Now:
Then:
Now:
Then:
Summary: No more Microsoft in the Open Source Initiative‘s Board. Based on the Wayback Machine, the change happened some time around May.
Update: We have just been told by another Board member that “She resigned. Her work situation had changed and she no longer had the time to devote to OSI.”
Table of Contents
Introduction: Cover and quick Introduction [PDF]
Chapter 1: Know your enemies– Act like a friend [PDF]
Chapter 2: Work with the system– Use OEMs and your legal team [PDF]
Chapter 3: Playing the victim– Show the world that too much freedom hurts development [PDF]
Chapter 4: You get what you pay for– Getting skeptics to work for you [PDF]
You are here ☞ Chapter 5: Open Source Judo– How to bribe the moderates to your side [PDF]
Chapter 6: Damning with faint praise– Take the right examples of free software and exploit them for everything
Chapter 7: Patent War– Use low-quality patents to prove that all software rips off your company
Chapter 8: A foot in the door– how to train sympathetic developers and infiltrate other projects
Chapter 9: Ownership through Branding– Change the names, and change the world
Chapter 10: Moving forward– Getting the best results from Open source with your monopoly
IN 1999, Bruce Perens left the Open Source Initiative that he co-founded with Eric S. Raymond. In his letter to the community, he explained:
“Open Source has de-emphasized the importance of the freedoms involved in Free Software.”
He continued: “One of the unfortunate things about Open Source is that it overshadowed the Free Software Foundation’s efforts. This was never fair – although some disapprove of Richard Stallman’s rhetoric and disagree with his belief that _all_ software should be free, the Open Source Definition is entirely compatible with the Free Software Foundation’s goals, and a schism between the two groups should never have been allowed to develop.”
This schism is ripe for exploitation. As mentioned in the previous chapter: “we can stir contention between ‘open’ and ‘free’ and get open source to defend our model…” Getting fans and amateurs to first fight our battles for us, and then blame the very people they’re attacking for disagreeing with them– is an important step and makes open source an unlikely if valuable ally.
Since no one involved with open source is stupid enough to think they can change the minds of hardened free software zealots, it seems obvious they only use rhetoric to make themselves look like the more reasonable option and to gain the hearts and minds of people who are still on the fence. Those are the same people we want to bring to our side.
Nonetheless, this is an industry. The ideal would be to have industry people on our side. And just as crime glues people to the nightly news, the drama between open source and software idealists gets people reading about whatever open source has to say this week.
The tech press loves open source, because it has greater affinity for the industry the press represents. If you love this business as much as we do, you quickly get tired of all the self-righteous whining of nerds and long for the can-do, easygoing and corporate-positive attitude of open source geeks. They might not appreciate an irreparable, proprietary kernel as much as we do– but they understand that not all improvements are free or open. These are people we can work with. And if we can work with them, we can take advantage of them.
Proprietary software has to be marketable, and immediately this gives us an advantage with people who want to write about it– our titles are more fun to cover, lead to more interesting stories and more interesting headlines.
Moreover, when we send press releases or hire copywriters, we can throw our values into the conversation and remind people why everything is better when our tools are included– we can take anything and use our market research and our clout (and leverage) with other companies to create a product ten times better than free software can hope to compete with.
Even when this isn’t true, the tech press has taken our side again and again. We can even push journalists– just like Microsoft did to push OEMs to cooperate– to lean favorably or lose our participation and cooperation. Time is money; in journalism, doubly so. But without our help, the tech press often doesn’t get their story as fast. Just as we can do more favorable business with OEMs, forcing them to dance for us– the same game works with journalists.
If an author becomes too critical, we can drop them– stop handing them stories, and even use their employers against them (favoring another publisher entirely, until they learn from their mistake.) Apple has done this in the past, and their national-security-like commitment to security under Steve Jobs meant that journalists who wanted a story had little hope of getting it without staying loyal to Apple Inc.
But it can’t be said enough times, that just like with everything else (customers, competitors, partners, even open source itself) that our relationship with journalists should be friendly on the surface– and appear friendly as a rule. Even as we subtly threaten writers not to push too hard or they will fall out of favor, we need to smile and tell them “Look, we aren’t here to tell you what to do. You have a business– we have a business. We just want to be sure that what you write is good for both of us.” They’ll get the picture. The vast majority of them always do, and the people who pay them always do.
Open source provides us many new opportunities to make these exchanges and representation in the press look more organic and less staged. The endless, cloying premise of making everything “more open” is the perfect trojan horse for delivering more of our exclusive products to an audience that thinks that it is seriously changing the way we do business.
