Summary: Recent steps from Oracle and the OIN indicate a weakening of the case against Dalvik
ORACLE has been trying to tax Android using software patents, but Groklaw thinks that “Oracle Must be Nervous” because the case sinks yet lower with the latest events taking place in the courtroom:
Oracle’s Case Against Google Sinks Lower
[...]
Ouch! Judge Alsup seems to be on his game. Neither the lawyers nor the judge could get the maths right on the potential damages in the case. Rather than $billions, they seem to be headed towards a few tens of millions, provided no more patents are thrown out and Google is found to violate copyright. Google is arguing that Java APIs are not copyright protectable and Oracle is holding that they are. Damages, if any could be very small in any case compared to the worth of the two companies.
Summary: A legal case recalls Microsoft’s violations of competition laws
THERE IS a new article from Pamela Jones, who sheds light on Microsoft’s undocumented APIs [1, 2, 3] — a lesson for our times:
Microsoft has a pending motion in Novell v. Microsoft, asking the judge to dismiss Novell’s entire case as a matter of law without going to a second jury trial. Microsoft lawyers list many reasons why, in Microsoft’s view, it did not violate antitrust law when Bill Gates decided [PDF] not to publish certain APIs in 1994 even though it was “late in the day” to make such changes, because: “I have decided that we should not publish these extensions. We should wait until we have a way to do a high level of integration that will be harder for the likes of Notes, Wordperfect to achieve, and which will give Office a real advantage.”
That’s what the trial, which ended in a mistrial, was largely about, and we’re waiting for Novell’s response to Microsoft’s motion.
This may be an old incident, but Microsoft has not changed since then. We must learn from the past to avoid mistakes in the present and future. We still fail to understand why OpenStack, for example, even considers putting Microsoft’s proprietary software hooks inside its stack. Here is the latest from this saga:
Microsoft’s Hyper-V virtualization and the OpenStack open source cloud platform apparently aren’t seeing eye to eye — at least for the moment. In fact, an upcoming OpenStack release called Essex will not support Hyper-V because the OpenStack folks saw lagging Microsoft development activity on OpenStack.
[...]
Both Microsoft and OpenStack have stated that steps are underway to ensure Hyper-V re-emerges in OpenStack. In the meantime, this temporary setback is a wakeup call to Microsoft, which will need to make sure it has adequate developer resources assigned to the effort.
The mistake that OpenStack would be making by letting Microsoft back in is an issue we wrote about before [1, 2, 3]. █
“…[C]ut off Netscape’s air supply.”
–Paul Maritz, Vice President, Microsoft (now VMWare CEO)
Summary: Microsoft’s extortion of Android leads to passage of patents to Google, Apple loses its cases against Android, and Oracle too is gradually losing the argument against Dalvik
Cryptography Research, Inc. (CRI), a division of Rambus, Inc., and CPU Technology, Inc. have signed a patent license agreement regarding the use of CRI’s patented innovations in CPU Tech products. This agreement covers the use of CRI’s patented countermeasures to differential power analysis (DPA) attacks for CPU Tech’s tamper-resistant products, including the Acalis® family of secure processors. This license also covers software developed by CPU Tech customers when executing on licensed CPU Tech chips.
These are software-related deals that involve submarine patents. Rambus, the company behind all this, is an atrocious aggressor [1, 2, 3, 4, 5, 6, 7, 8, 9, 10]. In many ways, years ago we compared the practices of Rambus to those of Microsoft, which no longer makes stuff that can sell; instead, Microsoft wants to compel people to pay up for something they do not want and never chose. Right now Microsoft is trying to force buyers of Android phones to pay Microsoft for a “licence” and LG signed the latest deal of this kind. Here are some interesting observations or theories from Muktware:
Is Android Part Of Microsoft’ Windows Phone License?
[...]
Let’s see what Microsoft deputy general counsel Horacio Gutierrez has to say, “We are pleased to have built upon our longstanding relationship with LG to reach a mutually beneficial agreement.”
