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OSI President: Microsoft Florian is Spouting Nonsense (About CPTN/Microsoft-Novell Patents)

Posted in Microsoft, OSI, Patents at 4:36 am by Dr. Roy Schestowitz

Michael Tiemann

Summary: Michael Tiemann says that Florian Müller “proceeds to spout nonsense” after insulting the Open Source Initiative (OSI) regarding defence of Free/Open Source software

MICROSOFT is lusting for Novell’s patents and Microsoft Florian keeps licking his lips over the possibility that Microsoft et al. will get some so-called “FOSS patents” to threaten Linux with. It’s rather transparent based on what he writes, especially the reckless gloat (and insults) in his Twitter stream. He’s not alone though.

IDG’s Jon Brodkin, known to us for the Microsoft whitewashing efforts (we recently gave examples [1, 2, 3] and he too speaks to Florian), says that “U.S. Antitrust will review Microsoft/Novell patent sale for 30 more days”. Florian is meanwhile spreading disinformation; they try to rush the judgment or push this bit of disinformation while Florian deceives people (there is an inaccurate CPTN report in ZDNet UK, maybe as a result of this) when in fact even his online friend Maureen O’Gara realises that there is no clearance. Brodkin, a Microsoft blogger, is spinning it as defence for Microsoft (“Shield… From Lawsuits”) [1, 2]; it is arguably this headline which makes him a fan of the deal, just like Florian. The patent deal is atrocious (FSF and OSI agree and even work jointly against it, in an unprecedented fashion), whereas Microsoft boosters are predicting or heralding its success before it’s even cleared. Are they trying to influence the decision by generating fallacious claims? Truthfully, we wrote about this before. Since the pro-Microsoft crowd is so eager to see those patents falling into Microsoft’s arms, we know for sure that the FSF and OSI are correct and to quote a response from “barney”, aimed at Brodkin’s spin (headline is “Novell Patent Sale to Shield Microsoft, Apple, EMC and Oracle From Lawsuits”):

Shield? don’t you mean sword

I really don’t see Microsoft, Apple, nor Oracle being passive with regards to using those patents and they way I see it, they will be used to cut down open source technology( aka Linux ) based products.

There is only one resoponse and one that does not take into account the companies’ prior attitude towards competition and how they use patents. They are aggressors. Meanwhile, the propaganda machine of Microsoft Florian kicks into gear again and the head of the OSI responds:

Florian Mueller accuses that the OSI is spouting nonsense, and then proceeds to spout nonsense. I’m calling him on it.
The FCO has clearly stated the conditions under which a deal can and must be blocked, which is when when the CPTN transaction would “create or strengthen a dominant position of one or several CPTN-investors on the markets on which they are active.” Florian thinks that is an impossibly high bar, because according to him, there’s really no way regulators can be expected to do their jobs. I reject such a cynical conclusion. And I am heartened that the regulators in both the US and EU are reading carefully both the legal requirements and the facts and evidence of the transaction. We have already seen a huge change to the structure of the CPTN transaction, indicating that there were clearly some very serious issues with the first structuring.
In the world of open source, a rejected patch is never automatically accepted merely because some random changes were made and the patch resubmitted. The patch must address the substantive issues, and must do so in a way that is accepted by the community. It is accepted when the *maintainer* says its good enough, not when the submitter claims it’s good enough.
The revised proposed CPTN transaction did address one of the many concerns raised by the OSI, but it leaves most of the concerns unaddressed. The FCO requested our input–as members of the community–and we have given our answer. We should let the FCO do their job, and not second-guess their authority, their ability, or their integrity.

As the next commenter pointed out:

I wish this summary, like most on Linux Today, had identified the author of the article. This is an important piece of information that I use when deciding whether or not to click through and read an article.

And the next one after that:

Thanks for that informative post, Michael. When is saw the link was to FOSS Patents, I decided to avoid clicking.

Barnie asks: “Florian – do you feed any of the Microsoft patent deals are justified?”

Over the last few years we have seen Microsoft make deals (it would seem by threat of legal action) extract patent deals from the likes of HTC, TomTom and many others.
Do you believe any of these deals are justified and do you believe the current system is working?

Florian appears a couple of times in this thread, only to insist on the same spin and distortion of facts (his main tactic, also against messengers he does not agree with, e.g. Groklaw and Techrights). Rainer Weikusat closes this conversation with:

> 1) If it were up to me, patents of that kind would
> not be granted in the first place.
But it isn’t ‘up to you’, meaning, any statement on
this from your side is entirely hypothetical: No
‘reality check’ of its truthfulness will ever occur
and in the context of the actual question, it is also
completely irrelevant.
> I don’t believe that it’s reasonable to grant
> 20-year monopolies on software-related ideas. This
> view is independent from whether we’re talking about
> a Microsoft FAT, Apple multitouch, Oracle virtual
> machine, Amazon one-click or Google Doodle patent
> (yes, they patented that one and the patent was
> granted recently, and in my view it’s the most
> abusrd one in this list).
It is at least about some original invention, as
opposed tasking someone with ‘design and implement
a way to add “long filenames” to a DOS-directory
in a way which will not disturb software written to
use 8.3 names’ (something any decent programmer should
be easily capable of) and then patenting the result
of this work in order to hamper independent,
interoperable implementations.
> 2) Given that such patents do exist nonetheless,
> it’s the normal course of business that right
> holders want to use them. If they grant licenses on
> reasonable terms, that’s infinitely better than any
> strategic exclusionary use of patents
The interesting question, however, is what precisely
constitutes ‘a reasonable term’. For instance, legally,
Linux is prohibited from being fully interoperable
with systems creating filesystems using the ‘long name
addition method’ patented by Microsoft, except
insofar proprietary kernel modules of legally dubious
status are used. And in my opinion, this is ‘strategic,
exclusionary use of patents’: While a license to use
this ‘invention’ may be available to ‘companies’ it
is only granted subject to the condition that said
companies to not participiate in large-scale
collaborative development efforts Microsoft considers
to be potentially detrimental to its ongoing business
success. This also conveniently ignores the fact that
a lot of ‘development’ is not done by ‘companies’
producing software because of its ‘sale value’ (and
thus, capable of paying royalties).

The legitimacy of Microsoft Florian in FOSS circles which he pretends to champion is at an all-time low. Anything which could be attributed to him in the past is being superseded by unacceptable deception and hostility towards software freedom, including crass behaviour and language. Florian the author is not Florian the lobbyist and he admits that he never wrote FOSS.


ES: La OSI Todavía se Distancia a Sí Misma de Microsoft

Posted in Free/Libre Software, Microsoft, OSI at 3:32 am by Dr. Roy Schestowitz

Road sign

(ODF | PDF | English/original)

Resumen: La Iniciativa de Open Source OSI, intenta recuperar su legitimidad y también explica que Microsoft está muy lejos de ser un amigo de Open Source.

Los DIARIOS posts han contenido ya noticias sobre una reforma prevista en la OSI, que es la organización detrás de la marca de fábrica de Open Source. La OSI ha sido siempre renuente ser influenciada por Microsoft, que intentó manterla a corta distancia[http://en.wikipedia.org/wiki/Arm%27s_length_principle]. Hay un blogger en la OSI que se atreve de vez en cuando a decir la verdad sobre la relación de Microsoft con Open Source y aquí esta lo suyo sobre el amor de Microsoft hacia Open Source[http://www.opensource.org/blog/MicrosoftLovesOpenSource.html]:

Cuando hablo a la gente de Microsoft acerca de todo su mal comportamiento, es cierta otra parte de Microsoft que si la ignoramos eventualmente veremos la luz. Eso parece como una mala estrategia de nuestros “buenos amigos”. Si Microsoft ama sinceramente al Código Abierto, es hora de una estrategia corporativa. Hagamos esto simple:

* ¿Cómo sobre una promesa de la patente similar pero mejor que la promesa de patentes de Red Hat? Vaya un paso más al futuro y amplíelo a todas las licencias de código abierto.

* ¿Qué acerca de invitar a la OSI para que se una a la CPTN? Eso haría cada uno más cómodo creer que es un consorcio defensivo y no un esquema para destruir a el código abierto.

* ¿Qué acerca de un cambio del tono del mensaje de la comercialización a “desarrollo cooperativo”, en vez de el de la “interoperabilidad”?

Microsoft, quisiera ver este amor como algo más que un esquema de comercialización gaseoso. ¡Demuéstrenos el amor!

La fuente de este enteramente deshonesto “Microsoft Ama a Open Source” FUD de es el escritor de IDG – un troll de presión del Subnet de Microsoft que hace algunos días puso a Stallman y Stalin en el mismo título (entonces ligado a “Microsoft ama a Open Source” dentro de la misma entrevista con Stallman). Los que fingen ese Microsoft pueden ser campeón de chantajes y ética al mismo tiempo no están claramente interesados en la naturaleza verdadera; hacen Relaciones Públicas PR.

Notas de traducción:
Hoy Lunes 29 de Marzo, Microsoft demandó a Barnes & Noble y FoxConn por el uso de Adroide on su lector Nook[http://news.google.com/news/url?sa=t&ct2=us%2F0_0_s_4_0_t&usg=AFQjCNEzYOo4yhEtRoc2eXvXm9XtYSaTZQ&did=2bccaf5d3e51893e&cid=8797676060261&ei=HgSITeHKMIL8lQTn4Id3&rt=SECTION&vm=STANDARD&url=http%3A%2F%2Fwww.cultofmac.com%2Fmicrosoft-sues-barnes-noble-foxconn-over-nook-patent-infringement%2F87503]. Barnes & Noble tuvo el coraje de negarse a firmar un acuerdos sobre patentes que involucran a GNU/Linux como lo hicieron: Linspire, Xandros, TurboLinux, Acer, HTC, Amazon entre otros que ahora están pagando por GNU/Linux. Microsoft está imponiendo un GNU/Linux Tax que no le corresponde. Esperemos que Barnes & Noble no se doblegue ante este burdo chantaje y no pague por protección a estos modernos gangsters.

