Embrace, extort, and collude

Summary: Microsoft, Apple and various allies are playing a dangerous game with software patents and those who lose the most are members of the public

A couple of days ago we alluded to the sale of Nortel's many patents and yesterday we saw it being finalised. Apple and Microsoft founded a parasite cartel to allegedly attack Android with. This helped show that no matter how passionately companies tell us that their patents are defensive and harmless, there is no legal guarantee that those same patents will one day be used offensively, as we saw in the case of Oracle and Sun (a legal attack on Android/Linux using patents on Java). The Nortel news is no longer so new, but the impact of the sale is discussed quite a lot in pro-free software sites, e.g. in relation to the prospects of those patents being used against Android. Now that Microsoft is a blatant patent aggressor against Android, the last thing Microsoft should have is more patents. To quote one person's perspective:

Is it time for Android makers and Google to form a wider consortium to rebuff Microsoft's attacks on small Android player?

US Congress, please fix your software patent mess before it kills the spirit of innovation.

Too late. It has already killed innovation and we covered examples of good, innovative products that died due to software patents [1, 2, 3]. The so-called 'consortium' which got Nortel's patents is led by Microsoft and Apple (both are also in CPTN) and the rest is just relish. They essentially stood up against a Google bid which would have helped defend Android from some extortion (coming from both Microsoft and Apple).

Quoting another report of interest:

While many believe software patents are a tax by lawyers on engineers, they still exist. But rather than being used to advance a company's technology, patents today are used to bludgeon competition. This is why Microsoft and Apple paid billions to strip patents from Nortel's carcass: new arrows in their "beat Google" quiver. Goal according to many? Use patents to pound the fast-growing Android. Since Apple et al paid $4.5 billion (yes, billion), let's look at what people had to say.

That's a good article. A lot of the other coverage was about economics and not about the real issues, which include patent aggression and malicious patent monopolies such as this one from Microsoft which the SFLC warns about:

A patent application published by the USPTO last Thursday reveals that Microsoft has been researching, since before December 2009, how to redirect VoIP calls to intercept devices and law enforcement agents. The method disclosed by the patent application is devious—subverting routing protocols so that packets sent by any person tagged by a monitoring request will be routed through a recording agent. The application discloses "gaming systems, instant messaging protocols that transmit audio, Skype and Skype-like applications, meeting software, video conferencing software, and the like" as technologies that can use this method. In other words, Microsoft has reason to believe that their interception method can be applied to the newly acquired Skype (recently deployed in Congress), Xbox 360, and the video conferencing features in Office 365.

We alluded to this earlier [1, 2].

Those who are collectively harmed in this case are the customers. They are harmed by patents in many ways, including the artificially leveraged price they have to pay for products they buy, ranging from small things like embedded devices to large things such as vehicles. Here is the second article in a while where we see even automobile companies affected by software patents.

What needs to be done about patents in general is a reassessment of their impact. Politicians are constantly being bombarded by propaganda from friends, partners, sympathisers, lawyers, and lobbyists of very rich people -- those with so many patents that they can sue almost any rival at will.

"Software patents, for example, have already turned almost every programmer into an unintended infringer, some might even say a "patent pirate" (or counterfeiter)."A lot has been said and written about the fact that by criminalising a lot of activities in society (e.g. drinking, singing "happy birthday" without a copyright licence, etc.) we let people fall into a system which classifies them as villains but selectively enforces the rules. With or without prosecution, many people become ripe for litigation or imprisonment and patents generally make it worse. Software patents, for example, have already turned almost every programmer into an unintended infringer, some might even say a "patent pirate" (or counterfeiter). The "Intellectual Property" crowd is trying to make applied ideas seem like "theft". This basically means that we are all at the mercy of "software gods" like IBM and Microsoft, always hoping not to be the victim of litigation. Even if we are innocent (or the patents invalid), the burden of legal costs is overwhelming enough to have the defendant disengage by withdrawing a program, paying "protection money", or simply not developing along certain lines in the first place. Where it leaves society as a whole -- not just the most passionate developers -- is a situation where certain "rights lords" bully and mistreat the industry, all for the benefits of their ego and their financial gain. Innovation suffers a lot and programming becomes an applied practice preserved only for the higher class. Artificial limitations are almost always a bad idea.

When Novell signed the deal with Microsoft in 2006 it virtually joined the same cartel of patent holders, choosing to exclude -- however conveniently -- anyone who had not subscribed to that same cartel (Red Hat for example). In order to dismantle those cartels we need to at least avoid their products and convince others to do the same. The reason why some people call it impractical is the scale of those in question (naturally, one must be big to have interest in these cartels), but it is hardly a valid line of reasoning because any erosion counts, even if it is done little by little until the incentive derived from patents is outweighed by the loss of business. It took over 4 years for Novell to collapse after its patent deal with Microsoft and all those boycotts. ⬆