Kim Dotcom (Schmitz) gets smeared even when he does the right thing
Image by Andreas Bohnenstengel
Summary: Analysis of a sceptical kind of corporate press coverage regarding software patents in the US; great examples of how Microsoft- and Gates-funded press outlets tend to get it all wrong on the facts, smearing digital freedom fighters
Ugly distortion by patent lawyers
The CAFC recently tabled an equivocal decision [1, 2] which will probably, based on reasonably wide consensus, be escalated to the SCOTUS and perhaps end software patents in the US once and for all. Sites of lawyers strongly deny that CAFC had an effect on patent policy and practice (legal sites and Gene Quinn’s arrogant blog deny it strongly), but it is important to them only because in the USPTO about 20% of the patents granted now are on software, hence a lot of their income. Over at Slashdot, the headline says Judges Debate Patents and If New Software Makes a Computer a “New Machine” and Tiller is cited for his take on the subject. One patent lawyers’ site had a response which is quite inflammatory, akin to flaming by IAM ‘magazine’ (mostly an offensive, agenda-filled blog these days).
“Calling today’s The Guardian “guardian” is like calling Fox News “news” and History Channel “history”.”So where are we now? Well, it depends on who you ask really, but the problem is that 90% or more of those who analyse this decision are lawyers. They are in this business. It’s like asking the CIA if terrorism is defeated and over. They have vested interests (budget).
Press gets even uglier
Watch this report about Kim Dotom (a German who lives in New Zealand, having dodged the rogue and corrupting influence of Hollywood et al.) and patents being taken out of context by Britain’s worst paper, which uses tweet gossip to discredit Dotcom (the whole ‘news’ is “let’s analyse some tweets”). Truthfully, “the attention has been selective,” adds iophk. “The Guardian also dusted off Microsoft Jack and trotted him out.”
Well, so much for ‘retirement’ (he can't help returning to prop Microsoft up when it’s failing to receive positive coverage). iophk shows us Jack “Shilling a dead device that’s not quite a tablet nor quite a netbook but an unholy mix of the worst of both” (here is Jack’s latest Microsoft advert). The Guardian is appealing to Microsoft boosters (“fans”) and high-fiving antisemites, still. Calling today’s The Guardian “guardian” is like calling Fox News “news” and History Channel “history”. The Guardian, unsurprisingly, is plutocrats-funded (e.g. Bill Gates-funded, hitherto undisclosed amount) agenda. Even if Dotcom gave a patent to Google or Twitter, they would not be able to use it aggressively (more on the reasons in the next post), so why smear the freedom fighter? Guardian is no guardian. Not ours anyway, maybe Microsoft’s.
“CNET has Microsoft PR/lobbying built right into it.”It should be added that the Paul Allen-funded (Allen is a patent troll now) tabloid of CBS, the lousy and amateur CNET (long history of failed and fake* reporting), completely distorted what he had said and also ignored the patent policy of Google and Twitter. We will cover this in the next post; in short, they can only ever use patents defensively.
AFP, a lesser lousy reporting rag, cannot even tell the difference between copyrights and patents, so it chooses to demonise and incite people against Dotcom. It was actually the Russian press that got the news right. It’s sad when Kremlin-funded press does better than Western tabloids which call themselves “news”. █
*CNET has Microsoft PR/lobbying built right into it. Watch, for instance, how Mary Jo Foley advertises potentially-illegal Microsoft tying in CNET today.
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Summary: In spite of distraction attempts, the debate over software patents continues to stress that there is a real danger
Generally speaking, software patents in New Zealand are far from gone. It’s the same loophole as in the EU that lets software patents be acquired there and a new post makes this point. The author/s paid to post this as a press release, as seen here, going under the headline “Software Patents: the Difference between Excluding Computer Programs as Such and Excluding Computer Programs as Such”.
“At the USPTO, patent trolls as focus has been a good strategy for dodging reform of patent scope.”At the USPTO, patent trolls as focus has been a good strategy for dodging reform of patent scope. Brian Kahin brings back the real controversy to the agenda by writing: “In a digitally enabled economy, software is of great and growing importance. Getting the right legal, regulatory, and trade framework in place is, or should be, a priority of the highest order.
“However, questions about whether software should be patentable were raised early on (e.g. the 1966 Report of the President’s Commission on the Patent System) and have never gone away. The debate has intensified with the emergence of patent aggregators and trolls as a growing force in the market, along with high-profile global-scale litigation between major technology companies as seen in the “smartphone wars.”
