Summary: The gloves come off as Battistelli resorts to name-calling and European patent attorneys increasingly defect to the side of protesters (staff of EPO), expressing dissatisfaction if not disgust at the EPO’s management

THERE is no denying that the EPO‘s management is extremely popular right now.

According to this new article, the Tony Soprano-like Battistelli says that SUEPO “is not a trade union [but] a mafia-type entity” (look who’s talking). In a recent poll, 96% of respondents expressed concern and almost half of the staff is brave enough to march against the management. We have heard estimates of over 800 EPO employees protesting in The Hague and over 2,000 in Munich last week. This new summary from Merpel gives similar figures and justifiably wonders what will happen next:

Three members of the EPO Staff Committees have been suspended, as Merpel reported here. In support of their suspended colleagues, further demonstrations have been taking place (Merpel reported the initial one here) – and now she hears that the further protest in the Hague on 1 December numbered around 600 EPO employees, while that in Munich on 4 December attracted over 2000. It is clear that the unrest within the EPO at various things, including the treatment of these officials, is widespread – these numbers are pretty much without precedent.

[...]

There seems to Merpel to be an unsustainable escalation in conflict at the EPO. This affects both the general employees, and also the Boards of Appeal, as Merpel reported here. There seems to be a somewhat raised level of political interest in member states now, but how long must Merpel keep writing that something must be done?

See a certain pattern in early comments. Trying to frame this as a general problem (affecting a lot of public bodies) is serving to distract from the EPO’s situation. I know this type of media strategy fairly well because Microsoft uses that too (trying to characterise other companies as ‘equally evil’).

To quote one comment from a British lawyer(from the comments section):

Does anyone have any ideas how we can prevail upon the AC to act – assuming, that is, that they’re not actively complicit in BB’s wrecking of the entire system?

As a GB-based attorney I can write to my national delegates on the AC, but it’s easy for them to ignore correspondence from a single person. If a substantial proportion of GB representatives were to write, individually, they’d hopefully find it harder to ignore. Similarly with attorneys in other countries, there is strength in numbers if we all write to our national delegates.

Are the relevant national professional associations taking any action? Has CIPA made any representations to the GB delegation? Has EPI made representations to any AC delegates? (I know both made submissions on the BoA reform proposals, which were largely ignored, but surely it is time for both CIPA and EPI, and their counterparts in other member states, to make a more general intervention directly to the AC members.)

If the largest EPO-using law firms and companies in each member state made official representations to the AC would these carry any more weight?

The IPKat is performing a great service in Kataloguing all of the perverse developments at the EPO but the time has come for us to speak up directly to those in power. While the complaints are being documented on a handful of blogs, the AC and the management can disregard these as being just some bloggers’ opinion. We can’t just sit on the sidelines and complain amongst ourselves, watching while the EPO management continues to ride roughshod over its employees – we users need to let the EPO know that we are concerned too, and that the opinion of the blogs is shared by many practitioners.

Who will coordinate such action?

As was hinted earlier today, we now consider setting up (or helping to set up) a petition, maybe organise some kind of action which can compel the abuses by EPO management to stop. Hitting them where it hurts, it might help to embargo or discourage further patent applications unless or until some ultimatum is met (e.g. allowing external auditors and an independent investigation to take place at the Office). It may be the only remaining way to resolve this AC-Team Battistelli deadlock. █

WE PETITION THE OBAMA ADMINISTRATION TO:
Pursue Software Patent Abolition.
We hold the belief that software patents, in nature and practice, hinder true innovation and grant unjust monopolies.

The Obama Administration’s response to a previous petition shamefully attempted to absolve the President of responsibility and placate us with the toothless America Invents Act. We summarily reject his response and demand immediate action.

Rapid growth in the software industry during economic malaise demonstrates the importance and power of this market. The President must use his full power and influence to fight harmful forces from entrenched incumbents and non-producing entities.

There are no possible reforms to be made to the USPTO that will enable it to keep pace with innovation in the software industry. Those who truly understand software are creating it.

Summary: New article about software patents reveals that HP, under new leadership, has quietly bought a group of Microsoft allies (Fortify)

Following Hurd’s departure [1, 2, 3, 4] a former Microsoft ally was made the CEO of HP [1, 2, 3, 4] and this is important because of HP’s leading position in the desktops/servers market, not to mention all of its patents. “Every time a software patent is registered, an angel is bludgeoned to death with a shoe,” wrote “MrAlanCooper” to a former Microsoft employee. Yesterday we noticed this article about software patents in security, in which it’s mentioned that Fortify has just been acquired by HP. It’s important because Fortify too is a Microsoft ally, as we noted in [1, 2, 3, 4, 5]. The article says:

Can you patent the obvious? Apparently when it comes to software security, maybe you can. Gary McGraw explains how another party may get a patent on a technique he had a hand in inventing.

The notion of software patents is extremely controversial. The basic idea is simple and mirrors “regular” patents. An inventor invents something and files a number of claims about the invention. The Patent Office reviews the filing and determines whether to grant a patent for the invention. Holding a patent guarantees the inventor some rights to enjoy the fruits of the invention for a fixed period of time. Not so bad if you invent the next great inside-the-peel Tomato twaddler, but a bit harder to understand in the software space.

Can you patent the obvious? Apparently when it comes to software security, maybe you can.

[...]

On to patent land. Apparently the security testing firm Cenzic believes that they deserve a patent for software fault injection. In February 2007 (a decade after our book was published) Cenzic was awarded patent number 7185232 for “fault injection methods and apparatus.” The basic claims in the patent involve injecting some faulty input into a web program (thing one) and watching for error responses (thing two). Very nice. Or maybe not. A grass roots effort to collect prior art and dispute the patent is being spearheaded on the net byEnrique A. Sanchez Montellano.

