decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books


Groklaw Gear

Click here to send an email to the editor of this weblog.

You won't find me on Facebook


Donate Paypal

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

Anderer's "Old Think" Tries to Justify A Dying Business Model
Friday, March 12 2004 @ 08:54 PM EST

Mike Anderer speaks at last, and I'm glad he has, because his justification is inspirational, to say the least. I understand now what the plan is, or was, because he spills the beans, and I also get it now why investors were willing to put up their stone cold hard cash to buy into this lawsuit.

Sadly for the lot of them, they put their money on the wrong pony.

His argument, boiled down to its essence is: Microsoft and/or its proxies will sue over and over and over until FOSS cries uncle, and all the largest open source software companies go out of business or are forced to cross license with Microsoft and their gang. That is what they want. The weapon of choice will be patents. Grab as close as possible to standards, patent, and then crush the opposition by licensing until the other side runs out of patents, leaving them vulnerable, at which point businesses, they hope, will say, I don't like being vulnerable. I'll use Windows instead.

What a lovely plan. 50 or more cynical, bogus lawsuits until FOSS is nothing but a hobby platform, like in the goode olde days.

So you can judge for yourself whether I have accurately understood his message here are some snips from his letter on Newsforge:

In a world where there are $500 million dollar patent infringement lawsuits imposed on OS companies (although this is not completely settled yet), how would somebody like Red Hat compete when 6 months ago they only had $80-$90 million in cash? At that point they could not even afford to settle a fraction of a single judgment without devastating their shareholders. I suspect Microsoft may have 50 or more of these lawsuits in the queue. All of them are not asking for hundreds of millions, but most would be large enough to ruin anything but the largest companies. Red Hat did recently raise several hundred million which certainly gives them more staying power. Ultimately, I do not think any company except a few of the largest companies can offer any reasonable insulation to their customers from these types of judgments. You would need a market cap of more than a couple billion to just survive in the OS space.

Since the GPL type license agreements push the liability to the users, who do you go after? I think this is a key problem. Nobody wants to be the ultimate guarantor for software that was free (or close to it). I think the dispute with SCO would have been settled a long time ago if everybody knew this was the last one. The problem is there will probably be hundreds or even thousands of these disputes in the future and the targets will be the companies with the deepest pockets. Even if the large vendors disclaim all responsibility initially, I do not think the customers will accept this from their vendors for very long. In the meantime, I don't see anybody being in a hurry to write the first big check.

"The world of software is changing. I think everybody sees that part on the product side, but the economic underpinnings are changing too. It used to be you included R&D and patent development costs into your license add your costs and a markup and you could make a living. We relied on cross-licensing, licensing, and innovation, and our ability to prevent other people from copying our work without permission. Now things are shifting, but I am not certain anybody has completely figured out this new model, and if you think it is just any one company that is concerned about this, you are wrong.

There is just one problem with the plan. Most of the brains are on the other side of the table, as you may have discerned from the leaked memo and this article, and all of the pure love for software is, hence the backbone to fight to win is with us. If this is the plan, we will simply meet it. I believe the answer is vendor-neutral insurance, together with the will to fight each case to the death, so to speak, until these parasites decide to go sue somebody else.

Their loathsome litigation business model, which includes using the courts as an aggressive competitive weapon, is a misuse of the legal system. It's a form of blackmail, a leftover artifact from the bubble days. It can only work for so long before everybody gets sick of it and them and changes the patent laws, in my opinion.

But in the meanwhile, let me ask you this: how's it going for SCO? Are they raking in the dough from anybody in any quantities? Without MS propping them up, where would they be today? Even with MS, how're they doing? As well as they expected? No? Not well? And why is that?

Because there are millions of people in this world who love GNU/Linux software and despise SCO's way of thinking and their business model and are willing to stand up and say no. We're willing to research and testify and produce evidence and leak memos and use our considerable talents, for no money and at considerable risk, I might add, to defeat this monstrously ugly attack. SCO can't buy this at any price. Not even Microsoft can buy it, with all their billions. It's not for sale.

So far, we're winning by a mile.

Go figure.

Talk about your David and Goliath.

And we'll keep on doing it until they give up. Happily, the other side has forgotten something important. Businesses can't kill FOSS. They can benefit by using it if they play by the rules. The GPL rules. But they can't kill it. It wasn't and isn't predominantly written by business. It's written by individuals who wrote it for fun, not profit, and for the creative challenge. There are no weapons against that kind of creativity, barring martial law. And even then, it sprouts up like grass, pushing up through the sidewalk's concrete, reaching for the sun.

Here's how Novell's Matt Asay, Director, Linux Business Office & Open Source Review Board, puts it:

Commercial software developers need not fear Linux and the GPL that governs it. Instead, such companies should embrace Linux as an exceptional development platform, one that is free as water (and much more stable). Commercial hardware vendors and services firms like IBM have figured out how to make money on Linux - you should, too.

This, quite frankly, is what Microsoft fears. Microsoft can beat up on a Novell, or a WordPerfect, or name-your-favorite-computer-company. Microsoft cannot, however, beat up on a global, faceless army of developers who 'hack' 24/7. Now, life is bad enough for Microsoft when Linux encroaches upon its platform space (the Windows OS family). Microsoft will lose the OS war. More interestingly, as commercial software developers wake up to their rights to leverage the Linux platform and other GPL code, no computing device will be a safe-haven for Microsoft, including the desktop.

It doesn't hurt to have IBM1 and Dell2 and Intel3 and Novell and maybe HP, on a good day, helping out. In a patent war between MS and IBM, IBM wins. They have more.4 Everybody has known for a long time that if you start a patent war, everybody loses. Patent law currently only works if everybody pretends it works.5 If every patent holder actually sued every time somebody used their patents, the entire system would collapse, because the simple truth is that there is no way for any company, including MS, to run a business without overlapping. Even the FTC has come out against the current patent system, because patents and software are not a good mix. It was a mistake. But it has given birth to cross-licensing, their business-model answer to the problem. Mr. Anderer's side has, it seems, come up with a plan to misuse that system to destroy FOSS.

Something, I am sure, will give on that battlefield. Businesses now face a real choice: do they side with Microsoft and prop up this bully and its dying business? Or do they decide to recognize that there is money to be made, ethically, by using free software to benefit themselves? Only Microsoft and its minions will choose the dark side, because no one else will benefit but Microsoft and its minions. They set the game up that way, and look at their history of how they treat their "friends", let alone their "enemies", and then make your choice.

Whatever business chooses, we don't care. If businesses are too foolish to adopt a better mousetrap, fine. We don't need business. We're happy to help them if they wish, but it's business that needs FOSS, not the other way around. And as you may have seen, the GPL is a potent weapon to keep interlopers out of FOSS software, if necessary.

