The Simpson family as they first appeared in The Tracey Ullman Show. (via Wikipedia)
Summary: Revisiting the stance of FOSS proponents on software patents and patent trolls; Mozilla, IBM, Red Hat, and Nokia (also before Microsoft takeover) discussed
A former (maybe present, still) Microsoft booster, Nancy Gohring, writes about the former chief of innovation at Mozilla. She makes Mozilla look bad by describing former staff as though it is still tied to Mozilla. She writes: “Todd Simpson, formerly chief of innovation at Mozilla, just made an intriguing job change. From working at the community-driven organization on open source projects, Simpson has joined InterDigital, a company commonly accused of being a patent troll.”
Mr. Simpson lacks ethics. The company he joined is unethical and he should have known this. InterDigital was already covered here under posts such as [1, 2, 3]. Mozilla itself is unequivocally against software patents, so why do this type of demonisation by attribution to Mozilla in the headline? Here are some relevant articles we published:
You want to pick on a FOSS proponent which is strongly in favour of software patents? Then pick on IBM. The company’s staff has been trying to shift the debate to trolls, replacing legitimate grassroots movements with corporate-controlled agenda that dilutes efforts and weakens real progress (the way USAID, for example, does it). Watch the following new statement: “Software is thriving and highly innovative – do not eliminate patents for software, instead address those that abuse them”
“You want to pick on a FOSS proponent which is strongly in favour of software patents? Then pick on IBM.”Who said it? The Chief Patent Counsel of IBM (we mentioned similar statements from him before). So this rogue policy comes from the very top, still. Chastise IBM, not Mozilla. As for Red Hat, which is a close ally of IBM, it manages to keep a mind of its own. The other day its CEO said: “I think I speak for the entire software industry that software patents are a bad thing. The entire software industry has been aggressively promoting a position that says software shouldn’t be patentable. It gets tied up with, obviously, the pharmaceutical industry, which believes patents are necessary to drive innovation in pharmaceuticals, and it continues to go around and around and we make some progress here and there. Hopefully it gets solved someday, but I don’t think we’re close to it.”
Lastly, former Linux proponent Nokia has been a strange animal for a long time, promoting both software patents and Linux at a later stage (along with FOSS). After Microsoft had taken over things, Nokia started feeding trolls more than before (Nokia’s use of MPEG-LA against Ogg involved staff that had come from Microsoft to Nokia about half a decade ago) and not much has changed on the patents front. An excellent new article (no longer behind paywall) says: “Of course, Google already knows if Nokia was the mysterious twelfth member of the defunct MPEG LA patent pool, and, if it was, then Google has known about its patents for quite some time. But either way, nothing stops any other company from springing a similar attack on VP8 or any other codec. In the battle to make VP8 an MTI standard in any web specification, the parties that benefit from license sales of rival codecs have no incentive to cooperate. That goes for H.264 as well as for the next generation, and it is not merely a hypothetical problem. Apple’s Maciej Stachowiak has already voiced his objection to making VP8 an MTI standard in HTML5. The agreement between MPEG LA and Google has smoothed over the issue of VP8′s patent status, but it cannot perfectly resolve it, simply because nothing can.”
We covered this before, back when it was news. █
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Accepting the status quo, like sheep led to slaughter
Summary: Red Hat is too soft on the issue of software patents, based on its comments to the USPTO; Linux/Android continue to suffer from software patents in court cases which may last years
Red Hat has hardly been a flag bearer in the fight against software patents. It is not as bad as IBM, but it is not always helpful, either. Red Hat itself is filing to receive software patents of its own, making a distinction between what it calls “bad” software patents and “good” software patents. It tends to focus on trolls and in its Web site OpenSource.com (Red Hat-run) it has almost a monopoly on views regarding software patents.
Nevertheless, in the wake of USPTO opening up to feedback Red Hat is making its policy known:
The USPTO has been asking the public to respond to a series of questions with suggestions on improving patents. It is aware that the technical community isn’t happy with the way patents are being issued, particularly software patents. You are familiar with some of the USPTO’s questions, because we at Groklaw responded to two of them, topic 1 on how to improve software patents, regarding functional language, and topic 2, suggestions for future topics for discussion.
