Photo source: Professor Conrad Johnson
Summary: Founder of Free software and author of the GPL (respectively) comment on what Microsoft and Red Hat have done regarding patents
WE FINALLY GOT some feedback regarding the baffling patent agreement which seemingly affects every user of GNU/Linux. We got this feedback from Stallman and (indirectly) Moglen, two of the Free software world’s most prominent individuals, especially when it comes to the GPL (GNU Public Licence/License).
Coverage of the Red Hat-Microsoft patent agreement can be found in [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13]. We sought feedback from Red Hat and spoke to low(er) level people for weeks, without ever hearing back from high-level management. After weeks of trying and waiting we ended up asking legal professionals to examine whatever legal contracts — even if under NDA or some other secrecy clauses that legally-binding deals may have — were involved. We first wrote to the FSF as follows:
Dear FSF licensing folks,
As discussed earlier in IRC (freenode), I have been pursuing answers from Red Hat regarding an urgent matter. I previously interviewed their CEO regarding patents and last week I spoke to a fairly senior person from Red Hat (unnamed for his own protection), for the third time this month. I wrote about 10 articles on this subject and it led to others writing about it as well, including some prominent bloggers.
“We need to understand what Red Hat agreed on with Microsoft on as Microsoft can use this behind closed doors against other companies, for pressure/leverage.”To put it concisely, Red Hat signed a deal with Microsoft which not only involved technical work but also what they call patent “standstill”. Who is this “standstill” for? Apparently Red Hat and its customers. I strongly doubt, especially in light of Alice v. CLS Bank, that a “standstill” should be needed. Red Hat does not threaten to sue Microsoft, whereas Microsoft did in the past threaten Red Hat (even publicly). This leaves those outside Red Hat in an awkward position and ever since this deal I have taken note of at least two companies being coerced by Microsoft using patents (over “Android” or “Linux” [sic]) or sued by one of its patent trolls, e.g. Intellectual Ventures. This isn’t really a “standstill”. It’s more like the notorious “peace of mind” that Novell was after back in 2006.
Red Hat has also admitted to me that it is still pursuing some software patents in the USPTO — a fact that does not surprising me, especially given the soaring market cap of RHT and the growing budget. This serves to contradict what people like Rob Tiller say to the courts; it shows double standards and no principled lead by example.
“The analysis and the voice of the FSF may be needed at this stage.”I have asked the FSF’s Joshua if it had looked into the patent agreement between Red Hat and Microsoft. Their lawyers in this case, Mr. Piana and Mr. Tiller (probably amongst others whom we don’t know about yet), would probably claim and even insist that it’s GPL-compatible, but the wording in the FAQ make it look exclusionary and there’s no transparency, so one cannot verify these claims.
We need to understand what Red Hat agreed on with Microsoft on as Microsoft can use this behind closed doors against other companies, for pressure/leverage. I am genuinely worried and fellow journalists who focus on GNU/Linux (Sean Michael Kerner for instance) tell me that they are too.
The analysis and the voice of the FSF may be needed at this stage. I have politely urged Red Hat for a number of weeks to become more transparent, whereupon some in the company said they had escalated these requests, but evidently nothing is being done, hence I feel the need to turn to the FSF.
I would gladly provide additional information that I have upon request.
With kind regards,
“In concrete terms,” Stallman responded, “what did they agree to do?”
“It is effectively a technical collaboration,” I told him, “which also involves a ceasefire regarding patents.”
“It is impossible to discuss whether it is good or bad,” he said, “until we know what it is.”
“We know too little about the patent aspects,” I explained.
Referring to Red Hat’s FAQ, Stallman said that I “seem[ed] to be talking about text I [Stallman] have not seen.”
To quote the relevant part for readers:
4. Does the new partnership address patents?
Red Hat and Microsoft have agreed to a limited patent arrangement in connection with the commercial partnership for the benefit of mutual customers.