That is exactly what has dying proprietary software companies so flummoxed. They can't play the game by the old rules. Well, as Alan Greenspan told a finance conference today, the working stiff has to be flexible and willing to change how he makes a living in this new world, maybe several times in a working life:

"Time and again throughout our history, we have discovered that attempting merely to preserve the comfortable features of the present, rather than reaching for new levels of prosperity, is a sure path to stagnation," he said.
He said it to justify outsourcing of jobs, the latest craze in business think. But if workers have to bend for the sake of the economy, so do businesses, like SCO and Microsoft. The world has changed, and MS and friends need to face it. The tombstone is already being written if they don't. If they think abusing the legal system will do anything but prolong their agony, they will find in the end that they are wrong.

And the thing about betting on the wrong pony is: you lose your money, not just the bet.

1 How can we move beyond traditional notions of R&D and intellectual property creation to nurture the intersections that lead to real innovation? Along those same lines, how do we measure innovation? A group of influential business and academic leaders (including IBM CEO Sam Palmisano) is committed to a broad-based national innovation initiative that will study critical aspects of this challenge and present concrete recommendations at a summit meeting later this year.

Are we ready to rethink how we protect and reward those who spend time and resources to create something new and better? Currently, a sizable percentage of patent application fees are diverted away from an overburdened U.S. Patent and Trademark Office. When you consider that the licensing of U.S. patents contributed more than $150 billion to our economy in 2001, proposed congressional legislation that would end this diversion of user-paid fees to other agencies is the right step. IBM and nearly 100 other companies and 28 associations are supporting it--even though this legislation will cost us money. -- "The fallacy about patents" February 4, 2004, by Nicholas Donofrio

2"What we try to do," (Dell CIO Randy)Mott says, "is to have an expectation that the technology issues will be resolved." Dell sells Linux-based systems and uses the open-source operating system in its IT architecture. "Linux is a good strategy, it's a good technology," Mott says, and companies shouldn't let intellectual-property issues get in the way of an effective IT strategy.

3 There is another friction issue which has to do with Intellectual property that we should talk a great deal about. And the trends here are not particularly favorable to our increased productivity. The number of software patents issued has skyrocketed in recent years. The number of patent software patents in the backlog according to the head of the patent office are expected to reach a million items. This leads to terribly increased litigation. Let me call your attention to this chart, which shows the actual judgments rendered in software Intelectual software cases over a 15 or so year period of time. So what you see is 5 million to four billion dollars change over the 15 year period of time. A large portion of the software talent and managerial talent in this country is associated with issues of this sort representing another element of friction. . . .When it comes to friction, raise the hurdle for litigation so that we don't get involved in a litigation wave and make the patent office more discriminating and more expeditious in evaluating filed cases. -- Andy Grove, Intel,

4 The above table tends to suggest a significantly negative correlation between the number of software patents granted to a company and its ability to bring innovative software products to market. Companies that form the backbone of the software industry: Microsoft, Adobe, Lotus, Novell, Borland, Oracle, and Sybase, have relatively few software patents, while companies that hardly have any market share: Hitachi, AT&T, Toshiba, Sharp, and Xerox, have many. . . .

IBM has a very strong software patent portfolio. It is oversized even in proportion to the size of IBM itself. This is a result of IBM's patenting every single trivial idea every employee ever comes up with, rather than having any great propensity to be truly innovative. IBM has never been considered synonymous with innovative software. IBM even has a patent, #5,247,661, on a software application to permit employees to automatically document ideas for later patenting. -- Negative Correlation of Innovation and Software Patents, Revised version of Appendix D of the League for Programming Freedom's submission to the Patent Office, January 25, 1994.

5Software patents are a major legal issue in the information society. "Copyright is currently the right way to protect software publishers against piracy. Copyright provides a simple and very efficient protection to the software economy" says Matthias Schlegel, CEO of Phaidros. "Copyright is the prefered protection of SMEs and independent software developers." "EuroLinux strongly supports copyright." adds Harmut Pilch, speaking for the EuroLinux Alliance.

On the other hand, software patents allow one company to monopolize an idea of software (ex. patent EP0800142 on the conversion of file names between DOS and Windows) or an idea of business on the Internet (ex. EP0756731 on generating buying incentives from the distribution of cooking recipes), thus prohibiting other companies to use the same idea, even when implemented differently. Because software is always based on a creative arrangement of a few innovative ideas and many common ideas, all European software publishers are infringing on hundred patents among the 50.000 software patents owned by IBM, Microsoft, Sun or Sony, etc. "Thus, instead of protecting software publishers, software patents create a tremendous juridical uncertainty and allow large IT companies to completely control the software economy, block innovation and block competition by prohibiting one software to be compatible with another," says Stéfane Fermigier, CEO of Nuxeo.

"Software patents allow large IT companies to steal the intellectual property of smaller players, both by taking control of their copyrighted creations and by forcing them to disclose and trade their most competitive ideas in return for being allowed to live," adds Jean-Paul Smets, CEO of Nexedi. -- Collusion Discovered between BSA and European Commission


Anderer's "Old Think" Tries to Justify A Dying Business Model | 651 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Baystar and RBC are holding the bag
Authored by: Anonymous on Friday, March 12 2004 @ 09:06 PM EST
[Saw this on Yahoo Finance and thought it was interesting]

It seems to me that Baystar and RBC are holding the bag and are slowly coming to that realization.

Back in October Lawrence Goldfarb did an interview with Forbes and said this: "We spent a lot of time calling around to potential licensees, and we believe SCO is going to sign enough companies to make this an interesting growth story."

They are now seeing that the company they gave their $50 million dollars to has produced $20,000 in Linux licenses. As far as growth stories go, this one stinks. So much for the "HOT TIP" from Microsoft.

I believe they were hoping for more MSFT and SUN like licenses. Somebody told them that was just the tip of the iceburg. Well now they are scratching their heads. Their options are either to try to get their cash back now or hope that SCO wins all its lawsuits and *then* starts collecting some real license fees. Hopeflly by now they had the chance to actually read up on many of the SCO cases and have listened to the disasterous quarterly meeting. And they may also be hearing from angry people whose money they are managing.

What would you do if you were them?

[ Reply to This | # ]

Anderer speaks
Authored by: _Arthur on Friday, March 12 2004 @ 09:08 PM EST
He wasn't supposed to disclose the Master Plan!

[ Reply to This | # ]

Updates and URLs here, please
Authored by: kbq on Friday, March 12 2004 @ 09:10 PM EST
Please put news and urls, updates, here so people can find them easily.

Thank you.

[ Reply to This | # ]

Anderer's "Old Think" Tries to Justify A Dying Business Model
Authored by: Anonymous on Friday, March 12 2004 @ 09:12 PM EST
wow wow wow....

I might be the first post here. I'm enjoying the fact he didn't say it was a

However, how enforcable is an NDA anyhow?

[ Reply to This | # ]

Anderer's "Old Think" Tries to Justify A Dying Business Model
Authored by: Anonymous on Friday, March 12 2004 @ 09:13 PM EST
The '50 or more lawsuits in the queue' refers to 50 or more lawsuits that
Microsoft is currently engaged in, mostly as the defendant.

[ Reply to This | # ]

Mistakes, Typos here
Authored by: kbq on Friday, March 12 2004 @ 09:13 PM EST
Please record mistakes for posterity here, so PJ can find them quickly.


