08.14.10
Software Patents Crisis
Summary: A look back at Professor Moglen’s words about Java and last week’s talk about software patents; a Microsoft-fueled agitator attacks Apple, Cisco and other Microsoft rivals using patents
TECHRIGHTS has covered software patents for several years, correctly foreseeing them as a major barrier to Free software adoption. A few days ago in LinuxCon Eben Moglen made the case for abolishing software patents, but there were signs of defeatism in his transcripts (no signs of video/audio yet). Moglen did not know at the time that Java too was about to be slapped by Oracle. Here is what he said about Java several years ago.
Here is one last bit of overage which we found about Moglen’s talk (there are more in the previous post).
Eben Moglen, director-counsel and chairman at the Software Freedom Law Center (SFLC), has long stood at the forefront of the free software revolution. At LinuxCon this week, Moglen delivered a keynote address in which he lauded the movement’s many successes, ending with the capacity crowd giving him a standing ovation.
“At the beginning of this conspiracy of ours, we wanted to make it happen that freedom would go inside of everything, and then we could turn it on,” Moglen said. “We are making freedom useful to people.”
Based on this news, another patent troll/parasite which Microsoft paid to settle is attacking rivals of Microsoft (see background on VirnetX [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14] and compare to Eolas [1, 2, 3, 4, 5, 6, 7, 8] or Uniloc [1, 2, 3, 4, 5, 6, 7], which did exactly the same thing):
After being awarded $200m in a patent-infringement case that it brought against Microsoft, VirnetX has now gone after Apple, Cisco Systems, and others.
In a brief statement announcing the lawsuit, VirnetX accused Apple, Cisco, NEC, and the self-described “leading global enterprise communications provider” Aastra of violating five of its patents, each related to a greater or lesser extent to VPN.
We have come across comments on these cases (e.g. VirnetX, Eolas, Uniloc) which say Microsoft paid them to essentially attack Microsoft rivals (we don’t subscribe to this theory though). Groklaw opines that Microsoft paid Acacia by settling a dispute just as SCO was paid directly by Microsoft (for UNIX). Here is Groklaw’s latest take on SCO:
SCO Group’s Chapter 11 Trustee, Edward Cahn, has now filed the monthly operating reports for June, as well as bills for Ocean Park Advisors for June and July. And take note: there’s no hearing in bankruptcy court on Monday. Once again, it’s called off.
The new SCO in town seems to be Oracle and we have just prepared some graphics for it (click to zoom, feel free to share):
Here is some more coverage about that case, which we wrote about four times yesterday [1, 2, 3, 4].
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Oracle v Google: Why?
As for predictions, I’ll make only one: whoever wins will also lose. Because this suit is going to negatively impact – probably substantially – Java adoption. The enterprise technology landscape is more fragmented by the day, as it transitions from .NET or Java othodoxy to multi-language heterogeneity. Oracle’s suit will accelerate this process as it introduces for the first time legal uncertainty around the Java platform. Apple and Microsoft will be thrilled by this development, and scores of competitive languages and platforms are likely to see improved traction as a result of Java defections.
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Oracle Sues Google Over Android: What’s Up with That?
Clearly, Java was one of the Sun crown jewels, so the question is, what to do with it? Since Sun would presumably be quite happy to license the patents to Google, that suggests that the motivation is monetary rather than strategic. It’s less clear to me what the strategic value would be to Oracle to prevent Google for incorporating Java into Android, or to impede the marketplace generally from relying on Java.
The problem for Oracle is that the Java elements that Google used were “clean room” versions of Java developed by a third party. But while clean room versions may not violate Oracles’ copyrights, creating a clean room version may have little or not impact on avoiding patent infringement. Interestingly enough, Oracle is alleging copyright infringement as well as patent infringement. But while Google may be able to rewrite the elements to beat the copyright allegations going forward, it will still be liable for damages, if Sun wins, for the copies of Android that are already in circulation.
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Why Oracle, not Sun, sued Google over Java
“When your stock price is at $3 or $4, your war chest is not big enough to go up against an opponent like Google,” the source said.
In addition, Sun didn’t want a repeat of the extremely distracting lawsuit against Microsoft. Gosling was trapped for months in Washington, D.C., dealing with the suit, rather than with Java engineering, and his colleagues threw him a big party upon his return to his preferred vocation.
Oracle, though, evidently isn’t so deterred. It possesses the financial strength to pursue the claim against Google, despite likely counterclaims that will increase the expense of the lawsuit.
But Google’s a big, influential, and growing company, too, and Oracle now has a new enemy in Silicon Valley among at least some of its employees. One is Tim Bray, an Android evangelist at Google who previously was Sun’s director of Web technology.
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Oracle’s Java lawsuit undermines its open source credibility
It raises very serious questions about the company’s stewardship of other open source technology that it obtained during the acquisition of Sun. The resulting uncertainty will likely not be conducive to retaining the customers and mindshare that Sun had built around certain open source products. It will also likely have a serious chilling affect on community involvement and third-party contributions. It’s important to recognize that the impact of this lawsuit will be felt far beyond the scope of Java and will also influence perceptions of other key open source projects obtained by Oracle, such as the MySQL database system.
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Google Rebuts Oracle Lawsuit, Invokes Open-Source Defense
Google’s response to the lawsuit doesn’t come as a surprise; any concession even insinuating that it did anything wrong could cost the company millions in either a judgment or a settlement. It’s likely Google will argue that it’s not committing patent infringement because Java is an open-source software; Google mentioned open-source standards not once, but three times in its statement. Sun released most of Java’s code as open-source software in 2006.
The patent system is seriously messed up, as this new post from TechDirt helps show:
Bas Grasmayer points us to the claim that the Austrian town of Frauenkirchen has apparently tried to patent the fact that it represents the geographical midpoint of Europe…
Patenting must have boundaries. Otherwise there’s a crisis. And that’s what we have right now. █
“Oracle Corporation opposes the patentability of software. The Company believes that existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments.”
–Oracle Corporation (years ago)
Content is available under CC-BY-SA
Florian Mueller said,
August 14, 2010 at 11:30 am
Whoever trusted Eben Moglen too much on patents should consider that he supported Oracle’s acquisition of MySQL actively (including that he contributed to an Oracle submission to the European Commission and participated in a hearing) and that he told people in the community that Sun had patents that could be dangerous in the wrong hands, so it would be best for Oracle to get them.
So either he has poor judgment or the reason is even worse in terms of independence, credibility, activism etc.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 11:33 am
OK then, Slam the Linux Foundation, OIN, FSF, Groklaw, GNU/Linux migration in Munich etc. That really adds up to your credibility as we know it.
Florian Mueller Reply:
August 14th, 2010 at 11:47 am
What adds to my credibility is being right on key issues. I was against Oracle-Sun, and Eben Moglen in favor, and there you have it now.
Concerning the GNU/Linux migration in Munich, I request you, seriously, to retract the claim that I ever “slammed” it or “bashed” it. Here’s what I actually wrote about it:
http://fosspatents.blogspot.com/2010/08/munichs-linux-migration-and-concerns.html
That posting contains a link to my book, which just like that posting commends Munich’s mayor for his courage and for standing up against pro-patent lobbying.
gnufreex Reply:
August 14th, 2010 at 12:09 pm
You advocated un-GPL-ing MySQL so that Microsoft can have it. Your campaign was a hoax. You never advocated against that acquisition, you just wanted to drag it out so Micrososft can poach more Solaris installed base with HP, and spread more FUD against open source in the process. And as a bonus, is it was your way, Microsoft (or some of their proxys) would end up having proprietary fork of MySQL. Triple win for your employer.
“I was against Oracle-Sun, and Eben Moglen in favor, and there you have it now.”
What “we have now”? How Oracle’s blunder with Java has anything to do with MySQL? Would un-GPL-ing MySQL stop this? It wouldn’t, BSD license doesn’t give a patent grant, so Oracle could sue non-paying customers. There YOU have it.
Attacking Moglen shows what you are. A typical Microsoft evangelist who tries to infiltrate in FLOSS world. You act like you are helping with something, write few posts in favor of FLOSS, and then when some people bite your story, you try to paint Eben Moglen as a sellout. Then you will continie how some opensourcers (probably de Icaza) are great and how Free Software people are extremists because they busted you… and how GPL is a cancer…
I know the likes of you.