As an inventor of security technology, I am not completely opposed to the idea of software patents. In fact, we hold eight patents in various aspects of software security at Cigital (some of which are likely to be infringed upon). We like the idea of licensing our ideas and our prototypes to others. In fact, that’s exactly what happened with Fortify which was recently acquired by HP. We licensed our code scanning ideas and prototypes to Kleiner-Perkins who went on to found Fortify, build a real commercial product, and sell the heck out of it. So the notion of protecting our ideas with patents is not foreign to us.

A lot could be said about the article’s attitude w.r.t. software patents, but the news that we missed about Fortify may be important in the future. Fortify attacks Free software quite routinely, so it’s unclear why HP would want this culture to become ‘in-house’. Incidentally, considering that Hurd was fired after Microsoft had pointed out that his work on a homebrew Linux-based operating system was a major threat (c/f SEC filing), one ought to watch carefully what Apotheker does at HP. Microsoft also named Intel’s work on MeeGo as a major threat (alongside HP) and we all know what Microsoft did to Nokia [1, 2, 3, 4], harming MeeGo a great deal using entryism (a manager from BT privately told us by mail that it was probably illegal, he called it “100% corrupt”). Yesterday we wrote about the contractual obligations of Micromoles. Watch out, HP. █

Direct link

Summary: Please sign the Bring Out The GIMP petition

IN order to avoid further Mono dependencies in Ubuntu, readers are kindly urged to sign this new petition, titled “Bring Out The GIMP”. Please spread the word so as to get as many signatures as possible. █

Related posts:

• With gThumb and Gnote in Ubuntu 10.04, Default Install Would be Leaner, Mono Free
• The Case for a Mono-Free Ubuntu and Novell’s Case for a Mono Fee Ubuntu
• Gnote Would Fit Nicely in Ubuntu 10.04 (Default Install)

SARAH from the Free Software Foundation has called for people to express their dissatisfaction with far-reaching DRM in Amazon’s Kindle. “We have over 1400 signatures already,” she emphasises, “and signers include Lawrence Lessig, Clay Shirky, Cory Doctorow and other notable authors, librarians, and scholars.”

If you know other people who may wish to support the cause, please pass this around as it will be used to persuade Amazon to reverse, not just apologise, and it may also serve as a future lesson to other companies that attempt the same predatory action. █

Don’t let Amazon ‘pull an Orwell’ on Orwell

Related post:

• Saturday Film: George Orwell 1984

Summary: Microsoft delays EU response even further while ECIS lays charges against Microsoft

Yesterday we wrote about ECIS's strike against Microsoft and today it turns out that Microsoft keeps procrastinating while its existing products remain anti-competitive by design.

EU antitrust regulators have granted Microsoft yet another extension to respond to charges that the software giant abused its dominant market position by bundling Internet Explorer with Windows.

A European Commission spokeswoman confirmed to The Register this morning that Microsoft has been given a one-week extension. The company now has until 28 April to respond.

Someone has sent us a new document about Microsoft’s crimes. Yes, found within the PDF in a recent complaint is one link to this other EU document [PDF]. It is reminiscent of the Comes petition, but it’s more recent and a lot shorter. It is titled “Microsoft: A History of Anticompetitive Behavior and Consumer Harm” and it comes from ECIS. It happens to speak very concisely about Microsoft’s version of “reasonable and non-discriminatory” (really meaning “predatory and anti-competitive”).

To use an excerpt that contains references to GNU/Linux in particular, here is a new message from HPT in USENET (quoted text is unifont):

Table of contents of this document is a further indictment against the monopoly regarding its anti-competitive practises against competition.

Microsoft

A History of Anticompetitive Behavior and Consumer Harm

March 31, 2009

TABLE OF CONTENTS
I. INTRODUCTION .............................................1
II. MICROSOFT’S HISTORY OF ANTICOMPETITIVE CONDUCT ..........3
A. Microsoft’s Campaign To Destroy DR-DOS ...................3
B. Microsoft’s Anticompetitive Per Processor License Fees ...5
C. Microsoft’s Retaliation And Price Discrimination Against IBM
.............................................................6
D. Microsoft’s Organized Collective Boycott Against Intel ...7
E. Microsoft’s Elimination Of Word Perfect ..................7
F. Microsoft’s Deceptive WISE Software Program ..............9
G. Microsoft’s Elimination Of Netscape .....................10
H. Microsoft’s Attempts To Extinguish Java .................14
I. Microsoft’s Elimination Of Rival Media Players ..........16
J. Microsoft’s Campaign Against Rival Server Operating Systems
............................................................18
III. MICROSOFT CONTINUES TO ENGAGE IN ANTICOMPETITIVE CONDUCT
............................................................19
A. Microsoft’s Failure To Comply With The Final Judgment ...20
B. Microsoft’s Campaign of Patent FUD against Linux and Open
Source Software.............................................23
C. Microsoft’s Ongoing Misconduct Has Sparked Further European
Commission Investigations ..................................23
IV. MICROSOFT’S FALSE PROMISES OF INTEROPERABILITY .........24
V. MICROSOFT’S MONOPOLIES HAVE HARMED CONSUMERS ............25
A. Microsoft’s Operating System Monopoly Has Harmed Consumers
............................................................25
B. Microsoft’s Office Monopoly Has Harmed Consumers ........26
C. Microsoft’s Web Browser Monopoly Has Harmed Consumers ...28
VI. CONCLUSION .............................................31

Section III.B discusses FUD against Linux:

B. Microsoft’s Campaign of Patent FUD against Linux and Open
Source Software

    “This is not a case of some accidental, unknowing
infringement. There is an overwhelming number of patents being
infringed.”