[ Reply to This | # ]

Stallman Predicted It!
Authored by: Anonymous on Friday, March 12 2004 @ 09:25 PM EST

I don't have a URL... maybe someone more enterprising than me can find one... but I remember reading a quote by Richard Stallman back when all of this SCO business first got started wherein he said that in the scheme of things it (the whole SCO thing) was almost inconsequential. The real problem, he stated was software patents, and the future problems to which they would lead us.

[ Reply to This | # ]

Put me in, Coach. I'm ready to play.
Authored by: StLawrence on Friday, March 12 2004 @ 09:29 PM EST
I own a software company (most of it, anyhow, along with Friends & Family).

My company makes innovative software development tools. We try to make
money the old fashioned way, by creating bits that are of value and selling
them. We'll keep on struggling as we have since we began. But this
message from Mike Anderer about competition by litigation really makes me
mad. We can't open-source all our stuff, but I'm going to find some code we
can open-source and join the battle. And I'm going to work on finding a way
to make our tools available to open source software developers cheap or
maybe even for free. Up until now this has been a spectator sport for me, but
no more. I'm joining the battle.

[ Reply to This | # ]

Anderer's "Old Think" Tries to Justify A Dying Business Model
Authored by: LionKuntz on Friday, March 12 2004 @ 09:30 PM EST
It is my interpretation of anderer's line, that M$ has 50 lawsuits against it
pending in the queue, that are somehow similar to the EOLAS lawsuit on embedded
programs patent.

He seemed to me to be saying that few companies can survive such an onslaught of
lawsuits simultaneously.

I am not sticking up for his position. I am just stating that is how I read it.
Look at it again and see if that interpretation is not a reasonable reading
based on the context of surrounding other sentences.

I do believe he used the platform to give his speech of thinly veiled threats to
Linux users that SCO is coming to get them, and their butts will be sore when
SCO gets done kicking it -- "buy the insurance policy" he advises.

His biggest FUD is still part of the most successful FUD campaign going: the
fraud that SCO Unix has much copyrighted core to it.

I keep posting a link to informational websites supporting the demolishion of
that FUD, but it always gets tacked on the end of fatigue-producing 350-long
message queues where it is hardly seen.

I do wish that this gets more commentary -- if it is defective analysis, show me
why. If it is consistant with overall reality, we are missing doing the research
that can have the quickest results at the lowest lawyer cost, and end the
controversy long before next year's scheduled trial(s).

In that spirit I again post the link and summary:


* NO copyrights for computer programs, source code or machine readable
binary were copyrightable in the US before 1980.

* Before 1976, mandatory notices were required on all copyrighted materials
in standardized mandatory forms -- failure to adhere to the law regarding
mandatory notices on published works forfeited what copyright protection was

* Before 1976 copyright was not automatically conferred upon creating a
fixed tangible form -- copyright was limited to those works which complied with
the provisions of the prior law "The Copyright Act of 1909". Unix was
developed and distributed for seven years under this law.

* Distributing works, making one or more copies for sale, lease or loan,
constituted publication during the first seven years of Unix development.

* Since 1976, mandatory requirements for copyrighted works have required
deposit of copies with the Library of Congress within 3 months of first
publication. Unless Unix source code is in the Library of Congress it is not
copyrighted. Unless Unix System V is in the Library of Congress, it is in
violation of the 1976 revisions. Before 1976 "promptly" depositing
copies was mandatory, defined in caselaw as within one year of first

* Unix System V is a collection of modules, mostly public domain through
copyright forfeiture between 1969 and 1976.

* It is defined as fraud under the 1909 Copyright Act [§ 105] "shall
insert or impress any notice of copyright required by this title, or words of
the same purport, in or upon any uncopyrighted article" to post-fix
copyright notices upon works not qualifying for copyright.

* None of the 1976, 1980, or 1989 adjustments to Copyright laws and the
Berne Treaty permitted retroactive copyrights to previously forfeiting or public
domain works.

* Unix System V is basically public domain in the catagory of a compilation
or anthology. Only new material added after 1976, or after 1980 (when computer
programs first became copyrightable) could possibly qualify for copyright
status, and only those collections which complied with mandatory deposit with
the Library of Congress. Everything else is not in compliance with copyright
laws and treaties.

[ Reply to This | # ]

Anderer's "Old Think" Tries to Justify A Dying Business Model
Authored by: Trepalium on Friday, March 12 2004 @ 09:30 PM EST
Novell's 'free as water' analogy is interesting, and perhaps very apt. On one hand it sustains us all, and allows all the living things on this planet to continue to live. On the other hand, it has tremendous destructive potential. It can carve out huge valleys in solid rock, destroy structures and buildings in little time, and the presence or absence of it can drastically change the surrounding area.

The destructive power of Free and Open Source is not inconceivable. Look at SCO, for example. It has pretty much killed Unixware and OpenServer. A better product for less, what's not to like for the customer. It has altered IBM in many interesting ways. Many businesses have been grown on the software, and others have been swept away.

On the other hand, how many people have come to rely on Linux, Apache, sendmail, bind and other Free and Open Source packages? The presence of the BSD TCP/IP stack bootstraped TCP/IP availability in computers of any OS. BIND is the most common DNS server software out there. What would the internet look like without these? Would it even exist?

You can't spell SCOUNDREL without SCO.

[ Reply to This | # ]

Anderer's "Old Think" Tries to Justify A Dying Business Model
Authored by: Anonymous on Friday, March 12 2004 @ 09:32 PM EST
The one thing Anderer doesn't seem to get is that, even though SCO has been spreading FUD to the effect that they will sue linux endusers, none of their lawsuits are against companies just because those companies are using linux; it's because those companies had a contract previously with SCO. Companies who had no dealings with SCO will not be intimidated at all, unless they buy into the FUD, which will be unfortunate.

I wish there was a law against falsely making claims ... Oh wait, there is. I think it's rather strange that you can't go after SCO because of what they are making people perceive from their message.

[ Reply to This | # ]

Bravo, PJ!
Authored by: Anonymous on Friday, March 12 2004 @ 09:32 PM EST

Bravo, PJ! Once again you have done us all proud with this article. I nominate this one for the Groklaw Top Ten (or Hall of Fame -- in Slashdot style). I really think that you were born to write about this stuff. Who else can bring it all together in such a clear manner. Very few people. Keep up the good work.

[ Reply to This | # ]

In other words
Authored by: _Arthur on Friday, March 12 2004 @ 09:33 PM EST
Resistance is Futile: YOU WILL BE ASSIMILATED

[ Reply to This | # ]

Authored by: Anonymous on Friday, March 12 2004 @ 09:41 PM EST
Anderer is saying that Microsoft may have 50 lawsuits AGAINST IT in the queue,
each potentially for 500 million (like the Eolas suit.) By his logic, only a
large, well-funded company can defend itself against lawsuits like Microsoft vs.

[ Reply to This | # ]

One thing that caught my eye...
Authored by: Jude on Friday, March 12 2004 @ 09:41 PM EST
Anderer said:

I think one real issue, that people are skirting, is who will be the ultimate guarantor of IP-related issues in a world that is governed by the GPL and GPL-like licenses.

