06.15.10
Posted in Europe, IBM, OIN, Patents, Standard at 3:38 am by Dr. Roy Schestowitz
Summary: Groklaw defends IBM and OIN very stubbornly (as well other initiatives that help legitimise software patents rather than immediately eradicate them), but Florian Müller from Germany disagrees with this approach
A COUPLE of days ago, Pamela Jones (PJ), the editor of Groklaw, started what we consider to be an unfair attack. PJ shoots the messenger (Florian Müller) once again in order to defend IBM/OIN (Groklaw always defends IBM, which is a software patents proponent and a monopolist for several decades). To quote the criticism:
Mueller calls OIN a scam
02:42AM June 06/13/10, 2010
Florian “Floyd” Mueller of Fosspatents has found a new windmill to tilt at — the Open Invention Network.
“There’s absolutely no evidence it has ever helped any FOSS company” he charges at his blog.
[PJ: As usual, Mueller is totally wrong. Blankenhorn says Mueller's nickname is "Floyd". It should be Florian "FUD" Mueller. OIN has helped every FOSS company by intercepting and buying up the patents Microsoft tried to shop around so that third parties could sue Linux. Where was he when that happened? Microsoft tried to auction off some patents that they claimed relate to Linux. Patent trolls could have bought them. Instead Open Invention Network (OIN) got them. And OIN also helped TomTom, who instead of paying Microsoft to use FAT, instead removed it. Here's one bit of what Jim Zemlin of the Linux Foundation said at the time about the case, and notice the credit given to OIN: "There is another silver lining here. We read the outcome of this case as a testament to the power of a concerted and well-coordinated effort by the Linux industry and organizations such as the Open Invention Network, the SFLC and the Linux Foundation. This was not merely a typical David vs. Goliath story. This time David aligned itself with the multiple slingshots of the Linux community. Microsoft relented as soon as TomTom showed they were aligned with that community and ready to fight. The system is working." So if Blankenhorn is thinking that Mueller is a FOSS person, he's mistaken. He's not even an Open Source person, I'd opine. If he were one, he's very much out of the loop, judging from his ignorance of the role OIN is playing. As for Blankenhorn's suggestion that Mueller should carry Richard Stallman's torch, that is laughable as well as creepy.] – Dana Blankenhorn
Dana Blankenhorn wrote about this little Groklaw controversy in a new ZDnet blog post yesterday. “He’s a character with his special sense of humor,” told us Müller, “and I try not to take things personal the way he writes them.”
Blankenhorn is not a proponent of Free software and neither is Groklaw (which spends a lot of time defending Apple, posting links about its products, and even Fog Computing sometimes). Blankenhorn ought to actually start using GNU/Linux in order to understand it. As mentioned in the comments and in here or here, “does the guy even know what he’s writing about? FreeBSD among “Linux outfits”? jeez.”
“IBM has an immense library of software patents, which give it a place at the table of every open source debate.”
–Dana Blankenhorn Blankenhorn responds to Groklaw’s outburst and he correctly states: “When idealists are attacked from inside their party, it’s useful to note where the criticism is coming from, and why. Groklaw, for instance, has to my knowledge never set itself in opposition to IBM in any great open source debate. They are a player in all debates, but their word is never definitive.
“IBM has an immense library of software patents, which give it a place at the table of every open source debate. Through the Open Invention Network, it has created a commons with other open source players. But it is, as Mueller notes, a closed system, a poker table where your ante is your patent portfolio.”
We asked Müller to respond for quoting. Regarding the allegations posted in Groklaw, Müller sent us the following statement which he considers fine for quoting verbatim:
My nickname is neither “Floyd” (Dana confuses me intentionally with another person: http://floydmueller.com) nor “FUD”. Of course there are issues, including in the OIN context, where I personally have fears, uncertainty and doubts, and there are reasons for it. That does not make “FUD” my agenda. Instead, my agenda with the FOSS Patents blog is to provide information that (i) helps FOSS developers, distributors and users identify, avoid and deal with patent-related problems and (ii) puts a spotlight on ulterior motives
and hypocrisy on the part of false friends of Free and Open Source Software. A long time ago I thought Groklaw shared the first goal. But by writing that IBM is free to sue the pants off TurboHercules, PJ has unfortunately shown that her agenda is different.