The heart of the arrangement is a patent standstill that provides that neither company will pursue a patent lawsuit or claim against the other or its customers, while we are partnering. Neither company acknowledged the validity or enforceability of the other’s intellectual property; it is not a patent license or a covenant not to sue and no payment was made or will be made for intellectual property.
The partnership is between commercial companies related to their common customer offerings, spurred by customer demand. Both parties carefully designed for FOSS licensing compliance in building the arrangement and each party’s relationship to the FOSS community stands on its own.
“Covering only customers and not downstream users,” Stallman said, “it is not a good thing, but it may not do a lot of harm.”
“Covering only customers and not downstream users is not a good thing, but it may not do a lot of harm.”
–Richard StallmanI responded by saying “I hope that a thorough look into it will help remove uncertainty and get some hard answers. Right now it’s too vague or me and some fellow developers to conclude anything from.”
Days ago I asked whether “there been any progress on this case” because “I just want[ed] to be sure that licensing is looking for answers regarding the matter.”
Stallman, by that stage, seemed to have already spoken to a colleague and friend. “Eben Moglen,” he explained, “told me it doesn’t violate GPLv3. Other than getting that information, I don’t know what progress we could hope for.”
Well, as GPLv3 co-authors, their take on this sure counts. We therefore got an answer without taking a look at the contract itself (they had made access to it highly privileged information).
Assuming the case won’t go any further than this, we believe it helps set the record straight on the Microsoft-Red Hat situation. █
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Summary: The reaction of patent profiteers to scope/boundary restrictions, the FRAND lobby by Microsoft’s longtime front group, FRAND matters in Korea (affecting Android), Google’s response to patent threats, and Red Hat still keeping quiet about its patent agreement with Microsoft
THERE is nothing exceptionally surprising in the news today, so we are going to focus on the EPO, which is in a very poor state right now. The management is so frail that the only language it understand is aggression. We shall write several articles about it this afternoon. Before we start, however, here is a potpourri of updates about the patent situation and how it relates to Free/Open Source software (FOSS).
“When they say “patent world” they mean the corners of the world where people pursue patents — those who try to profit from patents without necessarily creating anything.”Patent lawyers’ Web sites are still bemoaning the death of many software patents in the United States (death by Alice). One of the better known ones says that “many software patent holders must feel ─ like they were walking along merrily through the woods when they fell suddenly into a blinding, winding rabbit hole. Where once their patents stood bold and tall, they have now shrunk to a seemingly indefensible size. Whether they can defend their so-called “abstract” patents in court is now as unclear as the Mad Hatter’s riddles. The famed Alice decision has certainly left many in the patent world wondering.”
When they say “patent world” they mean the corners of the world where people pursue patents — those who try to profit from patents without necessarily creating anything.
Remember FRAND lobbying in Europe back in the days (nearly a decade ago)? Well, ACT‘s new face just got mentioned by another who was paid by Microsoft, and also regularly pushes along the FRAND front (against FOSS, relying on Korea at the moment). “ACT | The App Association,” he explained, “has announced a new web resource for innovators, policy-makers, and academics. It’s called All Things FRAND and supported by significant players including Cisco, Intel, and Microsoft. ACT is headquartered in the U.S. but also quite active abroad.”
Well, historically ACT had been little more than a Microsoft lobbyist. Then there is CCIA, which seemingly changed its position after being paid a lot of money by Microsoft. CCIA‘s Matt Levy, who now runs an anti-trolls site, has just released this new video. Don’t expect Levy to criticise CCIA’s funders, which include Microsoft. This monopolist, Microsoft, is acting in ways that resemble patent trolls.
“Well, right now many of the “bad guys” also use FRAND against Android, which Google distributes as Free/Open Source software.”Google, in the mean time, claims to be against patent trolls. As IEEE Spectrum put it some weeks ago: “Google’s Patent Purchase Promotion, which the company says received “thousands” of submissions during a three-week window, may prompt similar experiments in keeping patents out of the hands of what it considers the bad guys of intellectual property.”
Well, right now many of the “bad guys” also use FRAND against Android, which Google distributes as Free/Open Source software.