What exactly is he getting at here? Is he saying that everything on the planet
has to have a little tag on it saying who gets the blame in the event of an "IP"
dispute? If, for example, my refrigerator lacks such a tag, is he saying I can be
sued if it infringes somebody's patents?

[ Reply to This | # ]

Anderer's "Old Think" Tries to Justify A Dying Business Model
Authored by: Anonymous on Friday, March 12 2004 @ 09:42 PM EST
What may be a serious problem in the US, may well represtent an economic
oppurtunity elsewhere in the world since much of the world does not appear to be
prepared to follow the lead of the USPTO in the easy grant of software patents.

I would think that this issue should be analysed more in terms of the effect on
the competiteveness of the US economy, if it hobbles US business in the adoption
of GNUed software whose adoption elsewhere in the world is not restrained by
software patents that are effective only in the US.

The US will probably not succeed in getting the rest of the major economies in
the world to adopt the US position in the area of SW patents because, as I think
is obvious, the patenting practices of the USPTO in the software area result in
too great an economic cost to the economy in general to justify the
encouragement to inventiveness and the resulting economic benefits such
practices are intended to enhance. In too many cases, software innovations are
not sufficiently difficult or unique to justify the economic cost of the patent
that is awardable for them in the US.

In the end, rather than suffer the continuing degradation of the competitveness
of its economy relative to the rest of the world, the US will have to back down.
The question is when and how much damage will have been done to the US economy
before the realization of this is clear (or through lobbying is made clear)
enough to stir appropriate action on the part of US politicians.

[ Reply to This | # ]

Uhh, who will MS get to be the next...
Authored by: Anonymous on Friday, March 12 2004 @ 09:44 PM EST
...Baystar funding the next SCO?

Who will be able to pitch this great idea that funding company X to "sue
GNU" will make them millions, after watching the SCO death spiral?

Who's going to be the next to claim they "own UNIX?"

I mean, isn't SCO pretty much their best shot?

MS can't touch Linux directly, They'd be back in front of the Honorable Judge
Kotelly in two shakes of a lambs tail.

[ Reply to This | # ]

Anderer's "Old Think" Tries to Justify A Dying Business Model
Authored by: Anonymous on Friday, March 12 2004 @ 09:45 PM EST
In light of this, how do you think this will effect M$ in the eyes of the legal
system that has found them guilty of their monopoly sins?

It seems like someone just opened the bag and the stench is starting to permiate
the room. How long before SCO starts pointing the finger saying "It's not

[ Reply to This | # ]

Patents- the great battle of our time
Authored by: Anonymous on Friday, March 12 2004 @ 09:47 PM EST

At that point they could not even afford to settle a fraction of a single judgment without devastating their shareholders. I suspect Microsoft may have 50 or more of these lawsuits in the queue.

So they mean to sue us out of existence, then. Well then, MS, SCO, Mr. Anderer,

Bring it OOOONNN!!

[ Reply to This | # ]

PB&J . .. ... ..... ....... troll (heh heh)
Authored by: Anonymous on Friday, March 12 2004 @ 09:50 PM EST
I remember that a few years ago when I took my first C++ course I wrote some
code on how to make a peanut butter and jelly sandwich. So I'm warning you all
now that if I see any one eating or making a PB&j sandwich I may take you to
court. Unless, you pay me $699 for a PB&J Source License in which case you
then may eat as many PB&J sandwiches as you wish. Also, note that the
license is not transferrable so don't even think about sending your kids to
school with a PB&J sandwich without their own license.

from under the bridge

I realize I'm only the hired help here but I don't do Windows.

[ Reply to This | # ]

Anderer's "Old Think"
Authored by: Glenn on Friday, March 12 2004 @ 09:51 PM EST
Includes the FUD that GPL'd software puts the onus on the end user for any
copyright violations. He evidently has not read any of Eben Moglen's articles on
this. He didn't even give the obligatory IANAL disclaimer.
I think that we should line up to support Dan Ravicher and his Public Patent
Foundation as we have supported Groklaw. This may be our best method of fighting
against the many ridiculous software patents.


[ Reply to This | # ]

It IS as Patent War!
Authored by: fmckee on Friday, March 12 2004 @ 09:52 PM EST
Eben Moglen has been saying that the more troubling attack on FOSS will be in
the form of patents. The first impression I had after reading the NF/Anderer
article was this whole thing *is* about patents.

Mr Anderer is part of the problem, not the solution.

MS has been fortressing itself on the patent side with the not-so-recent new
hire in patent litigation. Does anyone think MS won't go on the offensive?
Even if a MAD-style patent war would destroy them? I think they will and if
Mono ever becomes a significant development platform, I suspect that will be a
high-value target.

Fortunately, IBM is currently on our side. They, and the rag-tag non-paid army
of Groklaw/Yahoo members are now battle hardended -- no thanks to SCO.

Bring it on!

[ Reply to This | # ]

Anderer's "Old Think" Tries to Justify A Dying Business Model
Authored by: crs17 on Friday, March 12 2004 @ 10:05 PM EST

I'm fascinated by language and am amazed how well Anderer manages to use English to cover up what he's trying to say. He has a brilliant capability to speak as a lawyer - to say something that seems to imply what he wants to say and seems to have a fig leaf of truth covering it. To wit:

I helped build the channels for most of the products that corporate America is currently using and some they will be using soon.

What in the world does "channels" mean here? He's trying to claim that he's been important, but he doesn't give us more than a hint of anything he might have done.

In several cases, I am finally finding or developing ways to solve problems I have been working on for the last 20 years

I imagine one of those problems is how to make money for himself and his cohorts off of Gnu/linux without adding any value to it. Again, I can speculate wildly because he's given no solid information.

Many thousands of licenses have been sold to Unix over the years. I cannot think of any major hardware or software company or even university that does not have a license directly or indirectly."

Okay, there are Unix licenses out there. What does this have to do with anything? And licenses are sold _for_ Unix, not _to_ Unix. Saying "to" gives a sense of singularity to the vendors of Unix that they haven't had since the first years of AT&T Unix.

If you see the world moving forward as a (GNU/Linux/BSD/Unix)/Windows world ...If you consider this licensing an indirect financing of SCO, then everybody (or at least the thousands of licensees) is responsible at some level.

NO! The thousands of _paid_ licenses are for various Unixes, NOT linux. And except for SCOsource licenses (all 5 of them) and licenses for UnixWare or whatever the SCO products were, the thousands of Unix licenses out there have nothing to do with financing SCO, because all of the Unix vendors have perpetuity licenses issued by AT&T long ago.

This is all doublespeak, designed to obliterate the differences between "(GNU/Linux/BSD/Unix)". Gnu is not Unix! Neither is linux. (Is that Linux Is Not UniX? (-: )

[ Reply to This | # ]

Anderer's "Old Think" Tries to Justify A Dying Business Model
Authored by: Anonymous on Friday, March 12 2004 @ 10:05 PM EST
One of the posts on NewsForge suggested that Anderer might be the mastermind
behind the whole IP war started by SCO. The only problem with this argument is
that SCO hired S2 in July 2003, but SCO supposedly started looking for Linux
infringement as far back as December 2002 or even as early as September 2002 as
I read somewhere once. I think McBride may have already been planning a
litigious parasite strategy before he became CEO.