And they’re right, on the surface– we have changed to make full use of their model, their rhetoric, their vague pseudopolitical nonsense designed to market freedom from our monopolies, to our monopolies. Two decades or more into this dance, we still use the same playbook and we still do it with a smile and thinly-veiled displays of our power.
If they doubt our friendship, we can help them make money in the process. Why not? They help our business. We are in this for control, just as much as money– we pretend to share control through carefully meted partnerships, but the value we generate is sustained by our position staying on top. As long as we remain powerful, we have our budget for advertising, our budget for lobbying, our budget for bribing– not that we need to call it that.
Big business means going to lunch, hosting dinners, sending out promotional items, and so on. We bribe customers with special deals, we bribe journalists with meals and events and parties, we like to treat our friends well– even if later we make it clear what the terms of treating us well are in turn.
It’s not “bribery” if we don’t put the two together. The ultimate hallmark of discretion is that if we pay you to act the way we want you to– even you won’t notice. So we dance around the margins of what is ethically and legally acceptable, and just like we do with consumer rights– sometimes the dance gets a little wild and risky. Business is about taking chances, and if we go too far, we just pull back. Don’t forget that the entire point of this dance is to be treated favorably by the same people who would call us on our behavior. As long as we have enough of them, the rest wont matter.
And if our companies can actually purchase and literally own some of the corporations that talk about us– well, most people don’t care about that. After all, they keep telling themselves that writers write their own stories. Sure they do– from whatever they glean from our press releases, press events, and corporate evangelists.
We don’t just have the tech press treating us kindly– we have the organizations they interview where we want them, and even the other people the tech press gets their information from. No matter where you go, you’re going to hear how great we are.
That’s the power of the press– our press. All we ever really have to do, is figure out what we want people to hear.
Relevant quotes from the Halloween documents:
“It’s a handful of amateurs, most of us unpaid and almost all part-time, against an entrenched multimillion-dollar propaganda machine run by some of the top specialists in the technology-marketing business.”
From https://antitrust.slated.org/halloween/halloween1.html
“Shall I go to the town of Nottingham, Linus, and with smooth words recruit the gossips and trade press to our cause?”
“Why don’t we write software so complicated and protocols so obscure and undocumented that only we can figure them out?”
“Yes! Then we will use our superior marketing forces to cram them down everyone’s throat, and neither Linus’s outlaws nor any other competition will be able to get a toehold in any IT shop anywhere, ever again!”
“Exactly, master. I call it de-commoditizing.”
“Various press shills and Microsoft lackeys, alerted, begin pointing fingers at Linus and his little band.”
“those hippies will never build anything really complicated or difficult!”
From https://antitrust.slated.org/halloween/halloween4.html
“We also get some whining about ‘lack of fairness in media coverage,’ which appears to be Microsoft-speak for ‘the trade press isn’t behaving like our poodles anymore.’”
From https://antitrust.slated.org/halloween/halloween5.html
“Microsoft has never been famous for reluctance to tell lies when that suits corporate purposes.”
From https://antitrust.slated.org/halloween/halloween5.html
“Microsoft has been trying to sandbag Linux with supposedly ‘objective’ studies by third parties that turn out to have been bought and paid for by the boys in Redmond.”
“Microsoft got the benchmark results it wanted – only to be embarrassed when it came out that Mindcraft had apparently run them on Microsoft-supplied machines, at a Microsoft site, with the benevolent assistance of Microsoft technicians tuning both Windows and (even more helpfully) Linux – and then neglected to mention in its press release that Microsoft had paid for and hosted the whole exercise.”
“This time, its date for the dance was a respected name in IT forecasting, the Gartner Group.”
“Sometime before 6 October, the Gartner Group published on its central corporate website, www.gartner.com, a series of five reports slamming Linux and predicting that its appeal would fade once the inevitable Service Pack 1 for Windows 2000 came out. These reports quickly spawned Linux-is-doomed articles like this example from 15 Oct on the IDG Australia website, which promoted them as objective studies by independent Gartner.”
“On 19 October Gartner changed the copyright on the reports to no longer mention Microsoft, while publicly insisting that the research had not been funded by Microsoft.”
From https://antitrust.slated.org/halloween/halloween6.html
“Provide detail on the writer and their media who are writing the story, i.e. are they technical, political, sensational”
From https://antitrust.slated.org/halloween/halloween8.html
“since Microsoft hired Mindcraft to discredit Linux.”