Red Hat’s suggestions play along the lines of software patents as a given, which is problematic. Groklaw‘s ‘cref 66895 suggestions], on the other hand, were very good and they are essential for a meaningful discussion of the real issues. Elsewhere in Groklaw there is a discussion about a legal case involving the best-selling Linux devices, the ones from Samsung. Here are the latest two updates on that:
1. Joint Case Management Statement Filed in Apple v. Samsung
The judge in the first Apple v. Samsung patent case in California, the Hon. Lucy Koh, asked the parties to file a joint case management statement, just in case she decides to go forward with an immediate second jury on the issue of damages on the 14 products where the first jury got the math wrong. And they have now done so [PDF]. There will be a hearing on all this on April 29. Of course, they disagree. Because they don’t agree on how to go forward, they each set out their positions, once again. The short version is that Apple wants to hurry up and have the trial immediately and Samsung wants to hear from the appeals court before the new damages trial goes forward, so as to ensure the same mistakes aren’t repeated.
2. Judge Koh’s Order in Apple v Samsung: No Stay on Damages Retrial, Unless…
Judge Lucy Koh has reached a decision [PDF] on going forward on the retrial on damages in Apple v. Samsung. Trial is set now for November 12th, on damages only, same Daubert rulings, motions in limine, discovery disputes, and evidentiary objections ruled on the same as the first trial, meaning if she made mistakes in the first trial, they’ll be repeated in the retrial. “The parties may not relitigate these issues,” she writes. So it’s all for the appeal court to figure out. She isn’t interested in reviewing all that. So if the appeals court orders a third trial, that’s the way it will have to be. She wants to keep the damages retrial short and sweet and limited to just one issue, and then send it on its way to appeal, so no new theories and no new fact discovery. There is a schedule for expert discovery. The jury will be 8 people, with the parties’ given three peremptory challenges each. Apple asked for the very same jury instructions, but she says they will get together on October 17th to discuss “how to
present infringement and validity findings” to the new jury. Other than that, she is silent on that point.
Trial expected at the end of this year, eh? Justice is taking too long, so it’s SCO all over again in that respect. What needs to occur some time in the next year or two is elimination of software parents in the United States (or radical cut-down). Red Hat just doesn’t go far enough to achieve that. We need other fronts in the fight against software patents; Google ain’t it, either. █
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Summary: A look at the strategy of prominent GNU/Linux backers (plus the EFF) and criticism for the shortcomings
Oscure blogger Dietrich Schmitz, who is only starting to learn what Linux advocacy is, realises that patents are a major issue for Linux and GNU. Red Hat et al. recently filed a complaint over it and Pamela Jones has some coverage of this. She writes:
Joe Mullin at ars technica has the welcome news that the FTC is thinking about using subpoena powers to investigate patent trolls, such as Intellectual Venture. He mentions that Google, Red Hat, Blackberry and Earthlink just sent some comments [PDF] to the FTC and the Department of Justice asking for an investigation into what they politely call patent assertion entities, or PAEs. So have the Computer and Communications Industry Association [Comments, PDF] and the National Restaurant Association [Comments, PDF] also asked for such scrutiny.
But the most important part of the Google et al. request, to me, hasn’t yet been highlighted in the media reports I’ve seen. What they are asking for is not just an investigation into trolls, but into active companies outsourcing their patent enforcement *to* PAEs. And what they are asking for is whether such activities in some instances can rise to the level of antitrust violations.
That is something I’ve wondered about for a while — why didn’t regulatory bodies see what is happening to Android, for example, with all the old guard working apparently together to try to crush it? One thing that Microsoft and Nokia have done, for example, is outsource patent enforcement to MOSAID and other patent enforcement-style non-practicing entities. (If you recall, Google filed a compliant specifically about that with the EU Commission last summer.) The new comments call the new outsourcing to trolls patent privateering, which they say is designed for assymetric patent warfare — meaning the defendant’s business is at stake, but the outsourcing company’s business isn’t, and the troll has nothing to lose, because it has no business.