What is most crazy, you actually said that Microsoft patent extortion is acceptable because it lets companies stay in business. But you showed that you don’t care about Free Software projects, because you fail to see that royalty on free software is oxymoron. Shutting down the project and tainting it with royalties is just about the same. In fact, later is even worse, because it spreads extortion further.
‘Nuff said. Your credibility is 0.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 12:14 pm
The FFII argued a lot with Florian yesterday afternoon. Florian advocated RAND.
Florian Mueller Reply:
August 14th, 2010 at 12:20 pm
@gnufreex What’s 0 is not my credibility but the truthfulness of some of what you claim, so I want to help you to understand.
> Shutting down the project and tainting it with royalties is just about the same. In fact, later is even worse, because it spreads extortion further. You advocated un-GPL-ing MySQL so that Microsoft can have it. <
That's one of many Groklaw lies. It's absolutely not true.
I addressed this in detail, and so did Henrik Ingo (author of the openlife.cc blog), on LWN.net. That discussion is currently behind a paywall, but it will come out of that one in a week or so. So let me give you the link already:
http://lwn.net/Articles/399840/#Comments
gnufreex Reply:
August 14th, 2010 at 1:48 pm
You misquoted my post.
You still claim that Microsoft patent extortion against Linux is acceptable because they at least let it live?
Watch this:
http://www.youtube.com/watch?v=6YExl9ojclo
(I sense more Moglen bashing after this)
But that is what Microsoft is doing. (and some other things, FUD techniques they invented since then) If they sued against Linux, we would stop talking about them by now, like we stopped talking about SCO.
But threatening is better than suing. It is more effective. Do you really think it is acceptable? If not acceptable, why you never attack them, along with IBM and others.
You propose RAND? Do you think that Microsoft would agree to acknowledge GPLv3 as reasonable for them and allow their patents to used by GPLv3 projects? I couldn’t imagine such a thing.
Ohwait… you don’t like GPL, you would like MySQL under ASL. And you like Dalvik over standard Java because OpenJDK is under dirty GPL. That is why you are backing Google.
I know that JavaME lacks classpath exception to the GPL, but OpenJDK has it. OpenJDK is GPLv2, they could optimize it for the phone, trim some of bloat, and go with it. By virtue of GPL, OpenJDK and its derivatives have patent grant from Sun which doesn’t discriminate on fields of endeavor. If google based on OpenJDK, this would have been avoided.
But they decided not to fight anti-GPL FUD that Microsoft sewed with device makers, and just go with the flow; just use ASL’d apache Harmony as base. Now they got burned by “additional freedom” that ASL gives.
Freedom #5, freedom to be in the receiving end of frivolous lawsuit.
I don’t like this is happening, I hate when anyone use patents. But just using GPL and sticking to only 4 essential freedoms would be smarter. Freedom #5 is not so desirable after all. And lets face it, Google was EEEing Java under gift like license. Patent grant is only for GPL. This is bad PR, but even worse would be if Dalvik and Google App engine fragments Java because it both are incompabile, and both can be forked proprietary.
I think you are raising hell because FUD about Java helps C#. All your actions so far support that.
I have read lwn discusion. It doesn’t help your credibility, it is usual anti-Moglen trolling. You claim that that PJ lies and then you agree with her when you get pressed with hard facts.
gnufreex said,
August 14, 2010 at 11:36 am
[quote]
“Patenting must have boundaries. Otherwise there’s a crisis. And that’s what we have right now
[/quote]
No matter where you set the boundaries, corporations will try to move them in their favor, and with enough lobbying and bribing, boundaries will be removed.
Patents must go away completely.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 11:38 am
For pragmatic reasons we have to narrow it down one area at a time.
gnufreex Reply:
August 14th, 2010 at 12:24 pm
If by “areas” you mean software, hardware, business practices, then I agree. And I stand corrected.
By the looks of last sentence in the article, I thought you meant something like “some software should be patented and some shouldn’t”. With that idea, we would end up with all software patentable again, in no time.
So my conclusion should sound instead:
_Software_ patents must go away completely.
Florian Mueller said,
August 14, 2010 at 12:25 pm
There’s a bug here with the comment system. I had submitted more than the above, but it seems something got deleted because of my quote symbols. Will avoid using them if they get confused for HTML tags…
So here’s what got lost:
On the first part about what is worse (royalties or shutting down a project) I said that this kind of preference (death rather than revenue-sharing) shows you don’t understand business realities in the slightest. However, I do have a track record in the world of business, and I try to share that experience with people because the ultimate decision-makers in politics and regulatory agencies do care about business considerations.
Someone who’s never run a business can easily claim that going out of business is better than sharing revenues, but someone like that will never convince a majority (not even a substantial minority!) of politicians.
I also think that lacking all business-related rationality isn’t a good way to communicate in the community because there are many people in it who run a business, work for a business, or for other reasons understand business needs.
Florian Mueller Reply:
August 14th, 2010 at 12:26 pm
Just to make the context clear, this relates to what gnufreex said, not to what Roy said. However, I think you, Roy, should also recognize the business logic of preferring royalties over the shutdown (and shutout) of a business.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 12:41 pm
Spin mode again.
Microsoft has been trying to embargo products for years (ITC) to make Microsoft cash cows out of them.
By the way, you still have the opportunity to deny being paid by Microsoft (directly or indirectly). You refused to do so several times even though it is a simple one-word answer.
Florian Mueller Reply:
August 14th, 2010 at 1:12 pm
You say they’ve “been trying to embargo products for years”, but the link points to only one company: Primax. Note that those were hardware patents (on peripherals), not software patents. Also note that even Primax was offered (and after filing the lawsuit accepted) a license deal. It’s one of four cases in which Microsoft’s attempts to work out a license deal as an amicable solution didn’t bear fruit for some time and then they went to court. By contrast, Oracle takes Google to court little more than six months after having acquired those Java patents. Microsoft usually waits months and sometimes more than a year to see if a license deal can be struck before filing a suit.
Concerning the “opportunity to deny”, in my opinion I believe I’ve given the answer in a generic, timeless way.
You may be aware of a posting on someone’s blog that even accuses you of being paid by Microsoft.
http://www.velocityreviews.com/forums/t480356-is-roy-schestowitz-a-microsoft-troll-now-he-poisons-groklaw.html
Or this:
http://nenolod.net/techrights-org-an-enemy-of-free-software/
I don’t believe those stories because I see what you actually do and write, and I encourage you to look at what I do and write.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 12:37 pm
Can you explain which comment had a part of it lost? Was there a bug or misplaced pointy brackets? And which comment? None got trapped in the spam filter’s queue.
Florian Mueller Reply:
August 14th, 2010 at 12:43 pm
I think it’s clear now what the problem was. In the first posting I made here (in reply to gnufreex) I had two quotes that started with LESSER_THAN and ended with GREATER_THAN, like I do it in emails usually.
Since I had two, it means that something got thrown out because GREATER_THAN plus text plus LESSER_THAN looks like a tag. However, there were multiple line breaks in between those two signs. So I think the system shouldn’t have seen it as a tag.
I’ll now just quote with (quote) and (endquote) and avoid those signs.
Basically what happens then is that two separate quotes become conflated into one. You can see that above. The quote there contains stuff from me onshutdown vs. royalties as well as the thing on un-GPL’ing MySQL. Obviously it made no sense to combine those two things in one quote.
Florian Mueller Reply:
August 14th, 2010 at 12:45 pm
I got confused. I mean I started with GREATER_THAN and ended with LESSER_THAN, but LESSER_THAN+text+GREATER_THAN can be seen as a tag.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 12:49 pm
Thanks for clarifying this.
I would also like to retract my statement that Florian “Slam[med] the [...] GNU/Linux migration in Munich.”
He insists that this is not the case, despite allegations from Groklaw, where a lot of it appears to have come from. It is worth communicating this disagreement with Groklaw, which is “digging for truth” (the tagline).