From https://antitrust.slated.org/halloween/halloween9.html
“I also expect a serious effort, backed by several billion dollars in bribe money (oops, excuse me, campaign contributions), to get open-source software outlawed on some kind of theory that it aids terrorists.”
“We need to make the cost of suppressing us higher than the sixty billion dollars Microsoft can afford to pay.”
From https://antitrust.slated.org/halloween/halloween11.html
“For close on twenty years I have watched Microsoft peddle inferior technology with slick marketing, destroy competitors with dirty tricks, and buy its way out of trouble.”
From https://antitrust.slated.org/halloween/faq.html
“Sleazy behavior, covered by utterly brilliant marketing, has been a pattern in Microsoft’s business practices since they were a garage outfit”
From http://www.catb.org/~esr/not-the-osi/halloween-rant.html █
Real screenshot, taken days ago
Summary: Entryism is visible for all to see, but pointing it out is becoming a risky gambit because of the “be nice!” (or “be polite!”) crowd, which shields the perpetrators of a slow and gradual corporate takeover
A COUPLE of days ago we published a reader’s suggestion for the site. It’s a longtime reader, who has been rather sceptical of the Linux Foundation (LF), the OSI, and even the FSF. We too have had our rare disagreements with the FSF (in this particular case awarding a Microsoft apologist other than Miguel de Icaza, now a senior Microsoft employee).
One subject we continue to explore is the LF because we recognise the obscene lack of understanding. The name, for one thing, is misleading because it is neither a foundation (nonprofit) nor about Linux. It is morphing into a giant narrative-shaping monster that helps OSI ‘tame’ Free software (as envisioned by the FSF), making it more corporations-leaning if not led. Today’s OSI blog posts are sometimes composed by Microsoft staff.
“It is morphing into a giant narrative-shaping monster that helps OSI ‘tame’ Free software (as envisioned by FSF), making it more corporations-leaning if not led.”We’ve already issued a call for help in researching various LF matters. Some people look into it. We need answers regarding Linux Foundation insiders in the media* (coverage for sale) and more information about their “training” business model (corporate sponsorships play a role). It’s not what it seems; there’s more to it than one can see on the surface. The LF is contracting journalists, selling coverage (sponsorships in exchange for puff pieces), and engaging in what the PR conglomerates call “perception management” (this is where the LF’s chief comes from). In recent years the LF chaps have helped market obvious lies and falsehoods such as “Microsoft loves Linux”. Microsoft loves Windows, which it now calls "Linux". The trademark is being misused, but that doesn’t seem to bother the LF. Microsoft has a long and very extensive history trying to make its products sound like the competition or hijack the competition’s identity (e.g. “Office Open XML”).
I recently chatted with Richard Stallman about the LF’s CoC after I had heard that a similar thing was likely imposed on Stallman. We exchanged many messages on this subject and wondered whether Torvalds’ criticism of companies like Microsoft would be curtailed by the new CoC. It is a difficult thing to prove. Self-censorship is sometimes unknown to those who are subconsciously subjected to it because, for instance, speaking out against corporate overloads who pay one’s salary (or a portion of it) is politically unwise. In politics it’s known as “campaign contributions” — a form of ‘soft’ bribe which at the very least buys silence or passiveness.
“In recent years the LF chaps have helped market obvious lies and falsehoods such as “Microsoft loves Linux”. Microsoft loves Windows, which it now calls “Linux”.”We are meanwhile hearing of a new CoC “draft outline”.
“No one really wants a CoC,” told us a source, “but that one adopted by the LF and projects is horrible.” We will probably write about it in a future article (when this is no longer a draft).
A Techrights member has meanwhile taken a look at Gource LF. “Linux is a huge kernel,” he explained, “really enormous, and the amount of work being done is mind-boggling. Gource provides way too much information and visual analysis won’t provide much. Nor will any other kind of manual analysis. But here’s how it’s done:
git clone git://git.kernel.org/pub/scm/linux/kernel/git/stable/linux-stable.git; cd linux-stable; $(gource --log-command git) > ../linux-project.log gource --start-date 2017-09-01 --time-scale 4 \ --fullscreen ../linux-project.log
As many people are aware, swear words and other (even less controversial) things are being removed en masse by people from companies like Intel, citing the new CoC as justification/motivation. Intel is the same company whose employees smear the most prominent Linux developers (calling them “rape apologists” and such). As for Microsoft? Remember that it put ‘BIG BOOBS’ inside Linux. Sexism at Microsoft is rampant, yet it has been trying to project this stigma onto Linux.