In other news, we are still pressuring Red Hat to reveal what it did with Microsoft regarding patents. We haven’t forgotten about this and we are not going to give up. The Free/Open Source software world deserves some answers. █
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Still in pursuit of answers from the “Open Organization” [sic]
Summary: Quick progress report about the effort to convince Red Hat to explain its patent standstill — whatever that practically means — with Microsoft
IN THE political spheres or most political media it is widely recognised that in order to discourage certain policies and certain types of behaviour one might need to shame those who propose or exercise any such policy or action, respectively. This, for example, is why we criticise proponents of software patents and even Red Hat’s patent agreement with Microsoft. The example they give to others is dangerous and without public challenge it can carry on and even expand.
“The example they give to others is dangerous and without public challenge it can carry on and even expand.”Red Hat should be based in Raleigh, not Red Mond [sic], where Red Hat now sends its engineers to work under Microsoft leadership while receiving salaries from Red Hat. We had a long chat about this with someone from Red Hat last night. We still hope that Red Hat will decide to do the right thing. Like Novell’s Cambridge lab, which it used along with Microsoft to promote Microsoft’s agenda, now we have Red Hat staff sharing space with Microsoft staff. Microsoft is a proponent of software patents and still insists that Linux players should pay Microsoft for patents. So how can one reconcile or compromise? In our Open Letter to Red Hat’s new CEO (Jim Whitehurst) 8 years ago we told him that it is “hard to name companies that have benefited from a Microsoft pact” (this is still true).
We will continue to wait and give Red Hat an opportunity to explain what was done with Microsoft regarding patents. We encourage others to ask Red Hat those questions as well. If public pressure is sufficient to influence Red Hat’s PR/marketing experts, Red Hat will decide to open up. For a company steered by shareholders it all boils down to money and reputation. █
“What we [Novell and Microsoft] agreed, which is true, is we’ll continue to try to grow Windows share at the expense of Linux. That’s kind of our job. But to the degree that people are going to deploy Linux, we want Suse Linux to have the highest percent share of that, because only a customer who has Suse Linux actually has paid properly for the use of intellectual property from Microsoft. And we took a quota, you could say, to help them sell so much Suse Linux. That’s part of the deal. We are willing to do the same deal with Red Hat and other Linux distributors, it’s not an exclusive thing. But after a few years of working on this problem, Novell actually saw the business opportunity, because there’s so many customers who say, ‘Hey look, we don’t want problems. We don’t want any intellectual property problem or anything else. There’s just a variety of workloads where we, today, feel like we want to run Linux. Please help us Microsoft and please work with the distributors to solve this
problem, don’t come try to license this individually.’ So customer push drove us to where we got.”
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Systemd to be used for technical and support leverage in the same way Mono was?
Credit: unknown (Twitter)
Summary: Red Hat’s current management, which technically liaises (more deeply over time) with Microsoft, agrees on patents, works with the NSA, and increasingly deviates from the UNIX way (while becoming more secretive, except the openwashing), inevitably reminds us of Novell
Microsoft and the board- or shareholders-driven Red Hat now seem more and more like Microsoft and Novell, based on some of the latest reports and even press releases like this one
“The Microsoft/Red Hat partnership calls for a Red Hat engineering team to actually move to Redmond,” to quote a new report. 
“And don’t forget the patent agreement that they still refuse to tell us more about.”Mirroring the Microsoft-Novell ‘special relationship’, there is a lot of technical integration too. The men in suit “said that in the coming months Red Hat Enterprise Linux images will be enabled for on-demand billing directly in its marketplace.” Billing by who? Microsoft? Red Hat? It’s complicated. And don’t forget the patent agreement that they still refuse to tell us more about [1, 2, 3, 4, 5, 6, 7, 8, 9, 10].