Throughout all those years PJ has never criticized IBM for anything other than disagreeing with that company on software patents. By contrast, on my blog and in my speeches, including recently such as at LinuxTag, I have meanwhile criticized something about every major player in the industry who has something to do with FOSS and patents. Not sparing any company is also the TechRights approach as far as I can see. But it’s not the way Groklaw operates.
I don’t claim to be a community leader. It’s Dana Blankenhorn’s journalistic freedom to portray me as a future community leader but after the article came out I told him in an email that I’m focused on patent issues and not at all aspiring to be what he thinks.
The only source PJ has for her theory of OIN having helped TomTom (although TomTom only became a non-paying licensee like dozens of others) is the Linux Foundation. Jim Zemlin is His Master’s Voice when IBM, the Linux Foundation’s largest sponsor, is involved, and IBM is a driving force behind the OIN as well.
If the OIN could solve the problem,
- why did TomTom have to agree to rewrite its software over the next two years to work around Microsoft’s patents?
- why did TomTom have to agree to pay royalties to Microsoft?
- why is Apple suing HTC?
- why is HTC paying patent royalties to Microsoft?
- why can’t the OIN use its patents to obtain legally binding statements of
non-assertion from key MPEG LA members (especially given that MPEG LA recently announced the possible creation of a WebM-related patent pool and considering that Google is an OIN licensee just like TomTom)? And one could find countless other examples that indicate that the OIN isn’t the answer.
Also, PJ asked where I was when the OIN bought up patents that Microsoft auctioned off. Under the subhead “So what is the OIN good for”, I clearly mention OIN’s patent-buying activity and provide my view on it. I’ve copied
the passage here:
The OIN continues to buy patents at auctions that might otherwise be acquired by regular trolls. At first sight, that may sound good. But given the intransparent and arbitrary structure of the OIN, it’s not clear whether that’s actually the lesser or the greater evil than a conventional troll. In the end, the OIN is under the control of those six companies who could decide to use some of those patents against competitors, including FOSS competitors. By controlling the definition of what the OIN calls the “Linux System”, they can always ensure that their competitors don’t benefit from it, even if they were or became OIN licensees.
I didn’t say the trolls should have those patents. Not at all. But on my harmfulness ranking of ways to use software patents, trolls only rank second and malicious strategic holders rank first.
I wonder why PJ thinks it’s a good idea that the OIN has completely arbitrary definition of the “Linux System” (meaning the software that is protected) in place, without any objective criteria such as “software shipped with major GNU/Linux distributions”…
Finally, I would like to stress that I have a lot of hope for the Defensive Patent License (DPL), which has not yet been published but on which several media (though not Groklaw) have reported. When the DPL is finally available, and provided that it is as good as I hope it will be, it will be interesting to see how the OIN’s backers respond to it.
Hope this helps — please let me know if there’s any aspect that’s important to you but has not yet been addressed by me.
Müller then proceeded to claiming that ECIS is hypocritical and that “there are three companies who are members of both organizations [OFE and ECIS]: IBM, Oracle, Red Hat.” In another post he noted: “On Thursday and Friday of last week, I saw hypocrisy of the worst kind: two IBM vice presidents preaching open standards values to EU decision-makers and FOSS community members instead of practicing them at their own company, which would really need that kind of lecturing.”
“On Thursday and Friday of last week, I saw hypocrisy of the worst kind: two IBM vice presidents preaching open standards values to EU decision-makers and FOSS community members instead of practicing them at their own company, which would really need that kind of lecturing.”
–Florian Müller Our criticism of IBM’s approach toward software patents goes about a year back (the attitude changed after FFII had helped show that IBM was lobbying for software patents). There are certain questions IBM ought to answer, but IBM is very discreet and it rarely speaks to the public about this taboo subject. It mostly speaks using press releases. Müller’s new posts also contain a word about Google’s “promise” not sue (not against Free/open source projects anyway). It’s similar to IBM’s strategy and we have criticised Google for it [1, 2]. We oppose certain behaviours, not certain brands.
Groklaw does not always stand up for software freedom. Florian Müller does not stand up for software freedom either, as his actions in Munich show quite clearly, but he did work hard to keep software patents out of Europe and for that he deserves credit. We ought to look at IBM sceptically as well as at others. We should view groups of people (companies) not just based on brands, but based on policy/behaviour. We should utilise a judgment/meter which is based on a moral compass, not a brand compass.
