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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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: Groklaw provides another timely glimpse at the state of SCO
TECHRIGHTS hardly touches Novell and SCO because both companies are dead or defunct. Litigation carries on as a spectator sport (Microsoft is involved in antitrust) and there are lesser known cases against Novell and SCO. As Groklaw put it: “Do you remember Wayne Gray, the guy in Florida who tried to to get the trademark INUX, was challenged by X/Open, the owner of the UNIX trademark, and then ended up suing Novell, X/Open and SCO, claiming a conspiracy and adding RICO claims? X/Open won on summary judgment a couple of years ago, he appealed, lost there too, and now the final chapter in this incredible saga is that Gray must pay X/Open’s attorneys’ fees in the amount of $404,820 plus interest of 6% from June 28, 2010 to September 30, 2011 and an interest rate of 4.75% from October 1, 2011 to the present, and $5,016.82 to cover their costs in dealing with him.”
According to another post about UNIX and SCO, SCO is bankrupt and “is now officially transferred from Chapter 11 to Chapter 7 bankruptcy protection. Here’s the order [PDF]. The Chapter 11 trustee, Edward Cahn, was to turn over all the records and assets to the interim Chapter 7 trustee as soon as the US Trustee appoints him or her, and file with the court within 14 days a list of all unpaid debts incurred after the Chapter 11 bankruptcy began and within 30 days a final report. Of course, as he requested, he is now appointed [PDF] as the Chapter 7 interim trustee. He just changes hats.”
Here is the balance: “SCO lists $82,431 in cash on hand on the conversion date. That means some of you reading this now have more money than SCO.”
A lot has changed since this site was born. Many companies we opposed no longer exist or are no longer influential. This is indicative of success, but it also suggests that our goals should evolve. A large barrier now is an issue rather than several companies; it is software patents, which some of those companies use. The remainder of today’s posts will be about patents. █
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Summary: SCO has no money to pay back its loans
THE SCO case is said to be coming to its very end as monetary issues are being settled. “Blank Rome is owed some money for representing SCO Chapter 11 trustee, Edward Cahn, and it would like to be paid,” notes Pamela Jones, “now that SCO has filed for Chapter 7 bankruptcy instead. I know. It’s not called SCO any more. So, TSG, then, but it will always be “SCO” to me. Mr. Cahn has asked to be the trustee in Chapter 7, but that hasn’t been decided yet, and so meanwhile, here come the bills, going back to December of 2011 and ending July 31, 2012.
“If you recall, Cahn represented to the court that SCO now has only $145,352.00 in hand left. If you add up the new interim bills and expenses from Blank Rome, calculated at 80% of the actual bills and 100% of the costs which is how interim bills get paid, it comes to $34,601.78. And so the sand is running out of the hourglass, grain by grain, and this story is not yet at the very end. So even though I don’t usually predict outcomes, I think it’s safe to say that at this rate, barring the unlikely, Ralph Yarro and friends aren’t going to get their $2 million loan repaid by SCO. Ever. Only in their dreams.”
We wrote about Yarro’s money in [1, 2]. █
“Microsoft hardly needs an SCO source license. Its license payment to SCO is simply a good-looking way to pass along a bribe…”
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Summary: Reports on the end of SCO
THE history of SCO has been that of a dying company since Techrights started coverage on the subject. SCO taught us about Microsoft’s fights against Linux by proxy, among other things (more on that later today).
SJVN claims that SCO is really dead now. As he puts it in his blog: “SCO has ceased to be. It has expired and gone to meet its maker. It’s joined the choir invisible. This is an ex-company. With apologies to Monty Python’s Dead Parrot sketch, SCO, the company behind a series of foolish anti-Linux lawsuits, is finally really and truly dead.
“SCO, which has been in Chapter 11 bankruptcy since the fall of 2007, has now gone into Chapter 7 bankruptcy. The difference is that in chapter 11 there is some plan, albeit not very rational in SCO’s case, that the company can eventually return to normal business. In Chapter 7, all that’s left is to close and padlock the doors and then sell the furniture.”
Sean also suspects that this is the very end of SCO. He writes: “Two years ago, I wrote that SCO was (mostly) dead. Back in 2010, Novell won the critical ruling against SCO (once famously referred to as the ‘Smoking Crack Organization’ by Linus Torvalds), asserting the Novell and not SCO own the trademarks to Unix.
“At the time Groklaw declared: Stewart Rules: Novell Wins! CASE CLOSED!
“Fast forward two years, SCO is still kinda/sorta around, but not for much longer. Groklaw (love PJ!) has reported that SCO has now filed for Chapter 7 bankruptcy. A Chapter 7 bankruptcy is essentially a liquidation bankruptcy as opposed to Chapter 11 which is a reorganization effort.”
Brian Proffitt speaks as though SCO is already just history and recalls what it all meant for the present. “Looking back,” he writes, “it was one hell of a gamble by SCO. As a strategy, it was admittedly not a bad idea (in a soulless corporate sort of way): claim copyright infringement of their Unix code within Linux and start setting up licensing agreements with anyone and everyone running Linux on their servers.”