“It seems to be getting worse. “Morality” and “ethics” are being leveraged by large corporations that are hostile to Linux in order to gain a tighter grip on it.”“It takes a long time to build up to autumn 2018 even at high speed,” our member wrote about Gource. “Maybe that will give someone some ideas on what kind of analysis can be done easily to identify what kind of damage, if any, is visible from the CoC.”
Back when Torvalds was pressured to take a break (willful but due to shaming) we said we would refrain from commenting, but seeing some recent developments at the LF we feel like it’s important to research the matter. It seems to be getting worse. “Morality” and “ethics” are being leveraged by large corporations that are hostile to Linux in order to gain a tighter grip on it. █
_____
* Take for instance The New Stack, which the LF last linked to just hours ago. It has various LF projects, including the LF itself, as sponsors. This page reveals that the editorial team includes Libby Clark, who was at the LF for a long time and is still based in Portland.
Asset stripping the GNU
Summary: A sort of corporate takeover, or moneyed interests at the expense of our freedom, can be seen as a ‘soft coup’ whose eventual outcome would involve all or most servers in ‘the cloud’ (surveillance with patent tax as part of the rental fees) and almost no laptops/desktops which aren’t remotely controlled (and limit what’s run on them, using something like UEFI ‘secure boot’)
THE WEB is a noisy place. Many people have something to say and several people say that Microsoft “bought” the Linux Foundation (LF) 3 years ago. We keep seeing that claim. In many ways, today’s LF and Microsoft are “on the same page,” so to speak (“Microsoft Loves Linux”, WSL and so on).
“Jim Zemlin, who said his job was to pay Torvalds, pays himself and some colleagues more than he pays Torvalds, as the LF’s IRS filings reveal.”Weeks ago we saw Microsoft staff writing for the Open Source Initiative (OSI) after Microsoft had paid the Open Source Initiative a big bunch of money. Things change rapidly; neither the LF nor the OSI said anything at all about reports that Microsoft is still using patents against vendors that ship Linux. The President of the OSI has spoken on the subject (even as recently as two years ago), but that changed after Microsoft joined the OSI. We mentioned this a year and a half ago.
Going back to the LF, what exactly is it doing? Jim Zemlin, who said his job was to pay Torvalds, pays himself and some colleagues more than he pays Torvalds, as the LF’s IRS filings reveal. They might (by now) be paying themselves up to a million dollars each, tax-exempted, per year, in this ‘non-profit’. We think that the LF needs to improve, not be ended/disbanded. It started similarly to OSDL, but money and power appear to have corrupted it. The LF nowadays engages in a lot of political activities; it even brought in top officials from US politics. Its nature is largely political and it favours large corporations. About a year ago — seeing that LF was no ordinary foundation and was hardly about Linux anymore — a sentiment shared among journalists whom I spoke to — I decided to refer to it as “Zemlin PAC”, just like “Vista 10″ or similar wordplays.
“Months ago Torvalds ‘escorted’ himself out, came back weeks later (from that ‘penalty box’) and has said nothing particularly critical/negative since.”I think that at this moment in time the LF can do a lot better to restore trust. There are various timeline-related issues that led to people souring and distrusting LF, including removal of community members from the Board and adding Microsoft to it (because Microsoft paid). Then there’s the CoC controversy. It is formally called Code of Conduct and it applies to events, mailing lists etc. The LF’s site describes rules by which LF can remove (escort) people out of premises. Months ago Torvalds ‘escorted’ himself out, came back weeks later (from that ‘penalty box’) and has said nothing particularly critical/negative since. I was recently told that in FSF/LibrePlanet too someone was threatened with removal. I thus worry that this influence can continue to expand, reprimanding those who resist it using social means or social engineering.
Similarly, those who claimed to be protectors of Linux from patents turn out to be rather useless or even worse than useless since Microsoft joined them. The LOT Network, for instance, is just a patent pool, which claims to be defensive. If you check who’s behind it (foundations and management at present), you soon realise they are pro-software patents. Additionally, as Bruce Perens put it, OIN exists to protect software patents from us, not us from software patents. LOT is similar. Where does the LF stand on the subject? It never talks about it anymore. In the same message Perens called the LF a GPL infringers’ club (Microsoft is a serial GPL violator). Perens remains a key person in the OSI (he’s also OSD author), but nowadays he’s there among Microsoft staff.
