Sleight of hand and litigation by proxy don’t work
Summary: The Rockstar patents sale and the final defeat suffered by SCO serve to show that Microsoft cannot beat Free/libre software using aggression and underhanded tactics
Microsoft’s attempts to crush GNU/Linux culminated with the Novell deal in 2006. Microsoft tried to make the competition its own, but it never worked because people antagonised Novell and no large company really followed Novell’s footsteps. Novell is now essentially dead, much like other Microsoft ‘partners’.
“This isn’t happening because Apple and Microsoft decided to play nicer.”Over a decade ago Microsoft paid SCO when it attacked Linux. This was similar to what Novell later did with Microsoft because both used a form of monopoly, either copyrights or patents. Microsoft subsidised anti-GNU/Linux campaigns that did cause a lot of damage. In neither case, however, were the claims valid and both campaigns failed after years or endless struggle, hinged to a great degree on the goodwill of the Free software community.
Simon Sharwood from The Registerwrote about a fortnight ago about Groklaw, which had silently become a bit active again, for the first time in many months. Sharwood wrote: “IBM has had a win in its long court battle with SCO over just who owns Unix and, by extension, whether Linux is an unauthorised clone.
“Some quick and simplified history: SCO – short for The Santa Cruz Operation – was a software company that offered a version of Unix for x86 chippery. When Linux came along in the late 90s and started turning into a business, SCO more or less sank and it attacked both Novell and IBM for their role in helping to spread Linus Torvalds’ brainchild. At stake was whether those who distribute and profit from Linux should share some of their bounty with SCO. If a court had found in SCO’s favour, it would have been bad news for Linux.
“The Novell suit ran for about six years, but SCO lost. After that, SCO endured all manner of financial strife, but managed to crawl from the crypt more than once. Last year, SCO managed to secure approval to re-open the case against IBM.”
It’s nice to know that GROKLAW is not dead, just hibernating. Maybe spring will wake it up. Surely there’s some legal case interesting enough to fire it up, like world v Obamacare, or world v N. Korea, or … Of course, now that M$ loves */Linux and Apple has acknowledged that round corners are not innovative there are fewer lawsuits in the world but until all those who fought GNU/Linux for two decades die of old age, there’s still hope they will seek to humiliate themselves in the courts.
This serves to remind us that the Microsoft-backed copyright attack on Linux took well over a decade to be over. This induced a huge toll and Microsoft continues to attack Linux, usually by proxy. Here for example is the Microsoft booster Ina Fried attacking Linux again. He or she (used to be called Ian) has found a way to make the most popular OS (Android) sound like a failure. It’s ugly spin like that which we see other Microsoft boosters spreading in the media (some of them used to work directly for Microsoft or are still working for Microsoft). Watch BGR trolling (clickbait) with one person’s account to make Android sound undesirable [1, 2]. These are fights that are fought with words, but Microsoft goes much further than this. A couple of years ago Microsoft and its proxies tried to cause Android to come under antitrust trouble, but they have failed based on reports. To quote The Register: “A US District Court judge has cast doubt on an antitrust lawsuit filed against Google, describing the damages sought as “speculative.”
“The class-action suit filed earlier this year alleges that Google engages in illegal anti-competitive behavior by requiring makers of Android smartphones to bundle its search app on their devices.”
Remember that this all came from Microsoft. We wrote several articles to show this and so did other sites. In addition to legal attacks through regulators Microsoft has been attacking Android through patent trolls (Microsoft has just given another $23,000,000 to patent troll VirnetX) and patent holders which still have some products. Several examples have been given over the years and the legal assaults are far from over.
The Open Invention Network, which defends Linux (and other related projects) from patent attacks, recently gave this interview to ECT. The Open Invention Network’s CEO Keith Bergelt said that “we had to create channels for collaboration. Otherwise, we would have hundreds of entities spending billions of dollars on the same technology.” It’s not “technology” that he is alluding to when he talks about it; it’s a parable for patents.