    — Microsoft General Counsel and Intellectual Property and
Licensing Vice President Horacio Gutierrez [128]

Here is an indicting observation about the anti-competitive practises through unsubstantiated patent violations in Linux:

The open source Linux operating system is the principal rival to
Microsoft Windows. Linux has been taken up by both corporate
customers and, increasingly, by private individuals for home use
(e.g., with netbooks). In a recent interview with CNET, Steve
Ballmer identified Linux as one of the top two competitive
threats to Microsoft in the enterprise segment. [129]

Consistent with its behavior in response to other competitive
threats, Microsoft has used unfair and anti-competitive tactics
to try and slow the uptake of Linux. In particular, Microsoft
has made and continues to make broad, unsubstantiated claims that
software developers distributing Linux or other open source
software, as well as their customers, are infringing
Microsoft’s patents. [130] However, although Microsoft has
claimed that as many as 235 patents may have been infringed
[131], it has consistently failed to identify which patents are
at issue.

It warns of possible future legal action by Microsoft, as a part of its FUD campaign against Linux and Open Source to kill Linux, requirement for additional licensing for “immunity”.  According to this next paragraph, licensing fees have a certain ring of action for protection similar to action by organised crime:

Microsoft’s tactic is to spread fear, uncertainty and doubt
(“FUD”) as to whether developers and users of open source
software may be the target of future patent infringement
suits, and thereby chill consumer enthusiasm and demand for Linux
and open source solutions.

Indeed, Microsoft’s unwarranted threats have brought such
pressure to bear on Linux users that some have felt compelled to
enter into royalty-bearing patent licenses with Microsoft. [132]
Microsoft’s campaign of FUD effectively works to impose a “tax”
on the use of the most viable alternative software to Windows:
faced with an intimidating and powerful potential litigant known
for its hardball tactics, Linux users are driven to pay the
licensing fee despite the speculative nature of the IP claims.
Microsoft’s bullying tactics therefore raise the overall cost
and slow down market penetration by innovative technologies
intended to compete with Microsoft’s monopoly products.

Interesting is the comment about the US Law in regard to software patentability.

Moreover, there is a strong likelihood that Microsoft’s patent
FUD campaign may be unfounded in law. Recent U.S. jurisprudence
clarifies that the scope for patenting business methods, which
lie at the heart of many software patents, is much narrower than
was previously thought to be the case. [133] In addition, one of
the thresholds for patentability – that an invention is not
obvious to a person skilled in the art – has recently become
harder to meet. [134] As such, many of the patents held by
Microsoft are likely to be of questionable validity today.

According to this next paragraph, patents are a methodology to deter competition.

Furthermore, given the myriad of software patents in existence,
consumers may often be unable to determine with certainty whether
their use or distribution of certain software products actually
infringes another company’s IP rights. Therefore, contrary to the
broad and categorical statements of Mr. Gutierrez as to the
intentional nature of any alleged patent infringements, it is
widely recognized in the industry that, regardless of whether
proprietary or open source software is used, there is a high
likelihood that patent infringements will have been committed
inadvertently. Microsoft has sought to exploit the current
absence of clarity in patent law in order to deter consumers from
taking up offerings competing with Microsoft’s own products.

Below mentions Microsoft suing TomTom regarding Microsoft’s questionable patents.

In an apparent escalation of its patent FUD strategy, Microsoft
sued the navigational system vendor, TomTom, for patent
infringement at the end of February 2009. Three patent claims
related to Linux are included in the lawsuit. [135] At least two
of them are related to highly questionable patents on long file
name support in Windows, which have been partially invalidated by
an EC patent court on the grounds that Microsoft’s patent claims
were “not based on inventive activity”. [136] While Microsoft has
publicly claimed that its action is not directed against Linux or
open source, and the case was settled in March 2009 pursuant to a
mostly confidential agreement, this represents an aggressive
development of Microsoft’s use of spurious or highly questionable
patent claims to intimidate and eliminate competition from Linux
in order to maintain or strengthen its dominant position in the
OS market.

The full document is a compelling, fascinating read. █

Yesterday we wondered whether Microsoft’s exclusionary deal with OEMs are similar to exclusionary Linux deals. Particularly, we wondered if these are similar to exclusionary contracts with government departments. What remains clear is that there is a pattern here. In order to understand this pattern better, let’s delve into concrete evidence and explore the past.

Here is Microsoft’s old contract with Compaq [PDF]. It reached the light during the Comes vs Microsoft case in Iowa.

LICENSE AGREEMENT

for

MICROSOFT APPLICATIONS PRODUCTS

Between
MICROSOFT CORPORATION
a Washington Corporation

and

COMPAQ COMPUTER CORPORATION
a Delaware Corporation

You can dissect the nature of the deal for yourself (OCRing is not hard, but plenty of editing must follow because of the poor quality of the scan). Mind the following bit in page 22. It’s just one outstanding example among many others.

The following provisions shall apply to all Products listed in this Exhibit C:

(1) Preinstallation

the above royalties require that COMPAQ distribute the Products preinstalled on all customer systems.

See the use of the words “all customer systems”? This is very similar to the issues which were raised and discussed yesterday.

Dell is another nice example. Here is their out-of-date contract with Microsoft [PDF].