“In the same message Perens called the LF a GPL infringers’ club (Microsoft is a serial GPL violator).”Our concerns are generally shared with many of our readers, one of whom wrote to say (all lowercase, formatting adapted a little but message contents preserved), “hey, red hat did get purchased shortly after github (though not by microsoft, they were purchased by ibm.) what is this, the 80s? “linux” is a lie lasting nearly 30 years. the lie is that linus torvalds created it, and there are multiple generations of people who make that mistake. he was given far too much credit — and people even attribute their “freedom” to his work. we will get back to that freedom in a minute. [...] simon phipps used to say that it’s simply a petty insignificant argument, like life of brian’s “peoples front of judea” vs. “judean peoples front.” the insignificant argument is that free software means anything apart from “open source.” that is an extremely disingenuous claim, given what open source has done for 22 years. no, it’s more like deliberately minimising the work and sacrifice from most of the world in world war ii, and giving all the credit to the americans for coming in later and winning it. the icing on the cake is that phipps conveniently ignores the fact that it is actually open source that started that petty argument themselves. (thanks eddie izzard) [...] “linus! where the fuck have you been?” [...] “having breakfast!” [...] “we are like free software, except better.” is a meme that has co-opted free software for more than 20 years. and it isn’t just co-opting, and rewriting history to paint themselves as more important — they take money for it as well! [..]. hating microsoft is “a disease”, according to torvalds. [...] in light of his recent comments that facebook is also “a disease”, (no argument there) one must ask about this blatant double standard– at what point exactly does a technology company go from being a company which the hatred of is ‘a disease’, to a company that is ‘a disease’ itself? how can torvalds tell the difference? because if he were consistent, he would say that “hating facebook is a disease”– but of course, it isn’t. [...] this is from you mentioning it on pirate.party: every time open source makes something free, something less free comes along for the ride. ubuntu tries to make universal packages — which require you to register for their apple-like app store, and which is now heavily promoting microsoft visual studio code, an ide which brings microsoft telemetry onto your “free” operating system. [..]. at worst, they can go back to the courts and present it as evidence that “yes, these developers (all free software developers) are stealing our property, and we wish to force them to stop.”– to end development of gnu and linux. at best, they can weasel out of any requirements to follow the license, which becomes void when issued by people who don’t “own” gnu and linux. and that seems like the most likely future — microsoft eventually not only rebranding linux (as azure) but relicensing it on their own terms, as “we clearly own it.” [...] important exception: and for the organisations that have met us halfway, and called it “gnu/linux” along with us? it would be unfair (or even dishonest) to pull the rug out from under them, and simply call it “gnu” in that context. insomuch as people only call the operating system “linux,” it is reasonable to call it gnu. recommended reading: benkler-complexity-and-humanity | zero-dollar-laptop | eff-statement-on-assange.” █
Wikipedia on entryism
Summary: The progression of Microsoft entryism in FOSS-centric institutions (while buying key “assets” such as GitHub) isn’t indicative of FOSS “winning” but of FOSS being infiltrated (to be undermined)
I WORRY greatly about where Free/Open Source software (FOSS) is heading. Why wouldn’t I, having dedicated my entire adult life to this cause (literally my entire adult life, since my late teens or early twenties)? Having just written my sincere thoughts about the LF (hardly worthy of the “Linux” brand anymore), I feel inclined to comment on other organisations. It is no secret that Microsoft is on the Board of the LF (whereas community participation in the Board got completely scuttled). These people in the Board would support Zemlin as long as he supports the likes of Microsoft, so it’s entryism or a slow-motion ‘coup’. Torvalds was already self-’suspended’ for a number of weeks; can he still speak about Microsoft the way he used to? It would now be in direct violation of the new CoC.
Not a word from LF regarding the patent blackmail by Microsoft — a new patent lawsuit which was exposed earlier this month (OIN has not uttered a word, either) [1, 2, 3]. How come? Don’t they care? Don’t they oppose software patents? OIN certainly does not and its new leadership gives room for concerns (the same patent trolls who attacked Linux now hold top positions in OIN).
“Not a word from LF regarding the patent blackmail by Microsoft — a new patent lawsuit which was exposed earlier this month (OIN has not uttered a word, either).”How about OSI? A couple of years ago the chief of the OSI invited me to run for the Board, but seeing the direction in which it has gone since, I’d probably face a hostile environment, resistant to criticism of corporations that actively attack Open Source while claiming to “love” it (in practice, for the most part, hijacking it while leveraging it to promote proprietary software with back doors).