Ahonen, a Nokia expert, says that “30% of all Windows Phone based Lumia smartphones shipped have not been activated. That must be an industry record for futility. [...] the product line was a sales disaster. ”
“The interesting part about Rockstar is that since they sold 2K patents to shareholders, hard to prove devaluation of rest,” he said to me, “but one can certainly suspect that if they bought 6K patents for $4.5B, sell two thirds for $900M, that there *was* devaluation” (take with a grain of salt given the messenger’s connection to Microsoft and Apple).
There was recently a lot of press coverage about telecom patents and Android because Verizon announced that it entered into a patent licensing agreement with Google (more in [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29]), but a bigger story, especially in FOSS-friendly circles, was the Rockstar story. As FOSS Force put it: “Perhaps the most telling sign of the sinking value of software patents came just a week ago, when the patent trolling company Rockstar, jointly owned by Apple, Microsoft, BlackBerry, Sony, and Ericsson, offloaded it’s approximately 4,000 remaining patents for $900 million — representing about two thirds of the patents it purchased in 2011 for $4.5 billion in a bidding war with Google. Google would seem to have the last laugh here, as it’s a member of RPX, the company buying the patents, meaning they’ll will be available to the search company as protection against patent litigation, which is why they had been a bidder in the first place.”
BlackBerry is becoming a patent troll and RPX is pretty much a troll, albeit one that is not so hostile towards Free software because of its members. Mike Masnick said about the news that the “Stupid Costly Patent Nuclear War By Microsoft & Apple Against Android [was] Averted”. He put it in context as follows: “Last year, Rockstar launched its massive patent attack on Android, suing basically all the major Android phone makers and Google. While some have argued that big company v. big company patent attacks aren’t a form of patent trolling, some of us disagree. This, like most patent trolling, is just trying to extract money from companies and has nothing to do with actual innovation. In the tech world, some have referred to this kind of thing as “privateering” in which a big company puts the patents into a shell company to hide their trolling activity.”
Joe Mullin said that “Apple and Microsoft spent $4.5 billion on a patent attack, sold it at a loss.”
Apple- and Microsoft-backed patent group ends its war on Android
And just like that, the Rockstar Consortium’s lawsuit campaign against Android is over. The patent holding group (backed by Apple, BlackBerry, Ericsson, Microsoft and Sony) has sold all of its commonly held patents to clearinghouse RPX for $900 million, or a fraction of the $4.5 billion the total patent pool was worth a few years ago. Rockstar will accordingly drop the lawsuits that it still had left, including those leveled against HTC, LG and Samsung. Don’t worry that RPX will promptly turn around and sue someone else, either. It already has a deal to license those patents for defensive purposes to a group of 30-plus companies, including Google and Cisco, while the Rockstar companies get to keep their licenses.
This isn’t happening because Apple and Microsoft decided to play nicer. It is happening because they repeatedly fail to defeat Android/Linux using patents, especially now that software patents are becoming a lot weaker in the United States — a subject we shall cover in our next post. █
ONE of our readers sent us some interesting reports about Steve Jobs’ rudeness [1], determination to attack Android/Linux with patents [2], and a lawsuit [3] over DRM [4] where Steve Jobs’ ghost is back to haunt digital freedom.
“He also started a wave of patent abuses, ranging from threats (like those veiled threats against Palm) to lawsuits that would last several years and drain budgets, remove features, etc.”Over the years we have criticised Steve Jobs (before and after his death) because his contribution to DRM — contrary to what Apple fans care to admit — has been great. He also started a wave of patent abuses, ranging from threats (like those veiled threats against Palm) to lawsuits that would last several years and drain budgets, remove features, etc. So much for innovation, eh?
We continue to reject the notion that just because someone is dead it should be impossible to criticise him or her, especially if that person is a public figure (like a politician). Sadly, however, some people disagree and want to treat any criticism of Jobs like blasphemy or “speaking ill of the dead” (inducing censorship). As the reports below serve to show, Jobs does not deserve to be treated as though he was a hero, except perhaps by those who cherish corporate control over people, using digital means (that’s why the corporate press loves to idolise Jobs so much). █
Emails sent by Jobs have surfaced once again in a class action lawsuit brought against Apple (AAPL, Tech30) for making iTunes the exclusive store for iPod music. Jobs’ emails are characteristically frank, which could hurt Apple.
