What ever happened to real reporting?

Summary: A critical look at Microsoft's and Apple's innovation-harming lawsuits that the mass media/press fails to cover as properly as it ought to

IN THE FORM of "Android", Linux is taking over yet more areas of computing. Apple and Microsoft are both rather nervous because nothing technical that they can do is going to stop Google. Instead then, Microsoft goes ever more thuggish and Apple gets very litigious (at least Apple names the patents, but it does not sue Google, instead targeting those further down the 'food chain'). Google is "disappoint[ed]” to see Apple and Microsoft forming yet another patent cartel against rivals like Google and the second Microsoft booster in a while plays along with a headline like "Is Android Microsoft's next cash cow?"

It's shoddy reporting like this which helps us see why "Microsoft boosters" as we call them are a major part of the problem as they do the opposite of watchdog press. To quote:

In the hunt for the next billion-dollar business, Microsoft may have discovered one in mobile software. It costs Microsoft nothing to produce and sell, and it's not Windows Phone.

It's Android, the wildly popular — and free — mobile-phone software made by competitor Google.

In the past nine months, Microsoft has gone after a handful of companies that make Android phones and tablets.

It has either sued or persuaded the companies to pay it license fees for some technologies found in certain Android features. Microsoft contends it has patents on those technologies.

Being Bill's fan press (Seattle Times), almost nothing is done there to chastise Microsoft. This particular reporter, being Microsoft-focused, has vested interests, too. So watch out for Microsoft's attempts to shape the news. As we explained a couple of weeks ago, Microsoft grooms journalists before announcements of such extortion so that they improperly cover the news, spreading the twisted versions of the story and linking to a press release from Microsoft. This is not journalism, it is churnalism. People must challenge poor reporting in order to discourage Microsoft from this whole racketeering operation. This is not a case of "licensing deal", it is extortion, it is probably a clear violation of the RICO Act, but nobody bothers reinforcing the law, especially when real reporting gets overshadowed by Microsoft's PR machine.

Timothy Lee, an unusually good journalist and blogger, does a good job explaining what Microsoft does here:

This story sheds light on the recent string of stories about Microsoft demanding royalty payments from various companies that produce smart phones built on Google’s Android operating system. Intuitively, this doesn’t make much sense. Most people would say that Google has been more innovative than Microsoft in recent years—especially in the mobile phone market—so why is Microsoft the one collecting royalties?

The reason is that Microsoft has more patents than Google. A lot more. The patent office has awarded Google about 700 patents in its 13-year lifetime. Microsoft has received 700 patents in the last four months. Microsoft’s total portfolio is around 18,000 patents, and most of those were granted within the last decade.

Even if you think Microsoft is more innovative than Google, the engineers in Redmond obviously haven’t been 25 times as innovative as those in Mountain View. So why the huge discrepancy?

Getting software patents takes a lot of work, but it’s not primarily engineering effort. The complexity of software and low standards for patent eligibility mean that software engineers produce potentially patentable ideas all the time. But most engineers don’t think of these relatively trivial ideas as “inventions” worthy of a patent. What’s needed to get tens of thousands of patents is a re-education campaign to train engineers to write down every trivial idea that pops into their heads, and a large and disciplined legal bureaucracy to turn all those ideas into patent applications.

[...]

The result is a transfer of wealth from young, growing, innovative companies like Google to mature, bureaucratic companies like Microsoft and IBM—precisely the opposite of the effect the patent system is supposed to have.

This author used to write for Ars technica which nowadays does a lot of Microsoft PR. One of its pro-Microsoft writers, Peter, is in our IRC channels now, promoting MPEG-LA and Microsoft talking points. It's very selfish and not objective at all, so we no longer cite that site as much as we used to. In general, people who harbour the continued practice/high pace of software patents tax on innovation can either face the truth in a polite debate or simply assumed to be too zealous about monopolisation. Upon closer inspection it usually turns out to be the latter. To Microsoft, software patents are generally a wonderful thing at this stage.

In light of Microsoft's latest extortions, even Mother Jones says that patents are broken and asks readers for suggestions

So then, a question for people who think that software patents are out of control: what should the rule be? No patents at all on software or business processes? Probably not. But if patents aren't flatly banned on business processes, is there some kind of rule that would raise the bar in a reasonable way on just how novel something has to be to deserve a patent? I hear a lot of complaints about software and business process patents, and I'm sympathetic to them. But exactly what kind of reform would improve things?

This site says that the patent system is broken and the audience reading this site is vast. We are definitely getting the message out there and increasing pressure on those who can change the status quo. Ryan Kim asks, "Can patent licensing fees derail the Android express?" Microsoft and Apple would love to believe it and at this stage Google should just work towards abolishing software patents or reporting Microsoft's racketeering.