Microsoft OEM LICENSE AGREEMENT
FOR MINIMUM COMMITMENT PAYMENTS

#2811-7060 dated march 1, 1997
with DELL COMPUTER CORPORATION

There is a lot to be found there as well. Web browser discrimination and a Microsoft-centric programs set are some of the recurring patterns in these contracts. There are many more such contracts which were intended to remain secret at the time of signing, just like Microsoft's deal with BECTA and the deal with Novell, among other deals. In Linspire’s case, very little was revealed because it is a privately-held company.

Dell’s affair with Linux and Microsoft brings up a lot of ‘smoking guns’. Examples include this story about Dell’s Linux business in China.

Dell’s love affair with Linux is a clandestine affair these days, conducted in secret, away from disapproving eyes. But now the pair have been spotted in China.

When Michael Dell first saw the web-footed beauty, he fell head over heels. Six years ago Dell pledged a series of strategic investments in Linux companies, including Eazel and Red Hat. The romance attracted the disapproval of Microsoft however, and barely lasted weeks. Very quietly, Dell dumped the bird.

It later emerged that Microsoft’s OEM enforcer Joachim Kempin had promised Steve Ballmer that he’d be putting the screws on PC builders, or “hitting the OEMs harder” in his words.

Here is another disturbing example.

The States’ remedy hearing opened in DC yesterday, and States attorney Steven Kuney produced a devastating memo from Kempin, then in charge of Microsoft’s OEM business, written after Judge Jackson had ordered his break-up of the company. Kempin raises the possibility of threatening Dell and other PC builders which promote Linux.

“I’m thinking of hitting the OEMs harder than in the past with anti-Linux. … they should do a delicate dance,” Kempin wrote to Ballmer, in what is sure to be a memorable addition to the phrases (“knife the baby”, “cut off the air supply”) with which Microsoft enriched the English language in the first trial. Unlike those two, this is not contested.

[...]

Earlier memos described that it was “untenable” that a key Microsoft partner was promoting Linux. Kuney revealed that Dell disbanded its Linux business unit in early 2001. Dell quietly pulled Linux from its desktop PCs in the summer of 2001, IDG’s Ashlee Vance discovered subsequently, six months after we heard Michael Dell declare his love of Linux on the desktop the previous winter.

Compaq was also mentioned in other memos, with Microsoft taking the line that OEMs should “meet demand but not help create demand” for Linux.

There are several more I am aware of, some of which involve Dell. To move further, however, let’s take a more ‘holistic’ view on this problem. kuro5hin.org has a good article on this issue as a whole.

They are, in short the secret to Microsoft’s success. And the word secret is to be taken quite literally: No OEM may talk about the contents of his contract, or he will lose his license, and (assumption) likely be sued for breach of contract as well.

You may then also consider the Iowa Petition [PDF]. It shows how Microsoft essentially blocked its competitors (Linux in this case) from reaching the sales channel.

Microsoft’s Predatory Response to GNU/Linux

142. GNU/Linux is an “open source” operating system that runs on Intel-compatible PCs. Microsoft has targeted the competing operating system by pressuring Intel, as well as various major OEMs such as Dell and Compaq, to boycott Linux. In late 2000, for instance, Microsoft executive Joachim Kempin described his plan of retaliation and coercion to shut down competition from Linux: “I am thinking of hitting the OEM harder than in the past with anti- Linux actions” and will “further try to restrict source code deliveries where possible and be less gracious when interpreting agreements – again without being obvious about it,” continuing “this will be a delicate dance.”

143. LindowsOS (now known as Linspire), which is developed and marketed by Lindows.com, Inc., is an Intel-compatible PC operating system based on Linux and which competes directly with Microsoft on the. PC desktop. On information and belief, Microsoft interfered with Lindows.com, Inc.’s ability to distribute its product through the OEM channel. Microsoft also initiated a lawsuit against Lindows.com, Inc. that adversely affected Lindows.com, Inc.’s ability to exist, obtain; funding and conduct business. Microsoft’s Anticompetitive Agreements With OEMs To Foreclose Competition

144. Microsoft Chairman and former CEO, Bill Gates, reportedly summarized the effects of the DOJ’s 1995 consent decree–which banned “per processor” licenses, among other exclusionary licensing terms mas “nothing.” Microsoft was able to devise other restrictive OEM agreements to foreclose competition in th…

145. A “per system” license was the practical equivalent of the “per processor” license. Under the “per system” license, the OEM had to pay royalties to Microsoft for every computer of a particular “model” or “system” that it shipped–again, as with the “per processor” contracts, regardless of whether the PC contained Microsoft’s operating system. Microsoft defined “system” and “model” so broadly in its contracts that virtually all of an OEM’s production was subject to Microsoft’s “double tax” if the OEM wanted to give the consumer a choice of operating systems. Microsoft did not agree to give up its “per system” licenses in the 1995 consent decree, even though the Department of Justice warned the federal district court that “per system licenses, if not properly fencet in, could be used by Microsoft to accomplish anticompetitive ends similar to ‘per processor’ licenses”–and in fact were.

146. Another way that Microsoft found to circumvent the federal court’s 1995 injunction forbidding its use of “minimum commitment/per processor” licenses was what Microsoft calls its “Market Development Agreements” (“MDAs”). Microsoft contrived the MDA as a device to evade the Court’s decree prohibiting Microsoft from requiring OEMs to adhere to “minimum commitments.” As Steve Ballmer (Microsoft’s current CEO) acknowledged: “We have always given better prices to customers who work with us to make the market. Those used to take the form of commits [i.e., minimum commitments] which we do not do anymore as a result of the [federal court's] decree but we still believe in rewarding people who help us create demand. Hence the iMDA.” Under the MDAs, Microsoft granted large discriminatory price concessions to those OEMs that would agree to market and promote Microsoft’s Windows to the exclusion of any rival operating system. These discounts were calibrated so as to force the OEM to sell most of its computers with a Microsoft operating system in order to obtain the lowest price.