Wired says that SCO “filed for Chapter 7 bankruptcy, a step beyond the more common Chapter 11 bankruptcy status. It’s not the end of the road for the much-hated company, but it’s close.
Christine Hall says that “SCO Never Can Say Goodbye” and to quote part of her analysis: “I’d almost forgotten that SCO was still around until PJ at Groklaw reported the company was in the process of switching from Chapter 11 to Chapter 7. In bankruptcy talk that means the company’s stance has changed from we’re-going-to-come-out-of-this-alive to it’s-call-the-priest-for-last-rites-time. The trouble is, this is SCO, so you know it’s not going to be that simple. They’ll come up with some stupid request for the court that confounds logic, which they’ve done.”
Groklaw remains the source by which most bloggers seem to be evaluating SCO’s case. Hopefully, just hopefully, SCO can be left behind already. Attacks on Linux now take a different form that mostly relies on patents. █
“On the same day that CA blasted SCO, Open Source evangelist Eric Raymond revealed a leaked email from SCO’s strategic consultant Mike Anderer to their management. The email details how, surprise surprise, Microsoft has arranged virtually all of SCO’s financing, hiding behind intermediaries like Baystar Capital.”
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Summary: CPTN and SCO continue to openwash themselves while evidence piles up to show that they dislike FOSS
THE US-centric ITC deals a blow to Motorola, which fought back and recently used its patents to knock down Apple's litigation. Motorola is clearly the one company with the most vested interest in defending Android from litigation, owing to Google ownership.
Apple In the mean time is trying to ban yet more Android devices and as put by Sam Tuke (FSFE), “US patent protectionism is on a course for splendid isolation from international markets. Steady profits will continue to flow east regardless.”
Here is a fine example of how patents harm the public very directly; this link, “Samsung Galaxy Nexus banned in US”, was sent to me even by a friend who is not into technology (he is an avid Galaxy user and so is his girlfriend). The public is generally affected everywhere it is located and the news made it into the corporate press, too. “The story is also on slashdot,” wrote a reader of ours. “Here is comment from slashdot,” he added:
I work for Google and I’ve seen how my colleagues have consistently worked long hours to innovate and create new features. The Galaxy Nexus is an amazing phone. It’s thin, and light, and doesn’t even have any hardware buttons on the front at all – yet Apple still are not happy. If you can’t see why you’re blind.
Apples goal is not to get competitors to “design around” their patents. This has happened several times already, the Samsung Galaxy 3 has even been called out by tech review sites for having a “lawyer approved design” (it’s not rectangular, it does not have slide to unlock, etc). Apple keep coming, with newer and even more stupid patents, because their goal is not individuality, it is the utter destruction of all competitors. Steve Jobs himself said that in words so clear nobody can re-interpret them.
What’s more, it’s very hard to make an Android phone that doesn’t share design elements with the iPhone these days, because Apple has copied Android many times in the past few years, for example, its notifications tray is identical to the design that first shipped in Android 1.0, and inferior to the one shipping in Jellybean. Android 1.0 also shipped with a universal search box and pluggable API for it, it shipped with suspend
CNET covered the story and noteworthy is the following part:
Apple has posted the $2.6m bond requested by the courts when they won an injunction against Samsung to halt Galaxy Tab 10.1 sales in the US. What does this mean? It means the injunction has now officially started, and if Samsung doesn’t immediately sales, they could be sanctioned for contempt.
Android has had CPTN members (Novell’s patents in the hands of Oracle, Apple, and Microsoft) go after it, but as we showed here before, they also use proxies like Nokia and MOSAID to fuel up the litigation frenzy. Red Hat apparently paid MOSAID, so just like SCO after it was openly paid by Microsoft, MOSAID can now go and assault other parties with identical claims, unless Red Hat signed a GPL-compatible deal (they won’t tell, which is a bad sign). In a post titled “Solaris, SCO, Linux, Open Source and Red Hat Summit” it gets pointed out that Oracle and SCO are still getting a seat in FOSS conferences, despite their bad behaviour:
Apparently it is still a (small) concern. I did the best I could to explain that SCO is now a zombie (they still exist, but does anyone take them seriously?) and of course every major enteprise Linux vendor provide indemnification. But still, simple truth is it was a concern and a question that led to some conversation.
Sometimes Microsoft buys such a seat too, despite attacking FOSS. They wish to remove the sting from FOSS by attacking it while pretending to be an ally. It is quite priceless when Apple fans point to Apple’s “open source” PR-esque page. █
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Summary: Patent news of interest, collected over the course of recent days
TAXER of Linux file systems, Tuxera, is boasting new vectors of Microsoft tax and two Microsoft allies, Yahoo and Facebook, argue over software patents: [via]
“After years of positive relations, friendly blog posts, and referral traffic, Yahoo may have just been biding its time waiting to declare war on Facebook,” says one blogger.