There might be a difference in perspective because here in Europe we generally don’t have software patents (that are formally legitimate). In the US they need to resort to civil disobedience and challenge existing laws which are lobbied for by companies like IBM which built vast portfolios of software patents with parasites like Marshall Phelps, who later did the same for Microsoft.
I personally view OIN as a temporary fix. It can be very effective sometimes [1, 2, 3, 4, 5, 6], but it’s not a permanent solution. I know other people who have been feeling the same way for several years. The real solution is abolition of software patents. OIN is M.A.D., abolition is disarmament.
Florian Müller comes from Europe (where we don’t have software patents), so the difference in perspectives wrt Groklaw ought to make sense. Maybe it’s the geographical divide and diversity of opinions is always a good thing. Without it, no better solutions can ever be found. It’s like evolution. Techrights sidles with neither side in this argument and this post hopefully presented both sides fairly, leaving readers to draw their own conclusions. █
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06.14.10
Posted in Courtroom, GNU/Linux, IBM, Microsoft, SCO, UNIX at 2:23 am by Dr. Roy Schestowitz
“…Microsoft wished to promote SCO and its pending lawsuit against IBM and the Linux operating system. But Microsoft did not want to be seen as attacking IBM or Linux.”
–Larry Goldfarb, BayStar, key investor in SCO approached by Microsoft
Summary: IBM claims that Microsoft did the unthinkable and at least one of its employees argues that Microsoft should be sued for billions after the damage it caused to GNU/Linux through lies from SCO
HIDDEN in one of the latest articles from IDG were the following statements which the author did not expand on:
IBM has been “alerting” InfoWorld this week to developments such as Oracle CEO Larry Ellison laying off more Sun employees than previously thought, and Microsoft allegedly trying to derail IBM by using SCO as a surrogate.
[...]
With its SCO-Microsoft example, IBM cited Microsoft-backed SCO’s failed attempt to get control over Unix from Novell, an effort that impacted IBM. A judge this week ruled in favor of Novell.
See what we wrote about Novell's role. This took too long to finish [1, 2]. IBM should subpoena SCO and if more of the necessary evidence is found, it should sue Microsoft for billions. That’s what some IBM employees have been saying (although not on the record). Does anyone still think that Microsoft has changed its ways? █
“[Microsoft's] Mr. Emerson and I discussed a variety of investment structures wherein Microsoft would ‘backstop,’ or guarantee in some way, BayStar’s investment…. Microsoft assured me that it would in some way guarantee BayStar’s investment in SCO.”
–Larry Goldfarb
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06.12.10
Posted in GNU/Linux, IBM, Microsoft, Novell, OpenSUSE, Patents, Red Hat, Ubuntu at 7:03 am by Dr. Roy Schestowitz
“Computerclub Ubuntuparty” by Oman
Summary: Canonical makes a statement about “Ubuntu Advantage” — a statement which ought to be revised because it emphasises a bogus advantage that takes the slippery patents slope and puts rival distributions at a position of disadvantage
OpenSUSE, the forgotten project which suffers from the Microsoft-Novell patent deal, “searches for its strategy” according to this lengthy new article from LWN. It says:
While Ubuntu is clearly focused on user-friendliness and Fedora has a “bleeding edge” approach (although it has sometimes struggled with its identity), openSUSE lacks a similar message. Who is the target user? What are the long-term goals of the distribution? What is its unique selling point? For the past few months, the openSUSE Board worked together with some community members on a more focused strategy. The question they want to answer to themselves and to the rest of the world is “Why choose openSUSE?”.
To answer this question, the Board looked at data from various sources, including market share figures and the openSUSE 2010 Survey that the project ran in February, which produced some useful results [PDF]. They also held a series of strategy sessions on IRC with many discussions about the role and the future of openSUSE.
Canonical is actually having a similar problem because it doesn’t know how to make enough money from Ubuntu. One way of raising money is through support contracts (Red Hat does that) and Canonical did well by offering business support to users of Ubuntu. It is compliant with Free software ideals. As we noted a few days ago, Canonical turned Microsoft away when Microsoft tried signing a patent deal, so the following allegation contains baffling new evidence:
Ubuntu apes Novell in IP scare campaign
In its hurry to embark on ventures that would result in making its GNU/Linux distribution a profitable one, it looks like Canonical, the makers of the popular Ubuntu GNU/Linux, has gone a step too far.
Canonical has launched an initiative called Ubuntu Advantage which attempts to sell its product based on many factors, one of them unfortunately being the hoary old chestnut about the possibility of Linux having IP problems.