“Paradoxically, software patents are both increasingly entrenched and increasingly controversial. The arguments on software patents range from precedent-based legal reasoning to the heterogeneous nature of the technology, the evolution of the market products and services, and the practical considerations of navigating and managing the patent system.”
Excellent article by Kahin. Not much is being said about Europe in this context as of late, which is rather sad. Passivity lets the patent lawyers get their way along with their clients, the mega-corporations. █
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Summary: How Microsoft and Apple are using patents in bulk (sometimes acquired in unison, e.g. from Novell and Nortel) to artificially lower market saturation of the Android operating system or drive costs up
IN THE LAND of the USPTO patents are not about inventions but about manipulations. They help manipulate competition. Recently, as Groklaw explains, FRAND battles were stopped by Judge Richard Posner (pictured above). Pamela Jones wrote: “The beat goes on in the Apple v. Motorola appeal of Judge Richard Posner’s ruling dismissing both parties’ claims with prejudice, saying neither was entitled to damages or an injunction. Both are appealing, but for different reasons. Motorola has now filed its redacted reply brief [PDF] in response to Apple’s response and reply brief [PDF]. And as soon as Judge James Robart issued his Microsoft-friendly ruling in Microsoft v. Motorola in the Seattle litigation, Apple sent a letter to this appeals court, bringing it to the court’s attention, because it supports Apple’s position and calls Motorola’s patents a trivial contribution to the standard.”
Posner a mixed bag
The seemingly progressive Posner, a judge who sternly opposes software patents [1, 2, 3, 4, 5], deserves no credit for other stances which defy human dignity and rights. Based on this report, Posner does not care about privacy. To quote: “For the most part, the op-ed makes it appear that Posner is only talking about video cameras on every street corner, every building, constantly watching our every public move. The argument in favor of such surveillance is much like the argument for videotaping police in the performance of their duty. They’re in public, where we are lawfully entitled to watch them, so no harm done.”
“The seemingly progressive Posner, a judge who sternly opposes software patents, deserves no credit for other stances which defy human dignity and rights.”Posner, however, gets it right on patents. When it comes to Blackberry appealing for Injunctions, he is shown to be in favour of free innovations, not sanctions. This is about FRAND, a growing threat to FOSS which a new paper calls broken. The title of the paper is “Fixing FRAND: A Pseudo-Pool Approach to Standards-Based Patent Licensing” and it deals not with the legitimacy of the patents themselves but with the way they are used. The growing debate over FRAND has manifested entire blogs dedicated to the subject (see the patent lawyers in Essential Patent, notably posts such as [1, 2, 3, 4, 5, 6, 7]). Worth pointing out is this post which shows Microsoft and Apple working together to harm Android using FRAND. It says: “As many commentators have noted, Judge Robart’s Microsoft-Motorola decision may provide a roadmap to courts and parties in other FRAND disputes. Not surprisingly, Apple recently brought the decision to the attention of both the Federal Circuit (in the appeal of Judge Posner’s decision to dismiss Motorola’s SEP-related claim for damages and injunctive relief) and the U.S. International Trade Commission (in Samsung’s case against Apple, in which the Commission is set to issue its Final Determination by May 31).”
“But Apple and Microsoft aren’t working together in this patent plot against Android,” Pamela Jones wrote very sarcastically. Here comes the Microsoft booster (the one who focuses on chastising Google over privacy but never Microsoft). The clever spin from the Murdoch press is cited Mike Masnick, alleging that Motorola — not Microsoft and Apple — is the bully. We saw this type of spin-doctoring from a Microsoft guy who now works for ZDNet. That was just several days ago.
Android finds support
In other news about patent attacks on Android, Jones gives this update about Linux backers helping Samsung against Apple and here is an update about Microsoft’s anti-Linux patent litigation. See this coverage from Murdoch’s Google-hostile press. As Jones put it in her response to it, “Apple was given an opportunity to license the patents and said it wouldn’t accept a rate set by a judge. So, if you are a patent holder, what do you do? When is the EU going to do something about the real problem, which is the grouping of proprietary companies against Android, using patents as the weapon? ”
“The corporate media might not call it extortion, but that’s just what it is.”In the US, Apple has been using the International Trade Commission to block Android devices along with Microsoft. As one recent article put it: “Microsoft Corporation (NASDAQ:MSFT) in particular has been taking swipes at Google Inc (NASDAQ:GOOG) through targeting handset makers that use Android – it’s built on the Linux Kernel, which supposedly infringes multiple patents owned by Microsoft. As such, companies such as HTC – which uses Android on many of its handsets – must pay Microsoft Corporation (NASDAQ:MSFT) for each handset it sells with that operating system installed.”