147. Because the OEM market is so competitive and profit margins are so thin, every OEM had to get the lowest price it could from Microsoft in order to survive. In March 2002, a Gateway marketing executive (Anthony Fama) testified before Judge Kollar-Kotelly in State of New York et al. v. Microsoft, Case No. 98-1233 (CKK), about how Microsoft used its MDA program in order to force OEMs to market Microsoft’s operating system exclusively: “Given the substantial nature of these discounts, participation in the MDA, as a practical matter, is not optional. In other words, not receiving :these discounts would put Gateway at a substantial competitive disadvantage, and Gateway has communicated that self-evident proposition to Microsoft.” Microsoft also used its MDAs to lock OEMs in and competitors out by offering a discriminatory price to the OEM in a later year provided (a) the OEM reached Microsoft’s imposed goal of Windows sales over competitive sales in the prior year and (b) renewed its exclusionary contract with Microsoft for the later year. This placed the OEM on a perpetual treadmill, eliminating competition indefinitely. Microsoft continued these exclusionary terms at least past April 2002.

148. One method for encouraging competition in the operating systems market would have been the sale by OEMs of “naked machines” (i.e., computers that are sold without a predetermined suite of software forced upon the consumer). “Naked machines” would allow consumers to choose their computer’s software configuration from an array of competitive software products, either for preinstallation by the OEM or installation by the end user.
Microsoft sought and obtained the agreement of the OEMs to refrain from selling “naked machines.” Instead, OEMs universally agree to “bundle” Microsoft applications and operating systems with their computer hardware, effectively depriving consumers of any competitive choices. These restrictive agreements exited before 2000 but, in 2000, Microsoft ratcheted the restriction up so that OEMs are forced to forfeit all discounts otherwise earned if they ship any “naked machines” to consumers. This heightened restriction, which (on information and belief) continues to the present, prohibits PC users and PC retailers from buying and installing lower priced or better quality operating systems of their choice.

Articles were written at the time to cover some of the issues raised by the lawyers in Iowa. Here is one such article. (the page has expired since I grabbed a copy)

A judge on Friday told jurors they must accept as fact that a federal court found in 1999 that Microsoft holds a monopoly over computer operating systems and that it restricted computer manufacturers’ ability to use competing systems.

[...]

She said she’ll show that the company used its monopoly power to exclude competition and control prices and that it conspired with other companies to restrain trade, maintaining what she called a chokehold on software competitors and computer manufacturers.

“It isn’t illegal to be successful,” Conlin said in opening remarks. “We applaud that. … But you can’t freeze out competitors and punish and retaliate against people who cooperate with competitors. Microsoft did all that and more.”

Conlin warned jurors that she would say some unflattering things about Microsoft and its billionaire founder Bill Gates, who serves as company chairman.

[...]

Conlin’s first 3 1/2 hours of opening arguments delved deeply into computer industry history and how Microsoft fought off competitors attempting to design rival software.

Here is another decent bit of coverage.

Going back now to as early as 1998, Microsoft starts to realize that Linux might pose a possible threat, and Vinod Valloppillil, who is a program manager at Microsoft, is asked by Mr. Allchin, Jim Allchin, to analyze potential strategies for combatting open-source software, and specifically Linux. His memos are leaked to the press in April — I beg your pardon — in October of 1998 and become known as the Halloween documents. And the evidence will be that Microsoft uses its influence in the OEM channel, the computer manufacture channel, to make sure that end users have a difficult time buying PCs with Linux preinstalled.

Some apologists might get off their seats and argue, “it’s all in the past and Microsoft has changed since.” Well, not so fast! The same tricks have not reached and end and they may never cease. Consider Windows Vista.

PC Manufacturer Acer is complaining that Microsoft has jacked up the price of Vista, and that the basic versions are so basic no one will ship them. Since the collapse of the Microsoft Anti-trust Case under the Bush Administration in 2001, manufacturers have no choice but to accede, adding hundreds of dollars to the cost of each PC. With Gates now proclaiming victory over European Regulators, Microsoft once again seems unstoppable. But Microsoft had drawn itself close to the Republican Party. With the Republicans now evicted from the House and Senate, is it time to look at the Microsoft Anti-trust Suit? Could Microsoft be compelled to lower its inflating Vista prices, or to open their tech or even supply funding to Linux-flavored Windows such as Wine?

This bit from Slashdot presented an interesting perspective that shows the effect of having a monopoly. It is still being maintained using an iron fist. Even Novell admitted the problem last year, but it became a Microsoft ‘partner’ shortly afterwards, regardless of the severe consequences.

Microsoft Corp is using scare tactics to exert pressure on PC vendors not to explore the potential of desktop Linux, according to Novell Inc president and COO, Ron Hovsepian

The references provided in this article have hopefully shown that the nature of Microsoft deals, contracts, and negotiations are exclusionary and discriminatory by nature and by design. This is something to bear in mind in the future. This blog post may therefore be worth cross-referencing later on, if only to be considered as compelling evidence of a key contention.

As pointed out just weeks ago, the UK’s National Archives sidled with Microsoft in a most questionable (even controversial) of moves. Let us recognise that an issue which escapes many people’s attention is long-term preservation of information. You see this in DRM, not just in document formats. Only when people wake up and understand that their past gets erased will they actually have regrets. National Archives seems to have taken the wrong route for what appears to be Microsoft promotion. It relies on OOXML — the poison that we know as an enemy to real interoperability and competition in the market.

After a disappointing response from the UK Government, it appears as though the country does not mind lock-in. Competition is a healthy thing. It motivates. It drives innovation. OOXML kills all of this.