Jobs’ famous candor wasn’t limited to face-to-face encounters. His brusque manner translated to email as well. That’s unusual for modern CEOs, who are trained to exercise restraint in emails. Those words can easily be entered as evidence in a trial.
Either Jobs didn’t get that message — or he didn’t care. These 10 emails from Apple’s co-founder reveal the stern, outspoken and often witty personality that made him one of the most charismatic CEOs of his era.
Anyone who follows the smartphone and tablet market knows that Android has become the No. 1 mobile operating system in the world. They also know that, prior to his death in 2011, Steve Jobs was not very happy about Google’s mobile operating system. In fact, he made a rather bold threat when he talked about his dislike of this competing mobile OS.
“I will spend my last dying breath if I need to, and I will spend every penny of Apple’s $40 billion in the bank, to right this wrong. I’m going to destroy Android, because it’s a stolen product. I’m willing to go thermonuclear war on this,” the late CEO famously said.
This morning, Apple will begin a duel over claims that it used copy-protection schemes known as “digital rights management,” or DRM, to illegally manipulate the market for iPods. The lawsuit, filed nearly 10 years ago, puts some legal firepower behind activists’ claims that the copy-protection DRM is “defective by design.”
Posted in Apple, Law, Patents at 6:35 am by Dr. Roy Schestowitz
Summary: A quick roundup of news of interest regarding software patents
THE SO-CALLED ‘Alice’ case has proven to be much more effective than Bilski because although In Re Bilski was sometimes used to eliminate a software patent here and there (examplesexist) it happened nowhere as often as after ‘Alice’.
Dozens of law firms threw pieces of misinformation at the media shortly after the ‘Alice’ determination (we covered a large number of examples at the time), trying to deny that it had any impact on software patents. These were attempts at a self-fulfilling prophecy, but they were proven wrong. Now that ‘Alice’ is cited and used — successfully — in elimination of software patents in the United States the lawyers’ sites take another defensive approach such as this or that. Being lawyers’ sites, the headline “Section 101 Attack” (implying that the attackers are those who are against monopoly on algorithms) is not too shocking. They are trying to advise patent lawyers how to circumvent the new restrictions, with an introduction such as the following: “On November 3, 2014, in Cal. Inst. Of Tech. v. Hughes Communications., 2014 U.S.. Dist. LEXIS 156763 (C.D. Cal. 2014), Judge Mariana Pfaelzer penned the most thorough defense of software claims attacked under s. 101 that I have seen since State Street Bank. The opinion is also useful since it both continuously cites – and often distinguishes or explains Mayo—and because it is very critical of the analytical framework employed by the same court in McRO (Planet Blue) v Namco, a September decision on which I posted earlier. (A copy of this decision can be found at the end of this post.)”
If you are against software patents, then the patent lawyers view you as “attacking” them. Yes, it’s not those who monopolise and sue who are the attackers, but those who are trying to defend themselves. This wording is found in some of the highest tier legal papers, which probably shows just what level of contempt patent lawyers have for society at large.
Here is another legal publication writing not only about patenting software but also copyrighting it (applicable by default). It refers specifically to India, en ever-growing software giant where imperialistic lawyers (whose clients are rich multinationals) would just love to impose monopolies nf software (it’s usually non-Indian companies that can afford to file for patents and file lawsuits there, obviously against Indian people and businesses). India will hopefully never follow the trajectory of the US by embracing patents on algorithms.
Pay attention to this new Applepatent on a trivial software idea:
Apple has a new patent granted today by the USPTO (via AppleInsider) that details a method by which it can detect and keep track of mobile network dead zones via crowdsourced information. The technology is designed to give device makers and network operators a way to easily identify and counter low signal zones, by building out their network where it needs the most work.