[ Reply to This | # ]

A settlement was the plan all along
Authored by: CyberCFO on Friday, March 12 2004 @ 10:08 PM EST
I think one real issue, that people are skirting, is who will be the ultimate guarantor of IP-related issues in a world that is governed by the GPL and GPL-like licenses. I could easily see IBM, HP, Sun, and many of the other large hardware players solving this problem tomorrow by settling the dispute with SCO and maybe even taking the entire code base and donating it into the public domain. I know this is what I originally thought would happen, at least the settlement part. I am not certain what people who paid tens of millions for licenses would say if what they paid for was now free, but that is a different issue.

So here is admission that the plan all along was to get a settlement out of IBM. Oh dear, then what have they gotten themselves into, and how will they get out of it now.

At this point, I think the people at SCOX really don't know what to do, and they are so far down the path that they cannot go back and survive, so they plod on, sounding more and more ridiculous with every utterance, trying to believe what they say themselves.

Since the GPL type license agreements push the liability to the users, who do you go after?

And here we are again, stating something as if it were true over and over again, until eventually (hopefully) everyone involved in the conversation operates as if it were. Well it is not, and no amount of repeating it will make it so.

[ Reply to This | # ]

A Catalyst
Authored by: MajorDisaster on Friday, March 12 2004 @ 10:08 PM EST
So things have not happened the way they were supposed too, huh. The SCO vs IBM
has turned in to SCO vs "The Known Universe" for all practical
purposes. Not only a few surprises for the SCO-M$ crowd, what about the rest of
us? and what about IBM? If you had told them May 2003 that their greatest ally
would be a paralegal that was an avid GNU/Linux fan they would have called
security. :-) Not on the payroll but how many toasts have been made to Groklaw
at the local IBM watering hole?
Before reading Mr. Anderer's article on Newsforge and Groklaw I had just
finished reading the LinuxPro's interview with PJ. And after a week where things
appear to have begun to come apart at the seams for SCO. I feel that it is
really amazing how this challenge to FOSS and this website have tranformed the
way we think about GNU/Linux.
I first loaded Slackware on a box in '96 and have never seen the broader
"linux community" come together like this. Sure there are the geek
circles and such, but this has brought together a group much more diverse than I
have ever seen.
What a wonderful surprise. And what a kick in the head for SCO and M$...
They never saw THIS coming....

[ Reply to This | # ]

Anderer Indemnified SCOG
Authored by: moogy on Friday, March 12 2004 @ 10:10 PM EST

Anderer has reason to fear as he indemnified SCOG on
any and all losses 'in connection with the performance
of Services'

See: '7.0 INDEMNIFICATION' of Anderer/scog Contract

Iam wondering again about the Microsoft license and whether
that was really a license or a funding scheme disguised as
a license. Didn't Anderer/S2 get some kind of 'placement
fee' for that?

As they say 'we all hang together or we all hang seperately

Mike Tuxford - #Groklaw
First they ignore you, then they laugh at you,
then they fight you, then you win. --Gandhi

[ Reply to This | # ]

So much for The Wealth of Nations
Authored by: droth on Friday, March 12 2004 @ 10:21 PM EST
To quote a friend of mine, this man is garbage wrapped in skin. He appears to be perfectly comfortable with the idea of using the legal system as a preferred means of exerting leverage against business competitors. This is so foreign to my way of thinking, I can't really describe my revulsion. There was an idea once that businesses would compete in the marketplace, and that the market would choose the winners. That sounded like a good idea to a lot of people. But I don't think we've got any place on Earth right now where that can actually happen. In the USA at least, we've got a legal system that permits exploitation - c.f. The SCO Group. Their suit against Daimler-Crysler is a complete fishing expedition, and they admitted as much in their conference call. And Mike Anderer and his ilk are here to help promote that kind of business. They are in the business of playing the percentages in the courtroom, not actually building anything or providing any utility for an end-user. These people are leeches.

[ Reply to This | # ]

Patent WAR with IBM
Authored by: Anonymous on Friday, March 12 2004 @ 10:28 PM EST
I don't think Microsoft's would be dumb enough to
enter in a Patent war with IBM.

Thinking about that, maybe all this SCO stuff is just a
test, to check if IBM is suficiently commited to Linux
and see how far would they go to protect Linux.

On the other side, it would be nice to start a legal fund
just to contest every of the Microsofts patents,
searching for prior art, etc. even on patents that don't
relate in any way with open source projects.

[ Reply to This | # ]

Anderer's "Old Think" Tries to Justify A Dying Business Model
Authored by: Anonymous on Friday, March 12 2004 @ 10:28 PM EST

``...the working stiff has to be flexible and willing to change how he makes a living in this new world, maybe several times in a working life:

"'Time and again throughout our history, we have discovered that attempting merely to preserve the comfortable features of the present, rather than reaching for new levels of prosperity, is a sure path to stagnation,' he said."

He said it to justify outsourcing of jobs, the latest craze in business think. But if workers have to bend for the sake of the economy, so do businesses, like SCO and Microsoft. The world has changed, and MS and friends need to face it. The tombstone is already being written if they don't. If they think abusing the legal system will do anything but prolong their agony, they will find in the end that they are wrong.

Doggone it, PJ, that was excellent! I have been thinking this is what's happening for a number of years now as I've listened to large proprietary software vendors rail against FOSS. And now even Alan Greenspan may be coming around.

Though some folks don't think much of it, some of these ideas seem to be what ran through the Cluetrain Manifesto. Microsoft, and companies like them, are still of the mindset that they are the font of all knowledge, spoon feeding the masses their latest products, and you'll like it, dammit, else there must be something wrong with you. (Plain old-fashioned arroganceseems to take root in a corporate management once the corporation reaches a certain size, wealth, market-share, etc.) FOSS turns that on it's head. The customer may, and usually does, know what's best for them and when the megacorporations don't give them what they want, they're not just going to sit there and accept it.

If accepting change is good enough for us plain folks, it's good enough for corporations, too. They do, after all, believe they have the same, if not more, rights than real people (though only through a court clerk's artistic license). It's only right that the corporations go through the same trials as regular people.

[ Reply to This | # ]

Authored by: Anonymous on Friday, March 12 2004 @ 10:45 PM EST
My skepticism went into overdrive when I read Anderer's comments.

He says to be saying: everybody settle with SCO or the apocalyse is coming!

This adds to my impression that SCO and their BayStar pals are adding fuel to
the Microsoft fire every chance they get.

Now the question in my mind - is wouldn't Darl and Ralph and so on want this to
be the impression. "Gee, you guys better settle, we've a ton of money
behind us this idiot campaign."

Regarding SCO, and I don't really have any evidence either way - but it seems to
me, more likely that MS would be more likely involved in deliberate mischief
making by exploiting the situation, rather than the initiator.