The wording says it all: “Ubuntu Advantage gives you peace of mind with comprehensive legal cover. Ubuntu Assurance helps customers to deploy Ubuntu without complicated legal concerns. We take care of intellectual property (IP) infringement legal claims brought against customers in their use of Ubuntu.”
Red Hat has indemnification and so does IBM, but it’s not the same thing. If Canonical sells “indemnification”, then it needs to be phrased differently (not the way it’s phrased above). It ought to be clarified that there are no legal issues and if any issues arise, Canonical can indemnify (which is not ideal, either). This is very different from what Novell has been doing, so we don’t agree with the conclusions reached by the article above. █
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06.10.10
Posted in GNU/Linux, IBM, Oracle, Ron Hovsepian, Servers, SLES/SLED, SUN at 2:16 am by Dr. Roy Schestowitz
Summary: A look at the 10-year anniversary IBM and Novell are celebrating; Novell is trying to poach Solaris users
It is hard to tell what Novell is negotiating behind the scenes right now, but bids to acquire the company sure prove distracting and new analyses of Novell as a publicly-traded company must take into account that this is probably Novell’s final year. Existing and former Novell employees such as this guy, Justin Steinman who is quoted in this article, or even Dale Olds might not have a future in Novell. Where might they go next? We’ll have to wait and find out. Novell’s CTO, for example, ended up in the W3C (as CEO). Who is Novell’s existing CTO? Has it found a replacement for Jeff Jaffe yet? Will it bother at all at this stage?
Jeff Jaffe — just like Ron Hovsepian — came from IBM, which has a special relationship with Novell on the mainframe and now celebrates with Novell the tenth anniversary of “Market Leadership With SUSE Linux Enterprise Server for IBM System z” [1, 2, 3]. Some articles mix/blur the role of SUSE and the role of Novell. Well, nothing is perfect. There is another emphasis on AMD and Novell.
As tribute to this major milestone, a Saturday outage is planned by OpenSUSE (joke) — an outage which was planned about a week ahead.
The outage planned for this Saturday (June 5th) has been rescheduled.
OpenSUSE has too many of those scheduled OpenSUSE outages. They happen once in several months.
The OpenSUSE Conference 2010 is coming soon [1, 2] and OpenSUSE will also attend LinuxTag 2010, which has been ‘infiltrated’ by Microsoft [1, 2]. The “OpenSUSE Boosters” will be brought in for reinforcement. Here is a glimpse at what SUSE had to show in BrainShare Amsterdam (video).There is also this SUSE (Ballnux) advert which was uploaded days ago.
“The “OpenSUSE Boosters” will be brought in for reinforcement.”Getting back to server news, see the press release about Novell’s latest poaching programme (also here). This received some press coverage [1, 2] and lots of it is in the Indian press for some reason [1, 2]. They sometimes make it sound like Novell is helping rather than preying, but here is a better headline with lengthy article that does more than repeat portions of the press release. █
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06.08.10
Posted in Europe, IBM, Law, Novell, OIN, Patents, Servers, SLES/SLED, SUN at 2:06 pm by Dr. Roy Schestowitz
Summary: How S.u.S.E. turned from an opposer of software patents into an extension of Novell which legitimises them in Germany (where software patents continue to challenge Europe’s status quo)
Henrik Ingo from Finland writes about software patents as “a bad legacy to leave behind”. He partly refers to MySQL and to Sun, whose patent portfolio got absorbed inside another company. For about three years we’ve heard the excuses from Novell apologists who told us that Novell’s software patents are a good thing because of OIN, but now that Novell’s patent are likely to be sold, the following analysis is worth some attention:
What neither of these gentlemen pointed out is that this is exactly what happened also with Sun. It wasn’t widely mentioned in public, although Mr Piana does single out patents as his first motivation to help Oracle clear the Sun acquisition. (Personally his fear that Microsoft would be allowed to buy any piece at all of Sun was in my opinion always just completely unrealistic (for the same reasons Oracle was in trouble), but I’m willing to give him a point about patent trolls offering to buy Sun’s patents.) Other than that it wasn’t spoken about (and journalists reporting on the case were mostly nowhere near the real issues anyway) but also other FOSS personalities who took Oracle’s side did mention in private conversations with me that for FOSS in general and Linux in particular, it was absolutely vital to make sure that Sun’s Unix and other patents would not fall into the wrong hands.