This is extortion. The corporate media might not call it extortion, but that’s just what it is. Call a spade by its name.
Frank X. Shaw, the Microsoft Chief Liar from Waggener Edstrom, recently complained about anti-Microsoft bias in the media. Well, who is biased really? As Jones put it: “The company leading a smear campaign against Google would like us to say less negative things about Microsoft.”
Watch Microsoft's pal Harry McCracken spreading disinformation about Google. About that on example, Jones wrote: “That’s incorrect. The Pixel does have apps, as well as the browser.”
Microsoft has been using another liar, Mr. Sullivan, to spread lies with the goal of causing Google antitrust problems. From a response to that: “Like Sullivan I believe that Microsoft’s presence in the FairSearch coalition robs it of its credibility and legitimacy. Aside from the breath-taking hypocrisy of one of the world’s worst monopolists whining about anti-competitive behaviour, Microsoft has far too much invested in its own search business to be at all objective on the subject. Antitrust cases are about stopping monopolies from abusing their power – they are not about undercutting your direct competitor because your own product is second rate.
“The only antitrust abusers here are Apple and Microsoft. They distort the system to impede growth of a competitor.”“It is also worth remembering the original point of antitrust legislation: to shield consumers and businesses from being harmed by the actions of monopolies who controlled access to vital commodities like oil, steel and grain.”
The only antitrust abusers here are Apple and Microsoft. They distort the system to impede growth of a competitor. █
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Money talks and everybody listens
Summary: New examples of power being acquired and investments (i.e. for profit) being funnelled into the beneficiaries
The stocks/finance-oriented Web sites love to talk about the Gates Foundation not because of charity but because of investment. The ‘charity’ is often a convenient disguise for lobbying for one’s own investments and vested interests. Last month Gates invested in a company that uses patents, painting it also as a grant and investment (i.e. for-profit stake). “Meanwhile,” says one report, “Anacor Pharmaceuticals ANAC shares jumped more than 8% to $6.51 in recent action after the company announced it was receiving a $17.7 milllion grant from the Bill and Melinda Gates Foundation to study two filarial worm diseases as well as tuberculosis. The foundation also will invest $5 million in Anacor common shares.”
“The goal here is to derive profit from influence and turn money into influence.”Gates is lobbying and buying influence by putting a stake there. Afterwards he gets given platforms for political and scientific lobbying. “Bill Gates, co-chair of the Bill & Melinda Gates Foundation, will deliver a keynote,” says this story about vaccination. Gates is a vaccination expert? I didn’t know. Did he graduate from college at all? No, but he is rich, so that must mean he is smartest on matters of vaccination. He is also lobbying in colleges by making keynote talks there and receiving PR from the media over minor talking points [1, 2]. It’s inexcusable whitewash of a notoriously ruthless, corrupt businessman. These puff pieces characterise him as a gentleman (contradicting what his own employees said).
Going back to the investment in Anacor (covered in financial press for the most part, less so in medical press), it is an example of power grab, just like the education ‘reform’ initiatives backed by Gates, Murdoch, and Zuckerberg. Here is Murdoch’s press pushing the agenda, piggybacking Facebook and characterising it as some kind of charity when all it’s geared up towards is privatisation of education.
“In “‘creation myth’ of capitalist patriarchy”, rich & powerful men like Bill Gates own life through patents & IP.”
–Jose R RodriguezIncidentally, last month we saw this other lobbying/entryism, accompanying a campaign of bribing more schools to align Gates’ way and take orders. Here is one of the latest examples, peppered and server using some PR with a personal story attached to it in corporate media like Murdoch’s Fox ‘news’ (among other corporate channels [1, 2, 3]).