Jono Bacon, from GitHub and Red Hat’s “Open Organization” [sic] marketing campaign, defends the companies’ new relationship (as he would defend his former employer, Canonical, as well). Citing a sort of Microsoft proxy and a new Red Hat partner (Black Duck), he frames this relationship as necessary and recalls that “Microsoft went a step further with then-CEO Steve Ballmer describing the poster-child of the open source revolution, Linux, as “a cancer that attaches itself in an intellectual property sense to everything it touches.”
“Red Hat is living in a dream if it genuinely believes that a deal with Microsoft will leave them better off than Linspire or Novell.”Well, based on Nadella’s actions against Samsung, Kyocera, and Dell (there are more examples), he too views Linux as “a cancer that attaches itself in an intellectual property sense to everything it touches.” Nadella insists on still using patents against Linux, and against Android in particular (using patents pertaining to the kernel, Linux).
Under Nadella’s management, Microsoft is even trying to delete Android from phones (we first took note of this at the beginning of this year and later on) or even absorb its software into Windows — a strategy which Microsoft reportedly did in fact consider . It’s like a derivative of the famous “embrace, extend, extinguish” strategy. Under Nadella there was also further lockdown of UEFI, impeding or making impossible installation of GNU/Linux on PCs that come with Microsoft’s unpopular spyware.
Red Hat is living in a dream if it genuinely believes that a deal with Microsoft will leave them better off than Linspire or Novell. Or maybe it can leave Red Hat just better off than everyone else in the GNU/Linux world. Red Hat’s patent agreement with Microsoft, concurrent with Microsoft attacking Android (with software patents), is truly problematic and we will escalate if Red Hat does not respond to us or becomes transparent by the end of this month. A lot of people want answers. The “Open Organization” [sic] ignores these people. It’s inherently antithetical to players in a community of developers. █
Related/contextual items from the news:
The Microsoft/Red Hat partnership calls for a Red Hat engineering team to actually move to Redmond to provide joint technical support for Red Hat Enterprise Linux workloads running in the Microsoft Azure public cloud and on its hybrid cloud offerings. That ensures that the companies will have closely tied cloud computing goals.
Microsoft has sidelined its plan to allow Windows 10 devices to run Android apps before it could do any serious damage, according to a report.
Daniel Rubino at the Windows Central blog gathered some convincing evidence that Microsoft’s Project Astoria has been wound down, while the runtime allowing the Android-on-Win10 magic to work has disappeared.
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On carving out parts of the market using patent monopolies…
“Inventive people [at Novell] write more software patents per capita than anywhere else.”
–Jeff Jaffe, Novell’s CTO before these patents got passed to CPTN (Linux foes)
Summary: The use of a patent portfolio in the Free software world for divisive and discriminatory purposes, as demonstrated by Red Hat in servers and BlackBerry in phones
IN OUR previous articles which mentioned Microsoft’s patent agreement with Red Hat [1, 2, 3, 4, 5, 6, 7, 8, 9] we noted that:
- The patent “standstill” (implies temporary and falsely insinuates there was a two-way war) applies only to Red Hat and its customers, unless Red Hat can prove otherwise;
- The deal does not shield Red Hat and and its customers from satellites of Microsoft.
“We both know we have very different positions on software patents. We weren’t expecting each other to compromise.”
–Paul Cormier, Red HatWell, we are still waiting for Red Hat’s lawyers to speak out (Tiller and Piana were involved in this) or for Red Hat’s management to get back to us (if it decides to). They need to go “open” (like an “Open Organization” [sic]), or at least clarify in some other way what exactly Red Hat did with Microsoft regarding patents. The FAQ is far too vague and it raises more questions than it answers. If we don’t hear some time later this month, we shall assume that Red Hat is hiding something and we’ll rally Free software people (urging them to comment on this subject), set up a public petition, etc. Transparency is extremely important here. This new article quotes Paul Cormier, Red Hat’s president for products and technologies, as saying: “We both know we have very different positions on software patents. We weren’t expecting each other to compromise.”
Well, both are applying for software patents, so it’s not clear what he meant by that. Also, they compromised only among themselves; what about other entities that use the same software as Red Hat does? Are they too enjoying a patent “standstill”? Probably not. Only says ago Microsoft extorted — using patents — yet another company that was using Linux (Android was mentioned in the announcement).