Este es el amor de Microsoft hacia Open Source. Los países Latino Americanos debemos cerrar filas en contra de Microsoft que sólo busca la entrega del futuro de las nuevas generaciones con el uso de sus supuestos “estándares” y tecnologías que sólo buscan sofocar las empresas latino americanas y del Tercer Mundo con su objetivo de Colonialismo Digital. Miremos a Brasil y la India para el bienestar de nuestras futuras generaciones.

Si, Microsoft no ha cambiado busca la destrucción del código abierto y de todo aquello que vaya en contra de sus intereses, eso esta es su ADN por tanto seamos precavidos y miremos todo lo que venga de ellos y su prensa comprada con escepticismo.

Eduardo Landaveri translates the latter new part into English as follows:

“I added to the end Notes of translation: Today Monday 29 of March, Microsoft demanded to Barnes & Noble and FoxConn for the use of Android on its Nook reader. Barnes & Noble had the courage to refuse to sign agreements on patents that involve GNU/Linux, like others did: Linspire, Xandros, TurboLinux, Acer, HTC, Amazon among others that now are paying for GNU/Linux. Microsoft is imposing a GNU/Linux Tax that does not correspond to them. Let us hope that Barnes & Noble will not give in to this coarse blackmail and won’t not pay for protection to these modern gangsters.

“This it is the love of Microsoft towards Open Source. The Latin American countries must close up against Microsoft that only looks for subjugating the future of the new generations with the use of its supposed “standards” and technologies that they only look for to choke the Latin Americana and Third World companies with its goal of Digital Colonialism. We must look upon Brazil and India for the well-being of our future generations.

“Yes, Microsoft has not changed. It only looks for the destruction of the open source and of everything what it goes against his interests, this is its DNA therefore we must be cautious every time we read everything what comes from them and its bribed press & treat it with skepticism.”

Many thanks to Eduardo Landaveri of the Spanish portal of Techrights.

OSI Still Distances Itself From Microsoft

Posted in Free/Libre Software, OSI at 2:59 am by Dr. Roy Schestowitz

Road sign

Summary: The Open Source Initiative seeks to regain legitimacy and it also explains that Microsoft is far from a friend of Open Source

THE DAILY links have already contained news about a planned reform at the OSI, which is the organisation behind the Open Source brand. The OSI has always been reluctant to be intruded by Microsoft, which it tried to keep at arm’s length. There is one blogger at the OSI who occasionally dares to say the truth about Microsoft’s relationship with Open Source and here is his latest about “Microsoft Loves Open Source”:

When I speak to folks at Microsoft all bad behavior is “some other part of Microsoft” that if we just ignore will eventually see the light. That seems like a bad strategy from our “good friends”. If Microsoft sincerely loves open source, it is time for a corporate strategy. Let’s make this simple:

* How about a “Patent Promise” similar but better than Red Hat’s Patent Promise? Go one step further and extend it to all open source licenses.
* How about inviting the Open Invention Network to join CPTN? That would make everyone more comfortable that it is a defensive consortium and not a scheme to crush open source.
* How about changing the tone of the marketing message to “cooperative development” instead of “interoperability”?

Microsoft, I’d like to see this love as more than a cheesy marketing scheme. Show us the love!

The source of this wholly dishonest “Microsoft Loves Open Source” FUD is the Microsoft Subnet writer from IDG — a booster who some days ago put Stallman and Stalin in the same headline (then linked to “Microsoft Loves Open Source” within the same interview with Stallman). Those who pretend that Microsoft can be champion of racketeering and “ethics” at the same time are clearly not interested in the true nature; they do PR.


Microsoft Bans Mono

Posted in Free/Libre Software, Microsoft, Mono, Novell, OSI at 1:16 am by Dr. Roy Schestowitz

“I saw that internally inside Microsoft many times when I was told to stay away from supporting Mono in public. They reserve the right to sue”

Robert Scoble, former Microsoft evangelist

Summary: Vista Phony 7 forbids the use of Mono, based on what the terms simply say; in fact, Vista Phony 7 bans Microsoft’s own OSI-approved licences

THERE IS some laugh-worth news in Mono land. While Novell keeps increasing its influence inside the Linux Foundation it is also increasing Microsoft’s influence inside GNU/Linux with projects like Mono and Moonlight, which are partly Microsoft releases because of the code they contain and the manager of the project, a Microsoft MVP who raves about them [1, 2] even though they receive little attention. As we explained last year, Moonlight had lost a lot of momentum and so had Mono, to a lesser degree. The problem with both is that owing to the FSF sort of denouncing them, more people do realise they are the patent burden a lot of other people claim them to be. It is not just a patent issue but also an API issue and a copyright issue because Microsoft owns part of Mono (and Moonlight, which depends on Mono and uses codecs from Microsoft). There is MS-PL-licensed code right inside Mono and since Microsoft bans free code from Vista Phony 7, there too Mono may not be allowed. “Microsoft Bans Open Source From Windows Phone Marketplace” says this new article:

Jan Wildeboer points at clause ‘e’ which states, “The Application must not include software, documentation, or other materials that, in whole or in part, are governed by or subject to an Excluded License, or that would otherwise cause the Application to be subject to the terms of an Excluded License. ”

It is beyond comprehension how this clause will help Microsoft in getting more developers or great applications. What I can understand is Microsoft is trying to discourage developers from using open source model for application development. Is it a well calculated move by Microsoft to attack the free and open source community or yet another immitation of Apple’s App Store?