The goal here is to derive profit from influence and turn money into influence. Recently, Vandana Shiva said that “[o]ne rich man named Bill Gates is financing one Australian scientist James Dale who knows one crop, the banana, to impose inefficient and hazardous GM bananas on millions of people in India and Uganda.” This is GMO promotion from Gates — an issue we wrote about many times before. “In “‘creation myth’ of capitalist patriarchy”,” quotes this activist, “rich & powerful men like Bill Gates own life through patents & IP.” █
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Big Blue versus small trolls
Summary: How David Kappos and IBM (his longtime employer) continue to ignore the obvious problem which kills small businesses and everyone is complaining about
There is a recent study showing that quality of patents declined considerably, helping to prove why the USPTO gets the fire it’s under and very much deserves it. Greed took over and David Kappos recently denied yet again that there was a problem, based on some tweets. Kappos is from a patent giant, IBM, so he can be excused for being ignorant of the facts. Current IBM executives similarly groom the USPTO, as we demonstrated several times earlier this month.
Here is a recent report about patents killing an innovative startup and here is another. Earlier this week we saw this filing from the SIIA on what patents do to the industry. To quote some commentary about it: “You may enjoy going through them, but I thought you might like to see one of the more thoughtful of the public comments, the one from Ken Wasch [PDF], President of the Software & Information Industry Association, or SIIA, a trade association for the software industry with 700 plus members, because it provides details on how the patent trolls attack and what the results have been. I don’t see members listed on the site, but the Software Board lists a number of companies, including Red Hat and IBM, and a number of smaller companies. And the comment states that trolls are hindering innovation, being “masters at abusing and manipulating the patent system.” The footnotes alone are worth noting, but the really interesting part is how the comment explains how trolls do what they do. I learned something I’ve long wondered about, why trolls hide who they are in litigation.”
“IBM is not merely not part of the solution; IBM is part of the problem.”The problem is not just trolls (small patent aggressors) but software patents or scope of patents. Don’t expect an IBM-backed front group to say so though, they would rather alter the debate, replacing grassroots with corporate lobby which calls for elimination of only small aggressors.
When will IBM finally take a brave stance on patents and stop promoting software patents around the whole world, even in countries other than its home country? IBM is not merely not part of the solution; IBM is part of the problem. OIN has done nothing against trolls. SIIA itself, like the BSA which IBM had supported until not so long ago, is anti-FOSS [1, 2, 3], █
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“If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”
–Bill Gates, hypocrite
Summary: Eamonn Fingleton is rewriting history in the US’ top newspaper, insinuating that patents contributed to the rise of software duopolists
TECHDIRT SAYS THAT an “Author Claims That If Apple And Microsoft Started Today They’d Fail Without Stronger Patent Protection”. What utter nonsense. The very opposite is true. So who is the revisionist? Masnick’s site says “The NY Times has a slightly odd op-ed piece, written by Eamonn Fingleton, author of a book about how China is going to dominate the US economically.”
If China is going to dominate, then it’s because it’s a producing nation. Patents don’t matter much in this context. So-called ‘knowledge workers’ cannot dominate over labour forever, as the labour can relocate to domestic employers who reap all the benefits rather than foreigners doing so. Apple failed to convince the Koreans that it invented digital rubberbanding. Yes, Korean giant Samsung was actually defended by the biased US patent system, the USPTO. As this article helps show, Samsung is quickly becoming a front runner for Android, so this matters a lot. All that Apple can lean on now is patent regime of the US and some embargo instruments like the ITC, which is a subject we will address in a separate post another day. █
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Indecision claimed thus far
Summary: Analyses suggest that an escalation by appeal to SCOTUS is likely to be the next stage in ‘Bilski 2.0′
THE decision from CAFC about a software patent has helped generate a lot of contradictory coverage, where patent lawyers insist there is no change, whereas others claim many software patents — if not all — have just died [1, 2]. Bilski was a tad similar to that. Now comes the take of Red Hat’s Rob Tiller, a lawyer who seems not to be strongly against software patents, just softly. He wrote the following about the CAFC ruling: “The law of software patents took an interesting, and ultimately encouraging, turn a little more than a week ago. In the CLS Bank case, ten judges of the Federal Circuit issued five separate opinions, without any single legal theory gaining a majority. Their debate showed that the scope of the subject matter requirement for patenting software is far from settled. It also makes it more likely that the Supreme Court will speak to the issue, and get it right.”
“Their debate showed that the scope of the subject matter requirement for patenting software is far from settled. It also makes it more likely that the Supreme Court will speak to the issue, and get it right.”