A personal observation is that it seems that particularly the lawyers of our community subscribed to that way of thought, whereas the “hacker” types like Stallman of FSF, Karsten Gerloff of FSFE, Alan Cox of the Open Rights Group, etc. came out clearly on the side of us where we argued that MySQL should not have been allowed to be acquired by it’s main competitor. (I should add that within the MySQL community, essentially old MySQL AB employees and other external contributors, the party lines followed completely different logic than in the broader FOSS community, and patents played no role whatsoever in people’s opinions.)
Let’s keep an eye on Novell in the coming weeks. Those many patents it has might even be passed to pro-software patents lobbyists (if not patent trolls) like IBM, which supported Novell’s acquisition of S.u.S.E. and also the patent deal with Microsoft. As the following news article reminds us, Novell is very IBM dependent, not just Microsoft dependent.
Despite struggling through Q2 of 2010 with a US$12m drop in net income on the same period last year, Novell continues to plough optimistically forward into the mainframe market with its support for the IBM System z Series.
The 451 Group has just correctly stated that Novell “is placing less emphasis on the Linux and open source technologies” — an argument we made many times before. To quote this within context:
While the company is placing less emphasis on the Linux and open source technologies that represented the bulk of the former Open Platform Solutions business unit, open source is no less important to Novell.
Open Source was never important to Novell, but it viewed this as a marketing opportunity and failed when it sidled with Microsoft and therefore repelled many clients who liked Open Source. They just took their business elsewhere. S.u.S.E. was popular among the European crowd where it originally came from, but why would anyway pay Novell extra for software patents that make Microsoft richer? And why in Europe where those patents are not even legal? Novell dared to advertise those software patents specifically in Europe and Groklaw got hold of reports. Shame on Novell for promoting software patents in Europe (also around the time of the major directive). Novell is at least partly responsible for pushing into Europe the notion that software patents can or should be considered there.
“Software to process telephone calls [are] patentable in Germany,” shows [PDF] the president of the FFII, Benjamin Henrion. This bizarre case is predating the Siemens case [1, 2, 3, 4, 5] and even Microsoft’s latest FAT ruling in Germany. What is going on in Germany?
“Software to process telephone calls [are] patentable in Germany”
–Benjamin Henrion, FFIIGerman patent lawyers drool over any patent in a field that they specialise in. The Bastian Best blog is no exception. He gives a new example from Apple, one from Google (in German), and another tidbit about Apple (also in German). For those who do not remember, Apple is a patent aggressor that even assaulted Linux with software patents. HTC is fighting back, but it surrendered to Microsoft. According to some news sites, HTC grows with an acquisition (also here). Not that it would affect the patent case, but still… █
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06.04.10
Posted in Courtroom, IBM, Microsoft, Patents at 9:11 am by Dr. Roy Schestowitz
Summary: Microsoft is a toothless and clawless cat when it comes to patents, suggests more new evidence
ACCORDING to the press release and press coverage [1, 2, 3, 4], Microsoft has just settled with BackWeb [1, 2], weeks after settling with Acacia. We have also just learned that “Microsoft Patents ‘Fonts With Feelings’,” assuming that the interpretation in Slashdot is correct.
“Seems like those old IBM flaming logo commercials (video) should count as prior art, but the USPTO granted Microsoft a patent Tuesday for inventing Fonts With Feelings. Giving font characters sound, motion, and altered appearance, Microsoft asserts, gives a user ‘the impression the fonts have personalities,’ thereby enhancing the user’s understanding and/or fluency of words. From the patent: ‘As a few non-limiting examples, the word ‘giant’ can get very large; the word ‘lion’ can morph into a line drawing of a lion; the word ‘toss’ can morph into a hand that animates a ball toss; the word ‘bees’ could show bees flying around with or without a ‘buzz’ sound effect’. If you’re curious, Microsoft Research offers some explanations and examples of ‘fontlings’ in action — don’t miss ‘f’ kicks ‘a’!”
If this is true, it’s another good example of bad Microsoft patents which are worthless and can be trashed within minutes of exploration. Is this representative of Microsoft’s patent portfolio that mostly comprises maths and can thus be thrown aside after the Bilski decision (assuming it stands)? █
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Posted in IBM, Microsoft, Novell, Patents, Red Hat at 1:28 am by Dr. Roy Schestowitz
The world`s largest troll, Norway
Summary: Marshall Phelps left Microsoft after equipping it with a software patents portfolio similar to the one he created for IBM
OVER a year ago we alleged that Microsoft's Marshall Phelps had failed to sign Red Hat on a patent deal and was therefore dismissed. The closest Microsoft ever got to ‘taxing’ Red Hat was its Amazon deal and maybe that case involving Acacia (assuming that Microsoft was a backer). As rightly pointed out in this new post, software patents are antithetical to software freedom.