“Microsoft bans open source from the Marketplace” says also the British press:

Jan Wildeboer, open source evangelist and Red Hat employee, was one of the first to spot the restrictions in Microsoft’s licence this week. “One thing is extremely obvious,” Wildeboer claims in a post to his personal blog. “Microsoft wants to keep its platform clear of Free Software. Period.”

As evidence, Wildeboer points to Article 5 of the Application Requirements section of the Microsoft Application Provider Agreement, which states: “The Application must not include software, documentation, or other materials that, in whole or in part, are governed by or subject to an Excluded License, or that would otherwise cause the Application to be subject to the terms of an Excluded License.”

The reference to ‘Excluded License’ refers to an earlier section which explicitly names the GNU General Public License version 3 and its Lesser derivative – two of the most common open source licences around – along with ‘any equivalents.’

Our member gnufreex wrote a detailed analysis of it, which says:

First of all, application delivery mechanism for WP7 (or call it “App Store”) is completely incompatible with Free Software. User has no means of getting the source code, nor installing modified software. That makes all software received through this mechanism non-free, regardless whether previous license was BSD, GPL or any other FSF or OSI certified license. In case of copyleft license, this would be a violation, but that is besides the point. Acquired software is not Free in practical sense, in a way that user can’t help himself by examining the code, which one of basic Freedoms that Free Software gives.


Clause (ii) is more of the same, but clause (iii) I think might be FUD. No Free Software license requires redistributing at no charge, and license that would require that would never pass FSF and OSI certification process. So it is possible that this clause is there only so that Microsoft advocates can spray FUD on GPL, something they love to do. It is bad for Microsoft if people talk about clause(i), that Microsoft banned every copyleft license, but it is good for Microsoft if people talk about clause (iii) and misinterpret GPL as anti-capitalist license (which is not). If that makes one coder stay away from GPL, then that is good for MSFT.


WP7 would be nice chance for Microsoft to make a statement that they are never ever planing to force Mono underground with software patents. They could do that by allowing and encouraging GPLv3 apps in their app store. After all, only .NET developers can get those patent grants, since noting else runs on WP7. But sadly, Microsoft is doing just the opposite. Their double-ban of GPLv3 sends message to their devotees in Mono movement: they need to use permissive license without patent protection if they plan to have proprietary port to WP7. This shows that Microsoft wants to reserve right to sue against Mono ecosystem, as we already know by now. Will Mono app developers prefer GPL or Microsoft walled garden? Well, considering that Mono leader is “psyched” about developing for WP7 phones, my guess is that Mono devs will want to follow the leader and port their stuff to WP7. Profile of people who are endorsing Mono is such that they will probably do whatever Microsoft and De Icaza asks them to.

But wider FLOSS community needs to continue shunning Mono because Microsoft obviously didn’t change it’s mind. They are still making sure they don’t give patent grant to Mono users, and are not shy to double-ban licenses which would give them needed guarantees.

Simon Phipps says that “Microsoft Bans Its Own License” and this includes Mono ramifications:

But his critics aren’t accurate either. Most of the criticism I’ve seen tries to turn this into the old GPL vs BSD wars, claiming “it’s just Microsoft continuing to ban the GPL and who could blame them”. But Microsoft’s prohibition goes further than the GPL licenses it’s using as an example; it says “Excluded Licenses include, but are not limited to the GPLv3 Licenses”. So this makes it impossible to use, for example, the Eclipse Public License – ruling out anything from the whole, large Eclipse ecosystem – or the Mozilla Public License or any other “weak copyleft” license.

That includes, remarkably, Microsoft’s own OSI-approved Microsoft Reciprocal License and possibly even the Microsoft Public License, according to one legal expert. As a consequence, use of open source libraries under these licenses – which not even Apple’s byzantine regulations object to – is apparently prohibited.

That might plausibly include Mono, based on Microsoft’s own .NET but partly licensed under MS-PL. It also means that Microsoft’s new partner Nokia could have trouble using it’s Qt graphics environment on the platform as it’s under the GPL. Some legally-qualified commentators are even suggesting that, if the first use of “the software” in the definition of “Excluded License” means the open source software and not the application being submitted, then all open source licenses are barred. I hope that’s just bad drafting.

“Ooh, ooh,” wrote Phipps some hours ago, “Miguel still hates me”. Microsoft MVP de Icaza and his minions are currently attacking all the messengers by belittling their intelligence. It’s rather pathetic really, but that’s just the mentality of Mono bullies, who seem to inherit their aggression from ‘mother ship’ Microsoft.

Here is The H saying that “Microsoft bans free software from Windows Phone Marketplace” (we are quoting just headlines by the way, as they are quite consistent and pass the fact-checking phase).

The prohibition of free software licences appears to be Microsoft’s own response to the issues raised by the appearance and later removal of GPL applications such as VLC from the Apple iPhone App Store. Commercial application stores like Apple’s and Microsoft’s do not have mechanisms to make source code for applications directly available. They also have some form of DRM lock which prevents the binary being passed on to another user, on all applications, even ones available for no charge in the market. It is these restrictions that make the stores incompatible with licences such as the GPL.