Florian Mueller Reply:
August 14th, 2010 at 1:01 pm
@Roy I very much appreciate your willingness to reconsider the slamming/bashing of LiMux thing. All of my attempts in recent years to have a rational exchange with PJ on anything have been unsuccessful. However, both my blog posting on LiMux and my e-book are available online for everyone to see, enabling you and everyone else to verify this.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 1:17 pm
PJ based her judgment not on the blog post, which came later so it’s reactionary. I don’t know who’s right. You’ll have to resolved this with Groklaw (unless she banned you).
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 1:18 pm
/resolved/resolve/
saulgoode Reply:
August 14th, 2010 at 1:21 pm
If you are sincere in your efforts being intended towards advocacy of FOSS then you really need to reconsider what you are promoting. ANY royalty expectation is contradictory to the precepts of Free Software. It does not matter whether the cost is a thousand euros or one penny, if not paying the royalty means the recipient of the software is prohibited from using, sharing, or modifying the software then it is no longer Free Software.
The royalty payment could even be zero, but if there is a requirement that, for example, the user must register with the patent holder then that software becomes non-free. The only acceptable patent licensing terms from a Free Software standpoint are a complete grant of rights that would transfer along with all copies and derivatives of the software to any recipients of the software.
The compromise of “reasonable and non-discriminatory” licenses that you promote will never be considered acceptable by the Free Software community. You need to either alter what you’re promoting or cease claiming that you are representing the interests of the Free Software community.
Florian Mueller Reply:
August 14th, 2010 at 1:28 pm
@saulgoode
(quote) The compromise of “reasonable and non-discriminatory” licenses that you promote will never be considered acceptable by the Free Software community. (end quote)
I don’t promote a compromise. I’m not a broker between two camps.
I understand the incompatibility of patent royalties with free (FaiF) software. The problem is that the only solution that reconciles the free software vision with business reality is the abolition of software patents. Here you can say that just today I tweeted a link to a very good Oracle statement (unfortunately from the 1990′s…) about why software should not be patentable:
http://twitter.com/FOSSpatents/status/21150005564
As long as software patents aren’t abolished, FRAND is the fundamentally (not just gradually) lesser evil than shutting out competition.
I wouldn’t want to say that free software is irreconcilable with today’s legal system. I think the free software vision is one thing and evaluating practices under today’s reality is another.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 1:36 pm
Pragmatism can exclude RAND. See Samba for example.
Florian Mueller Reply:
August 14th, 2010 at 1:41 pm
Concerning Samba, I encourage you to take a look at the actual European Commission decision in the Microsoft case, which stipulated FRAND.
The Samba team then decided that it didn’t see a need to license those patents because it believed that there wasn’t any infringement.
Florian Mueller Reply:
August 14th, 2010 at 1:33 pm
(quote) The only acceptable patent licensing terms from a Free Software standpoint are a complete grant of rights that would transfer along with all copies and derivatives of the software to any recipients of the software. (end quote)
In addition to what I just wrote, let me also reply to that:
I don’t disagree that this is the only way to fully realize the free software vision, but it’s much less realistic to expect all holders of existing and future patents that read on any free software to grant licenses on such totally self-expropriating terms.
Would it be desirable? Yes. Can it be reasonably expected? Not really when considering business realities. Can it be enforced such as by antitrust law? Absolutely not. Antitrust law can help, such as in the Microsoft cases in the past and the IBM case that’s going on, but antitrust is always about FRAND. Even when I defended Real Madrid’s interest in connection with soccer broadcasting rights, the logic that made sense to EU decision-makers was always based on the FRAND principle. It’s a different area but it’s also a matter of IPR licensing in the end.
Back to patents, it’s just not realistic that patent holders should sit on those patents without ever using them in a way that benefits them. The good part about Microsoft’s deals is that products aren’t crippled, future innovation isn’t limited (think of the Java example now where part of the issue may be that Google extended it) and competitors aren’t shut out.
Politics is the art of the possible, as Bismarck said.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 1:38 pm
Yes they are and there are many examples. Do you expect people to read the above with a straight face? Are you preying on the gullible?
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 1:35 pm
@saulgoode
Earlier today he responded to the sensationalist BNET article (“Oracle Google Suit Could Kill Android and Threaten Open Source”) which quotes him by saying: “I wrote free and open software activist Florian Mueller”
In Twitter, Florian added that “free and open software” means something like open competition, as in “choice”.
Watch out for this spin from him. Florian has been doing it here for a long time and it echoes precisely the spin Microsoft puts on “choice”, not to mention Mono boosters who demand inclusion. Earlier today a friend of the site posted this:
Florian Mueller Reply:
August 14th, 2010 at 1:44 pm
I want to stress that when I say free software, I mean free software according to the Free Software Definition and the four freedoms it sets out.
I see that there are legal realities such as software patents that may inevitably result in partial restrictions of those freedoms. In that case, I prefer a limited partial restriction over total destruction.
So I see free software as a vision but not as something fully achievable under current circumstances.
When I talk about competition/antitrust, I mean FOSS as a key competitive force. That’s where the choice aspect comes in as well.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 1:50 pm
BNET calls you “free and open software activist”, but you are lobbying against the GPL and bashing /heckling Moglen. I don’t understand.
By the way, you needn’t send me E-mails trying to appeal to authority (SFLC) or sympathise with Kuhn re OIN. I’m not OIN proponent; I don’t think the FFII is, either.
Florian Mueller Reply:
August 14th, 2010 at 1:56 pm
(quote) but you are lobbying against the GPL (end quote)
I absolutely never did and I clarified it on LWN.net and provided the link further above.
I advocated the divestiture of MySQL and its continued availability under the GPL.
(quote) and bashing /heckling Moglen. (end quote)
If some people want to view him as a saint and infallible, they may do so, but I won’t.
The first time I met him, he wanted to discourage MySQL AB against lobbying against the EU software patent directive. Instead, he wanted money to take down the FAT patents. Now what got taken down was the EU software patent bill, and MySQL AB played a key role because it ignored Moglen’s self-serving ill-conceived advice. What didn’t get taken down are the FAT patents because Moglen and others failed miserably.
Florian Mueller Reply:
August 14th, 2010 at 1:59 pm
discourage FROM, not against.
At any rate, the key thing was that MySQL AB trusted me, not him.
And on Oracle-Sun, I was right, he’s now proven wrong on Oracle being a good owner of those patents.
The European Commission makes several references to Eben Moglen’s paper in its published Oracle-Sun decision to point out that he was off-base on some key issues and also off-topic (in terms of what’s relevant to a competition case): footnote 431, item 721, footnote 451 (makes it particularly clear that he just made a wild, baseless assertion concerning MySQL’s business model), footnote 456 (on Eben Moglen making a claim about patent law without citing a single court decision, which doesn’t suggest a very clean approach for a law professor…), footnote 457 (on a purposeful misrepresentation of the GPL’s content), footnote 459, footnote 468 (again a claim without citing an actual court decision, and totally speculative on a business issue).
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 2:10 pm
But less than before.
You lobbied re MySQL, not Java/Oracle.
Free software is not a religion. Sainthood is a mere parody to RMS. I too disagree with Stallman and Moglen at times (and I say so).
Florian Mueller Reply:
August 14th, 2010 at 2:17 pm
(quote) But less than before. (end quote)
No, I advocated the continuation of MySQL’s business just under a suitable owner and I didn’t consider Oracle suitable.
(quote) You lobbied re MySQL, not Java/Oracle. (end quote)
That is true per se, although I never said I considered Oracle a good owner for Java either. It’s just that in my working relationship with Monty I had to stay neutral about it because Monty didn’t want to be seen as non-neutral concerning programming languages.
But what is also true is that Eben Moglen argued in the community that Oracle should buy Java *despite our MySQL-related concerns* because of all those patents owned by Sun that could be used against FOSS if the wrong company acquired them.
(quote) Free software is not a religion. Sainthood is a mere parody to RMS. (end quote)
It wasn’t meant to be because RMS really seems to live like an itinerant preacher and there’s no reason at all to assume he seeks financial gain. Unfortunately, there are people he trusts (maybe has to trust, for lack of better alternatives) who don’t live up to his standards.
Florian Mueller Reply:
August 14th, 2010 at 2:20 pm
On terminology, while I confirmed that my focus was on MySQL not Java, the term “lobbied” doesn’t really describe what I did.
Neither Monty nor Henrik Ingo (who worked for him at the time) nor I ever “lobbied” anybody about it.