Few topics can illicit a more guttural response from an open source advocate than the topic of software patents. In many respects they are the very anti-thesis of open source. In security there has been one particularly irksome patent that has bedeviled the industry for years and probably held back innovation and progress in gateway anti-virus technology. Now after all these years, as many have claimed in the past, the patent is on the verge of being over turned as invalid. The best news is that it very well may have been the open source community that showed it as invalid!
We now have it confirmed that Phelps left Microsoft and according to the following new article, Marshall Phelps left Microsoft after helping their anti-Linux strategy and doing similar work at IBM (which is also in favour of software patents). From Law.com: [via]
Last week, MDB Capital Group–an IP-focused investment bank that promises to help investors understand “the hidden value of intellectual property assets and future technological leadership”–held what it billed as its first annual “Bright Lights” intellectual property conference, bringing together IP-centric speakers from a variety of small and medium-size companies.
The Prior Art attended the opening panel, which included the heads of two of the largest, and most litigious, patent-holding companies—Erich Spangenberg and Paul Ryan, the CEO of Acacia Research Corp., the largest publicly traded patent-licensing company.
The panel also included representatives from consultancy ipCapital Group and RPX Corp., which buys litigated patents in order to strike deals between NPEs and operating companies, as well as IP guru Marshall Phelps. (Phelps is something of a legend for building IBM’s legendary $2 billion patent-licensing operation; most recently, he helped Microsoft build up a patent-licensing operation before leaving the company last year.
When Phelps was in Microsoft they managed to sign the patent deal with Novell and later on he wrote a book on the subject.
Novell poses a risk to Free software [1, 2]. Novell’s patents become ammunition against GNU/Linux itself and Nortel — a company whose name is similar to Novell — is in a similar situation: [via]
Nortel may raise $1.1 billion from patents
Nortel Networks Corp., the insolvent Canadian phone-equipment maker, may get as much as $1.1 billion (U.S.) for technology patents that analysts say would benefit potential bidders including Research In Motion Ltd.
Several days ago Florian Müller openly criticised the OIN, which is part of IBM’s reason/excuse to keep software patents in tact. “Mueller calls OIN a scam,” says the headline at ZDNet. It’s an overstatement. It also says:
Much of what Mueller has been doing of late is setting himself as an active FOSS advocate, and that’s a good thing.
That’s still in doubt (FOSS advocacy), but the agenda which favours abolition is clear and that’s the right route to take. In his latest post he proposes a grading system for conduct, suggesting that companies get classified for their attitude towards software patents.
Harmfulness ranking of ways to use software patents
[...]
That trend isn’t difficult to imagine. Just look at the current situation surrounding smartphones, a field in which there’s now a number of lawsuits and countersuits among big players as well as different non-producing entities (“patent trolls”) targeting large vendors.
In light of all that’s going on, which ways to use software patents are more harmful than others? After giving it some thought, I have arrived at this harmfulness ranking:
1. most harmful: malicious strategic patent holders pursuing exclusionary/anti-competitive objectives
2. second-most harmful: non-producing entities (“patent trolls”)
3. least harmful: cooperative strategic patent holders granting licenses to entire portfolios on acceptable terms
[...]
“Trolls” are a feature — not a bug — of the software patent system
The above subhead is a summary of a statement that Carlo Piana, a leading European FOSS lawyer, recently made on identi.ca/Twitter.
If one believes that certain general ideas should be “monopolizable” through patents, then it’s a natural consequence that some will obtain (or acquire) patents and try to derive commercial benefits from them without ever creating their own products. Far be it from me to defend the concept of “patent trolls” — I just want to point out that it wouldn’t be practical to impose an obligation on every patent holder to make actual products. At the most it might be possible to limit the procedural rights of a non-producing entity to the right to be indemnified (excluding injunctive relief).
Companies that still defend software patents are not genuine proponents of software freedom. And yet, it is better to meet half way and accept the fact that companies can change over time. █
“Other than Bill Gates, I don’t know of any high tech CEO that sits down to review the company’s IP portfolio.”