In other words, Microsoft hardly tries to make Vista Phony 7 succeed.

In Wayne’s latest part of “Microsoft Death Watch” he looks at Microsoft’s own reports sceptically and reaches the conclusion that Microsoft loses a lot of money in phones (known fact for years, Microsoft hid it by merging divisions/operations).

1) Microsoft’s sales of Windows Phone 7 haven’t been all that good. It appears that WP7 is costing Microsoft more than it’s making in sales. Charlie over at Semi-Accurate has reported that Microsoft is giving WP7 away. If what Charlie says is true, it’s also likely to put downward pressure on the price of Windows for personal computers.

2) Check row 15. Microsoft Business, which includes Office, is Microsoft’s best profit center. The problem is that Microsoft Office only works on the personal computer version of Windows. Anything which impacts on the number of personal computer Windows licenses that are sold will hurt Office sales. There aren’t versions of Office for tablets or phones, which are the fastest growing segments of the personal computer market.

3) HP is planning to use WebOS in phones, tablets, and personal computers. WebOS is a Linux based operating system, somewhat similar to Android, another Linux based operating system, and Apple’s IOS, a BSD based operating system. Windows Mobile, the predecessor of WP7, which was supposed to take this market never did sell well.

So here we have a dying phone platform which even the NoWin deal [1, 2, 3, 4] cannot rescue. Microsoft is banning itself. Hilarious way to end the week.


OSI and FSF Unite in Face of Common Enemy CPTN/Microsoft

Posted in FSF, Microsoft, Novell, OSI, Patents at 2:33 am by Dr. Roy Schestowitz

Hand shake

Summary: Novell’s patents and their destination at CPTN/Microsoft/AttachMSFT [sic] are coming under fire by the FSFE, OSI, and FSF (the latter two formally complain to the US Department of Justice)

“OSI and FSF jointly refer CPTN purchase of Novell patents to US Department of Justice,” Simon Phipps writes early in the morning. For some background see [1, 2, 3, 4, 5].

So the people behind “open source” and the FSF too (although Michael and Simon already have good relationships with the FSF) have this to say:

January 19, 2011 (update 2) – The Antitrust Division of the US Department of Justice has acknowledged receipt of the following correspondence (with attachment):

I am writing to you this morning in my capacity as President of the Open Source Initiative, a US 501(c)3 non-profit organization. Last month the OSI filed a statement with the German Federal Cartel Office (FCO) outlining our deep concerns about a proposed transaction whereby four companies, Microsoft, Oracle, Apple, and EMC, would create a new non-practicing entity (NPE) to acquire and hold Novell’s entire portfolio of 882 patents. Since making that filing, we have been joined by the Free Software Foundation (FSF) and have updated that statement to represent that both our communities–the open source community and the free software community–are concerned that CPTN represents a potential broadside not against any particular product in the market today, but against one of the only viable sources of competition for these companies in software today: the free, libre, and open source software (FLOSS) communities.

Attached is our joint statement that reflects both our consensus thinking on the subject and our joint appeal that DOJ investigate the true purpose of CPTN.

If there is any other information you require from myself, any OSI board member, or the OSI as a whole, please do not hesitate to let us know. Thank you very much for your consideration.

Michael Tiemann
President, Open Source Initiative

Sadly, the US Department of Justice is worthless. It’s occupied by Microsoft cronies and right now it’s occupied with attacking Wikileaks, treating it as though it is a terrorist group.

Phipps later expanded in his IDG-run blog, noting that “OSI And FSF In Unprecedented Collaboration To Protect Software Freedom” (not just “Openness”, so well done, Simon Phipps):

Faced with a potentially large threat to free/libre and open source software from patent consortium CPTN, the two organisations have collaborated publicly for the first time.

“Novell folks seem to have vested interest in infecting Free Software with Microsoft patents,” gnufreex wrote some hours ago. “Maybe that was part of the deal” (OOXML, Mono, and Moonlight are obvious examples of it). Boycott Novell.


Microsoft-run Patent Cartel Retreats Following Formal Complaint, But Why? (Updated)

Posted in Microsoft, Novell, OSI, Patents at 7:16 pm by Dr. Roy Schestowitz

Fire door

Summary: Microsoft et al. head for the door just shortly after OSI files a complaint to the German Federal Cartel Office

TECHRIGHTS wishes to begin with the good news. Those patents which Novell was going to hand over to Microsoft? Well, that ain’t gonna happen on the face of it. And with AttachMSFT [sic] still looking for a loan with which to buy Novell (more on that in a later post), the whole Novell acquisition is now in jeopardy, shareholder lawsuits notwithstanding.

Here is just one article about the latest regarding CPTN:

A plan created by Microsoft, Apple, Oracle, and EMC to create a consortium to acquire hundreds of Novell patents has been withdrawn after complaints from open source advocates, leaving the fate of the nearly half billion dollars’ worth of patents uncertain.