With a document formats monopoly (not unification), science will be hindered. But why? Why would anyone want this? The UK government is infatuated with Microsoft. Maybe they like the money, maybe they just like the ‘class’. Tony Blair and Bill Gates are friends. We already know this. The UK is not the only victim however. Look what happened in Portugal just days ago.

We have some links accumulated. They hopefully show how Microsoft misuses its power in the BBC, which is funded by British taxpayers. It’s part of a much broader picture. I fear that the UK will be the last nation to embrace Linux and standards, along with the United States. The rest of the world is transforming more quickly and it’ll give it a competitive advantage.

A respected Free software advocacy site has just created a petition calling the government to stand for the GPL.

Since software patents may threaten this fundamentally important freedom, we propose that software published under the GNU General Public Licence (version 3 and above) be given immunity from prosecution from patent infringement under the Copyright Designs and Patents Act.

A terrific and famous Brit, Jeremy Allison, has offered his positive reaction to GPLv3.

Forget software politics for a minute — what does the new Samba licensing mean for the version you’re actually running, and for the distribution that packages it for you? Samba maintainer Jeremy Allison explains.

It seems to be a transcript of audio that we cited the other day.

The good news is that Japan has just expressed its support for a truly open document format. From the announcement:

The OpenDocument Format Alliance (ODF Alliance), the leading organization advocating for openness and accessibility to government documents and information, today congratulated Japan for adopting a policy under which government ministries and agencies will solicit bids from software vendors whose products support internationally recognized open standards.

Previously, government agencies could ask bidders to submit bids based on whether their products offered functions comparable to particular software suites. With the new interoperability framework, which takes effect immediately, the government will give preference to procuring products that adhere to open standards, and which interoperate easily with other software.

The situation in the United States is not quite the same. However, You can still make a difference in Massachusetts. As you may recall, because we mentioned this the other day, South Africa is currently looking at the appropriateness of Microsoft’s OpenXML. You can help them decide. Just remember to be polite. You can use or re-use some strong and valid arguments.

As Bailey emphasised, the issue at stake is not one of fighting against Microsoft, but rather fighting for the rights of the user to be able to access documents without them becoming obsolete. Among those attendees were some other members of the committee and something of a strategy meeting developed, with ideas being shared as to how best to obtain community input. What emerged was that bombarding the SABS with petitions would not benefit the cause and would merely further irritate those involved.

As we recently pointed out, Microsoft has strong relationships in the United Kingdom and it is using them for lobbying. Fortunately, the bias of the BBC did not escape the attention (or wrath) of the FSF, which has just published a good rebuttal.

After Microsoft announced it would work with the UK National Archives to help open old digital document formats, Georg Greve and Joachim Jakobs, of the Free Software Foundation Europe, question the US giant’s motives.

[...]

What happened: Microsoft asked the UK National Archives to invest in a solution that would grant access to their legacy data.

This whole scenario emerged when the BBC and National Archives published what appeared like Microsoft promotion. I called it a “publicity stunt” at the time. It seems to promoted Microsoft’s OOXML lockin under disguise. I later addressed and delivered some criticisms and evidence to back my stance.

Not all hope is lost. There are some encouraging developments at the BBC. Yesterday the Register published an item which indicates that the BBC no longer ignores us. It is willing to explains its decision to enforce the regime of Microsoft DRM and negotiate ways to proceed.

The BBC Trust has asked to meet open source advocates to discuss their complaints over the corporation’s Windows-only on demand broadband TV service, iPlayer.

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Before the trust got in touch on Wednesday, OSC CEO Rick Timmis said: “Everything we’ve done in the trust’s direction has fallen on deaf ears. They’ve completely ignored us.”

Correction: previously, the title stated “Japan Chooses OpenDocument Format, FSF Challenges OOXML, and South Africa to Decide on Document Format”, but the situation in Japan isn’t so, yet. The title was thus corrected.

Update: I have just spotted something which looks rather ugly. It’s not truly a surprise because intent was announced some months ago.

On the face of it, Microsoft will have some ‘OOXML traps’ (or hooks) preinstalled on some consumer PCs. Think of it as a teaser, or what Microsoft called “craplets”. It puts Microsoft in a position of advantage that capitalises on an OEM chokehold (defended through retaliation tactics). Here is the gist:

Microsoft is shipping limited-use copies of Office 2007 with PCs in a try-before-you-buy scheme to seed the market with its latest suite and drive Windows server and client software sales.

Now, two observations are worth making here. Firstly, the trial version of Microsoft Office does not enable the user to save files in formats other than OOXML. Other options (save as/export) are greyed out. This essentially holds the user’s data hostage. The user data is captured in the universe of OOXML format. The second observation to make is that one of the most popular requests in Dell’s IdeaStorm is preinstallation of OpenOffice.org. Dell has so far refused to respond to this demand.

Global Graphics’ chief technology officer Martin Bailey has been appointed by standards development body Ecma International to chair a new technical committee that will work on producing a formal industry standard for the XML Paper Specification (XPS), the new print and document format introduced by Microsoft with Windows Vista….

Global Graphics has played a prominent role in the development and launch of the XPS specification from the very start. A recognized expert in interpreting, rendering and converting PDLs, Global Graphics’ leading edge expertise and engineering capability were factors in the Company being chosen by Microsoft in 2003 to provide consultation services on the XPS specification as well as develop a prototype and a print reference XPS RIP for Microsoft.