–Marshall Phelps
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06.01.10
Posted in Europe, GNU/Linux, IBM, Novell, Patents, Red Hat at 2:38 am by Dr. Roy Schestowitz
Summary: In hindsight, it is claimed that Red Hat too has an ambivalent view on the subject of software patents, at least historically; Novell, as expected, is not against software patents
“Webbink (then Red Hat) [was] in favor of [the European] software patent directive.” We have just learned this from Florian Müller, who is referring to incidents going half a decade back. Could it possibly be true? Let’s look at what we know.
We found the above claim curious if not contradictory because Mark Webbink expressed his opposition to software patents as he was leaving Red Hat a few years later. He made a video on the subject. In many ways, Red Hat follows IBM’s lead and may sometimes inherit the path chosen by IBM, which is of course in favour of software patents. On the subject of software patents at Red Hat we wrote last year:
Here is a video of Mark Webbink speaking about software patents. He doesn’t seem to like them at all.
“Concerning Mark Webbink (then with Red Hat, now involved with SFLC and other organizations), a couple of web pages still contain the text of a post I published on my old “NoLobbyistsAsSuch” blog in 2006,” wrote Florian. Here is the text (no longer at its original address, so we wish to preserve it):
Evidence for Mark Webbink’s pro-patent directive lobbying on July 5, 2005
In my previous blog article, I mentioned the fact that Red Hat’s deputy general counsel, Mark Webbink, lobbied in the European Parliament on July 5, 2005 (the day before the EP’s decisive vote to reject the software patent bill) to keep the software patent directive alive.
I had not anticipated the kind of Internet debate that this statement would trigger, including some insulting emails that were sent to me, and least of all I would have expected Mark Webbink to call into question the “veracity of [my] statements”, which is what he did in the discussion below this LWN.net article. He knows exactly what he did.
The word “motivations” also appears in that posting. It’s really simple: on the occasion of a patent suit having been filed against Red Hat, I thought it was time to tell the truth. Especially the free and open source software (FOSS) community should know where certain key players stand. That will better enable people to take a critical perspective on such initiatives as the OSDL Patent Commons.
Contrary to what Mark Webbink claims, my related statements are not “unverifiable”. What he did on July 5, 2005 is a well-documented fact, and here’s some evidence:
From: [name and address of adviser to Michel Rocard MEP deleted]
Sent: Monday, October 31, 2005 2:53 AM
To: Florian Mueller
Cc: europarl-help@ffii.org
Subject: Re: Economist article — coordinated response needed
[cut]
Yes. The day before the vote, as I had been considered by them as somewhat connected to Mr Rocard 8^) , I have been quite heavily lobbied by a group comprising Mrs Thornby-Nielsen (Sun), Mrs Moll (Google), Mr Webbink (RedHat) and Mr Cox (IBM). All four had basically the same concerns
[cut]
I have removed parts of the email and in particular the name of the author, further to his request. He would prefer to stay in the background, like many political advisers do. But europarl-help@ffii.org is a key mailing list of European anti-software patent activists, and dozens of people received that email directly. No one will seriously question its authenticity.
And here’s an important excerpt from a follow-up email:
From: [name and address of adviser to Michel Rocard MEP deleted]
Sent: Monday, October 31, 2005 1:44 PM
To: Florian Mueller
Cc: europarl-help@ffii.org
Subject: Re: Economist article — coordinated response needed
[cut]
> They were against the rejection deal, right? I know that Mark W. and
> Charlotte T.-N. didn’t want rejection.
It seemed so to me. All of them. Basically, it seemed to me they were not likely to have no sotware patents at all. The interpretation I gave Mr Webbink was that it is not culturally acceptable, for most people that come from the legal and patent world, to reject a system from which one can make some money…
[cut]
I believe the above should eliminate all reasonable doubt about what happened that day. While the FFII and I were asking everyone we knew in the European Parliament to reject the proposed software patent directive, Red Hat’s Mark Webbink, along with representatives of IBM, Sun and Google, pushed in the opposite direction.
So what did he really want to achieve? Someone pointed me to an article Mark Webbink wrote and which in its paragraph #20 refers to the EU software patent directive. He asks for a definition of the term “technical contribution” (a key term in patent law) that “will eliminate the vast majority of business method patents and will restore a substantial non-obviousness test to software patents”. If you read that carefully, it means he accepts software patents per se. He’d just like to raise the bar a little bit, and the FFII and I and all others who know how substantive patent law is applied in practice can tell you that defining “technical contribution” properly would not be a sufficient measure. It would just have the desired effect as part of a coherent framework of patentability criteria. Otherwise it’s like a bucket has five holes and you close one: all of the water will still go through the other holes.