Daniel Nazer, writing about “patents for open innovation” (he is a Staff Attorney on the Electronic Frontier Foundation’s intellectual property team, focusing on patent reform) adds his support to Google, which in turn does not go far enough. To quote a new article:
Finally, Google has some other suggestions for improving patent quality. It thinks that prior art needs to be more easily searchable, which it thinks could make things easier for examiners and reduce the number of invalid patent claims from being issued. It also recommends better standardization of terminology, which it thinks will both make it easier to search for prior art and help reduce the amount of litigation by clarifying an invention’s scope. But while it stopped short of supporting the EFF’s position that software patents ought to include working code, it thinks it’s worth discussing a requirement to include pseudo-code, although it warns that the idea could be unwieldy without a standardized format.
Last month, Google made a pledge to refrain from suing developers, distributors, and users of open source software that infringe on its software patents unless it’s attacked first, decrying the roughly $25 billion that patent trolls are gleaning annually with software patent litigation. It’s clear that the Patent and Trademark Office really does want to be seen as a promoter of innovation — now that the deadline has passed for public comment submission, we’ll have to see which, if any, of the many suggestions it will implement.
Google should work to abolish software patents, not large trolls. We said this years ago. What Google is doing about patents could be vastly improved. We said the same about Red Hat, many times in fact. They all do what’s right for their shareholders, but not for society; they don’t deem it their responsibility.
Over the years I have urged Google (also via E-mail to its manager) to start fighting against software patents rather than reform them. Posts on the subject include the following dozen:
Gérald Sédrati-Dinet, the leading opponent of the Unitary Patent (threat of software patents in Europe), said this morning: “I’m very critical with EFF strategy wrt #swpats [software patents]: they should require their abolition, not bad half-solutions” [anything but abolition].
He is right. The EFF — like Google — has been pursuing the wrong solutions. We gave some examples and constructive criticism of their approach.
Never count on corporations to fix broken law for public interests. Remember CISPA? The law that has just been passed to allow the government to easily acquire private citizens’ data? Well, guess which side Google was on… █
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Summary: Google, Red Hat et al. versus the old guard which is lawyers and ageing companies such as IBM
Following a much-publicised action against patent trolls a lot of awareness is spread about the issue and some “Ask FTC, DoJ To Do The Same” (i.e. take a stand). Being part of the corrupt system which harbuors the monopolies office, the USPTO, they are hardly doing anything, so the negatively-affected corporations are lobbying. The government did take a stand against some other patent practices as of late, why not trolls? There are a variety issues such as FRAND (see this battle which hits Android from numerous directions) that show not only trolls are a problem. Google focuses on the price of trolls because Microsoft uses trolls like MOSAID as proxies in this battle — an issue about which Google has already spoken. One article says that “Google — along with Blackberry and other tech companies — has asked the FTC to pay greater attention to patent trolls, who embroil companies in expensive litigation over bogus claims on the ownership of new technologies.” If trolls are stopped, the litigation-by-proxy strategy too is impeded.
The FTC has not been promising when it comes to justice, but Red Hat is at least helping raise awareness with that aforementioned complaint. The EFF is also involved in this. It wrote:
EFF filed comments today urging the Federal Trade Commission to take action against patent trolls. We have written often about the rise of the patent troll—entities that don’t create products themselves, but instead buy patents and make money from lawsuits—and the serious harm they are causing true innovators.
Here is some coverage from London:
Google, Red Hat, BlackBerry and ISP EarthLink have called on the US Federal Trade Commission and US Department of Justice to take action against patent assertion entities (PAEs), or as they are more commonly known, patent trolls. In a letter to the agencies, the companies point out that PAEs are now filing four times as many cases as they did in 2005 and claims cost US companies at least $29 billion in direct costs in 2011 and $80 billion when accounting for indirect costs. Although large companies face hundreds of PAE lawsuits, the vendors point out that small and medium-sized companies are the most frequent targets. According to the comments, 62% of all recently filed patent litigation is PAE lawsuits.
Make no mistake, this isn’t a one-sided battle in the press. The debate is rigged and there's more. Corporate media has some troll toll apologists with weird lines of logic, as shown in the case of Tim Worstall. Not too long ago the same site’s blogs amplified the arguments of Lundberg, one of the most vocal software patents proponents [1, 2]. There is also IBM which is appearing in a prominent pro-software patents site (run by patent lawyers).Manny Schecter (IBM’s patents chief) is again being borrowed by the patent maximalist, who is latching onto glorified lawyer Rader. Pamela Jones responded by writing: “Judge Rader is describing only one form of abuse, trolls. Companies can abuse the system too, as the smartphone patent wars have so ably demonstrated. Until someone addresses the issues of patentable subject matter, invalid but issued patents, and design patent misuse, none of the above will really help. Trolls are a problem, but they are not the only problem.”