This statement is very important: “built upon our longstanding relationship”. If we look at Microsoft’s Android deals you will notice a pattern. Microsoft has succeeded in cracking deals with those players who are already Microsoft customers. Samsung, LG, HTC are all Microsoft partners as they use Microsoft OS in their devices. Why is Microsoft not excited about telling the world that their ‘longtime partners’ Samsung, LG or HTC will be putting Windows on their phones? Because, the Android deals could very well be the Windows deals painted as Android deals.
Here is a hypothetical scenario:
Microsoft Executives to LG: “We want you to commit to putting Windows Phone OS on x number of your devices. If you do commit that we won’t raise any Linux patent issues. In fact with Windows Phone License you will also get Android protection.”
What will LG do? Its a win win situation for them. They are getting Android protection for free with Windows phone license. Why will they even consider raising issues about patents.
Now how to hide the fact that it was a Windows phone deal, ‘sign an NDA’ so that the rest of the world won’t know the reality.
5. The OEMs just love Android: Why? Because it gives them the power to differentiate themselves completely from their competitors. Given its open nature, it is always easy and safe to model Android into anything one can think of, an example being what Amazon did with it on its Kindle Fire tablets. Which company would not love such an offering? It’s little wonder that even the home pages of almost all the device makers readily feature Android phones, with WP7 a few clicks down the menu. I don’t know the extent of customization Microsoft allows the OEMs, but it sure will not be on the scale Google gives them with Android.
Dr. Moody explains why on tablets too it is Android which is likely to win:
You don’t have to be a marketing genius or industry pundit to foresee that tablets will be an extremely hot sector in 2012. The launch of Apple’s iPad in 2010 largely defined the category, just as the launch of the iPhone defined a new kind of smartphone in 2007; in 2012 we will probably begin to see Android tablets start to gain major market share just as Android smartphones have done this year.
Currently, the tablet is something of a cross between the hipster tech toy of choice and a trivially easy-to-use computing device for couch potatoes. But those early sectors are incidental to the tablet’s real potential to revolutionize education, particularly in emerging economies.
The devices are perfect: they are compact, connect to the Net wirelessly, run off battery power for hours and can be used by children and adults alike with little or no training. There’s just one problem, of course: the typical tablet’s high-end pricing – hundreds of dollars – places it so far out of reach for most of the world’s population that it might as well not exist for them. That is what makes India’s Aakash tablet – basic cost around $50, but only $37 for Indian students thanks to a government subsidy – so remarkable, and so important.
For those who think that Apple can just sue Android out of existence, here is some news [1, 2, 3] that should worry Apple because “[t]he US International Trade Commission (ITC) has ruled against Apple in its patent suit against rival mobile vendor Motorola.”
The CPTN members (Novell patents) just cannot seem to keep Android away, no matter the number of lawsuits they launch along with predictions (FUD) of doom and gloom. As Mr. Pogson shows:
It’s always fun to see the school-yard bully take his lumps:
* ITC: Motorola does not violate Apple patents
* Oracle v. Google – Rock, Meet Hard Place
* Barnes & Noble Opposes Microsoft’s Motion for SJ on Patent Misuse Defense ~pj
Judge Alsup is also not buying Oracle’s minimalist argument on how long the trial will take. He says it will be a two-month trial. And a possible date for the trial is a moving target because the rest of Judge Alsup’s docket continues to fill up, i.e., other trials continue to be calendared, further delaying the scheduling of this trial.
Of course, a further delay has the added impact of allowing the reexaminations before the USPTO to run their course, and the last we looked those reexaminations were not favoring Oracle.
Rock, meet hard place. In the other filing of the day we see Google’s (final) supplemental brief [PDF; Text] in support of its Motion in Limine No. 3 – the motion to exclude portions of the Cockburn report. Although this brief is not particularly timely (for us as readers) given that Judge Alsup has already ruled on the matter, it is noteworthy with respect to the main thrust of Google’s argument, i.e., challenging Oracle for continuing to ignore the actual Google arguments and trekking off on unrelated and irrelevant matters. No doubt we have seen this behavior before by Oracle counsel, but what reinforces it in this instance is the fact that Judge Alsup recognizes the Oracle behavior himself. Thus, the ruling against Oracle on the Cockburn report.