In the same article, and in the Red Hat/Sun position paper that Mark Webbink published again on LWN.net, a lot of emphasis is put on an interoperability privilege. That, again, means to accept the patentability of software per se, but to demand a carve-out for certain purposes. To the FFII and myself, interoperability was not even a secondary priority. We focused on the definition of what is patentable and what is not. If software is not patentable at all, there’s no pressing need for an interoperability exception as far as we’re concerned. Interoperability was exactly the area in which the pro-software patent forces were most wiling to make a concession if it allowed them to win the wider battle.
Finally, I’d like to reiterate what I said in my previous post: What Mark Webbink did behind the scenes is not necessarily Red Hat’s position as a company, even though Red Hat has entrusted him with patent lobbying. There are many people at Red Hat who clearly oppose software patents, and who opposed the EU software patent directive, most of all Alan Cox.
People can judge the claims above knowing that they came from someone who pushed for abolition.
We previously wrote about IBM as a key player in OIN, but Florian names six key companies, Novell and Red Hat included. “I’ll also mention some things concerning the positions of its backers on software patents, such as what Novell told EU politicians in 2004,” Florian wrote. Yesterday he posted his analysis of OIN, which is interesting.
Only six companies call the shots
The OIN’s name starts with an utterly misleading term: “open”.
In reality, the organization is owned and run by a closed circle of six companies, some of whom have a terrible background concerning software patents:
* IBM (the world’s largest patent holder and one of the most ruthless ones, recently in the news for betraying its own “patent pledge” by infringement assertions made against open-source startup TurboHercules)
* Philips (a company that once benefited from the temporary abolition of patents in its country but later lobbied extremely aggressively for software patents, left the World Wide Web Consortium because of the latter’s royalty-free patent policy, and threatened politicians with killing software development jobs in Europe if they weren’t going to allow software patents, even though patents are always related to a target market in which they’re valid and 100% independent from where in the world the patented invention is made)
* NEC (a large patent holder)
* Sony (a large patent holder)
* Novell (which never supported any serious push against software patents and instead told EU officials in 2004 that it liked software patents a lot except that a proposed EU law on them appeared to limit “customer choice” a bit too much)
* Red Hat (which lobbied to keep the aforementioned EU bill alive when we had already formed a majority for its rejection, and which partners with IBM on a number of initiatives that appear to protect FOSS but are either ineffectual or even potentially harmful)
[...]
So what is the OIN good for?
The fact of the matter is that today, almost five years after its foundation, the OIN still hasn’t proven its ability to help any Linux (or other FOSS) company in any meaningful way. Totally unsubstantiated and illogical claims by propagandists aren’t a substitute for a single convincing success story. That success story would have to consist in some company potentially hostile to open source (and with a dangerous patent arsenal) accepting the OIN’s licensing terms. That hasn’t happened and I have serious doubt that it ever will.
The OIN continues to buy patents at auctions that might otherwise be acquired by regular trolls. At first sight, that may sound good. But given the intransparent and arbitrary structure of the OIN, it’s not clear whether that’s actually the lesser or the greater evil than a conventional troll. In the end, the OIN is under the control of those six companies who could decide to use some of those patents against competitors, including FOSS competitors. By controlling the definition of what the OIN calls the “Linux System”, they can always ensure that their competitors don’t benefit from it, even if they were or became OIN licensees.
Buying those patents at auctions is really expensive. So far the OIN has spent hundreds of millions of dollars. Given the way businesses operate, that’s not the amount of money that one would spend unselfishly. Instead, that level of investment, intransparency and unbalanced rights suggests ulterior motives, if not a long-term hidden agenda.
The analysis above leaves out players such as Google and Oracle (also in OIN). In the mean time, more patent pools are being created for Linux and there are also entities such as RPX. None of these entities strives to end software patents (certainly not Peer-To-Patent, either); they are only aggregating and/or endorsing them. As Carlo Piana put it last week, “the *only* solution is abolition NOW.”
The bottom line is that Red Hat could do more to end software patents as OIN is not enough. OIN is a symptom of a problematic framework and it’s that framework which needs to be tackled. █
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