It was first revealed in mid December that the four companies had set up CPTN Holdings LLC to jointly acquire 882 Novell patents for $442 million.

The rest of Novell was to be sold to Attachmate for $2.2 billion, with that sale being “conditioned upon the closing of the proposed sale of certain intellectual property assets to CPTN Holdings LLC.” according to the original Novell press release about the acquisiton.

There were precursors too. “This went almost unnoticed,” wrote Carlo Piana about a week ago, “Novell-Attachmate HSR filing withdrawn, to be refiled today”. To quote:

Regulatory Matters (page 73)

Under the HSR Act and the rules and regulations promulgated thereunder, certain transactions, including the merger, may not be consummated unless certain waiting period requirements have expired or been terminated. The HSR Act provides that each party must file a pre-merger notification with the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”). A transaction notifiable under the HSR Act may not be completed until the expiration of a 30-calendar-day waiting period following the parties’ filing of their respective HSR Act notification forms or the early termination of that waiting period.

The parties to the merger originally filed their respective notification and report forms pursuant to the HSR Act with the FTC and DOJ on December 1, 2010 and the initial 30-day waiting period would have expired on December 31, 2010. In order to provide the DOJ with additional time to review the information submitted by the parties, Attachmate is voluntarily withdrawing its HSR Act notification form, effective December 31, 2010 and intends to re-file for the same transaction on or about January 3, 2011. The effect of this re-filing will also be to extend the waiting period under the HSR Act to a date 30 days from the date of the re-filing, unless earlier terminated or extended by the DOJ requesting additional information from the parties.

The merger was also subject to review and approval by the FCO. Attachmate, with the consent of Novell, filed the appropriate notification in Germany, and the FCO granted clearance to the merger transaction on December 23, 2010 stating that it will not oppose the merger transaction.

Under the HSR Act, the patent sale also may not be completed until the expiration of a 30-calendar-day waiting period following the filing by the parties to that transaction of their respective HSR Act notification

For those to whom the whole thing is news, see the previous post about the complaint in Germany or about CPTN in general. It’s almost as though the FTC is too corrupted from the inside, so they need to go to Europe for help investigating this. Here is the original complaint [PDF].

“But why were the involved parties’ minds suddenly changed?”As O’Reilly Radar put it the other day, this could become another SCO-like trouble. To quote: “As someone who has 10 shares of SCO framed and displayed in his bathroom, 2010 looked to be a very good year. The Beast from Utah finally exhausted all of its legal options, and cratered into a messy bankruptcy, leaving Novell with clear ownership of the Unix intellectual property that Linux may or may not incorporate. We all rejoiced, assuming that Linux would enjoy a happy existence in the future, unworried by fears of corporate protection rackets trying to intimidate people into paying for the free OS.

“Then this fall, Novell announced that it was selling more than 800 of their patents to a consortium that includes Microsoft as a major player. Suddenly, all of the angst about IP attacks against Linux were back on the table, but now with known Linux-hater Microsoft appearing to hold the reins. Will further legal hijinks ensue? Only time will tell.”

Apparently not, assuming the latest news will stick and eventually become a confirmed reality. But why were the involved parties’ minds suddenly changed? Our reader Satipera noticed that a software patents’ crass booster, Patent WatchTroll, weighs in on the subject by writing that “The Meaning of “Open Source”: Patented by Microsoft”. Frankly, the headline alone is so inane that it seems automatically- or stochastically-generated and Satipera seems to agree. He simply calls this “Completely clueless.” To give just a flavour of this mind dropping:

Apparently, Novell was committed to open source and that makes it acceptable to the OSI that they owned patents, but the fact that patents might be used for a competitive advantage by a patent owner, and used to stop infringers from infringing is troubling. So troubling that they are urging the German government to investigate. See Open source campaigners urge investigation of Novell patent sale and Novell’s Microsoft patent sale referred to regulators. So it seems that the position of the OSI is that those who are anti-software patent and committed to open source are the only ones who can own patents without necessitating an investigation by the government. Breathtakingly self-serving if you ask me.

In any event, wouldn’t it be ironic if the movement developed at least in part to prevent monopolization of the software industry in Redmond wound up being responsible for handing Microsoft rights to every program ever created? Perhaps it is Microsoft that is behind the open source movement. Who knows, but several things seem abundantly clear, namely that nothing in life is every truly free, and the true meaning of the term “open source” may be “patented by Microsoft.”

On the contrary, Brian Proffitt came up with an accurate analysis which on January seventh scrutinised what Microsoft was doing:

For the record, I’m not terribly happy about the patent purchase agreement that’s running in parallel to the Novell-Attachmate acquisition deal. The thought of 882 Novell patents getting sold to CPTN Holdings, LLC (a holding consortium made up of Apple, EMC, Microsoft, and Oracle America) does not sit well with me.

Now, also for the record, a source inside one of these four companies told All Things Digital’s John Paczkowski “‘We get to buy in at a cheap price and get a license to a very valuable portfolio… It’s cheap defensive insurance.’”

I’m sure.

It is, like anything else in the world, possible that this is the reason behind the patent grab. If these are covering technologies that affect networking and cloud computing, areas that everyone and their sister are trying to get into, then a defensive stance makes sense.