However, Google goes even further in this brief. Google argues that Cockburn never investigated or understood the real deal on the table between Sun and Google back in 2006. In a supplemental filing Google provides a Sun slide presentation [PDF] on the discussions, and it is fascinating. It would appear from the presentation that Sun wanted the deal with Google badly. It is also clear that the deal on the table would have been Java compatible, thus undercutting the fragmentation argument that Oracle keeps making to support a higher damages claim.
JDA Software powered its way through 2011 to post decent financial numbers despite the legal battles it fought with Oracle over patent infringements and a lawsuit it inherited with the acquisition of i2 in August 2010.
We keep insisting that Oracle may have attacked Android because Steve Jobs is Larry Ellison’s best friend. Oracle, Apple, and Microsoft are all CPTN members, which ties it all together with Novell and its sellout again. We were right all along about those patents. █
Posted in Apple, Courtroom at 11:07 am by Dr. Roy Schestowitz
Summary: Apple gets unwanted attention for putting back doors in its software in order for authorities to intrude; more antitrust lawsuits (class action) brought against Apple
“In a tweet early this morning, cybersecurity researcher Christopher Soghoian pointed to an internal memo of India’s Military Intelligence that has been liberated by hackers and posted on the Net. The memo suggests that, “in exchange for the Indian market presence” mobile device manufacturers, including RIM, Nokia, and Apple (collectively defined in the document as “RINOA”) have agreed to provide backdoor access on their devices. The Indian government then “utilized backdoors provided by RINOA” to intercept internal emails of the U.S.-China Economic and Security Review Commission, a U.S. government body with a mandate to monitor, investigate and report to Congress on ‘the national security implications of the bilateral trade and economic relationship’ between the U.S. and China. Manan Kakkar, an Indian blogger for ZDNet, has also picked up the story and writes that it may be the fruits of an earlier hack of Symantec. If Apple is providing governments with a backdoor to iOS, can we assume that they have also done so with Mac OS X?”
Four American iPhone users have launched a class action suit against Apple over its exclusive deals with carriers in the country and the way it runs the App Store.
Apple partnered with US carrier AT&T when it first brought the Jesus-mobe to stores in 2007, in a five-year exclusivity agreement that tied users to an AT&T SIM card with no option to use another network.
AT&T conspired with the government to spy, oppress and censor too. We wrote about this in previous years [1, 2, 3]. So AT&T and Apple have more in common than the common man (or woman) may realise. █
Microsoft intends to renew its motion to dismiss as a matter of law Novell’s antitrust case in Novell v. Microsoft. It sent a letter [PDF] to Judge Frederick Motz informing him of its intention, saying it will file by January 13th. I gather it would prefer to avoid a second jury trial. TechFlash reports Microsoft lawyers will claim that Novell lacks sufficient evidence to support its claims. And IDG’s John Ribeiro provides more details on Network World. So, no settlement, as Law.com reports: “Despite the close call, Microsoft’s lawyers say they won’t pay to make the case go away. ‘There are no settlement discussions,’ Sullivan & Cromwell partner David Tulchin told us. ‘Microsoft believes firmly that Novell’s claims have no merit,’ he added.”
Microsoft typically pays its victims to just disappear, but perhaps not this time. █
Summary: Bill Gates’ crimes come back to haunt him, but he refuses to admit what things he previously wrote can show rather clearly — that he decided to break the competitors’ products rather than compete
I have decided that we should not publish these extensions. We should wait until we have a way to do a high level of integration that will be harder for the likes of Notes, Wordperfect to achieve, and which will give Office a real advantage. [...] Having the Office team really think through the information intensive scenarios, and be a demanding client of systems is absolutely critical to our future success. We can’t compete with Lotus and Wordperfect/Novell without this.