Apple is increasingly becoming a software patents-wielding parasite, not a producing company. Thankfully, the US seems to be tackling the practice of patent trolling right now and Steph just got “a tip from an anonymous source that a certain company received a request from an NPE to permit disclosure of a license agreement to the FTC.”
Summary: Microsoft-linked and Linux-hostile trolls continue their relentless attacks (albeit with little or no success) while patents as a weapon lose their teeth owing to a Supreme Court ruling
Microsoft’s cofounder is now a patent troll and his trolling activity resumes in the US. As Reuters very recently put it: “A U.S. appeals court on Wednesday revived part of a patent lawsuit brought by Microsoft co-founder Paul Allen against AOL, Apple, Google and Yahoo, saying a lower court incorrectly found that the tech companies didn’t infringe one of its patents.
“The patent, held by Allen’s Interval Licensing, relates to the ubiquitous pop-ups that computer users routinely see while surfing the Web or shopping online.
“The Court of Appeals for the Federal Circuit said that Chief Judge Marsha Pechman of the federal district court in Seattle had made an “erroneous” interpretation of the patent in 2013 and it sent the case back to her for further hearings.”
Allen has also targeted Android and Microsoft produces patent trolls other than Allen (IV, Interval, Gates et al.) who tend to target Free software and Microsoft rivals such as Google.
Alice is killing the trolls — but expect patent lawyers to strike back
Open source software developers rejoice: Alice Corp. v CLS Bank is fast becoming a landmark decision for patent cases in the United States.
The Court of Appeals for the Federal Circuit, which handles all appeals for patent cases in the United States, has often been criticized for its handling of these cases — Techdirt describes it as “the rogue patent court, captured by the patent bar.” But following the Alice decision, the Court of Appeals seems to have changed.
The Court of Appeals will be the subject of our next post. █
Just as weapons proliferation is an issue, not merely those who may use them
Summary: Reminder of the dangers of losing sight of the real patent problem, which is the patents themselves, not necessarily those who use them
Abusive, frivolous lawsuits against Linux by Apple and byMicrosoft should make it perfectly clear that not only patent trolls are the problem. TechDirt now focuses on Innovative Display Technologies, noting that it is a troll, but what about Microsoft and Apple? Are they any better just because there are a few products coming out from them? Or because they are not based in Texas only for the purpose of litigation? As TechDirt points out, “Innovative Technologies, LLC of Austin, Texas doesn’t make any products or even have its own website. What it does have, however, is a handful of weaponized patents its parent company, Acacia, acquired from “we’re not a patent troll” Rambus. It’s using a handful of display-related patents to sue anyone who utilizes an integrated LCD screen. Its latest targets are cell phone distributors like Verizon, AT&T and Apple, but other lawsuits have also been filed against auto manufacturers (Volkswagen, Mercedes-Benz, Mazda), camera companies (Canon, Nikon) and GPS suppliers (TomTom, Garmin).”
“It is not too shocking to find that lobby groups of corporations would rather divert all the attention to trolls in an effort to distract constructive debates.”But how is this troll different from Apple and Microsoft? All of them abusively sue companies that succeed at selling products, usually in very large numbers. The problem here is the patent themselves, not the person or the entity using them. “Software patents called into question” is the title of this new article that mostly quotes patent lawyers (like asking BP and Shell about green/alternative energy sources) but at least, quite correctly, contends that software patents (the favourite weapon of patent trolls) are now in trouble. To quote from one among 3 pages that largely contain quotes from patent lawyers: “Last month’s Supreme Court decision in the case of Alice Corp. Pty. Ltd. vs. CLS Bank International is one of the more interesting findings applicable to businesspeople among software cases, according to von Simson. It’s yet another decision showing that software patents are being cut back.”