“Nothing prevents Intellectual Ventures from going after Red Hat just like Acacia repeatedly did, so it’s a fool’s settlement.”What has Red Hat really achieved here? It was a selfish deal and the inclusion of patents in it was totally spurious; it does a lot more harm than good. Ian Bruce, Novell’s PR Director, once said that the Novell/Microsoft package “provides IP peace of mind for organizations operating in mixed source environments.”
Meanwhile, the Microsoft-friendly media gives a platform to the world’s biggest patent troll, Intellectual Ventures, without even calling it “patent troll”. This troll recently sued a lot of companies that distributed Linux. Nothing prevents Intellectual Ventures from going after Red Hat just like Acacia repeatedly did, so it’s a fool’s settlement.
“Remember that BlackBerry habitually speaks about using patents for revenue and for market advantage.”Speaking of potential patent dangers to Linux, recall that BlackBerry pays Microsoft for patents (including FAT, which relates to TomTom/Linux) and recall our articles about BlackBerry potentially becoming a troll [1, 2, 3, 4]. Some people’s loyalty to this Canadian brand and its newfound support for Android can blind them to the risk which BlackBerry remains, especially because of its patents stockpile.
This new article [1, 2] serves to remind us that BlackBerry still has “Software And Patent Monetization” in mind (we covered this some weeks ago, quoting the CEO). This means that, failing the strategy with Priv and Venice (BlackBerry’s Android devices and Linux-centric strategy), it could end up like Sony-Ericsson, suing Android players whilst also selling their own (unsuccessful) Android handsets.
“BlackBerry is proprietary to the core.”Remember that BlackBerry habitually speaks about using patents for revenue and for market advantage. Also remember that BlackBerry is not — at least not yet — an Android company. BlackBerry is proprietary to the core. “The QNX division could also face higher competition from open source software such as Linux,” wrote a financial site, “which many customers find more flexible and economical, limiting its potential in the burgeoning IoT and connected device market. For instance, Tesla reportedly uses Linux for its Model S sedan.”
Don’t be too shocked if BlackBerry eventually sells its patents to hostile actors, asserts them against competitors that use Android, or uses aggressive lawyers to compel various OEMs to remove features from their Android devices (both hardware and software features). █
“I’ve heard from Novell sales representatives that Microsoft sales executives have started calling the Suse Linux Enterprise Server coupons “royalty payments”…”
–Matt Asay, April 21st, 2008
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Lessons for Red Hat
Summary: Red Hat’s mysterious and seemingly very selfish patent deal with Microsoft continues to float (or reverberate) because of the fate of companies in a similar position
IT has been nearly a week since Red Hat’s poor clarification (FAQ) regarding its patent agreement with Microsoft [1, 2, 3, 4, 5]. Only a few days later Microsoft extorted yet another company for using Linux and since our detailed media survey there have been yet more articles about it. There are examples from earlier today [1-3], yesterday , two days ago , and prior days (more articles are still surfacing from that time, e.g. [6-9)). As we pointed out earlier today, we are still waiting to hear back from Red Hat (this afternoon we were told it had been escalated to management). We hope that this kind of patent approach won’t spread to entities like Mozilla because Red Hat has pretty much become part of the problem. It is now filing patent applications for software (any claims of opposition to software patents would be hypocritical) and it is signing what seems like exclusionary patent deals with Microsoft (it’s still kept secret, so it’s hard if not impossible for Red Hat to prove otherwise).
“It’s not the same as it was back in the days of the FireStar settlement.”After the patent deal with Microsoft Red Hat is still exposed to patent trolls like the Microsoft-connected Acacia. Red Hat has already been sued by it several times before (Novell too was sued by Acacia after it had signed the Microsoft patent deal). Red Hat also made secret deals (it agreed to pay Acacia), whereupon we lost hope and trust in Red Hat's misguided patent strategy. It’s not the same as it was back in the days of the FireStar settlement [1, 2, 3]. Red Hat is growing up and just like Google (with Android) it is increasingly being run by lawyers, who probably advise it to hoard patents of its own and sign patent deals where it’s financially beneficial to Red Hat’s shareholders (regardless of the impact on the Free software community).