We didn’t have any face-to-face meeting with the European Commission until the hearing in December 2009.
Writing a position paper etc. (which is what I did) isn’t really lobbying, at least not in the way a vast majority of people would define it.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 2:23 pm
I assume that’s another shot at Moglen’s credibility.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 2:25 pm
But AFAIK, Monty paid you to do this. IOW, you were assigned. Correct me if I’m wrong here.
Florian Mueller Reply:
August 14th, 2010 at 2:31 pm
> But AFAIK, Monty paid you to do this. IOW, you were assigned. Correct me if I’m wrong here. <
Yes, and Monty's announcement on 19 October 2009 of our working relationship was phrased in a way that everyone could easily understand that way:
http://monty-says.blogspot.com/2009/10/press-release-concerning-oraclesun.html
But being assigned to defend interests isn't the same as being a lobbyist. We talk about merger control, which is part of regulation, not policy-making/legislation. On software patents and for Real Madrid, I did a lot of what really can be called "lobbying". On MySQL, not at all because my focus was on providing material such as the position paper to the Commission, plus communication with media and Wall Street analysts. To me, "lobbying" means meeting with political decision-makers to gather their support for a political demand (such as the rejection of the software patent directive). Regulation is separate from politics, although Oracle actually lobbied the US Senate and got 59 out of 100 senators to write a letter to the European Commission. One can try to influence regulation through politics. I didn't.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 2:32 pm
You were neither a MySQL employee nor a volunteer.
OK, you were a “hired gun”, not a lobbyist.
Florian Mueller Reply:
August 14th, 2010 at 2:35 pm
Another addition re. terminology: As I just said, on software patents and on Real Madrid’s behalf I did a lot of what can be called “lobbying”. However, in those cases it was just a subset of my work. There was more about it, which is why I usually referred to the totality of those activities as “campaigning”.
Maybe my work on MySQL could also be considered “campaigning”, but “lobbying” wasn’t part of it at all.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 2:39 pm
OK, so you are “campaigner for hire”.
Florian Mueller Reply:
August 14th, 2010 at 2:42 pm
(quote) You were neither a MySQL employee nor a volunteer.
OK, you were a “hired gun”, not a lobbyist. (end quote)
I was a MySQL shareholder from 2001 (the year in which the company was founded) until the sale to Sun in 2008. I had advised MySQL’s CEO from 2001 until 2004 (and subsequently MySQL supported my work on patent legislation from the start until the end; I couldn’t continue to advise them in parallel because I had to focus on software patents).
Concerning Real Madrid, I bought my first Real Madrid shirt in 1987, supported them in the stadium in Munich against the home team on several occasions, and had friends in the management. I then helped them when UEFA, Bayern Munich and others tried to cause major economic damage to them (and to FC Barcelona, AC Milan and a few others).
So if you call me a “hired gun”, you omit the fact that I’ve always only represented interests that I truly cared about and that were closely related to my biography. Plus, I only do that intermittently. I don’t live in Brussels where EU full-time lobbyists are based. I like to defend my values in important contexts, from time to time.
In Monty’s case, since he was the original author and founder and a much larger shareholder of MySQL than I was, I felt it was appropriate that I received some compensation from him.
gnufreex Reply:
August 14th, 2010 at 7:21 pm
“I do have a track record in the world of business… [translation: I am so great, you are stupid zealot]”
Florian, can you cut the Microsoftian spin and discuss on actual points? I didn’t mention business. It is your problem that you see all through money.
I was talking about software freedom. You show extreme lack of care for the thing you are claiming to be advocate off. Royalty on free software is unacceptable, any way you spin it. It is unacceptable from business standpoint and freedom standpoint.
I have experience in business, contrary what you think. It is hard enough to sustain company without giving any money to Microsoft; with royalties would be impossible. Fact that you advocate paying royalties shows that you want free software to be a bust, like Microsoft hopes to be.
Real free software project isn’t business. It is community of contributors. If someone extorts royalty form free software project, that project is dead for all practical purposes. It is not Free software anymore. Some people already give its time for free when they work voluntarily on free software. You want them to also pay privilege to Microsoft? Then they will just quit and all development will be on companies. But that is maybe exactly what you want. Companies can be easily bought and free software could be killed that way.
Dr. Roy Schestowitz said,
August 14, 2010 at 2:53 pm
You seemingly acknowledge or accept the term “hired gun”. Are you still a “hired gun” like you were to Real Madrid and to Monty? (I say “Monty” because MySQL’s CEO was in favour of the takeover, whereas Monty was not)
You say that you were a (paid) “campaigner” for “represented interests that [you] truly cared about.”
For all I know you have always used Windows on the desktop and you are a very early adopter of Vista 7. Is your “campaigning” for Microsoft’s interests (RAND etc.) also paid?
Florian Mueller Reply:
August 14th, 2010 at 3:05 pm
(quote) You seemingly acknowledge or accept the term “hired gun”. (end quote)
I pointed out that the term omits an important fact. That’s not the same as an acknowledgment or an acceptance. I was just referring to your terminology.
(quote) Are you still a “hired gun” like you were to Real Madrid and to Monty? (end quote)
In Monty’s case, the working relationship was announced. In Real Madrid’s case, it was mentioned in every such meeting plus in several media reports (just no written press release).
If I have any such relationship to announce again, I will. Meanwhile there are EU transparency rules in place and I will always adhere to them, strictly.
This also answers your question about Microsoft.
(quote) because MySQL’s CEO was in favour of the takeover, whereas Monty was not) (end quote)
MySQL’s former CEO was in favor of some of his friends being able to cash in on their stock option packages and in the venture capital fund at which he worked as an entrepreneur-in-residence (and which then funded the company he’s now running as CEO) currying favor with Oracle, which acquired 60+ companies in recent years and the business of VCs is all about selling companies to acquirers such as Oracle.
MySQL’s former CEO’s open letter apparently didn’t impress the European Commission at the time because a few weeks later the EC issued a Statement of Objections against the merger (the only SO in a merger case in all of 2009).
(quote) Microsoft’s interests (RAND etc.) (end quote)
RAND is a legal principle, it’s the only thing that can be imposed under antitrust rules if necessary, and virtually the entire knowledge-based economy is in favor of it, not just Microsoft.
I’m in favor of abolishing software patents, which takes care of RAND and is even better than royalty-free. I much prefer companies to make patents available royalty-free instead of RAND, but I explained it’s not realistic. So I accept RAND as a fundamentally lesser evil than destructive, exclusionary IBM-style use of patents.
It doesn’t matter whether Microsoft, as one of countless companies, likes RAND. That may be the case and still doesn’t change the fact that destructive, ecxlusionary use is by far and away the worst patent-related problem.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 3:12 pm
It does not. You keep dodging the question, which has a no/yes answer.
Your position is therefore hostile towards FaiF software.
Florian Mueller Reply:
August 14th, 2010 at 3:24 pm
(quote) Your position is therefore hostile towards FaiF software. (end quote)
No. I said that I prefer companies to make their patents available on FaiF-compatible terms. But if they don’t, what should they do then? That’s where I prefer RAND over destructive, exclusionary use.
I talk about a situation in which FaiF isn’t achievable to the full extent and the more of it can still be achieved, the better. Destructive, exclusionary use destroys all freedoms entirely. RAND restricts some of them gradually.
*Opposing* RAND can, therefore, be truly hostile towards FaiF software.
Dr. Roy Schestowitz said,
August 14, 2010 at 3:41 pm
That’s akin to saying that we should advocate knives and not guns to ensure peace.
What a lovely spin you got there to defend RAND.
Florian Mueller Reply:
August 14th, 2010 at 3:46 pm
> That’s akin to saying that we should advocate knives and not guns to ensure peace. <
No. It's tantamount to advocating peace (in swpat context: abolition) but recognizing that weapons will be around and will be used, thus advocating nuclear non-proliferation.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 3:57 pm
The FFII certainly disagrees with your methods.
Florian Mueller Reply:
August 14th, 2010 at 4:06 pm
Today’s FFII is in a lamentable state of affairs, a shadow of its former self.
It used to be a broadbased pan-European group of activists. Now there’s only half a dozen people or so left, and some of them have conflicts of interest due to “open standards” lobbying alongside and with different kinds of support from software patent aggressors.