Groklaw writes an article about the EveryMD case against Facebook. Watch the angle which mentioned Mono:
You know how those pushing the alleged “safety” of Mono back in the day, despite it being patent-encumbered, used to try to minimize the danger by arguing that Microsoft would never sue end users over patent infringement, because there’d be no meaningful financial return? The argument went that Mono was safe, because no rational actor would sue individuals, only deep pockets.
Guess what? Someone has just sued some end users over alleged patent infringement.
Courthouse News had the news first that EveryMD has filed a lawsuit [PDF] alleging patent infringement against Facebook end users, specifically Facebook users who have business accounts, naming Rick Santorum, Mitt Romney and Newt Gingrich as defendants, after Facebook refused to pay a royalty for EveryMD’s patents. The complaint also names as defendants “Does 1-1000″, which it defines as “each a presently unidentified one of an estimated 4,000,000 additional Facebook business account holders that are subject to the jurisdiction of this court.”
Shades of SCO Group, who sued business end users of Linux, like DaimlerChrysler and AutoZone, for alleged copyright infringement after IBM refused to pay them off. They were asking $699 for anyone using a server in the enterprise that ran Linux. EveryMD is asking business accounts on Facebook to pay $500, their “reduced” price. If the group is large enough, $500 each comes to the same as one lump sum from a deep pockets company, I guess is the rationale.
Let’s not forget that Microsoft contributed funds to SCO when it was fighting against Linux. Microsoft is a troll by proxy, always using other companies to do its battles. And right now, as TechDirt puts it, “Patent Aggressor Microsoft Files EU Complaint Against Google/Motorola For Charging Too Much To License Patents”. To quote:
It’s difficult not to look cynically at Microsoft’s latest move to file an antitrust complaint in the EU over Motorola’s patent royalty rates, and think about just how obnoxiously hypocritical Microsoft is being as a company on this particular issue. First off, Microsoft has become a pretty significant patent aggressor over the past few years, filing lawsuits and pressuring companies to pay up. It’s also been a huge fan of patent FUD — especially against open source competitors. Most people assume that Microsoft was the main player behind SCO’s quixotic (but costly and distracting) legal battle against Linux. Then, of course, every so often Microsoft officials insist that Linux infringes on a bunch of its patents, but it never wants to make clear which ones. More recently, of course, Microsoft has been demanding license fees for its patents from a variety of companies making use of Android — to the point that some have argued Microsoft makes more off each Android installation than each Microsoft Phone installation.
Microsoft pretends to be a victim, as we noted the other day. TechDirt adds: “Of course, Microsoft’s almost gleeful blog post about its complaint ignores all of this reality and history, and tries to position it as if Motorola and Google are trying to “kill” web and mobile video by charging too high a royalty rate. Frankly, for anyone who knows anything about Microsoft’s patent practices over the past few years, they’ll see through this and recognize how laughable Microsoft’s claims are.” Microsoft is said to have filed other complaints against Google, but it denies it. Microsoft usually hires proxies to file complaints against Google. In some cases, the agencies are exactly the same, as we witnessed before.
Groklaw has meanwhile provided updates on the Oracle vs. Google case [1, 2]. We believe this case to be a favour from Larry Ellison to his best friend, Steve Jobs. We have already explained and have shown shy. █
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Summary: A few items of news about Novell/SUSE and SCO
THE OPENSUSE project is very weak at this point; in fact, it’s so weak that Linux news hardly covers it anymore. Many of of its key people left.
There are those who make OpenSUSE spins, but these are one-man efforts such as this one. To quote:
In case any of you like another spin with other desktops, I ll be happy to make them. If you visit the susestudio site, you ‘ll notice its not that difficult to make a spin, all you need is some basic knowledge of the Linux programs and libraries, and which ones to choose to make a good system, not a bloated one.
We made Bloatnux with this tool. It’s not hard.
The community manager of OpenSUSE announces a new program in his blog:
This is something I’ve wanted to do since the day I became community manager for openSUSE. I’ve always believed that the budget I had in SUSE should be used for the openSUSE community. Initially, that meant that I moved money from the sponsoring of conferences to supporting openSUSE people going to conferences as well as providing them with goodies like DVD’s, openSUSE beer, flyers and t-shirts.
Basically, SUSE promotion as “gifts”; it’s almost like a bribe.
We are not sure if it’s still worth covering Novell in this site because Novell is pretty much history just like SCO. Groklaw still tries getting back to its SCO days:
SCO and IBM have reached a stipulation [PDF] on how to go forward on reactivating the Utah litigation, and SCO has filed it in Bankruptcy Court in Delaware. Assuming it’s signed by the judge, the Hon. Kevin Gross, in time for the April 23rd hearing now scheduled in Utah District Court in Salt Lake City before the Hon. Dee Benson on SCO’s laughable motion to let only *it* go ahead and IBM not, I’d say it’s game on. They’ve agreed IBM can proceed with its defenses and counterclaims. It was IBM that suggested in its opposition to SCO’s motion that the best way forward was to ask the Bankruptcy Court to lift the stay on *both* parties, which is what the stipulation agrees to.
It was almost 5 years ago that SCO filed for bankruptcy protection and about a year since Novell was sold. Should we keep on top of all that? What about SUSE? █
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