But even if these patents have no direct correlation to open source, do you think the CPTN members will really miss a chance to spread some FUD if it suits them to? After all, in 2004, Steve Ballmer made the claim Linux violated 228 Microsoft patents, a claim that was revised upwards to 235 in 2007. Who will lay odds that in late 2011, if this patent purchase agreement goes through, that number will change to, say, 1117 patents?

Alex Handy argued that “Fall was a bad season for Linux” partly because of this news about CPTN:

The Novell deal sends 882 of its patents to CPTN Holdings in exchange for US$450 million. Microsoft expressed pleasure at bringing Novell technology in-house, but declined to comment further on its intentions for these patents.

Meanwhile, in October, Red Hat was back in US District Court, Eastern District of Texas with Acacia Research over litigation relating to Acacia’s patents on systems and methods for exchanging data and commands between an object-oriented system and a relational system. While such patents could be used to take down almost every database-backed applications ever created, Red Hat decided to settle with Acacia for an undisclosed sum.

On the face of it, people may just forget this whole thing ever happened, but Novell’s buyer too might walk away. Wouldn’t that be memorable? We choose to believe that there was maybe a conspiracy to hide — something malicious which had Microsoft retreat before further revelations could be made. Microsoft must not have expected formal (perhaps federal) complains to be made, later to unravel more participants in what had the word “cartel” come up. We wrote about this last month and so did many American news sites [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17], British news sites, and even former Novell employees like Zonker who argued: “According to the letter, “the proposed CPTN transaction represents a potentially new, and unprecedented threat against open source software.” I’d go farther than that, though. The CPTN transaction is a threat against competition in larger marketplace, period. Yes, open source is in danger — but pretty much any legitimate competition in the areas of operating systems, virtualization, cloud computing, middleware, etc. I’m sure Red Hat feels uneasy about this unholy alliance, but then again so do Google and Parallels. Of course, OSI is only responsible for speaking up for the open source community, not the entire computing industry.”

“On the face of it, people may just forget this whole thing ever happened, but Novell’s buyer too might walk away.”Despite being a former Novell employee, he wishes this will fail. Zonker can be commended for not being loyal to Novell to the point of self-imposed blindness. Further he says: “There’s still time before the deal closes, though. Here’s hoping that OSI’s voice is heard, and that it’s not alone. Many companies and communities stand to be affected. There’s no reason to stand by silently and let Apple, EMC, Microsoft, and Oracle increase their collective patent warchests without any scrutiny whatsoever.”

Zonker’s colleague wrote:

Indeed, the number and significance of Novell’s open source patents call for scrutiny of CPTN from regulators. Novell is nearly as old as the personal computer, and when CPTN’s newly acquired patents came to light, we, along with other open source observers, expressed concern about a Microsoft-led consortium inheriting hundreds of them.

Simon Phipps (OSI), who took part in this complaint, published a blog post about it and separately he wrote: “I’ve had a steady stream of investment analysts asking me for private advice on the Novell/CPTN deal. No others, just them. Not giving it.” From his blog post we have:

I’m a member of the OSI Board, who were all involved in the drafting process. This is a significant new step for OSI, who have not previously referred a matter to competition authorities. It reflects the changing emphasis for the organisation, shifting from a role focussed almost exclusively on approving licenses to a more general role representing the interests of the open source movement.

Taking positions on important issues internationally is a valuable counter-balance to the influence of computer industry trade associations, and I hope OSi will keep doing it. That’s one of the reasons we’re shifting to a representative governance – a process which just progressed to the next step in the volunteer Governance Commitee, and which I hope will be completed before mid-2011.

Phipps also appears in some comments on the original post announcing this complaint.

In relation to the CPTN announcement, Groklaw admits its mistake (where Techrights got it right). To quote some relevant parts of the article “OSI Asks German FCO to Look Into the Proposed Patent Deal & You Can Too”:

Remember when Novell won in SCO v. Novell before the jury in Utah in March of this year, and they put out the statement pledging their loyalty to Linux and how they would protect it?

Novell is very pleased with the jury’s decision confirming Novell’s ownership of the Unix copyrights, which SCO had asserted to own in its attack on Linux. Novell remains committed to promoting Linux, including by defending Linux on the intellectual property front.

This decision is good news for Novell, for Linux, and for the open source community.

Like a dope, I believed them. Maybe you did too. Maybe your business relied on that promise and decided to use Linux as a result. Now what? If you get sued for patent infringement over those 882 patents Novell wants to sell to the Microsoft consortium, would you have a cause of action against Novell as a result of what OSI calls a “major disruption to the competitive landscape.” Ask your lawyer. But if the German FCO is saying it welcomes comments from the public, why not tell them about it, particularly if you have a business that could be directly affected by this proposed patent deal, if this is how you feel?

In short, the good news is that the whole CPTN plot is self-nuking at this moment. The question which remains to be answered is, did the complaint from the OSI play a role in derailing this part of the Novell deal? If so, there was probably something rogue to hide.

Update: it is now being reported that the CPTN arrangement ought to be still on, despite reports like this one.