One pro-Linux site has compiled a list of companies that we know are paying Microsoft for Android. From the introduction:

According to Microsoft, Google's Android OS is infringing on many of its patents and hence those manufacturers who use Android for their devices owe royalties to Microsoft. But the intriguing fact is that, instead of suing Google itself for infringing on its patents, Microsoft is finding it easy to sue or threaten smaller firms which don't have the financial muscle to fight a legal battle with the Redmond troll giant. Following is the list of companies who are already paying royalties or being sued by Microsoft for using Android.

Techrights has a list of companies to avoid for paying Microsoft for Linux and/or Android. Microsoft's co-founder Paul Allen is also among those looking to tax Android and Groklaw has this update on the case from Interval the patent troll.

We must not forget what Apple is doing to Android, either. Not only Microsoft is attacking; in some way it is aligning with Apple:

While Apple (Nasdaq: AAPL) may have lost its claim to the phrase “Appstore” in court, it’s not giving up its other creations without a fight…

The company recently issued a warning to Samsung, claiming that the smartphone manufacturer was basically just selling an iPhone copycat.

In the lawsuit, Apple alleges that Samsung not only mirrored the iPhone’s form factor with the Galaxy S, but also that some of the user interface elements infringed on its software patents.

As if that wasn’t enough, Apple also demanded that the U.S. court order Samsung to take the device off the market and pay for damages and lost profits.

Going back to Microsoft, its former CTO who had become the world's largest patent troll with Microsoft funding, was passing patents around, sometimes targetting Android in this way. One example of this is Lodsys and Novell is said to have fought back. "Novell has become the eighth outfit to ask a Judge to tell patent troll Lodsys to go forth and multiply," says FUDZilla. "Novell is one of the ten companies Lodsys already sued in February and had asked for a bit of time before it filed its answer.

"Yesterday Novell not only denied Lodsys's claims, it brought counterclaims, requesting declaratory judgment of invalidity (and non-infringement) of Lodsys's two core patents. These patents are the same ones that Lodsys has been using to squeeze money out of Apple developers."

Pamela Jones from Groklaw has returned to the site to give her assessment as well:

I thought you guys would want to know an intriguing detail in the Lodsys against the World litigations. Novell has filed its answer [PDF] to Lodsys in the Lodsys v. Brother et al case in Eastern Texas -- a patent infringement case, same patents, but not against apps developers -- and it's the mighty Sterling Brennan of Workman Nydegger listed on the team representing Novell. Lodsys is in trouble now, methinks. Brennan was also prominently on the team that won for Novell against SCO in the jury trial, if you recall. I thought he was stupendous.

Novell asserts four counterclaims regarding the two patents Lodsys asserts against Novell, asking for a declaratory judgment of invalidity and noninfringement. And its affirmative defenses include failure to mitigate damages. That makes me smile, because Lodsys is in what business, exactly, leading to what damages? And that's Novell's point, which it makes explicit in another affirmative defense: "Lodsys's Complaint, and each and every claim for relief therein, is barred because Lodsys has not suffered any damages."

it is encouraging to see Novell fighting in court because it has the SCO and Microsoft cases to get on with. Sadly, however, Novell gave a lot of its patent ammunition to Microsoft and Apple (through CPTN). Where all these cartels leave GNU/Linux is a discomforting situation where the laws and practices are simply designed to be discriminatory. The same goes for reporting in the English-speaking press, which is too conformist and cowardly. Debian has meanwhile released this "Community Distribution Patent Policy FAQ" (with help from the Software Freedom Law Center). It says:

This document presents information about patents and patent liability useful for developers working on community distributions of Free and Open Source Software (FOSS). By community distributions, we mean collections of free software packages maintained and distributed by organizations composed of volunteers, where neither the organization nor the volunteers seek to make a profit from the activity. Such community-based distributions may sell as well as give away their work product, possibly on CDs or USB storage media or by paid-for downloads as well as by gratis distribution.

This document has been prepared by lawyers at the Software Freedom Law Center (SFLC) at the request of the Debian project, and may be helpful to similar community FOSS distributions. Its statements about legal matters are accurate as of the date of composition regarding US law, and may be applicable to other legal systems. But this document does not constitute legal advice. It has not been based on analysis of any particular factual situation, and any lawyer providing an opinion on the questions presented below would need to ascertain the particular facts and circumstances that might vary this information in a particular setting. You should not rely upon this document to make decisions affecting your project's legal rights or responsibilities in a real-life situation without consulting SFLC or other lawyers.

Patents are the #1 problem GNU/Linux is having, even if the news keeps going on about FUD like "hard to use" and "too many versions". ⬆