The FFII also used to be the maintainer of a massive knowledge base. Now the software patent wiki at en.swpat.org is the only hope in that respect.
It’s sad but the FFII missed the chance to become the digital economy’s Greenpeace and there’s practically no hope for a turnaround because the EU won’t reintroduce a software patent directive, which is the only event in which the FFII could again attract a lot of following and active participation.
Concerning active participation, there were really competent and successful people — entrepreneurs, professors etc. — supporting the FFII back then and to my knowledge not even one of them is involved with the FFII anymore.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 4:10 pm
You are only attacking the messenger. How about explaining why it disagrees with your methods?
Florian Mueller Reply:
August 14th, 2010 at 4:15 pm
You said they disagree, so if you explain why, then I can address those points. I haven’t seen any explanations, so I offer mine.
Whatever little credibility the FFII has left, it’s going to lose it soon if it considers to collude with anti-interoperability aggressors.
Florian Mueller Reply:
August 14th, 2010 at 4:17 pm
-considers +continues
saulgoode said,
August 14, 2010 at 4:01 pm
From a Free Software standpoint, that is not true. A corporation placing RAND terms on their patent licensing is necessarily excluding the 65% of GPL-licensed free software projects from participating in that licensing; and encourages the marketing of the other 35% of permissively-licensed software under non-Free terms.
One might argue that under current interpretation of patent law that RAND licensing terms are the corporation’s prerogative, but it can hardly be claimed to be less destructive. In fact, I would submit it is more exclusionary — it confronts only Free Software — and more destructive — free software projects are confronted with greater competition from proprietary alternatives. This may all be well and good so far as free market competition goes but the fact remains that RAND licensing directly contravenes the goals of Free Software.
When you laud the efficacy of software patents and the benefits of RAND licensing, all you are advocating is the ability of companies to exploit the Free Software which permits it to be marketed under non-Free terms, exclude the Free Software which prohibits it, and increase the relative amount of non-Free software in the world.
Florian Mueller Reply:
August 14th, 2010 at 4:12 pm
(quote) When you laud the efficacy of software patents (end quote)
I never did and never will.
(quote) more exclusionary — it confronts only Free Software — and more destructive — free software projects are confronted with greater competition from proprietary alternatives. (end quote)
Those projects aren’t at any disadvantage as long as there are companies paying FRAND royalties and I’m not aware of any free software developer ever having been sued just for contributing to a project — only commercial entities.
(quote) but the fact remains that RAND licensing directly contravenes the goals of Free Software. (end quote)
The problem with that argument is that it ignores the current legal framework, in which swpats are a reality. It’s utopian.
I have a clear, realistic and holistic idea in terms of preferences:
- NoSwPat would be best
- until it happens, everyone granting licenses on FaiF terms would be second-best, but it won’t happen and you don’t have any proposal to offer how all strategic owners and all non-producing entities would ever accept what you demand; so again, it’s utopian, not pragmatic what you say
- only in recognition of realities you try to defy, RAND is then a pragmatic choice, such as advocating nuclear non-proliferation even if peace is what one really wants
- preferring total destruction is nothing any rational person can support
gnufreex Reply:
August 14th, 2010 at 7:30 pm
“- until it happens, everyone granting licenses on FaiF terms would be second-best, but it won’t happen and you don’t have any proposal to offer how all strategic owners and all ”
There is a thing called GPL v3…
You probably know about it, because your employer is vehemently against it.
gnufreex Reply:
August 14th, 2010 at 7:46 pm
My point here is: if you are pro-Free Software and against patents, you should advocate GPLv3.
But you are not doing that. You are advocating gift-like licenses, and GPL incompatible RAND terms.
You are FUDing against GPL[1] and GPL’d projects[2] in same way as any other Microsoft astroturfer. Same tactics that Microsoft use since year 2000.
1. Suggestion to unGPL MySQL that created lots of FUD around it.
2. You are lambasting Java and paint it as closed, and in fact, Java (openJDK) is GPL. Dalvik is not Java and shouldn’t be mentioned in that context.
If you want to gain some credibility, go convince some company to release something under GPLv3. Or to move from their old license. That would help fight patents. Section 11 of GPLv3 is best defense against patents there is.
twitter Reply:
August 14th, 2010 at 10:57 pm
Good points. All of this patent FUD is making a good case for GPL 3. Florian could use his loud little crusade to advocate GPL 3 and US software patent abolition instead of Uniform Fee Only regression for places that don’t recognize software patents in the first place. It is clear that software patents create impractical costs for both free and non free software companies. Once again, the FSF has shown forsight and most developers will follow as the non free software companies and trolls obliterate each other.
It is fair to assume that Microsoft pays Florian for his work because he refuses to deny it. Calling people naive for refusing to cave in is also a page from the astroturf playbook, “They’ve already won, so it is pragmatic to sell out, use Windows, surrender all your principles, etc.”
Florian Mueller Reply:
August 14th, 2010 at 11:13 pm
@gnuxfreex and @twitter:
GPLv3 doesn’t bring anything new into the discussion. I argued that patent holders want to get something in exchange for their rights. Thus, no chance to get them to agree to GPLv3.
I do agree that GPLv3 is hugely better from a patent point of view than GPLv2 and I also agree that it would be preferable to have all patent holders accept it. But as you can see, GPLv3 is so far a non-starter, and if it remains a non-starter for much longer, it will have to be considered a major failure. GPLv3 doesn’t even get any important kind of support from industry, let alone would it be able to solve the troll problem in any way.
I made it clear that I try to defend my values while recognizing business realities. It’s realistic to fight against destructive, exclusionary use. GPLv3 is, so far, unrealistic. Should that change, I’ll take a look at it again. So far, it’s on track to becoming a huge failure, one that is highly regrettable from a patent perspective, but when it comes to patents, Moglen is part of the problem to a greater extent than part of the solution. He didn’t craft the patent part of GPLv2 well (because he simply is more of a copyright than patent expert), and with GPLv3 he tried to fix his blunder in a commercially unrealistic way. Commercial unrealistic is not a surprise: he’s got a reputation for proposing communistic ideas rather than commercial realism, and in the hypocritical style of many communists, he seeks to benefit from capitalism while giving the impression of opposing it.
Dr. Roy Schestowitz Reply:
August 15th, 2010 at 12:12 am
And another shot at Moglen from you, calling him a communist.
Dr. Roy Schestowitz Reply:
August 15th, 2010 at 12:13 am
If he chooses to, he can deny it, but he still doesn’t.
Florian Mueller Reply:
August 15th, 2010 at 2:09 am
(quote) And another shot at Moglen from you, calling him a communist. (end quote)
You should ask Columbia University people, including alumni, and you’ll hear that’s his reputation.
gnufreex Reply:
August 15th, 2010 at 5:26 am
@Florian
Lets see:
-You are attacking Moglen because people trust him. You call him a communist, so you probably think that whole Free software idea is communism too. That so Microsoftian.
-You are calling GPLv3 unrealistic just because Microsoft’s Codeplex shunned it. You didn’t even try to advocate it, and you already say that business won’t accept it. I take you didn’t even read it, instead you are just spreading Microsoft FUD and trying to turn businesses away from if.
-You are predicting that GPLv3 will be failure. You sure would like that. But tough luck, Blackduck is lying like always. Half of Google summer of code projects are GPLv3. Even companies like adobe released some stuff (BlazeDS) under v3 (LGPL, same patent grant). Do you still think industry won’t accept it? Proprietary company with lots of patents have used it, that sh1ts all over your theory. Oracle continues to distribute OpenOffice under LGPLv3, and they have GCC 4.4 (GPLv3) in upcoming clone of RHEL. When that ships, your theory that big companies won’t accept it will be in deep sh1t. If it isn’t already.
Reason why GPLv3 isn’t widespread (yet) is careless copyright policy of Linux kernel devs. They couldn’t find all contributors, they are afraid of disruption, so they decided to say that GPLv3 is bad for them.