We had a reporter there at the Novell v. Microsoft antitrust trial on Friday, and I gather it was quite a day. As you probably saw from the Salt Lake Tribune article we put in News Picks yesterday, the judge, U.S. District Judge J. Frederick Motz, had set aside five hours Friday to consider a Microsoft motion on whether to stop the trial now, on the alleged ground that Novell had failed to present a case. That kind of motion is typical after the plaintiff finishes presenting its case in most civil trials. What was different was that the judge took it seriously enough to even listen to extended oral argument. He does seem to have a Microsoft tilt, frankly.
By the way, Bill Gates is expected to testify on Monday. The trial is scheduled to continue on Monday, but the judge took the arguments on the Microsoft motion under advisement, and he could still rule to stop the trial if he wants to. And from all I’ve seen, he wants to. But if that happens, it won’t be before Gates testifies. It seems Novell found a crucial bit of evidence that the judge was not expecting.
The media reports that Bill Gates’ testimony was that they decided to make the API change because of worry about breakage, but Novell responds to that and the other excuses amply.
Novell even points out that the judge is bound by the appeals court. They did rule that this case had to go to the jury, after all. It’s the law of the case. Novell seems to be setting things up so the record is complete and clear for an appeal, should one prove necessary.
The Microsoft boosters cannot quite spin Gates out of this one. Yes, Microsoft needed to shoot Novell’s horse, as Pamela Jones once put it. Techrights‘ Ryan quotes an article as saying: “He [Gates] testified later that Microsoft had to dump a technical feature that would have supported WordPerfect because he feared it would crash the operating system.”
Based on the exhibits we have, this is nonsense. The statement from this article is a lie. To quote other bits:
Microsoft’s Windows 95 rollout presented the most challenges in the company’s history, leading to several last-minute changes to technical features that would no longer support a rival software maker’s word processor, Bill Gates testified Monday in a $1 billion antitrust lawsuit filed by the creator of WordPerfect.
As Homer put it in USENET, “Microsoft’s Godfather [is] back in court”
Quoting his message through The Register: “Gates: Novell are sore losers, Word trounced WordPerfect Microsoft supremo testifies at antitrust hearing
“Gates told a court in Salt Lake City, Utah, on Monday that his Redmond minions “worked super-hard” on Word. He added: “It was a ground-breaking piece of work, and it was very well received when we got it done.””
Homer’s response is that “they worked “super-hard” … by poaching Charles Simonyi and Richard Brodie from Xerox, to “rewrite” Xerox Bravo, the first GUI word processor, then rebranded it as Microsoft’s “innovation”.
“Then they worked “super-hard” to break cross-platform software, by releasing deliberately broken APIs, whilst using undocumented APIs for their own software, just like they did with Novell, Netscape, Real Networks and anyone else who dared to support anything but just Windows.
“Both the DOJ and the EU Commission have already exposed Microsoft’s criminal business methods in great detail, producing a swath of court evidence, most of which originates from within Microsoft, so why does this even need to go to trial again? It should be an open and shut case.
Attorneys for Novell are expected to cross-examine Microsoft chairman Bill Gates Monday in a federal courthouse in Utah, where jurors are hearing Novell’s claim that the software giant used anticompetitive means to quash Word competitor WordPerfect and Excel rival Quattro Pro.
U.S. district court judge J. Frederick Motz, who is presiding over the case in Salt Lake City, may also rule Monday on Microsoft’s request, submitted Friday, to dismiss the case.
Novell sued Microsoft in 2004, claiming the software maker “deliberately targeted and destroyed” its WordPerfect word processor and Quattro spreadsheet franchises because they were compatible with non-Windows operating systems. Novell also charged that Microsoft banished WordPerfect from the Windows 95 rollout in an effort to drive the application into obscurity.
While it is true that this was ages ago, no justice was ever restored and Gates has done some other atrocious things since then. He is a user, a self-glorifying one (reputation laundering). █
Summary: Clarifications about the Novell vs. Microsoft case and what it’s really all about (or who it really involves)
A FEW days ago we wrote about antitrust cases and about Novell's case against Microsoft in particular. It is not about today’s Novell, but about Noorda’s Novell. Noorda died almost exactly 5 years ago, leaving a legacy that teaches what a corrupt company Microsoft really is (we have some court exhibits in our wiki). It’s about a different Novell that existed long ago and was run under completely different reign/leadership. The Novell of the past 5 years was run jointly by Microsoft and now by Attachmate, which is a top partner of Microsoft (apropos, watch some Novell-related videos from Attachmate’s BrainShare [1, 2, 3, 4, 5] and some about Groupwise, such as this new one).