In the midst of all this opposition to patent trolls we find that a very notorious troll is suing many companies again. To quote one report:
Remember Lodsys, the “inventions” firm that started issuing letters to iOS developers’ doors back in 2011, warning them that by using Apple’s in-app payment mechanism they were infringing on patents it owned? Well, as MacRumors notes, Lodsys has now risen from its slumber to take on the might of Disney, and others.
Another article about it says that 10 mobile game makers have been hit by these software patents. There is no lack of examples of the harms of software patents (a troll’s favorite weapon) and the latest nonsensical arguments and flawed analogy from Goetz [1, 2, 3, 4, 5, 6] gets smashed by Jones, who wrote: “Aside from the ridiculousness, and inaccuracy, of his posited example, may I just point out that the Wright Brothers held back innovation in the US aviation industry for years? As Patent Plaques writes: “The Wright’s patent wars were not without consequences. Unfortunately, all of the time spent fighting to protect their patent was time the Wright’s were not spending on innovation and the development of new planes. Their planes became inferior to the planes being produced in Europe.” Neither were they the inventors of airplanes, despite the claims. Many others flew before or contemporaneously, we now know. Nor was the patent on airplanes; it was only on one aspect of it, a method of flight control, and France and Germany refused to grant them a patent there, which is why inventors there bypassed US aviation. The same thing will happen with software, by the way, if no one acts to stop the strangulation of innovation via software patents.”
That spin, unsurprising enough, came from a lawyers’ site, Patently-O. Here is one new column that slams the patent system. No text shows up in this page. It may seem as though software patents are being pushed back, but not enough software developers write about this issue. Lawyers specialising in patents are rigging the public debates, still. It for their own profit — profit at the expense of programmers. █
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2009 and before:
Summary: Money from Microsoft helps influence a Linux banding of companies that need virtualisation
AS Red Hat recently hired from Microsoft for virtualisation leadership we needn’t be shocked that in a Linux Foundation article from Zemlin [1, 2], with help or a boost from New York Times blogs that label it “Corporate Style” (as if ethics can be neglected when you deal with a corporation), Red Hat et al. enter into bed with Microsoft. This is widely covered, naming both the Linux Foundation and Microsoft. “Is Microsoft influence already making itself felt at Red Hat?” This is what Will Hill thinks. It is about virtualisation:
Recently, I argued that while there’s been a lot of Software-Defined Networking (SDN) hype, it’s also real and will redefine corporate networking in the coming years. The Linux Foundation agrees and — in its OpenDaylight Project — has introduced a community-led and industry-supported open-source framework to accelerate SDN adoption, foster new innovation, and give it a more open and transparent approach.
Red Hat will be working on building and delivering an SDN solution that integrates with OpenStack and Linux’s built-in Kernel-based Virtual Machine (KVM) hypervisor.
Microsoft hasn’t spelled out what it plans to contribute to the project yet.
For now, it provides funding and insists on making its virtualisation purely proprietary. Last year Microsoft indirectly (but more directly than before) paid the Linux Foundation as well. We has seen that before and it leads to self-censorship. █
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Summary: Red Hat, Google and some more companies are openly complaining to the government about fights of patent trolls against them
THE MORE we see attacks on Android, the more we discover the role played by patent trolls, some of whom work at the behest of practicing corporations that need a proxy that’s immune to litigation against itself. There is a new report from CNET, a CBS site, about the lawsuit we covered some days ago in posts such as this and there is yet more coverage from the British press. The H says:
US cloud and hosting service Rackspace has filed a complaint against IP Navigation Group (IP Nav) and Parallel Iron at a US federal court in Texas. Rackspace says that it is suing for damages because IP Nav has broken an agreement that exists between the two companies. The hosting service is also seeking a court declaration that Rackspace isn’t infringing any IP Nav patents, writes Rackspace’s legal counsel, Alan Schoenbaum, on the company’s blog.