Talking about the OSI’s elections (the outcome is days old) is a rather sensitive subject, so I will not name people and will not say much. Some readers actually wrote to me about after I had already noticed it. The corporate media keeps focusing only on gender rather than corporate affiliations. It is as though we should quit caring about the agenda of the businesses and instead obsess over something entirely different. Curious readers will notice that Microsoft is now (as far as I know for the first time ever) on the Board of the OSI. So the ‘cancer’ is progressing. Nobody wants to talk about it for fear of being called “Sexist”. █
Today’s Linux Foundation, de facto successor of OSDL, is fronting for proprietary software companies — a very profitable business prospect
Quite a few of the above are former Microsoft employees (document from IRS)
Summary: The Open Source Definition’s author as well as various Free/Open Source software (FOSS) luminaries warn of an attack on FOSS (“efforts to undermine the integrity of open source”); it’s not too hard to see who participates in it or enables such attacks
SOME days ago the media was ‘aflood’ or awash with reports (literally dozens like this one) about Microsoft stepping deeper into the Linux Foundation, spurring backlash and motivating some readers to write to us about it. As one reader once framed it, the Linux Foundation monetises the handover of Linux and pertinent related pieces, composed by volunteers, to the corporations that ‘buy’ these. It is a fantastic “business model” if it can be called that (imagine passing it off as a “charity”, too). Jim Zemlin and his fellow PR people (and accountant) receive outrageously large salaries, based on public filings (see above). We’re talking about something like $600,000 per year, possibly tax-exempt because they pose as a non-profit. The above is from 2015, so these salaries have likely increased since. As Bryan Lunduke pointed out at some point, these people earn even more money than Linus Torvalds himself (the people or person whose trademarks they convert into cash). Is he in it for software freedom or just for the money? Zemlin is not a technical person.
“…recently there have been efforts to undermine the integrity of open source…”
–OSII’ve long attempted to refrain from being too harsh on the Linux Foundation because I recognise we have vastly greater threats out there (threats to software freedom). The question remains, however, how much Microsoft money is too much and when does the Linux Foundation represent the interests of proprietary software companies more than it represents Free software (or “Open Source”) ideals?
OSI, which also received Microsoft money not too long ago, now warns about an effort to “undermine the integrity of open source”. To quote Business Insider’s new artice, “one of Silicon Valley’s most important industry groups warns that the definition of the term “open source” must be guarded just as zealously as that of the kilogram — and that “recently there have been efforts to undermine the integrity of open source” by stretching the definition to suit their own self-interest.”
“It’s no wonder that the OSI’s Bruce Perens warned a couple of years ago that the the Linux Foundation had become an infringers’ club (he was alluding to GPL infringements).”You just know something is very wrong when pro-GPL groups are being made up just to be dominated by serial GPL infringers like Microsoft and VMware. Who’s facilitating it (and profiting from it)? The Linux Foundation. It’s no wonder that the OSI’s Bruce Perens warned a couple of years ago that the the Linux Foundation had become an infringers’ club (he was alluding to GPL infringements). His views on OIN weren’t any more flattering. This isn’t some random person but the person who came up with the Open Source Definition and is generally supportive (and close to) the FSF/Free Software movement. █
“I would love to see all open source innovation happen on top of Windows.”
–Steve Ballmer, Microsoft CEO
Summary: Changes at the US Patent and Trademark Office (USPTO) and in US courts’ outcomes may have already meant that patent trolls rather than software patents in general are a growing threat, including those that Microsoft is backing, funding and arming to put legal pressure on GNU/Linux (and compel people/companies to host GNU/Linux instances on Azure for patent ‘protection’ from these trolls)
THE situation at the USPTO has changed in recent years. AIA introduced the Patent Trial and Appeal Board (PTAB) and inter partes reviews (IPRs) — together with 35 U.S.C. § 101 as relevant law — helped eliminate a lot of software patents which had been granted for a couple of decades.
These changes posed a problem not just for patent trolls and bullies but also law firms and bodies whose sole purpose was to ‘protect’ from these patent trolls and bullies. Some were rendered moot or redundant. See the demise of RPX for example. Well, what about Open Invention Network (OIN)? The terrain is changing and OIN is totally failing to adapt. It’s still stuck in the past.
OIN’s Jaime Siegel and Mirko Boehm reappeared several days ago. Usually its their CEO who appears in the media.