Today was the first day of the trial in Novell v. Microsoft, the antitrust trial over WordPerfect and Quattro Pro. Novell won the right to this trial on appeal. The US Court of Appeals for the Fourth Circuit reversed Judge J. Frederick Motz’s ruling [PDF] on summary judgment in favor of Microsoft, basically on a technicality, and so it’s back to Utah they had to go, but with Judge Motz, who is a judge in US District Court in Maryland, where the case had been transferred from Utah, commuting to Utah to stay in charge of the case.
The case matters, because normally Microsoft settles antitrust litigation either before they go to trial or early in the trial, and frankly, I wouldn’t be surprised if that happened again.
Our own Chris Brown attended for us today. He says that mainly today was about picking the jury. They sat 12 jurors, out of 45 prospective jurors, just in case. In Utah, where this trial is happening, the judge explained, you only need 6 jurors for civil trials, but things happen, and rather than run out of jurors, they picked double the amount, and he says the judge said all of them would participate if they all make it to the end of the trial. They were then released until the morning, 8:30 AM promptly, and the lawyers then argued about whether the Findings of Fact from the US government’s antitrust trial against Microsoft should be called Findings of Fact or just Findings.
This trial will be interesting to watch, but it is not related to the same Novell we were boycotting, the Novell which was a Microsoft ally rather than a foe. The ‘old Novell’ died just weeks after Noorda had died. The ‘new’ Novell needs to die because it is actively helping Microsoft promote Linux tax, promote .NET, promote OOXML, and so on. It ought to be noted that Novell's role in the SCO case also predates Ballmer’s and Hovsepian’s leadership at Novell. █
“Now [Novell is] little better than a branch of Microsoft”
Summary: Novell’s lawyers still pursue justice in the case against Microsoft, which used illegal tactics to derail Novell and prevent people from using anything but Microsoft
MICROSOFT’S history with Novell is a subject that we mostly covered in 2006 and in 2007. We used antitrust exhibits to support our allegations with evidence that had not been publicly viewed before and some of it got organised in our wiki. This post is not about to repeat what we already covered as it would be rather wasteful. Instead we shall look at the latest news.
“Novell is a shadow of its former self,” explains this item of news which looks back at the 1995 era and says:
Who were the big companies back in the 1995 era Internet? Sun, Cisco and Novell come to mind. Sun is now part of Oracle, Novell is a shadow of its former self, and Cisco has acquired 75 companies since then, or so it seems.
“Novell takes Microsoft to court in dispute over Windows 95,” says a British news site about the latest from the Novell-Microsoft antitrust case:
Novell is to begin antitrust proceedings against Microsoft today in the hope of finally settling a long-running dispute involving Windows 95, with Microsoft founder Bill Gates expected to make an appearance as a witness.
Novell alleges that Microsoft deliberately delayed releasing Windows 95 in order to harm Novell’s WordPerfect application software business in the mid-1990s and to crush competition in the office applications market.
Long-running Novell, Microsoft antitrust case going to trial in federal court
Two high-tech heavyweights will go to battle in federal court Monday in an attempt to settle a long-running dispute, and Bill Gates could make an appearance as a witness.
Novell Inc. sued Microsoft Corp., accusing the computer giant of violating U.S. antitrust laws, primarily through its arrangements with other computer makers. Since the suit was filed in U.S. District Court in Salt Lake City in 2004, a judge has dismissed five of Novell’s six original claims.
Bill Gates may now be spending well over a million dollars per day on just PR (not donations but buying positive coverage alone); however his past crimes are known to many. His present greed is a subject we’ll return to covering quite soon. This greed helps feed some patent trolls and lobbyists, not just harmful companies that raid society. █
Content is available under CC-BY-SA