The thing that reeks of disassembling is the stock angle. The stock angle dates
back to mid-2002, and from mid-2002 till about March-May 2003, the thing looked
more like one of the usual Canopy attempts to get some money out of some
contractual partner (IBM), and make money from stock trading (10b5-1s etc.)

[ Reply to This | # ]

Settlement via buyout?
Authored by: Khym Chanur on Friday, March 12 2004 @ 10:46 PM EST
I could easily see IBM, HP, Sun, and many of the other large hardware players solving this problem tomorrow by settling the dispute with SCO and maybe even taking the entire code base and donating it into the public domain. I know this is what I originally thought would happen, at least the settlement part.

So, is he saying that he thought that IBM would buy SCO and then put SysV into the public domain? Or that IBM would pay off SCO, then release Linux into the public domain?

[ Reply to This | # ]

Anderer story - can't be true
Authored by: Anonymous on Friday, March 12 2004 @ 10:54 PM EST
According to him, this is about an attack by MS on Open Source.

According to him, this is the start of a patent attack.


- Why are there no patents involved?

- Why is the "strongest" form of IP that are involved, are
non-existant trade secrets (as SCO themselves have admitted), and the laughable
theory that SCO controls all of IBM's own code?


The version in his story can't be the truth, whole truth, or nothing but the

There is something very wrong with his story.

[ Reply to This | # ]

Anderer: GPL makes *users* liable?
Authored by: glimes on Friday, March 12 2004 @ 10:54 PM EST
Last night, I went to bed quite worried that perhaps something untoward had happened to Mr. Anderer; and it is with significant relief that I see he is still out there.

But one phrase in his writing jumped out at me. He asserts, "... the GPL type license agreements push the liability to the users ..."

Is this true? Have I missed something fundamental? If the GPL really does shift liability to the end user then I have definitely misunderstood the license. Can someone inform me on what liabilities an end user might have under the GPL? Or is Anderer defining users with the assumption that all use of GPL software involves modifying it and distributing the results?

Greg "Dammit Jim, I'm a Programmer, not a Lawyer" Limes

[ Reply to This | # ]

I'm not worried about him
Authored by: Anonymous on Friday, March 12 2004 @ 11:01 PM EST
Anderner is a parasite. The Kato Kaelin of technology. And, like a good leech,
he found a leaf to hide under when the heat's on. Here is living proof that
money and value are two different things. He all but admitted they set this up
as an IBM buy-out scheme.

And I'm not worried about winning this fight. What I'm more worried about is
what happens after, when the open source floodgates open and it goes from the
fringe to hip and cool.

I am a little worried success may be a more difficult challenge for OSS than a
has-been little company in Utah or MSFT.

[ Reply to This | # ]

Speaking of Greenspan...
Authored by: Anonymous on Friday, March 12 2004 @ 11:02 PM EST
Some folks here might be interested in this speech that he gave last month regarding intellectual property rights.

As usual with Greenspan, he raises far more questions than he answers. He seems to assume as a starting point that protection of IP is a good thing, but he seems open to the idea that protection for IP should get weaker, not stronger, if the US economy is to keep growing.

It'll be interesting to see if anyone else in Washington is influenced by this speech -- and how.

[ Reply to This | # ]

OT - analysis of SCO's amended counterclaims vs IBM
Authored by: gdeinsta on Friday, March 12 2004 @ 11:03 PM EST

Just my reactions to the first 44 paragraphs of the SCO amended counterclaims vs IBM.

11. Denies - that TSG "acquired Original SCO's rights to Unix in 2001"? What's that about? [No, your honor, we don't have any rights to the software. We're just here to waste your time. Nice courtroom. Decorate it yourself?]

15. Actually uses the phrase "Original SCO". Wow.

27. Denies that "SCO itself supported [the GPL] as a Linux company for many years". [All a misunderstanding.]

29. Denies that Caldera, Inc. was founded in 1994. Denies that Caldera was founded "to develop Linux-based business solutions". [Company history on the website? Tosh.]

30. Denies that "SCO began its business as a developer and distributor of the Linux operating system". Denies that "By 2001, according to SCO, it led the world's largest Linux channel with more than 15,000 resellers worldwide". [Your honor, we never officially said that, it was a rogue CEO, errr, marketer.]

31. Denies that "According to SCO, it was one of the first companies to tailor Linux open-source code from various sources into sound discrete products". [Rogue marketer again. Really.]

32. Denies that "SCO has continued to make Linux source code available for download through its website". [Your honor, that wasn't us, it was those Linux hackers, they put a virus into our firewall or something.]

33. Flatly denies that "The viability of SCO's product offerings has depended in large measure upon the efforts of the open-source community in enhancing products and making them compatible for use across multiple software and hardware platforms. Indeed, SCO incorporated certain code licensed pursuant to the GPL into its proprietary Unix products. SCO has also relied on independent developers in the open-source community, such as Linus Torvalds, in order to release upgrades of SCO's Linux-based products". [I could have made up a better system anytime. With my eyes closed. Look, my eyes are closed right now.]

34. Denies that "SCO facilitated the adoption of Linux". Denies that UnitedLinux was "an initiative to streamline Linux development and certification around a global, uniform distribution of Linux for business". [Sorry, can't hear you, my eyes are closed.]

36. Denies that "According to SCO, it fully embraced the open-source model". [That wasn't my press release. IBM forged it.]

37. Denies something but I'm not sure what - possibly that they currently have products that are released under open-source licenses.

38. Denies that "SCO's collection of trademarks constitutes its most important intellectual property". [Your honor, I am insulted!]

39. Admits Linux-related activity but denies all details. [Oooh, he can't prove I done it!]

40. Denies that SCO gained any business benefits from contributing to open-source probjects. [Naah - I just felt sorry for the poor buggers.]

41. Flatly denies that "SCO also fostered and supported the development of additional open-source and Linux enhancements through the Open Source Development Lab and through participation as a key member of many industry standard and open-source initiatives". [Wasn't me, mate.]

42. Calls IBM a big cheater for not telling SCO about its plans to invest in Linux during Monterey. [Come on! You can't expect me to read the newspapers!]

44. Denies that IBM's contributions and those of other companies were proper or legal. Denies that "SCO has included IBM contributions to Linux in Linux products that SCO has distributed under the GPL". Denies that recipients of SCO's distributions are "entitled to the protections of the GPL with respect to... contributions, included in SCO's Linux distributions". [They stole it all from me! I'm entitled to steal it from them!]

[ Reply to This | # ]

It must be something in the water
Authored by: snorpus on Friday, March 12 2004 @ 11:08 PM EST
I'm sure IBM, Red Hat, Novell, etc., all have advisors, consultants, investment bankers, and so forth involved in these cases. Yet have you ever seen more than a brief, mostly non-committal comment from any of them?

Just as Darl can't seem to pass up an open microphone, it takes just a week or so to flush Mr. Anderer into the public eye, and, after trying to impress us with a rather vague personal history, he essentially "spills the beans" on how MS and SCO intend to counter the threat that FOSS presents to them.