“If Red Hat genuinely believes that Red Hat and its customers now have patent “standstill”, then it obviously didn’t do its homework regarding Microsoft’s satellites.”Now, recall Canon’s recent patent deal with Microsoft. Also remember that both companies pressured the EPO to treat large corporations differently when it comes to patent examination. Did Canon really think that it would have patent peace after signing a deal with Microsoft? Based on this latest docket report, Intellectual Ventures attacked Canon and its “Image Scanning Patent [is] Not Invalid Under 35 U.S.C. § 101″ (Alice). To quote the docket report, Intellectual Ventures I LLC et al v. Canon Inc. et al, 1-13-cv-00473 (DED November 9, 2015, Order) (Robinson, J.): “The court denied defendant’s motion for summary judgment that plaintiffs’ image scanning patent was invalid for lack of patentable subject matter and found that the claims were not directed toward a patent-ineligible concept.”
If Red Hat genuinely believes that Red Hat and its customers now have patent “standstill”, then it obviously didn’t do its homework regarding Microsoft’s satellites. It didn’t even bother thinking about satellites like Acacia, which sued not only Red Hat but also Novell, only months after Novell had boasted patent “peace of mind” with Microsoft. █
Related/contextual items from the news:
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The Red Hat deal surely serves to legitimise such moves, just as Novell’s deal did
Summary: Microsoft is now going after Star Micronics, using threats (with patents) to give Star Micronics paid ‘permission’ to use Linux-based operating systems in its products
It should be obvious by now that the “new Microsoft” — whatever that means — is a Microsoft that uses patents to pressure, to blackmail and to manipulate companies that use Linux, Android, Chrome OS and so on. Recall this year’s examples alone. These include Samsung, Kyocera, ASUS, and Dell. Microsoft used patents to compel them to do to Android and/or Chrome OS what Microsoft had insisted on. It’s basically a tool of extortion. It is not impossible that Microsoft also threatened to sue Red Hat using patents (even innuendo) to pressure Red Hat into a bad deal that harms Free software as a whole. Since Red Hat is so secretive about it, who knows? We contacted the lawyers who were involved in making the agreement on patents (Carlo Piana and Rob Tiller), but still no response. It has been days now.
“Red Hat helped Microsoft openwashing, reputation laundering, and at the same time it bolstered Microsoft’s patents, which it uses all the time to compel companies (especially those that use Linux) to beg Microsoft for mercy and sometimes pay up for something Microsoft only attacks and in no way created.”Red Hat staff should pay attention to today’s (just announced by Microsoft) patent blackmail deal. When Red Hat staff (salaried engineers for the most part) claim that the deal with Microsoft is a “win” they delude themselves in the same way SUSE staff did at the time of the Novell-Microsoft deal. According to this article: “As for the Red Hat partnership that Microsoft has struck, it looks far reaching. The partnership calls for a Red Hat engineering team to move to Redmond to provide joint technical support for Red Hat Enterprise Linux workloads running in the Microsoft Azure public cloud and on its hybrid cloud offerings.”
If there’s a deja vu here, it’s because of Novell. Microsoft must be enjoying the boost Red Hat gave to its patents, by essentially agreeing on a patent “standstill” (for Red Hat only for all we know and based on today’s news). The Microsoft media really loves this deal and it’s easy to see why. Red Hat helped Microsoft openwashing, reputation laundering, and at the same time it bolstered Microsoft’s patents, which it uses all the time to compel companies (especially those that use Linux) to beg Microsoft for mercy and sometimes pay up for something Microsoft only attacks and in no way created. This is an injustice of the highest order.