–Rob TillerHere is the take of another site sceptical of software patents. It asks: “What inventions are eligible for patent protection?”
It then says “the Federal Circuit Court of Appeals (often called the nation’s patent court) was supposedly riding to the rescue. The court’s eagerly-awaited en banc decision in CLS Bank Int’l v. Alice Corp. [pdf] was widely expected to clarify the patentability of computer-related inventions, which play a vital role in the US economy. Unfortunately, instead of clarifying the law, the court’s 10 May ruling increased the confusion, casting doubt on more than 300,000 patents – including one-fifth of all patents issued last year.”
It is worth noting that one fifth of new patents in the USPTO are software patents now. Fox Rothschild LLP agreed with Tiller on the eventuality: “It’s also likely that the decision will be appealed to the Supreme Court.” SCOTUS rules in favour of corporate power (its Justices are appointed by politicians who are funded by corporations), but maybe it will surprise us this time around. █
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Violent revolution by Microsoft, CIA style
Summary: A recollection of very dirty tactics from Microsoft, which uses money to oppress, overthrow, and even hijack its opposition
Paul E. Singer (aka “Elliott“, a misnomer for a bunch predatory investors) can be accused of letting Microsoft grab Novell’s patent portfolio through CPTN. More recently we saw this vulture preying on another company and now we see it destroying BMC for personal gain. The Microsoft booster (only occasional) at the Financial Times says: ‘The deal marks a success for Elliott Management, the activist investor that accumulated 9.6 per cent of BMC shares and won two seats on the company’s board.”
That’s entryism. Pamela Jones wrote about it that “Elliott Management forced the Novell deal too. Since Microsoft was involved in all that, what is the real purpose of all this?”
Novell is no longer a focus of ours. We mostly ignore articles about SUSE, taking a passive approach. But Novell’s patents and the tactics of entryism cannot be ignored. Microsoft is now doing to Nokia what it did to Novell and at the end of the day we are left dealing with just another SCO. Here is some more coverage about Novell and SCO, courtesy of Jones:
Our own Justin Ellis attended today’s hearing at the 10th Circuit Court of Appeals on Novell’s appeal in Novell v. Microsoft. This is the antitrust litigation Novell brought over WordPerfect. He has a report for us. He begins with his general impressions, and then provides his notes on the arguments.
What we have learned from those two cases is that Microsoft can turn opponents (like Nokia) into allies using entryism, essentially an infiltration and/or bribe. Microsoft funnelled hundreds of millions of dollars for Novell to change teams after Novell had become a fierce antitrust opponent of Microsoft and Microsoft paid tens of millions of dollars to SCO when it attacked Linux with empty copyright claims. More recently Microsoft also bribed Barnes & Noble to defect from legal action against Microsoft to a Microsoft alliance or even a sale to Microsoft (see [1, 2, 3] for background). Not too long ago Barnes & Noble complained about the patent system and shortly thereafter Microsoft tried to abduct and silence the company for good. Regarding the news that “Microsoft Mulling Nook Media LLC Purchase For $1 Billion” Pamela Jones wrote: “And so Microsoft kills off another Linux-based offering in the market, just as its deal with Nokia killed off another. Anti-trust regulators, are you noticing the subtle strategy?” Regarding the news that Microsoft claims to be making billions from Android ‘licensing’ (extortion), Pamela Jones wrote: “To regulators: please notice that it is Microsoft and Apple who are claiming that Motorola is asking for unconscionable amounts of money. But Microsoft is making much, much more per device. Remember that they claim if they had to pay Motorola less than this per device, somewhere between $3.50 and $4.00 per unit, they couldn’t stay in business. So, the question before you has to be, is Microsoft using patents to destroy its chief competition? And NO ONE has tested these patents to determine if they are even valid. It’s all done by bullying. Barnes & Noble revealed that the patents shown to them by Microsoft were junk, that they didn’t want them, use them or need them. Please look into this. Thank you.”
What Microsoft does is almost certainly illegal, but since it takes a lot of lawyers and lobbyists to enforce the law against criminal corporations, it is unlikely that anything other than a large corporations can successful press charges against Microsoft executives, leading to a jail term (e.g. for racketeering, bribery, and so on). We see this quite frequently in the energy and banking sectors. The law is not being practised (or practised only in one direction), hence it’s just relish. █
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