Back to topic, looks like you don’t want credibility, you just want to bash GPLv3 and Moglen. You say that it’s his fault tha GPLv2 doesnt have explicit patent grant, that is load of bullock. Not a lot of people knew how patents work in 1991, and what he and RMS did with GPLv2 is very visionary and nothing short of amazing. You thoroughly detest the guy because he is opposed to you agenda, so you are searching any way to blame him for something. Typical mud slinging.
I was right. You are obviously paid by Microsoft. You are most obvious Microsoft shill I ever saw. You are so obvious that Microsoft looks even more pathetic now for hiring you. It is not even funny.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 4:22 pm
Resisting RAND policy does not imply being excluded.
Florian Mueller Reply:
August 14th, 2010 at 4:30 pm
No, but not preferring RAND over destruction/exclusion is what I think doesn’t make sense.
In terms of “resisting RAND policy”, if you want to do so, you must propose something that’s legally and politically feasible. In a competition context, it’s the only game in town. In procurement, I just said that I simply want companies to practice what they preach. Preaching FaiF-compatible terms and practicing them is perfect. Preaching them but only practicing RAND or in certain cases not even RAND is what I oppose. Compared to those hypocrites, I prefer those who preach RAND and practice it.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 4:33 pm
Who would that be? Don’t use IBM and Microsoft as examples because they fit neither category.
Florian Mueller Reply:
August 14th, 2010 at 4:41 pm
That discussion about IBM has already started on another thread on this page, further below. Concerning Microsoft, I’m not aware of any example where they don’t do RAND, nor of any where they advocate anything other than RAND.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 4:57 pm
What is someone wanted to ‘pull a TH’ on Xbox 360? Would Microsoft help?
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 4:57 pm
/is/if/
Florian Mueller Reply:
August 14th, 2010 at 5:07 pm
(quote) What if someone wanted to ‘pull a TH’ on Xbox 360? Would Microsoft help? (end quote)
I obviously can’t make commitments on someone else’s behalf. I can only watch what they do: So far they haven’t done anything against WINE or Mono. Running Windows in emulation/virtualization seems to be no problem. All of their patents can be licensed on RAND terms.
If you mean Xbox 360 emulation, if you had an emulator and wanted to license the operating system to run it in emulation mode, I presume they would license the operating system on RAND terms. At least I don’t know anything they’ve ever done that would suggest the contrary nor would I see a business reason for which they should decline.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 5:19 pm
See the MCP from July 2009. Microosft excludes parts.
Not entirely true. Antitrust involved too.
Don’t just assume. IBM protects a hardware franchise. Microsoft is not a hardware company. Its hardware is a disaster, so almost nobody bothers doing what LH does.
Florian Mueller Reply:
August 14th, 2010 at 5:27 pm
(quote) See the MCP from July 2009. Microosft excludes parts (end quote)
I talked about them tolerating Mono and WINE. I didn’t talk about the MCP.
If Mono or WINE had ever received a threat letter from Microsoft, I’m sure we’d know about it by now.
(quote) Not entirely true. Antitrust involved too. (end quote)
It would be great if the TurboHercules antitrust case could have a similarly positive outcome.
I don’t want one set of rules for Microsoft, one for the rest. I want one set of rules for all, including but not limited to Microsoft and IBM.
quote) IBM protects a hardware franchise. Microsoft is not a hardware company. Its hardware is a disaster, so almost nobody bothers doing what LH does. (end quote)
I just answered your question to the best of my ability.
IBM’s “protection of a hardware franchise” has given rise to two parallel antitrust probes by the European Commission and (starting last year) a preliminary investigation by the US DoJ. I’m very pleased with the EU decision and I’m confident that IBM’s anticompetitive practices will end whenever the process ends.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 5:32 pm
They are complementary to Microsoft. The APIs there are beneficial to Microsoft.
How about Microsoft’s patent extortion? Are you OK with that? It affects more companies.
Florian Mueller Reply:
August 14th, 2010 at 5:37 pm
(quote) They are complementary to Microsoft. The APIs there are beneficial to Microsoft. (end quote)
There could also be very significant benefits for IBM from Hercules.
Florian Mueller Reply:
August 14th, 2010 at 5:38 pm
(quote) How about Microsoft’s patent extortion? Are you OK with that? It affects more companies. (end quote)
I commented on Microsoft’s use of patents on my blog as you know, in a rather detailed posting.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 5:39 pm
That’s the spin TH is using.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 5:40 pm
It left much to be desired. And calling extortion “cooperative” is laughable at best.
Florian Mueller Reply:
August 14th, 2010 at 11:24 pm
(quote) That’s the spin TH is using. (end quote)
Calling it “spin” is biased and trying to find out about how the mainframe business works would be the more productive, facts-based approach. I made a lot of effort, and continue to make an effort, to understand the mainframe business because I took an interest in it due to the Hercules patent issue (from a mainframe angle I’d never have become interested in the first place). I recommend the same to you and many others if we want to analyze what’s going on there with IBM.
Just a couple of hints to show just how important and beneficial Hercules is:
- Fedora’s z/Linux is by default (!) distributed as a Hercules image.
- Alan Cox (former Red Hat Fellow, now at Intel, and someone who gave great speeches against software patents including at a conference in the European Parliament) and Bernhard Kaindl (then at SUSE, later Novell, now at a non-Linux company and formerly an FFII core activist) are among the programmers who did important work on z/Linux (SUSE Linux is still the most popular distribution on the mainframe with a 60% market share) and used Hercules for their development. The first time SUSE Linux for the mainframe ran, Bernhard ran it on Hercules.
- If you do some searches on the Internet, also of mainframe.-focused forums, you’ll find Hercules mentioned in connection with z/Linux over and over. (In connection with z/OS there are mentionings as well, but due to IBM’s restrictions it’s obvious people usually wouldn’t talk about that combination.)
- There are interesting articles out there on the problem of aging baby-boomer mainframe professionals who are outlasted by the mainframe platform, such as in BusinessWeek:
http://www.businessweek.com/technology/content/aug2010/tc2010082_274669.htm
Without a doubt, Hercules can address the recruitment problem and enable many people, especially FOSS-friendly people, to familiarize themselves with mainframe technology on a cheap x86-based PC.
- And there would be more reasons as to why Hercules benefits the mainframe a great deal — it just may not be conducive to IBM’s the ABUSE of the mainframe MONOPOLY, but I capitalized the words that make the difference between what’s good for the mainframe and what’s good for some really bad purposes.
I wouldn’t defend my positions on the Hercules case so consistently and vigorously if I weren’t convinced that the (Turbo)Hercules cause is a good cause. Among other things, also for z/Linux.
a.rebentisch said,
August 14, 2010 at 4:15 pm
If I may add to the “truth digging” effort:
- Once Florian was very proud of the LiMux patent case and his role in this; I was surprised by his positive spin. Back then others found it a damaging move that had to be contained but no one ever claimed the “awareness raising” effort was malicious. That is indeed a recent conspiracy theory with limited evidence.
- Eben Moglen likes to entertain his audiences with controversial and unreal thought and performs quite lofty. For this reason you always find the pictures where he is surrounded by a crowd after a talk. I think he and the Americans in general are too negative with reg. to the Bilski SCOTUS ruling, which as you know will now be implemented at the USPTO, a consultation is up and running:
http://edocket.access.gpo.gov/2010/pdf/2010-18424.pdf
The SCOTUS ruling is better than the public spin.
- A “lesser evil” approach is rational and leads to improvements. Saying, you were a hypocrite when you oppose whale hunting but eat pork and herring, is not an value judgement or argument but slander. In fact it is a “red herring”, you don’t have to argue with. You can also oppose whale hunting and still work as a hunter or consume whale products yourself. A pragmatist would advocate for quotas.
Open Standards policies have fiercely committed opponents and there are some defenders. I don’t care how passionate or committed these defenders are but what they achieve or contribute.
The flaw in the “attitude” argument attacks shines up when you consider the alternative. King Salomon here proposes to cut the child in two.
- I expect an administration to be driven by rational self-interest in its procurement policies and thus to apply procurement strategies which promote better competition. From a procurement negotiations perspective there is no point to prefer a RAND deal or to procure at a higher price. It is not upon vendors from other nations to convince my administration that it should not follow its interests but theirs. Nor is is an acceptable interpretation of competition law to depict strategies for competitive perfection as a buyer’s cartell, cmp. the drafts
http://ec.europa.eu/competition/consultations/2010_horizontals/index.html
“”There should be no bias in favour or against royalty free standards, depending on the relative benefits of the latter compared to other alternatives.” – outrageous interpretation of Art 101 which would make open standards requirements of consortia “illegal”.