Previously, Red Hat helped Rackspace against a patent troll and now we see Red Hat, Google and others calling for the government to crack down on patent trolls. Here is the statement from Google’s lobbying blog:
Today, we submitted comments together with BlackBerry, EarthLink and Red Hat to the Federal Trade Commission and Department of Justice on the growing harm caused by patent assertion entities (more widely known as patent trolls).
We’ve been encouraged by recent attention on the problem of trolls, which cost the U.S. economy nearly $30 billion a year. Trolls are hurting consumers and are increasingly going after small businesses, hampering innovation and reducing competition.
Our comments today also focus on a worrisome trend: some companies are increasingly transferring patents to trolls—and providing incentives to assert those patents against their competitors. These transfers can raise rivals’ costs and undermine patent peace.
Notice the way this is posed. They don’t blame just trolls but also companies like Microsoft that feed those trolls. Apple is part of that same patent cartel and after some failures to attack Android directly we are seeing yet more such failures. Apple has just lost the infamous ‘slide-to-unlock’ patent, which the German court deems invalid. Some sites are quoting Microsoft Florian, especially Apple boosting sites, but this sure is a blow to Apple, no matter how anti-Android lobbyists try to spin it. Yes, his post is all full of spin and damage control for Apple. It’s like a controlled ‘breaking’ report, not the first of this kind. █
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Protectionism facilitated by lawyers
Summary: Response to some articles about the US patent system and those who strive to fix it, or conversely, keep it broken
The tiresome debate over the subject of patents is really massive these days. Many articles are written about it everywhere. A lawyers’ site continues to advance the view that software should be patentable by giving the platform to a notable lobbyist/booster for this ’cause’; Martin Goetz is said to be at the genesis of software patents in the US [1, 2, 3, 4, 5, 6] and he continues to be used by law-practicing software patents proponents such as Dennis Crouch. This is a problem because unless software developers make their views heard, the lawyers will simply get their way.
Other sites pay a lot of attention to patent trolls rather than software patents. Groomed by a Microsoft-friendly, Bill Gates-funded press like “GOOD” [1, 2], patent troll Spangenberg, for instance, is targeted by Rackspace, which calls him the most notorious patent troll in America after winning an important case against another troll, thanks to help from Red Hat. The British press says that “Rackspace sues ‘the most notorious patent troll in America’”:
Texan hosting firm Rackspace is going on the offensive with a legal challenge to non-producing entity (or patent troll, as they are more commonly known) Parallel Iron – a firm Rackspace describes as “the most notorious patent troll in America.”
Rackspace is still feeling cocky after its victory last week in the Eastern District of Texas, when a judge ruled that fellow NPE Uniloc couldn’t try to enforce a patent on a mathematical formula – a rare case of logic from the notoriously patent plaintiff-friendly court. Flushed with success, Rackspace is now taking the fight to a new target.
Intellectual Ventures is actually much bigger and more dangerous. One of our readers said he “thought Intellectual Ventures was the most notorious patent troll in America.” He was right. The USPTO continues to facilitate these trolls and Red Hat’s unofficial blog calls for an open, collaborative effort to improve US patents rather than call for change in the system itself:
Late last year, I wrote about the EFF’s project to leverage the Patent Office’s new Preissuance Submissions procedure to promote open 3D printing technology. Here we are, several months later, and the fight for open 3D printing continues. Now, the EFF has partnered with Ask Patents to facilitate crowdsourcing of prior art searches for various 3D printing-related patent applications.
At first, I didn’t see anything remarkable about this partnership. However, as I delved a little deeper, things got a little more interesting. First off, Ask Patents is part of a group of open-content websites called Stack Exchange which includes over 100 “question and answer sites on diverse topics from software programming to cooking to photography and gaming.” But, the more interesting tidbit—at least to me—came from the Stack Exchange blog, where they claim that former Patent Office Director, David Kappos, came to their office to encourage them to open a Stack Exchange site dedicated to generating prior art to help patent examiners do their jobs.
David Kappos is in favour of software patents. He and others like him want more people gardening the existing system rather than abolishing or reforming it.
