on Android surely is failing and Apple is falling in the ranks compared to Android. Apple cannot win against its main Android rival, not even in court:
Apple has lost its legal battle against Samsung in the Netherlands. A judge ruled that Apple infringed upon Samsung’s 3G patent associated with the Galaxy Tab 10.1 tablet.
Here is another report:
The Korean consumer electronics giant won the ruling in a court in The Hague, according to reports.
It seems clear that Apple overestimated its odds in court. With those lawsuits, Apple is attacking innovation. Cory Doctorow quotes Hugh as saying about the EFF’s latest campaign:
Today, EFF launched a new campaign against software patents. In this campaign, we outline seven proposals that we think will address some of the greatest abuses of the current software patent system, including making sure that folks who independently arrived at an invention can’t be held liable for infringing on a software patent. But our campaign isn’t just about our proposals — we also want to hear, and amplify, the views of the technical community. Many engineers, researchers, and entrepreneurs have suggested that reform is not enough and that software should not be patentable, period. We want to record these views, which is why our Defend Innovation campaign is designed to solicit comments from all of the stakeholders. We’ll incorporate what we learn into a formal publication that we can take to Congress that reflects the views of innovators, academics, lawyers, CEOs, VCs, and everyone else who is concerned about the software patent system.
Suffice to say, software patents are currently one of the main barriers to Android “world domination” as some call it. We intend to refocus accordingly (more on that in the next post). █
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Summary: A recommendation to the EFF and to Oracle
A FEW DAYS ago we wrote about an initiative from the EFF which strives to cause change (revision) in patent policies. Timothy B. Lee urges the EFF to call for “elimination of software patents”, making it a lot more explicit (not without resistance from Luddites):
Opinion: EFF should call for the elimination of software patents
The Electronic Frontier Foundation announced a new initiative on Tuesday to seek reform of the United States patent system. Under the banner of Defend Innovation, the civil liberties organization suggested seven ways Congress could make the patent system less harmful to progress in software.
Techrights has been very consistent with its view that software patents deserve no room in industry or society. See for example older posts such as:
- Patent Defence Cartels Versus Abolishing Software Patents
- President Obama Ignores the US Population’s Plea to Abolish Software Patents (Updated)
- Larry Page Should Start by Abolishing Software Patents
- Dear Google: Please Abolish Software Patents, Don’t ‘Donate’ Patent ‘Protection’
- Why Europe Must Prepare to Abolish and Block All Software Patents
Speaking as a software engineer, they make my life worse, not better, and people who buy software also suffer. The “patent lords” are monopolists, trolls, and their lawyers. Oracle is an example of one major giant challenging and rattling a platform I develop for (Android); having suffered a loss in the case against Google it will get not even a dime. All the money just went to lawyers. To quote a new article:
In a hearing in the US District Court today, it was determined that Google will pay a net total of nothing for Oracle’s patent claims against them. In fact, Google is given 14 days to file an application for Oracle to pay legal fees to Google(in a similar manner to how things are done for frivolous lawsuits). However, it is not quite peaches and roses for Google, as Oracle is planning on appealing the decision in the case.
If Oracle wants to earn back respect from its seemingly-diminishing Linux staff it will just simply give up on this pointless and baseless case. It helps illustrate the harms of software patents. █
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Summary: Apple makes frantic litigious moves against yet more Android-based products and the reason seems clear
REPORTS suggest that HTC cannot use Google’s patents to protect itself against Apple.
While the idea of patent passage seems unhelpful (invaliding the said necessity of patents), what the ITC in this case fails to assess or consider is that Apple — together with Microsoft — is feeding patent trolls via proxies — an offence which in itself deserves closer scrutiny. To quote a report about the US-biased ITC (it mostly blocks Asian companies, naturally):
The International Trade Commission has rejected HTC’s attempts to use five patents on loan from Google against Apple in smartphone-related complaint. ITC Administrative Law Judge Thomas Pender agreed with Apple’s arguments that only Google, and not HTC, has the proper legal standing to assert those patents.