No, Virginia! APIs, Visual Studio, and Apple Are Not Open Source

Posted in Apple, Deception, Free/Libre Software, Microsoft, OSI at 6:31 pm by Dr. Roy Schestowitz

The Dresden Dolls - No, Virginia...

Summary: Latest dangers to the identity of “Open Source”, which increasingly means all sorts of things that depart completely from software freedom (or from software as a whole)

UNLESS a brand, a trademark, or a name gets actively defended, it ceases to have a meaning. When the word “freedom” is used in sentences like “freedom to fight”, the label “terrorism” comes to mean anything someone disagrees with and Hoover just becomes synonymous with any vacuum cleaner, there is danger that the language we all use to communicate (i.e. transmit images, connotations, and feelings that accompany) will get warped beyond recognition.

“Open Source” as a term has been stress-tested for several years now. Several vendors constantly attempt to bend the term “open-source” (sometimes with a dash or minus) to better serve their marketing pitch, which also includes “cloud”, “2.0″, and other drop-in terms that are popular these days because they are associated with modernisation and advancement.

“”Open Source” as a term has been stress-tested for several years now.”The term “Free software” — not just “Open Source” — would get bent if it gained a lot of traction and became a sought-after trait — one that potentially makes the cut and appears in checklists as a requirement.

Watch this new pro-Microsoft (it seems like the firm is boosting Microsoft) release where Visual Studio is described as “Free platform”:

“There are literally thousands of open source projects across the net that graduates can sink their teeth into. Free platforms such as Microsoft’s Visual Studio Express series means that it costs very little to get involved, too.

“Free platforms,” eh? Microsoft has been openwashing Visual Studio for years and IDG’s fauxpen has just received a comment rebutting this.

It sometimes seems to us, as we explained earlier today, that IDG’s fauxpen source blog will happily grab the term “Open Source” and then ‘openwash’ almost everything that’s of value to the stakeholders (the blog is predominantly written by proprietary software folks). Right now they talk about open APIs as though it’s nearly the same as “Open Source” (Tim O’Reilly does the same thing).

How much should the term “Open Source” be interchanged and bent before it’s worth discarding for too broad a scope?

Another troubling pattern that we find is the illusion that Apple is “Open” or even “Open Source”; this is sometimes put forth quite sincerely by fans of this this large company (which does not lack marketing people, either).

“Welcome Apple, seriously,” says the headline of this new post which is crediting Apple with the MPEG4 push — the same one that actively threatens GNU/Linux and Free software at large. Just amazing.

Apple has been very careless and reckless when it comes to “Open Source”, but many Apple customers prefer not to see it. Apple has a history of exploiting Free software and sometimes just harming it in the process.

“Apple has a history of exploiting Free software and sometimes just harming it in the process.”What are Dana Blankenhorn and OStatic doing then? As stated correctly in first comment, by Martin Owens: “Except WebKit is based on Konquorer’s khtml library. So it’s not like Apple had a lot of choice in releasing the code.”

“Apple for me have been the worst company for their ability to misunderstand and abuse free software. They see it as public domain and not commons, which is a shame.

“They are not my friend.”

If Apple was to qualify as “Open Source”, that would mean that “Open Source” as a term is dead and buried. Earlier today we contacted the OSI regarding these issues.


Michael Widenius Lobby Against Oracle a Matter of Self Interest

Posted in Database, Oracle, OSI, SUN at 4:56 am by Dr. Roy Schestowitz

Michael Widenius in Prague
Photo from Kolbe

Summary: How the emergence of SkySQL weakens Monty’s case against the company which bought (and continues to maintain) MySQL

“SugarCRM jumps the Open Source shark claiming closed is open and it’s the rest of us who are mistaken,” wrote Simon Phipps in Twitter. Phipps used to be the Open Source symbol of Sun Microsystems (now he is in OSI), whose employees that moved to Oracle might as well attempt to pass ‘open’ core as “Open Source” (hot subject at the moment [1, 2, 3]). Roberto Galoppini has published an opinion on ‘open’ core from Giuseppe Maxia (Oracle/MySQL), who calls it the “pragmatic freedom”. As Pamela Jones (Groklaw) put it earlier this month, “I don’t share his views, but I thought you’d like to hear from an open core defender, who also happens to work at Oracle on MySQL, as he presents what’s been jokingly called the Yuppie Nuremberg Defense (“I had to pay my mortgage, etc.”).”

“SugarCRM jumps the Open Source shark claiming closed is open and it’s the rest of us who are mistaken”
      –Simon Phipps
Jones also points out that Michael “Monty” Widenius from MySQL (and from Microsoft’s CodePlex Foundation) had personal financial interests while lobbying against Oracle’s takeover of MySQL (he helped create SkySQL). “Another happy coincidence?”

That is what she asks anyway. “Consider the timing of the appeal of the Oracle-Sun deal by Monty before you answer,” she adds. This is an especially hard subject for us to address because Techrights uses a MySQL database. So does Groklaw for that matter. As for Phipps, his Web site uses MySQL and he refuses to talk about MySQL under Oracle (at least in FLOSS Weekly). We are grateful to Widenius for MySQL, but this project is no longer his. He sold it and made millions.

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