Now, can you see how approval is won at ECMA? There is not much of a chance of a proposal being rejected, is there? As we said yesterday, ISO seems to have lost its way as well. It is becoming a little assimilated to ECMA, which can be referred to as a Coin-in-the-Slot Standards Organization. Once again, Microsoft’s allies are in the committee, so there is little room for independent judgment. ECMA truly looks like a production line that passes on proposal s– however poor they may be — to the ISO, then boasting some ‘pseudo acceptance’ by an industry-for-industry consortium.

Andy Updegrove and Bob Sutor are among those who try to explain to high officials why poor Microsoft-centric standards must be rejected. You can assist resistance to OOXML adoption in MA.

Preparing such comments is time consuming, but it is also important. I took several hours to do so yesterday, and have just sent them to the ITD just now. You can to, and I hope that you will. The ITD’s comment address is standards@state.ma.us, and the deadline is next Friday. If you’re a believer in open standards, please don’t let that deadline pass without making your thoughts known.

More information can be found here. According to Newton (of Alfresco), Microsoft has just taken its battles to the United Kingdom as well. It continues its lobbying campaign with an XML du jour and a twisted definition of “open”.

With OOXML and XPS, Microsoft has chosen to not work with existing standards, but to create new ones, as they have in their recent announcement on Web3S instead of working with the rest of the industry on the Atom Publishing Protocol. In the case of OOXML, this is a logical move on Microsoft’s part, since it is an evolution of Microsoft’s XML strategy started with the Microsoft Office 2003 version and ODF will be a technology diversion from that strategy. With Microsoft controlling 90% of the office productivity tools market and OOXML being the default file format for Microsoft Office 2007, OOXML is likely to be widely-used.

The article suggests that the BBC article on digital preservation may have been nothing but a publicity stunt. There are some prior incidents where Microsoft did questionable things in the United Kingdom. It ‘faked’ support for OOXML and got slammed by the Open Source Consortium, with which I’m sort of affiliated.

The petition is an attempt to make it appear that Open XML has “pseudo-grassroots” support, argues Mark Taylor, the founder of the Open Source Consortium.

This action followed a very suspicious petition, set up by nobody but Microsoft. Keep your eyes open and see how these things develop. There’s little honesty in process.

The petition’s arguments, which are presented in the form of bulletpoints, cover some of the more obvious issues. Recall some of the — shall we say — corruption involved in getting OOXML as far as it has gone. Gross manipulation of standards body and legislation should not be tolerated, so please make yourself heard and stand up for free competition.

Thank you.

The pointer to this video came from Groklaw and the accompanying comment from Pamela Jones is worth adding: “You might find this of interest, a small piece of the discussion about California AB 1668, the ODF bill. It would appear that Bonnie Garcia is reading off of notes, and in any case she clearly and admittedly has no idea what ODF is or why it’s of value, neither of which hinders her from having a strong opinion, I noticed…”

This is not the first time that a technical discussion become a political one. Microsoft relies on sending its non-technical people to lobby for lockins. They can always pretend to be clueless (maybe because they are). This shifts focus and it’s no coincidence. It’s deliberate.

Last night I received notification of a response to the pro-ODF petition I had signed quite some time ago. Unsurprisingly, knowing how close the British government is to Microsoft, the government seems unmoved, if not altogether unconvinced.

To quote the text (again, unsurprisingly delivered from a Windows server):

The UK Government champions open standards and interoperability through its e Government Interoperability Framework (eGIF). Where possible the Government only uses products for interoperability that support open standards and specifications in all future IT developments.

Interoperability and open standards also support the sustainability of digital information beyond any single generation of technology. New techniques for digital preservation being developed by The National Archives require the periodic transformation of digital information to new formats as technology changes. Such transformations will be simplified by the adoption of open standards.

No single format provides a universal solution for all types of digital information, and The National Archives therefore actively monitors and evaluates a wide range of existing and emerging formats (including OpenDocument Format). A policy on digital preservation, which includes guidance on the selection of sustainable data formats based on open standards, is being formulated by The National Archives, and will help define the standards for desktop systems. The National Archives technical registry ‘PRONOM’ (new window) supports this through the provision of key information about the most widely-used formats.

IOW, nothing has changed. See last report on Microsoft’s systematic interception of such bills all across the United States.

In a resounding victory for Microsoft Corp., bills seeking to mandate the use of open document formats by government agencies have been defeated in five states, and only a much-watered-down version of such legislation was signed into law in a sixth state.

Remind yourselves how Microsoft positioned itself so conveniently. A lot more dirty tricks were involved. It’s rather breathtaking (just follow the link and watch a sample). If this is the company Novell partners with and defends, then what does it say about Novell?

I actually kinda feel bad about that, since we also have decided that we cannot dedicate enough time or effort to an entire boycottxandros.com website; it’s like in Heathers when Martha "Dumptruck" can’t even get attention by trying to commit suicide, which Xandros has essentially done. Kinda sad, really.

For those who have never heard of Xandros (which will be a lot of you), it’s a commercial distribution descended from Corel’s Linux system, funded by the same VCs that funded Ximian, and derived from Debian at one point, although I don’t know how much comes from there any longer. They’ve been around a long time, although for obvious reasons I can’t believe they are very successful.
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There’s not much to do about Xandros. They aren’t a big player, this isn’t going to make them into one. We should turn away from them as was the case with Novell, but it seems a bit silly since most of us didn’t even know they existed.

So, Boycott Xandros!

Wow, that was easy.

Whether it’s true or not, that’s just what this blogger appears to suggest.

What’s growing at SUSEroot

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I’m left feeling nonplussed. I guess I want to see some passion, you know? Why are you running SUSE?

Maybe Fedora’s fans are more forceful … maybe not. You sure can’t beat the Ubuntu people when it comes to pimping their OS.