- I fail to see a contradiction between the Oracle policy statement and enforcement of its patents against a competitor because the latter does not make a policy statement. As long as we don’t find a contradictory policy statement it still seems to be the applicable position.
- I know how to substantially fix the patent situation, many colleagues also do and we provide consultancy to this end. I am also fine when companies waste their resources on litigation lawyers instead or try solutions which are not effective.
Florian Mueller Reply:
August 14th, 2010 at 4:23 pm
Just to make this clear: I never said RAND is the way to go in public procurement. What I do expect is companies to practice what they preach. If they preach royalty-free and practice it, perfect. If they preach RAND and practice it, that’s not perfect but in an imperfect world it’s pragmatic, consistent and credible. If they preach RF and don’t even practice RAND, they’re hypocrites.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 4:29 pm
Who would that be? Not IBM.
Florian Mueller Reply:
August 14th, 2010 at 4:32 pm
You say “not IBM”. They never offered FaiF-compatible terms to TurboHercules, and they never even offered RAND terms to TurboHercules. But they preach royalty-free to the EU.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 4:34 pm
zos is proprietary.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 4:37 pm
What I’m trying to say is, it’s not about RAND. If someone wants discounted Windows (not APIs), that’s not RAND in the API sense/context.
Florian Mueller Reply:
August 14th, 2010 at 4:39 pm
For proprietary software, RAND can be imposed on monopolists such as IBM.
In terms of API, IBM only listed patents to threaten TH with them but never offered any licensing terms. Those patents are API patents.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 4:55 pm
IBM never offered any licensing terms for z/OS.That’s akin to Microsoft denying others access to internal proprietary software.
When it comes to patents, IBM listed some. It didn’t deny licensing terms AFAIK (that would be z/OS only).
Florian Mueller Reply:
August 14th, 2010 at 5:03 pm
(quote) When it comes to patents, IBM listed some. It didn’t deny licensing terms AFAIK (that would be z/OS only) (end quote)
Then I recommend re-reading the entire correspondence between IBM and TurboHercules, as well as IBM’s public statements.
TurboHercules made the suggestion that IBM should add the allegedly relevant patents to its open source patent pledge. That would be in line with IBM demanding royalty-free in the EU.
Concerning Microsoft software and licensing, I’m not aware of any restrictions that would stand in the way of running Microsoft software in emulation mode (or in virtualizers).
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 5:12 pm
z/OS virtualises, you’re going in reverse now.
Florian Mueller Reply:
August 14th, 2010 at 5:20 pm
z/OS virtualizes only on IBM hardware and there only on IBM’s proprietary virtuzalizer. Windows can be virtualized with free virtualizers and without hardware restrictions.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 5:26 pm
But that’s not the point I was making; you mix up host and guest.
Florian Mueller Reply:
August 14th, 2010 at 5:30 pm
(quote) you mix up host and guest. (end quote)
No, you do. z/OS isn’t a virtualizer. Here’s IBM’s virtualizer page:
http://www-03.ibm.com/systems/z/advantages/virtualization/index.html
As you can see there, z/OS and z/Linux are both virtualized.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 5:34 pm
I can see that now. I meant z/VM.
a.rebentisch Reply:
August 14th, 2010 at 5:25 pm
Backing open standards for public procurement does look better than undermining these policies, no?
Furthermore RAND terms + x are what you get provided by competition law or competitive pressure as a minimum requirement. You don’t need to advocate for that. When you advocate for that you try to sell the markets a worse deal.
In the same fashion you don’t have to argue for WTO requirements in EU standardization regulations because these conditions are already implemented.
However, as a matter of pragmatism I would argue that it may be useful to transform the OPL into a copyleft license with RAND patent licensing opportunities to provide an alternative to the rather patent-suicidal GPLv3 to the market.
The real challenges with RAND and RF licencing is to provide standardized terms for self-selection which are bullet-proof. At present companies invent their own models, and there are myriads of legal approaches. That would contribute to market confidence. See http://www.patentcommons.org/ for a collection of older solutions. What I would like the governments to do is to fund the development peer-reviewed model license terms. The EUPL development process provides a precedent, a software copyright license which is peer-reviewed in all EU jurisdictions, translated in the EU languages, taking into account that private law is not harmonized within the EU (nor on a worldwide scale) and won’t be harmonized anytime soon.
We observe the uncertainty at present with the SUN patent terms which were developed under the experience of attempts of competitors to wreck Java with incompatible implementations.
What is great about the CC licenses for instance is that you can select a mature content license which suits your requirement. The drafters review and update these terms, legal terms which you as a market player don’t have to understand. In the same way some companies choose the GPL or the few alternatives because they are aware about the features of their chosen license.
The DPL is a recent approach for patents but I’d like to see better suited models, as you can see from the website above there are myriads of legal solutions, many of them do not translate well into continental law.
Dr. Roy Schestowitz Reply:
August 14th, 2010 at 5:35 pm
Exactly, it’s not middle ground even.
gnufreex Reply:
August 15th, 2010 at 2:53 pm
“However, as a matter of pragmatism I would argue that it may be useful to transform the OPL into a copyleft license with RAND patent licensing opportunities to provide an alternative to the rather patent-suicidal GPLv3 to the market. ”
Are you serious? How is GPLv3 patent suicidal? What you are proposing is suicidal for projects who get coerced into such schemes.
GPLv3 only forces the contributor and convener to commit that it wont sue users, contributors or distributors/converters of GPLv3 projects over patent infringement. How is that suicidal? That is basic requirement: if you like our software enough to contribute and distribute it, then you can’t wake up one day and decide to sue us for patents. And that goes without saying in free software world. GPLv3 only made it more explicit so scumbags like Microsoft can’t do their FUD war. Those companies can still use their patents to sue proprietary competition, GPL has nothing with that.
gnufreex Reply:
August 15th, 2010 at 2:56 pm
That should say conveyers, GPLv3 term for distributor.
a.rebentisch Reply:
August 15th, 2010 at 9:14 pm
@gnufreex
At present the OPL is useless overlap, with RAND rules it may fill a gap, in particular in mine fields where you cannot provide solutions without patent licensing. Here market players usually chose an Apache style model. The new license would then offer an alternative with copyleft features. Realpolitik.
You accused: “[FM is] attacking Moglen because people trust him. You call him a communist, so you probably think that whole Free software idea is communism too.”
I think it is a factual description of Moglen’s mind set. I am rather uninspired about the ideology or motivation of people but focus on the operational outcome. Unlike an Americans professor we cannot accept the term uninitiated because of historical reasons, it conveys a certain unpleasant context. Just because at a certain point in time manufacturers advocated bricks as part of right wing state ideology (they actually did), I still like brick buildings. When I buy bricks as a commodity for building a house I also don’t see the difference between a brick from a muslim or an atheist sales person.
A classic fallacy is centered around the mistake that we put to much emphasis on the motives. I don’t care for the “motives” of an apple tree. My classic example is Guano, the natural fertilizer from South America used before the green revolution. Wikipedia:
“Guano (from the Quechua ‘wanu’, via Spanish) is the excrement (feces and urine) of seabirds, bats, and seals. Guano manure is an effective fertilizer… due to its high levels of phosphorus and nitrogen and also its lack of odor. … Soil that is deficient in organic matter can be made more productive by addition of this manure.”
These birds didn’t contribute the guano in order to save our ancestors from starvation! They had actually no “intent” at all.
“Not a lot of people knew how patents work in 1991…”
Exactly, because they were not on the radar screen. That is why we find uses of the open standards term with undefined patent licensing clauses. But even back then it was evicent there can’t be an open standard with RAND terms. In the same fashion the AGPL closes a GPL loophole for web services.
a.rebentisch said,
August 14, 2010 at 5:58 pm
And I fully agree with what Commissioner Kroes said, a great speech which sets the agenda
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/300
“Some observers think “open standards” is a tainted term that should not to be used in the absence of a generally recognised definition. Others act as if a policy document that does not mention “open standards” would automatically lack merit. My position is in between: I don’t believe that listing keywords can substitute for policy. Whatever the labels, what matters is the substance. I would urge all stakeholders to focus on the content of the package rather than the wrapping.”