OIN has such a misguided and pointless strategy these days that even the patent trolls’ proponents can support these people. Watchtroll entertains Jaime Siegel, OIN’s Global Director of Licensing (yes, licensing!). It’s a large “cross-license agreement” — one that Oracle did not even seem to obey when it sued Google over Android/Java. Abolish software patents instead, OIN, don’t do this:
As Jaime Siegel, OIN’s Global Director of Licensing, notes, OIN is able to grant free membership to companies joining the consortium thanks to the efforts of eight full-funding member companies which have each funded $20 million to support OIN’s operations through an endowment. These companies include the first six companies to form OIN: Sony, Phillips, IBM, Red Hat, NEC and SUSE; joining those companies are Google and Toyota. OIN’s board consists of representatives from each of these full funding members. Every new member of OIN signs the same licensing agreement as the full-funding members, giving all members in the organization equal standing in terms of the cross-license agreement.
[...]
Siegel said that the only kind of company that wouldn’t benefit from membership in OIN would be a company which was building a patent assertion program to get companies to license Linux core patents. Despite the massive expansion of Linux-based systems across industries, however, Siegel said that there has been virtually no patent litigation around the Linux core. “While OIN won’t take all the credit for it, I think OIN has been a big factor as to why there’s been so little litigation around the Linux core,” Siegel said. “While we are a pro-patent organization, we’re very aggressive about going after assets that are threats to Linux and opposing activities that are targeted against the Linux core.”
“OIN’s Members include Google, IBM, NEC, Philips, Red Hat, Sony” (and others), according to Wikipedia. Sony is one of “the first six companies to form OIN,” according to the above interview. Days ago Sony’s patents made some headlines [1, 2] because Sony is still a patent maximalist, hardly a reformer in any sense of the word. IBM is a major patents-wielding bully, as well, and OIN’s first CEO came from IBM.
OIN’s Mirko Boehm wrote about FRAND in the European Union on the very same day the above got published. Here is what he said:
As part of the research project on “The Interaction between Open Source Software and FRAND licensing in Standardisation”, a workshop was organised by the European Commission, Joint Research Centre (JRC) in collaboration with Directorate General Communications Networks, Content and Technology (CONNECT) to present and discuss the intermediate results to date. The workshop took place in Brussels on September 18, 2018. I presented a set of observations from the research on the case studies performed as part of the project that are outlined below. Other speakers where Catharina Maracke on the issue of legal compliance between Open Source and FRAND licenses, Bruce Perens on “Community Dynamics in Open Source”, and Andy Updegrove on “Dynamics in Standardisation”.
You may ask what the relevance of this debate is for the wider Free and Open Source Software community. The obvious answer is that to distribute software “without restriction”, the user needs all the usage rights associated with the program. While most FOSS contributors assume that this is naturally the central motivation for anybody to contribute in the first place, there is a long history of attempts to maintain some sort of exclusive control over a piece of FOSS code, possibly using other rights than copyright.
Mirko Boehm’s (auto)biography says that he is “Director, Linux System Definition, Open Invention Network.” With people like Andy Updegrove and Bruce Perens involved (in the above) it looks a lot more legitimate than IAM's disgraced event.
Anyway, if the goal is to protect GNU/Linux from patents (rather than protecting software patents from GNU/Linux advocates, as Perens once put it), then OIN must evolve. Microsoft is operating through trolls while offering (selling) ‘protection’ from these [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20]. One example is Microsoft’s patent troll Finjan, which days ago issued a widely-spread and paid-for press release [1, 2, 3] about its laughable software patents that it uses to blackmail Microsoft’s rivals. This spoke of the Federal Circuit‘s stance on the ‘408 patent:
“Finjan is gratified to have the Federal Circuit’s decision affirming the USPTO’s Patent Trial and Appeal Board’s decision rejecting Palo Alto Networks’ challenges to Finjan’s ‘408 Patent,” stated Julie Mar-Spinola, CIPO and VP, Legal Operations for Finjan. “While this allowed Palo Alto Networks to delay Finjan’s day in court for nearly four years, we believe we are due and will seek past and accrued damages for that period until resolution, which is not insignificant.”