We already wrote 5 articles about the Red Hat deal, namely:
- Media Coverage of the Red Hat-Microsoft Deal Includes Microsoft Talking Points and Moles, No Discussion About Patent Aspects
- Red Hat’s Deal With Microsoft Resurrects Fears of Software Patents Against GNU/Linux and Introduces ‘Triple-Dipping’ of Fees
- More Information Emerges About the Microsoft-Red Hat Patent Agreement
- Red Hat Sells Out With a Microsoft Patent Deal
- Summary of the Red Hat-Microsoft Patent Agreement of 2015
Red Hat wants us to believe that there is a “gentle” Microsoft led by Nadella, but if that’s really the case, then why is Microsoft blackmailing yet another company using patents? It’s specifically to do with Linux/Android, based on the announcements. To quote one of them: “Microsoft Technology Licensing LLC today announced their patent licensing agreement with Star Micronics that provides broad coverage under Microsoft’s patent portfolio for Star Micronics’ Android-based commercial printers and computing devices.”
Yes, Android. And it’s not a small company, it employs about 2,500 people.
In the mean time, as reported by Sam Varghese , Microsoft is unwilling to comment on extension of the SUSE deal. It runs out in less than 2 months. Is this divide and rule in the making? Did Red Hat step into a trap? We shall know more soon…
I had a very long conversation with Red Hat staff and I hope that their CEO will eventually decide to be transparent about the patent agreement with Microsoft. Even Novell was more transparent than that (at the time). █
Related/contextual items from the news:
Microsoft has refused to say openly whether it will be extending the patent-licensing deal that it signed with Novell back in 2006. At that time, SUSE Linux was a part of Novell.
Novell has since been acquired by the Attachmate Group which, in turn, was bought by the British mainframe company Micro Focus.
In July 2011, Microsoft announced that the agreement with SUSE would be extended until January 1, 2016.
iTWire asked Microsoft about the SUSE agreement after Red Hat and Microsoft announced a deal a few days back on cloud installations, wherein Microsoft said it would be making Red Hat the preferred enterprise Linux distribution for installing on its Azure cloud offering.
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China has already made publicly known which patents Microsoft uses against Linux/Android
Context: 1972 Nixon visit to China [1, 2]
Summary: Criticism of Red Hat’s approach to dealing with Microsoft spreads to more sites, especially those that understand the impact of patents in this area
WE REALLY wanted to avoid further commentary on the Microsoft-Red Hat deal, but another shallow article has just come out, this time from Linux Insider (not necessarily a Linux-friendly site). The authur says nothing about patents, which is often what’s missing from all the puff pieces about this subject.
“Well, Richard Nixon was at least opening up to trade. In the case of Red Hat, it opens up other companies to potential patent lawsuits from Microsoft.”Over at FOSS Force, a pro-FOSS site, Larry Cafiero wrote: “Red Hat and Microsoft on Wednesday announced a partnership that will allow businesses to deploy Red Hat’s open source software on the Microsoft Azure cloud. From news reports, the deal makes Red Hat the “preferred choice” on Microsoft Azure, Redmond’s infrastructure-as-a-service platform. Make what you will of this. Me? If you know my distaste for what’s nebulously called “the cloud,” I’m just walking away from it, though the one comment I read in one story comparing this to Nixon going to China is probably the best comparison.”
Well, Richard Nixon was at least opening up to trade. In the case of Red Hat, it opens up other companies to potential patent lawsuits from Microsoft. We have already explained this in 5 articles, namely:
Florian Müller, who had worked as a patents spinner for Microsoft (for a while), was very hard on Red Hat. He wrote that “Red Hat hopes to leverage patents to cement its Linux market leadership [with the] Microsoft deal” and makes a claim similar to claims we have been making here for over half a decade. “I’ve been saying for years,” he wrote, “that Red Hat is utterly hypocritical when it comes to patents. It has a history of feeding patent trolls and fooling the open source community. There is, to put it mildly, no assurance that all of its related dealings actually comply with the GPL.”