I am annoyed when stakeholders try to wreck professional terms. A definition for open standards does not mean that there may be no role for RAND licensed standards at all. In some markets RAND terms are quite common. Even mandatory open standard requirements for the public sector would include a migration path for the legacy. A weak preference may also be sufficient. These policies do not define what is permitted on the market but what is procured by the public sector and it sets a signal to the vendors, that more openness gains them a competitive advantage. As a result we move towards perfection of competition.
twitter said,
August 14, 2010 at 11:14 pm
Florian’s spin on Wne and emulation is about as bad as the rest of his arguments. Microsoft has been very difficult with both, much like they have been with Samba. Most of Microsoft’s new EULAs prohibit running Windows in a VM. Microsoft hates it when software runs on anything but the latest and most expensive version of Windows.
Florian Mueller Reply:
August 14th, 2010 at 11:55 pm
@twitter you just make aggressive claims without backing them up so far in any way.
(quote) Florian’s spin on Wne and emulation is about as bad as the rest of his arguments. Microsoft has been very difficult with both, (end quote)
You make a pretty aggressive claim without providing the slightest evidence to back it up. Please show me where Wine and Mono have had problems with Microsoft in any legal context.
(quote) Most of Microsoft’s new EULAs prohibit running Windows in a VM. (end quote)
You make this claim, so please prove it. Say which articles of which EULAs you mean.
Dr. Roy Schestowitz Reply:
August 15th, 2010 at 12:16 am
See our “Wine” category.
Florian Mueller Reply:
August 15th, 2010 at 2:05 am
I followed your link and read about the SourceForge award. That wording expressed fears that two years later still haven’t materialized. I asked about problems (for WINE) with Microsoft in a legal context, so I meant problems that have ever arisen, not problems that someone feared were likely to arise.
Actually, this may be yet another example of people substituting fears for actual incidences when discussing Microsoft.
But do you have anything other than never-materialized fears to show in the WINE context?
Florian Mueller Reply:
August 15th, 2010 at 2:05 am
meant “incidents”, or maybe “incidence”, not “incidences”
twitter Reply:
August 15th, 2010 at 9:09 am
I’m getting tired of doing your homework, Florian. If you want to prove to me that Microsoft has reasonable EULAs, does not engage in technical sabotage and and does not present a legal threat to free software, you can come back with links and quotes. Your wild defense of a convicted monopolist contradicts 20 years of industry observation and is the thing that demands some extraordinary proof.
Roy’s Wine category clearly shows both technical sabotage and legal threats. Here’s clear and direct technical sabotage, as if the whole history of Microsoft’s undocumented APIs and evidence presented in multiple anti-trust trials about Netscape, Word Perfect, OS/2 and DRDOS were sufficient to prove that Microsoft routinely sabotages competitor’s software. If these things are broken on Windows itself, what chance does Wine have? Roy’s link to the SourceForge “most likely to be ambiguously and baselessly accused of patent violation” is not good enough evidence that developers feel threatened by Microsoft, you can read this developer thread about moving to GPL3 where you might learn that wine was excluded Microsoft’s patent deal with Novel. As much as you would like to stick your fingers in your ears and shout that you don’t hear things, Florian, Microsoft’s patent extortion against “Linux” is an attack on all free software. Perception problems are what it’s all about and this does as much harm as the many lawsuits they have launched against others.
Slashdot has the scoop on Microsoft
s EULA forbidding people from running versions of Vista in Virtual machines. This is irksome because virtualization is probably the most secure and sane way to run Windows if you must offer Windows to people in your business.
Your defeatism about GPL3 is also tiresome. Non free software proponents have said the same things about every free software project. Then again, several things you have said make it apparent that you have yet to believe that software freedom is economically viable, despite the massive success of companies like IBM, Google, Red Hat, all of their customers and everyone else who bothers to download GNU/Linux from community distributions like Debian. As RMS put it, denying the economic viability of free software is like saying that heavier than air transport is impossible when anyone can go to the airport and see things for themselves. His analogy does not go far enough, however, because the continued economic viability of non free software publishers is not obvious in the face of overwhelmingly superior free software competition. Patents aggression is the last gasp of an unethical and dying industry. They seek legal protection from market failure.
a.rebentisch Reply:
August 15th, 2010 at 12:43 pm
That something gets written in an EULA does not mean it is legally valid and enforcable. Many provisions in EULAs are not. I am aware of some Wine legal issues with FoxPro runtimes.
As far as I know Wine managed to ruin its sponsor Corel. Since then progress is constant but did not meet expectations. It has insufficiencies in the development process, and no sustainable business model. Many users would be willing to pay to fire up the Adobe tools like Photoshop etc. but there is no price tag associated with it.
For Microsoft, Wine is an insignificant implementation of their technology. Probably it can be used as a base to get a Win layer for the Mac.
twitter Reply:
August 15th, 2010 at 1:39 pm
Florian asked for evidence the Windows EULAs forbid running in VMs, so I gave it to him. These EULAs show Microsoft’s attitude and are a real legal risk. Even if this part of the EULAs are eventually ruled unenforcible, Microsoft wants to make things difficult every way they can.
Running Windows in the US is a terrible risk, regardless of the which parts of EULAs courts may overturn. Anyone who runs Windows in the US is subject to BSA shakedown, a disruptive and costly affair. The BSA only needs the word or a disgruntled former employee to get a court order for a raid that the targeted business must pay for. Private business and public schools have been harassed this way. Few businesses will want to risk such a thing. They are better off dumping all of their non free software.
Ironically, by doing this Microsoft makes Vista/Windows 7 an even bigger loser than they already are. XP can be virtualized, so people will use the licenses they already own. Because free software provides all networking needs, XP virtual machines can be used only where legacy software is required while users have all of their communications and entertainment needs met by free software. Virtualized XP instances can be started as “clean” machines every day to cut down on Windows malware, while the last dependencies are worked out.
Florian Mueller said,
August 15, 2010 at 2:13 am
Concerning Munich Linux, I appreciate the part of arebenti’s comment that confirms no one at the time consider my effort to raise awareness “malicious”.
I would like to point out hard facts, and my blog provides all of the documentation that’s needed to verify them:
http://fosspatents.blogspot.com/2010/08/munichs-linux-migration-and-concerns.html
[...] in terms of a stalling of the migration project, we’re talking about 10 days of a month [August 2004] in which nothing big would have happened anyway due to the vacation season [August is always a vacation month in the state of Bavaria]. I just repeated myself because that’s really important. And the confusion as to what the city administration might do lasted only a few hours [until the mayor confirmed that the migration was continuing for sure]
Furthermore, anyone blaming me for what happened then would also have to blame Jan Wildeboer, now a Red Hat evangelist/lobbyist, for his participation in the very same matter, as well as Holger Blasum, who did such great work for the FFII at the time. And the Green Party, which does so much for FOSS and against software patents all the time.
a.rebentisch Reply:
August 15th, 2010 at 1:06 pm
I confirm that. It was the ad hoc activity of a Munich group, partner orgs were concerned about the activities’ merits, I remember Holger kind of apologized by phone, we didn’t plan or strategize it but it was attributed to us. In the end it was fine, and I guess Ude views it positive and also the Limux team. In general no need to over-strategize. Groklaw connected the wrong dots.
What surfaced later was a narrative that presented the Munich activities as a brilliant master strategy, the key to later success. It wasn’t. Generally activities followed an Artus court model back then, some knights leave the Court to slay together a dragon, fail to find it and liberate a virgin instead. You know the proverb about untruth before elections, in war times and after hunting.
Florian Mueller said,
August 16, 2010 at 3:11 am
There have been a couple of mentionings in this debate of the accusation that I wanted to un-GPL MySQL.
That was, definitively, a lie on PJ’s part. I did the opposite. I consistently argued AGAINST a license change, and I have provided a detailed explanation and several documents from the Oracle/Sun merger control process that serve as conclusive evidence that I’m right and that PJ lied:
http://fosspatents.blogspot.com/2010/08/oracle-vs-google-licensing-issues.html#gplmysql