There have been similar Federal Circuit challenges to patents from Intellectual Ventures (IV) with its notorious proxies like ‘offspring’ trolls. It’s another Microsoft proxy which goes after Microsoft’s rivals with frivolous lawsuits and threats thereof. Where is OIN in all this? Not interested? Apathetic? Therein lie some of the biggest problems. █
Summary: The once-elusive war on software patents is finally leading to some breakthrough and even the Federal Circuit reinforces the trend of software patents’ demise
Software patents are gradually losing their grip on the industry, not just in the world at large but also in the US (genesis of software patents). A few days ago an interview was published in which Simon Phipps (OSI) spoke about the goal of eradicating software patents and explained the latest turn of events as follows: “The Supreme Court in their judgment created a very clear test to work out whether a software patent was going to be valid or not. What they said was that, they said that there could still be software patents, but that simply taking something that is not patent‑eligible like an algorithm and then claiming that it’s patentable because it runs on a computer is not sufficient to actually establish patentability.
“They said that to get a software patent, the software that you have has got to improve the computer significantly. Because of that, the standard for getting software patents has been dramatically increased by the Alice decision.
“The federal circuit court then referred to the Alice decision, and decided not even to proceed to find out if there had been infringement on the Digitech case because they declared that the image processing software was not a significant improvement to the computer. Rather, it was a computer implementing a non‑patent‑eligible technique.”
Based on the article “Appeals court knocks out computer bingo patents” and some that are citing it, yet another software patent has just dropped dead. “Silly software patents are finally on notice at the Federal Circuit,” says the summary and lawyers do some legal analysis (not challenging the ruling but interpreting it). Progressive sites like TechDirt use a clever headline and say: “Another day, another story of stupid software patents getting stomped out of existence thanks to the Supreme Court’s Alice v. CLS Bank ruling. As we’ve been noting, this ruling is looking like it’s going to invalidate a ton of software patents (and that’s a good thing). The latest one dumped was an attempt to patent bingo online. Yes, bingo. The lower court had already rejected the patent using previous Supreme Court rulings against patenting “abstract ideas.” Now, with the Alice ruling in hand, the Appeals Court for the Federal Circuit (CAFC) completed the stomping out of the bingo patent.”
Based on this same site, citing the post “Patent Troll Landmark Technology Sues eBay For Challenging Its Patents; EBay Responds With Anti-SLAPP Motion”, there is bullying over the suggestion that some patents need re-examining. To quote: “Over at Popehat, there’s a fascinating story about the depths to which patent trolls will go to “protect” their business models. The story involves Landmark Technologies, a troll we wrote about earlier this year for its rather aggressive take on patent trolling. Landmark holds patent 6,289,319: ‘Automatic Business and Financial Transaction Processing System.’ Or, as the EFF puts it more succinctly: paying with a credit card online. eBay recognized that Landmark’s trolling was bad news, and filed with the US Patent and Trademark Office (USPTO) for a re-exam of three patents. The USPTO initially recognized eBay’s request, noting that there were “substantial” questions about the patentability in those patents. While it eventually left two of the patents alone, it dumped many of the claims in a third patent.”
Remember how back in early August an invalidated patent caused much trouble for that aggressor called Apple.
There is a real opportunity here for change. Patents on software can now be eliminated. Rather than actively fight software patents Google is just promising not to sue. What a wasted opportunity and misguided strategy.
Back in 2013, Google announced its plans to not sue anybody who had implemented open-source versions of its MapReduce algorithm. Since then, the company has expanded what it calls its “Open Patent Non-Assertion Pledge” to a number of other patents. Today it is announcing its largest expansion of this program to date, with the addition of 152 additional patents. This brings the total number of patents included in this program to 245.
Google ought to do more to end software patents, not just acquire some and then promise not to sue.
Meanwhile down in New Zealand, a lawyers’ site claims that changes are coming:
On 13 September the new Patents Act will come into force – whether you’re ready for it or not. So, too, will the Patents Regulations 2014 which were ratified by an Order in Council on 11 August.
Everything, then, is set. This article thus serves as something of a recap on the extent of the changes under the new regime.
Many of the provisions of the new Act are the same as the current Patents Act 1953. There will then be some continuity for patentees and businesses. However, two very significant changes are being implemented which concern how IPONZ examiners consider patent applications and the limits placed on the patentability of software.
IPONZ examiners will shortly have to examine patent applications to determine whether the claims made in respect of, for example, a product involve “an inventive step”. The inclusion of the law of “inventive step” in the new Act represents a higher threshold for hopeful patentees to meet.
There was lobbying by proprietary software giants to bring software patents to this island, but they have not been exceptionally successful. This is of course good news that reminds us that the end of software patents as elusive as we once assumed it to be. █
Dr. Roy Schestowitz
Guest Editorial Team
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