Business Models based upon scarcity only work so long as the good in question remains scarce. Railroads prospered in the late 1800s - early 1900s because there were no efficient competing alternatives. As highways were developed in the mid 20th Century (aided by government sponsorship), the railroad industry went into decline. (I'll admit the previous is somewhat simplistic.)

Arguably, the same pattern has occurred in communications, fuel (coal, oil), telecomm services, etc. High prices while the product is scarce, and lower prices as the product becomes a commodity.

Historically, a "business model" has had a lifetime measured in decades or perhaps centuries: feudal Europe, colonial US, the plantation south, the appalachian coal and lumber era. Today, however, business models can be birthed, grow, and die within a single decade (e.g., the dot-com era).

Just as we all have personal life cycle, so too do corporations and business models. USSteel, Westinghouse, the Pennsylvania Railroad, Standard Oil... are all shells of their former selves, if they even exist. General Electric is nothing like it was 100 years ago, or even 30 years ago. IBM used to be the epitome of proprietary software, now it's the champion of FOSS to many.

Another example that just occurred to me... the western half of the United States would not have been populated if water rights had remained proprietary.

73/88 de KQ3T ---
Montani Semper Liberi

[ Reply to This | # ]

Cross Licensing is NOT a Defense!
Authored by: Xenographic on Friday, March 12 2004 @ 11:11 PM EST
Okay, I'm not a lawyer, much less one who specializes in patents. I am,
however, a mathematician who has done some game theory.

Basically, ALL companies are vulnerable to something I have dubbed an "IP
Vampire." Whereas other businesses have products, which make them
vulnerable to counter-suits over patents, an "IP Vampire" has no
products. It has nothing but patents, lawyers, and enough capital to sue. It
is NOT vulnerable to counter-suits, so they have only to weigh their case:
license the patent, or settle. Either of these costs the business they sink
their teeth into. Even defending themselves successfully costs them money.
It's a no win situation for the business they bite. Enough of them can drain
any company. Anyone who sponsors them is short-sighted. As long as it is
legal, the competition can do this just as well as they can. For a monopoly to
do this, one might think it could raise anti-trust issues, but I suspect a
lawyer would have to make that arguement, and I am not one.

Microsoft is every bit as vulnerable to these as the next company. It nearly
got hit for 500M thanks to Eolas. They should be glad that that patent did not
have so much prior art. They cannot win them all.

If this is legal, everyone who can do this will. At some point, they will have
to sponsor such suits just to stay alive (or to try to). If it's not legal,
game over. I hope that someone can eventually find a way to straighten much of
this out. Personally, I would end software patents for starters... software is
just mathematics, and anyone who says otherwise is spouting nonsense. I do not
agree that mathematics should ever be patented. We know that it is not
necessary to drive mathematical innovation, after all. Ask Euclid and company.
I can only wonder how much mathematical progress would have been lost if all the
works of antiquity could not have been preserved... we had all too few copies of
the great mathematical works to learn from for too long, after all...

But I digress. The principle behind an "IP Vampire" is simple.
Defending against them is futile. I suspect that Microsoft is thus banking on
the only principle of that game to their advantage--whoever has the most money,
especially if they move first, wins.

But that would eliminate all competition. If our anti-trust regulators are that
asleep at the switch, well... something will have to be done... I know all to
well that if you don't like the rules, you have to change the game. I know a
few other games to play. I would rather not play any of them, however. It is
like the movie "WarGames" -- the only way to win is not to play.

In the mean time, I think that publicity will probably suffice. The more people
who know why they do not want to do business with Microsoft, or anyone else who
promulgates these insidious "IP Vampires" the better...

[ Reply to This | # ]

If a patent war breaks out...
Authored by: wvhillbilly on Friday, March 12 2004 @ 11:14 PM EST
here's what I see happening.
One of the big problems with software patents is some of them are so broad
they're almost the equivalent of patenting the automobile. And there are so
many of them it's virtually impossible to keep up with them, and it's almost
impossible to write anything software wise without infringing *somebody's*
patent. According to an article on the Knoppix website,in Europe alone where
software patents are currently banned there are some 30,000 software patents and
a whole army of patent attorneys ready to unleash them if and when they are
legalized. <alarmist view> Now here's what I see happening if a patent war
breaks out: The software industry will bankrupt itself with lawsuits, and only
the patent attorneys will benefit. Then all the patent attorneys will go broke
because there will be no one left to sue. </alarmist view>

Seriously, though, even if no patent war erupts, one of the biggest problems is
developers have to waste time and money trying to cover their backsides from
infringing somebody's patents instead of spending the time innovating, or risk
being sued into oblivion by some parasitic IP company or some hotshot patent
attorney out to make a fast buck. I agree with those who would like to see all
software patents done away with. There is just too much room for abuse.

IANAL, IANAProgrammer. Just my opinion.

What goes around comes around, and it grows as it goes.

[ Reply to This | # ]

S/W Patents & Other Countries
Authored by: stevem on Friday, March 12 2004 @ 11:18 PM EST
I suspect Mr Anderer may not have quite thought thru the whole idea of chasing
down patent infringers.

This is not just a USA issue, this is a global issue. Look at how hard it is for
the RIAA to stop file trading. Look at the dirty tricks campaign Microsoft is
conducting by country shopping to block Lindows(tm).

Winning Patent violation for 1234 in the USA doesn't imply winning the same
patent violations on a global scale. IMHO FOSS development will simply shift to
the country that protects it. Much like OpenSSH is/was predominately developed
in Canada.

I seriously doubt that Microsoft, IBM and Intel combined have the wealth and
resources to enforce every single patent violation on such a massive and global
scale that Mr Anderer is implying would happen.

Further, as in the current blacklash seen in Western countries with the current
shift of programming and the like to poorer countries; the backlash against the
USA itself for being seen to make such an imperialistic move (against
"ideas") would be, IMHO, on a scale like nothing seen before.
It would easily be seen and used by local political interests as a very strong
protectionist stand. And would in all probability be highly successful.

I have no doubt that those engaging in such moves would make a great deal of
wealth in the short term. I also have no doubt that the damage to the USA as a
whole would be huge in the longer term.

How long would it take for Country XYZ to realise that they could effectively
gain a monopoly on FOSS programming talent by not allowing S/W patents and
refusing to enfore USA ones??? This is the scenario that Mr Anderer's grand plan
could lead to.

As others have mentioned, and one beautiful deconstruction of his newspeak, his
letter is little more than FUD fuel for the fire. The Plan does NOT survive in
the cold hard light of reality.


[ Reply to This | # ]

Open Source can learn to live with patents
Authored by: mikeca on Friday, March 12 2004 @ 11:25 PM EST
I worked for 12 years at a small semi-conductor company, although I was in CAD
software development. Patents are a fact of life in the semi-conductor business.
A small semi-conductor company will get sued by all the big boys, IBM, AT&T,
Intel, TI, Motorola, Philips, … Usually, they are just after a small percentage
of your revenue, but one large semi-conductor company, who I will not name,
tried to use its patents to put the company I worked for out of business. In the
end they failed, but it took many years of litigation. As a result of this
company’s extreme interest in having its own patent portfolio, I am the author
or co-author of about 10, mostly software, patents.