GPLv3

This short article talks about the woesome effects of the ‘grandfather clause’, which leads to conflicts.

More ‘Funny Business’

Let’s begin with Bruce Perens, who points out that Dan Lyons is at it again. For those who do not know, Lyons is a Forbes journalist that has been often accused of shilling for Microsoft and SCO by attacking Richard Stallman and Groklaw, among other entities (it could be part of a larger scheme).

If you read Dan Lyon’s blog, 100% of it in recent time has been snippy comments directed to Groklaw and other Open Source entitities.

Speaking of Groklaw, another case of Microsoft lobbying (this time in California) gets reported.

Trouble in ‘Microsoft Land’

Morale seems to have declined in the Windows camp. Former Microsoft evangelist Robert Scoble switches to a Mac and Paul Thurrott says that Microsoft has abandoned Windows XP and will never deliver the promised-yet-forvever-postponed Service Pack 3. Adding insult to injury, another defence mechanism in Windows Vista gets shattered to pieces with a proof-of-concept hack.

Linux Advocates Act

Some members of the open source community have decided to do more than watch and wait. Bruce Perens, primary author of the GNU contract, has organized a petition urging Novell to recant the patent protection portion of the deal with Microsoft.

We the undersigned petition you to reconsider your decision of including binary drivers by default in the next Ubuntu release. We believe, as you do, that it should be as easy as possible for end users to enable extra functionality via closed software when necessary and if they so wish, but only after an explicit acknowledgement and only after being informed about the issues at stake and possible alternatives. Users can be given the option to install closed drivers/software during installation or soon after installation or when an application that may require such software is run for the first time. It is a small change, but one that will avoid dividing the community on an issue that many hold dear, without sacrificing ease of use and product appeal. We therefore encourage you to opt for easy-installation as opposed to pre-installation.

Realize, this is not an anti-bling stance, but rather a pro-GPL one. As I have stated before, I am all for 3-D desktops and wireless access, I use both, but it is an end-user decision to taint the kernel.

Let Feisty install with the open source drivers, then have a customization dialog on first boot (and also some config checkbox somewhere for later) that says there are more powerful, but proprietary, drivers available and the user can click “install now” to download and install (explaining why its not installed by default). Right next to it, put a button that sends an email to the detected hardware vendor complaining about this extra step. Then, vendors will see just how many customers it does affect and act; by Ubuntu doing it for the end user without interaction, there will be no market backlash or incentive to open up.

Maybe by the time Wacky Walloby (or whatever the next next Ubuntu will be) is being prepared, the vendors will have gotten the message and this will be irrelevant, but right now it is not the right move. Ubuntu is getting very popular, this is the time to use that install base to actively petition the hardware vendors to recognize their needs as a market, not cave-in to hardware vendors who are ignoring their customers.

Two weeks ago I wrote a letter protesting Novell’s patent agreement with Microsoft and made it available for other people to sign. I expected 200-300 signatures for this rather technical matter about patents and licensing, but there are 2700 signatures as I write this, and the number keeps increasing. Many of the signers attached notes directed at Novell, filled with emotion. Obviously, the Free Software community feels very strongly about this issue. But Free Software is not the only party represented. Many of the signers identify themselves as recent Novell VARs and institutional customers who will now turn to another Linux distribution.

If you haven’t read the letter, you should do so now, as the arguments in it still stand. Since I wrote the letter, Novell and others have raised some arguments of their own, most of which are faulty. I’ll deal with them here.

Bruce goes on to shed light on the differences between the Indemnification offered by Red Hat or HP and the Patent Protection provided now by Novell, “Companies that offer indemnification don’t have a business relationship with the aggressor, just as insurance companies don’t make a contract with the local burglars to deter them from robbing certain houses.” and points out that Richard M Stallman has not "absolved" anyone that he is aware of. The article also show that while Microsoft may not themselves become a "patent troll", they could engage in the behavior by proxy.

Head over to technocrat.net for the full write-up, and if you haven’t yet, please sign Bruce’s Open Letter.

Finally, some suggest that we should not shun Novell for their actions as this would hurt the SuSE Linux distribution. This led me to quip that SuSE is the “human shield” of Novell, like the hapless civilians who are herded around some war target. If SuSE is worthy of continued existence, it will continue as Open Source software with or without Novell. The vast majority of the authors of the software in the SuSE distribution do not work for Novell – indeed, I’m one of them. And of course there are several other Linux distributions of similar or higher quality.

Boycott Novell.

The covenant of the GPL is that in the face of a software patent aggressor we must all hang together, lest we all hang separately. Novell accepted that covenant when you chose to include the Linux kernel, the GNU C library, and hundreds of additional works created at no charge to Novell by individuals in the Free Software community and licensed under the GPL.

It is abundantly clear that Novell and Microsoft took the time to engineer a circuitous legal path of issuing covenants to each other’s customers, rather than licenses to each other, in order to circumvent Novell’s earlier agreement with the community of GPL software developers.

Bruce advises Novell to direct Microsoft to make any such covenants for everyone’s use, or not at all in the future. But, why not correct the current agreement, or cancel it? It is clear that there is much confusion about the significance of the deal, in the community, the corporate world, and even among the parties who signed it.

The solution is simple, as stated by Eben Moglen:

“Microsoft should take back the patent promise to Novell customers or extend the promise of patent safety to everyone, not just Novell customers,” he said.

Until Novell amends the deal and denounces its error, they must not be supported, as put so eloquently by Bruce: “In short, now that Novell has chosen not to hang together with the Free Software community, we’ve chosen not to do so with you.”

Go sign the petition, then spread the word: Boycott Novell.