Techrights has consistently opposed the line of reform that goes after trolls rather than the real problem, which is rather clear to see and very simple to resolve (provided corporations, which control the US government, wish to resolve it). It is not too shocking to find that lobby groups of corporations would rather divert all the attention to trolls in an effort to distract constructive debates. █
Apple just hit a stumbling block in its second U.S. patent infringement case against Samsung thanks to a Patent and Trademark Office ruling that rejects some of the iPhone and iPad maker’s claims. The ruling targeted the summary judgement Federal Judge Lucy Koh issued ahead of Apple and Samsung’s trial this spring, and relates to infringement claims for Apple’s autocomplete patent.
These patent attacks are not going to work if enough money is spent by Samsung showing that Apple merely copies the competition (prior art). In fact, Apple already lost its biggest Samsung case and dropped all of its cases outside the US. It’s quite revealing. Can HTC claim compensation from Apple (legal fees and potentially other fees, as well as various damages to reputation and sales)?
Now that Android commands the lion’s share of the key market (85% of all sales, according to one source) all that Apple can do is lie and rely on trolls who claim “Apple’s resurgence” for some hits/clicks bait. Here is a new example:
In recent weeks, a drumbeat has grown among tech analysts that Apple’s iPhone is poised for massive uptake while Android smartphone sales may have peaked in developed nations. Also, Android is threatened in the developing world from a Google creation called AOSP, which strips out Google’s services (where Google makes its money) and lets any device maker avoid paying Google service royalties. This is especially significant in China, the world’s biggest emerging market, where AOSP is the top-selling mobile OS and which accounts for 20 percent or more of global “Android” sales. At the same time, various analysts have noted that Samsung is being squeezed by both Apple and AOSP, and Samsung may have already peaked in mobile, with 2012′s Galaxy S III representing the high point.
This is all speculative mambo-jumbo bearing the headline “Android has good reason to fear Apple’s resurgence”. Thankfully there is already a rebuttal to this, which says:
Partisan holy wars are part of the history of technology, and there have been few as bitter as Android versus Apple. While Android has had an amazing run of success over the last few years, some analysts are beginning to think that an Apple resurgence is at hand that could do serious damage to Android.
[...]
However, I also understand the need for a horse race in the media. Writers are under pressure to deliver traffic and page views, and a platform battle between Google and Apple certainly offers articles with compelling clickability for readers. And many analysts simply seem to go whichever way they think the wind is blowing without looking deeper into what’s actually happening.
Just remember that a lot of these analysts probably predicted Apple’s doom over the last few years, and now they’ve switched to predicting Android’s doom. So take everything they say with a gigantic grain of salt. I’m sure they’ll flip back over to the other side at some point in the future if they think it will get them attention, clicks and traffic.
Apple is not doing well and even people inside Apple (or fans of Apple) know this. The recent revelations about iOS back doors, the China ‘ban’, etc. are just some of the symptoms and contributing factors/causes. Hopefully, as Apple continues to lose market share, its ability to just sue with patents (frivolously) is going to diminish and the same goes for Microsoft, which is doing what Apple did a couple of years ago (suing Samsung with crappy software patents). █
Posted in Apple, Microsoft at 4:04 am by Dr. Roy Schestowitz
Proprietary operating systems are demolished by Snowden’s valuable leaks that exposed and/or confirmed more back doors
Summary: China bans Apple’s operating systems (just like Microsoft’s) while Apple retreats on it litigation strategy from 2010, showing perhaps where Microsoft is heading now that it is suing Samsung (as Apple did some years ago)
Back doors in Windows are nothing new, but the media does not discuss them too often (unlike iOS back doors). Earlier this week, according to this report, “IT security firm Kaspersky Cyber security firm Kaspersky [...] claimed it has detected an old, widely known vulnerability that was used in a cyber attack to sabotage Iran’s nuclear programme in some versions of Windows platform across 19 million computers, including in India.”
“Countries that the US does not like would be utterly irresponsible to still deploy and use proprietary software from the United States after all that.”The press seems to have quickly move on, without ever connecting it to material from NSA leaks showing Microsoft complicity with the NSA. Countries that the US does not like would be utterly irresponsible to still deploy and use proprietary software from the United States after all that.