This is exactly our concern and unless there is transparency from the “Open Organisation”, we don’t know for sure. The patent “standstill” does not extend to companies other than Red Hat, so where does that leave even CentOS users (Techrights uses CentOS)? “Red Hat now wants to tell Linux users,” Müller explains, “that the way to be protected with respect to patents is to use Red Hat Linux. “Reduce your exposure, buy from us.” That is a way of seeking to benefit from software patents.”
That’s similar to what Novell did, but secrecy makes it harder to know what really goes on here.
“If you know my distaste for what’s nebulously called “the cloud,” I’m just walking away from it, though the one comment I read in one story comparing this to Nixon going to China is probably the best comparison.”
–Larry Cafiero“I want to give Simon Phipps credit,” Müller wrote, “for distinguishing between the positive and not so positive ramifications of this partnership from an open source point of view. The Open Source Initiative is an organization on whose board Simon Phipps serves with, among others, a Red Hat lawyer.
“Without the Red Hat connection, Simon Phipps would presumably have criticized Red Hat clearly as opposed to just making it sound like Microsoft should do more. He says Microsoft should relinquish its patent rights because that’s how he defines “love” for Linux. However, he doesn’t talk about what Red Hat could have done. Red Hat could have challenged any Microsoft patents that allegedly infringe Linux: in court (declaratory judgment actions) and through reexamination requests. That course of action would have done free and open source software a greater service than a deal.”
In Twitter, Müller goes on and chastises the FSF, SFLC etc. for not criticising Red Hat (because of financial ties). This very much reminds us of the reluctance to criticise systemd, which is mostly Red Hat’s own creation. Red Hat’s clout in the community almost makes it immune to criticism.
“Google-Moto defended Linux against MSFT’s patent infringement allegations in court and won,” Müller wrote in Twitter, whereas “Red Hat decided to benefit from them.”
He said that “GPL enforcers like Harald Welte should sue Red Hat for alleged breach of the GPLv2 patent clause, arguing a covenant not to sue is a license” (we don’t know if there is such a covenant because the “Open Organisation” is still quite secretive about it).
“Android,” he says, “not Red Hat, is the #1 Linux distribution. Google, not Red Hat, is the #1 defender of Linux against Microsoft’s patents.”
As we said at the very start (hours after the Microsoft-Red Hat deal had been announced), Red Hat’s actions are defeatist and dangerous. They come at a time when, at least in the US, software patents rapidly lose their teeth anyway.
“”It’s one thing to be a Linux parasite. It’s another to be a Trojan horse. And the worst option is to be both at the same time.”
–Florian MüllerAccording to Patent Buddy, citing the Bilski Blog, “Sue L Robinson, the Patent Killer Judge, Has Not Held a Single Patent Valid under 101/Alice” and even at the capital of patent trolls, “E. Dist. Of TX has Alice / 101 Invalidity Rate of 34.8%” (that’s pretty high for such a corrupt district).
To quote the Bilski Blog: “There have been 34 district court decisions in the past two months, but the percentage of invalidity decision is holding constant at 70.5%. The number of patent claims invalidated is now over 11,000, but also holding steady at around 71%.
“There have been no new Federal Circuit Section 101 decisions, but we’re going to see a flurry of activity in the next couple of months, as the court has recently heard oral argument in a number of patent eligibility cases, and more are on calendar for November.
“Motions on the pleadings have soared, with 23 in the past two months alone, and the success rate is up a tick from 70.1% to 71.4%.
“PTAB is a bit mixed: the CBM institution rate is down from 86.2% 83.7%, but the final decision rate is still 100%, with 6 decisions in the past two months invalidating the patents in suit.”
Red Hat could make use of what Bilski Blog called
#AliceStorm (referring to the avalanche of software patents) to basically invalidate a lot of Microsoft’s software patents. Instead, Red Hat reached a patent agreement with Microsoft.
Müller’s analysis ends with strong words that we don’t agree with but are worth quoting nonetheless: “It’s one thing to be a Linux parasite. It’s another to be a Trojan horse. And the worst option is to be both at the same time.” █
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