How about those judges take a closer look at Apple’s own antics? Apple’s inexcusable behaviour when it comes to patents led us to a call for boycott.
In this siege from Apple HTC needs to find a response and it is expanding its patent portfolio as part of the defensive strategy:
HTC has faced some serious setbacks in its patent battle with Apple. But that won’t stop the company from getting back up and continuing the fight.
Apple’s abusive patent moves are further discussed in light of the infamous “647 patent”:
In the mobile patent wars, the giant of the ecosystem has one big bludgeon it is using to bully everyone else into subservience. It is a patent known as ’647, and it is Apple’s biggest weapon in fighting off the Android hordes, including Motorola, HTC and Samsung. But what exactly is the ’647 patent, and how is Apple using it in court?
When Apple reacts in this fashion it’s clear that it’s losing to Android. According to some of the latest reports, not only has Apple fallen behind Android in the smartphones market; among businesses, Apple fell behind Android in the tablets market too. Here is a news item:
Apple’s iPad may still be considered the king of tablets in many quarters, but new research data casts a shadow of doubt over how long that will continue.
Apple’s attempt at a Galaxy S III ban is not quite working out so far; the elephant in the room is Google also because it is fighting against Apple at the same time:
Google Inc.’s bid to block imports of Microsoft Corp. (MSFT)’s Xbox gaming system and Apple Inc. (AAPL)’s iPhone based on patents owned by its Motorola Mobility unit may hurt competition, the U.S. Federal Trade Commission said.
Weighing in on cases before another U.S. agency, the International Trade Commission, the FTC said in filings yesterday that companies should be limited in their ability to win orders blocking imports of competitors’ products over the use of patents built into industrywide standards.
Motorola Mobility is citing its standard-essential patents to persuade the ITC to stop imports of Apple and Microsoft devices made in Asia. The ITC is gathering comments on whether such an import ban would be in the public interest. Final decisions in the cases are scheduled for August.
Microsoft and Apple like to pretend to be victims, but it is them which started it all. Another CPTN member, Oracle, lost its best known (in my assessment) Linux developer and he is quick to deny that the company’s attack on Android had something to do with it:
Got an email from Chris Mason today clarifying the situation. Turns out my speculation is off the mark. Here’s what Chris wrote to me:
Oracle has strongly supported my GPL projects over the years, and I was
in no way implying that Oracle does not believe in open source.
Oracle always encouraged and rewarded my contributions to open source
Regardless, Oracle and Apple both deserve no business for their patent attacks on Android. It’s a matter of practicality and people can vote with their wallet. Those who buy Apple don’t seem to mind the wallet because as one contributor showed us some hours ago, Apple charges 54% more to replace Retina MacBook Pro’s battery. He quoted: “Apple’s price for replacing the Retina MacBook Pro’s battery is $199″ (then adding, “[d]isposable computers are not very green“). Greenpeace often slams Apple and Microsoft for harming the environment more than other companies. █
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Photo from Oracle Corporate Communications
Summary: Linux talent leaves Oracle
ORACLE has a bit of an opportunity to heal its PR wounds if it drops the case against Android (Google) by not appealing. For the time being, Oracle continues to be seen as a foe of Linux to some degree and it’s not going to help database sales (many run it on top of GNU/Linux and the buyers love Linux).
Linux developers have grown more suspicious of Oracle, it’s not just Android developers (who are sometimes the same people as Linux developers). Oracle’s best known Linux developer (at least in my view) is leaving the company. Time to say goodbye to Oracle:
Chris says on the mailing list, “From a Btrfs point of view, very little will change. I’ll still maintain Btrfs and will continue all of my Btrfs development in the open. Oracle will still use Btrfs in their Oracle Linux products, and I’ll work with all of the distros using Btrfs in production. Fusion-io really believes in open source, and I’m excited to help them shape the future of high performance storage.”
So basically Btrfs will continue to live (it’s Free software), but not necessarily be maintained by Oracle staff. Will Oracle’s attitude lead to the departure of more Linux talent? █
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