China has already banned Windows and Russia moves away from x86 (hence no Windows). China is now banning Apple operating systems as well. Is Russia next? They’ve asked Apple and SAP for source code, having silently kicked Microsoft out (by moving to ARM).
According to this report from China, Microsoft is asked to obey the law it so often ignores (it is said to be bribing Chinese officials and engaging in other serious crimes). The report says: “Microsoft isn’t exactly welcome in China nowadays. The company and the government have many issues between them. The software company is believed to be guilty of breaching Chinese antitrust rules.
“Microsoft was told not to obstruct the antitrust investigation by Chinese regulators by the State Administration for Industry and Commerce (SAIC).
“Special investigations by the Chinese government are common these days. It seems the SAIC only wants to make sure Microsoft isn’t doing anything that is against the law.”
China seems to be on a mission to isolate itself from the world, at least in terms of technology. After banning Windows 8 on government PCs and raiding several of Microsoft’s offices in China as part of an anti-trust investigation, Chinese officials have now prohibited to purchase of several Apple products for government use.
China will instead use Linux-based platforms. Some are AOSP forks.
We have often written about how software patents feed trolls and tax innovation. We’ve pushed for patent reform in Congress, in the courts, and at the Patent Office. While new legislation has stalled (for now), reformers have won significant victories in the courts. Of these, the Supreme Court’s recent decision in Alice Corp. v. CLS Bank may be the most important. In this case, the court issued a landmark decision cutting back on abstract software patents.
He is explicitly talking out against software patents — something which they have not done in a while at the EFF. Even a Microsoft booster like Bill Snydercould support this with an article titled “The battle against stupid software patents is on”. We will cover patents in more depth in the next post, █
Posted in Apple at 10:50 am by Dr. Roy Schestowitz
Summary: Net Applications (Apple- and Microsoft-funded) makes a misinformation comeback, Apple retreats from some Samsung litigation battles, and Microsoft dives deep into it
A couple of days ago we noticed that an editor had a headline changed from “Android users MORE ACTIVE than iOS fanbois for the first time” to something else. This report about numbers from “Net Marketshare” (part of Net Applications) coincides with contradictory reports like this from the Gates-friendly press (among others), titled “iOS Users Seven Times More Active Than Android Users, Suggests Net Applications”. These cite Net Applications, which is partly funded by Apple. There are some contradictions and reports about this are generally confusing. It’s not clear what they are measuring and based on past years, Net Applications is mostly a propaganda agent. This Apple-affiliated firm is saying something which makes Apple sounds more favourable than Android (common trick like citing buyer spendings, something about security — not absolute sales — and so on) because Android has the lion’s share of the market and it’s impossible to deny it’s unstoppable growth. Perhaps Apple paid Net Applications some more money to produce propaganda. Their pie charts are widely disgraced and recognised as inaccurate, misleading, and biased by design (improper data).
Anyway, Android is perpetually being smeared by both Apple and Microsoft. Apple had sued Samsung using patents and Samsung recently hit back at Apple using a case against software patents. Apple now retreats. “In a totally unexpected move,” writes SJVN, “Apple and Samsung, who’ve fought patent wars around the globe, agreed to drop all their cases outside of the US.”
Microsoft too had just sued Samsung. This was covered by the Microsoft-friendly press first (including BBC, as we noted the other day) and coverage has thus far been shallow. They just can’t call “racketeering” what clearly is racketeering. It oughtn’t be too shocking, except if one considers how close Microsoft and Samsung have been over the year (including UEFI restricted boot collaborations). “Apparently Secure Boot is blowing up on Windows too,” tells us Ryan in the IRC channels. “People upgrading their graphics card report their computer won’t boot up again until they disable secure boot, restart the system, install the signed drivers for the new card, and then they can turn secure boot back on.”
Maybe they should just stick to Free software, abandoning both Apple and Microsoft. The future is free/libre and no amount of misinformation can successfully deny it anymore. █
Content is available under CC-BY-SA