Red Hat sends out mixed messages, with the notion of “bad” patents rather than software patents being advanced and also a focus on trolls rather than their tools of litigation. Red Hat itself has some software patents, some of which offend fellow FOSS-centric companies [1, 2]. The patent lawyers’ spin sites say that “Red Hat opposes software patents, but still recognises the value of IP” (as in trademarks? Copyrights?). Here is the opening of this spin piece:
Last week a court in the Eastern District of Texas dismissed patent litigation brought by NPE Uniloc against internet hosting provider Rackspace. Uniloc sued the Texan company in June 2012, alleging that its use of Red Hat Enterprise Linux infringed one of the NPE’s software patents relating to “the processing of floating-point numbers”.
In response, Rackspace and Red Hat (which was providing assistance to its customer in accordance with its Open Source Assurance programme) jointly filed for an early motion to dismiss the case. The motion was granted, with the court finding the claim asserted by Uniloc invalid as it covered a mathematical algorithm.
According to a press release from Red Hat, this decision represents the first time that a court in ‘NPE’s paradise’ the Eastern District of Texas has granted an early motion to dismiss after finding that an asserted patent claimed unpatentable subject matter.
This is true so far. But watch the spin at the end:
Even for organisations that have a fundamental opposition to software patents, IP can be a major part of their business model. Red Hat and other companies have shown that patenting and open source development can coexist and can complement each other; while other intangibles such as brands – and the trademarks and other rights that protect them – can be vital to competitiveness in the highly commoditised software market. For those in the open source community that are sceptical about the IP system, that is surely something worth considering.
With phrases like “patenting and open source development can coexist” (similar to IBM's line) they are trying to paint Red Hat as pro-patenting, simply by calling patents “IP” and then saying that Red Hat care for trademarks and such stuff. This helps prove that Richard Stallman has been right for his persistent opposition to the term “IP”. █
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Summary: More on Red Hat’s unprecedented move of hiring executives from Microsoft Corp.
Microsoft has already infiltrated — in the staff sense — several large companies such as Novell, VMware, Nokia, Amazon and Yahoo, to name just a few notable examples. It’s always the same story. One Microsoft mole enters a top position, then fires many who are unfriendly to Microsoft’s agenda, only to hire more former colleagues from Microsoft (or cancel projects that threaten Microsoft, replacing those with Microsoft collaborations). Red Hat should watch out because UEFI Restricted Boot shows signs of Red Hat softening too much*. Red Hat recently hired from Microsoft — news that continues to fascinate many, e.g.:
Balakrishnan had been with Microsoft since 1997, according to his LinkedIn biography. His positions included:
* Group Product Manager, Windows Storage Server;
* Chief Competitive Officer, India;
* Director, Virtualization and Private Cloud
* Senior Director, Cloud Platform
He was at Microsoft for 15 years, so it’s not some rushed escape from Microsoft. It was several years ago when someone who had worked for Microsoft lobbied against Ogg on behalf of Nokia, which is now attacking VP8 and Android. Simon Phipps is trying to explain why Nokia is doing this:
Last month, I wrote about the battle between open source video tools and the entrenched industry around video. Google announced it had reached an accommodation with MPEG-LA to no longer imply that VP8 was threatened by MPEG-LA patents and it hoped to have VP8 standardized by MPEG.
At the IETF meeting where Google’s staff explained the proposal, it was clear that the standards arbiters working for the companies with deep investments in MPEG H.264 were not going to make life easy. In contrast with the treatment received by other speakers, the Google speakers were constantly challenged by meeting attendees associated with H.264 — almost to the point of harassment. It also became apparent that Nokia — a company that, prior to its change of direction to become part of Microsoft’s hegemony, had supported open source approaches — was poised to mount a challenge to VP8.
And therein lies the problem. Microsoft moles can change a lot from the inside. Red Hat is no longer void of Microsoft veterans. Never before did we see Red Hat hiring for its management team from Microsoft. █
* Other distro makers feel differently, but Canonical, itself already semi-infiltrated by Microsoft, did the same as Red Hat. “Explaining the concept of evil to a Canonical employee,” wrote Will Hill, is not simple. Quoting JoinDiaspora: “He said, “Bill Gates isn’t evil, he just likes getting a lot of money,” as if money turns any harm into good. It’s not often that you see such a naked expression of “It’s OK because he does it for money.”" The “yuppie nuremberg” defense won’t work in justifying the hiring from Microsoft.
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