From talking with many patent lawyers at that time (10 years ago), they all
thought software patents were of questionable value, because very few of them
had ever been litigated. IBM and AT&T had big portfolios of software patents
from the 60s and 70s, but they never sued anyone over them. Their patent
enforcement group concentrated on hardware patents. Now I think this situation
may be changing. Lots of software companies have started suing over software
patents, and they have sometimes won.

The biggest problem with software patents is that the patent office knows almost
nothing about software. I know this from having read many of the initial
rejections letters (your application is always rejected the first time). It was
clear that the examiner did not have a clue what my patent application was
about. He would always send you a list of patents that he thought were the same
as yours. Of course, they had nothing to do with your application. We use to
joke that we could probably patent the doubly linked list as an improvement on
the singly linked list (but we never tried anything that silly).

The truth is, the bigger a company is, the more likely it is to get sued for
patent infringement. M$ is the biggest target for patent lawsuits because they
have the biggest pockets. Open Source is really not a very good target for
someone in it for the money. There are no big, rich companies to sue. You could
start suing end users, but you are not going to collect much from each end user.
It is much easier to sue M$ and hope for a big settlement.

The real threat to OS, of course, is someone just out to kill it. Patents can be
used to force a competitor out of the market. Polaroid forced Kodak out of the
instant film market with patents. The OS community has to be able to move
quickly, and replace threatened technology with alternatives. In the early days
of the Internet, almost all images were GIF format. Then somebody (Unisys?)
decided they had a patent on the LZW compression used in GIF files, and wanted
royalties. In a short time, most images on the Internet were JPEG. (I’m sure the
LZW compression patent is expired now; so don’t worry about using GIFs

One thing OS can do is to try to patent some of their own ideas. I know this is
a lot of paper work and expense, but having your own (GPL licensed) patents is a
good defense against other people’s patents.

Another thing I worry about is an individual (or a rouge company) putting in a
patent application on an idea, and then donating the code into an open source
project, with the plan to come back and start suing people when the patent is
granted. Rambus just did this with the JDEC standards committee. Wang did it
with the IEEE in the 1980’s. The IEEE and JDEC now require you to disclose any
patent applications you have filed or are thinking about filing on technology
you donate to their standards committees. OS should require people/companies
donating to OS software to do the same thing. And you have to be very clear that
you are required to disclose all pending application or plans to file
applications. Rambus was sued for fraud for donating technology they had pending
patents on to JDEC, and then suing people using that technology. Rambus lost in
the lower court, but the appeals court ruled the people at JDEC were unclear
whether the patent disclosure policy only applied to granted patents or whether
it included pending applications, so Rambus was not guilty of deliberate fraud,
even though the actual written policy said they were required to disclose
pending applications.

[ Reply to This | # ]

PJ - You are truly an inspiration!
Authored by: ErichTheWebGuy on Friday, March 12 2004 @ 11:25 PM EST
PJ, thank you for your inspirational words. We all need a battle cry once in a

We all know that FOSS has reached critical mass, and it is only a matter of time
before greedy companies like Microsoft and SCO will be forced to change their
thinking, or be swept away. Ya hear that Darl? SWEPT AWAY! Believe that!

Look at IBM, with its huge warchest and 80-foot tall fire-breathing dragon
lawyers. If it wasn't worth fighting for, IBM would have setled for a few
million months ago.

Look at Novell, who is renewing itself as a top vendor of enterprise software.

Look at RedHat, who believes in FOSS not only in principle, but in practice.
They have proven it by putting up millions of their own dollars to defend YOU
AND ME, the innocent end users.

Intel, Cisco, HP, and many others realize that there is no stopping an idea.
Especially not one as powerful, and as right, as FOSS. There are a lot of ways a
company can be profitable due to FOSS, and the Microsofts and SCOs of this world
had better start taking a long, hard look at their shady and unethical business
practices, lest they be swept away by the unstoppable tide of FREEDOM!



Striving daily to be RFC-2550 compliant

[ Reply to This | # ]

Anderer's "Old Think" Tries to Justify A Dying Business Model
Authored by: nonpartisan on Friday, March 12 2004 @ 11:39 PM EST
Microsoft, SCO, et. al. can continue patenting anything they want. What they
don't seem to realize is that other people (including those in open source
development) will come up with other, and typically better, ways of doing
things. Typically, said company appears to come back to doing it the way that
is popular.

I believe Microsoft used to use binary files of their own creation to store
information about projects written in their development environments (Visual
BASIC, Visual C++, etc.). Today, in the .Net environment, they use straight
XML. When I had a problem with a path not pointing where I needed it to
(forgive me, it was for a college course), I was able to edit one file and point
it to the right path. OpenOffice decided to use their own file format that was
based on an open standard. I suspect it won't be too long in the future when
Word's built-in format is based on a common standard -- such as XML.

If someone comes along and patents something, we'll just find another way to do
it. Patents can be a hindrance, but only temporarily.

[ Reply to This | # ]

The Patent Wars
Authored by: Anonymous on Friday, March 12 2004 @ 11:42 PM EST
I believe the main thrust of the first battle against software patent
strangulation will be the exposition and compilation of prior art. The Open
Source Community has many members who were present during the birth of modern
computing, and can testify to the first appearance of almost any specifiable
idea. This Community needs only a registry of ideas, a sort of skeleton
outline, on which to hang its threads of testimony and documented history.

The best registry would be a selected subset of software patents, and the best
institution to create and maintain such a registry would be Groklaw. If PJ can
begin to list the patents that MS and its allies are registering, and attract
one or more patent lawyers to teach us how to read them, the many eyes of
Groklaw will analyze each patent and create a sort of 'call for prior art' for
each idea therein.

We will then see what portion of patented software ideas are, by any sane
measure, stupid claims. I'm certain the fraction will be so embarassingly
significant that the US Congress will be forced to denounce software
patentability in order to save the US Patent Office.


[ Reply to This | # ]

Authored by: Anonymous on Friday, March 12 2004 @ 11:48 PM EST
Remember Apple suing Microsoft in the early nineties for infringing their GUI
patents? Imagine Apple winning? Apple would be much bigger, Microsoft much
smaller, and Linux users left with a choice between strange and inconvenient
user interfaces.

[ Reply to This | # ]

  • Nightmare - Authored by: Ted Powell on Saturday, March 13 2004 @ 01:10 AM EST
    • Nightmare - Authored by: Anonymous on Saturday, March 13 2004 @ 03:56 AM EST
  • Nightmare - Authored by: Anonymous on Saturday, March 13 2004 @ 11:09 AM EST
  • Nightmare - Authored by: Anonymous on Saturday, March 13 2004 @ 05:47 PM EST
And now a word from Anderer...
Authored by: RedBarchetta on Saturday, March 13 2004 @ 12:15 AM EST
Here's a snippet from an interview with Michael Anderer in this Newsforge article:
"[..] I could easily see IBM, HP, Sun, and many of the other large hardware players solving this problem tomorrow by settling the dispute with SCO and maybe even taking the entire code base and donating it into the public domain. I know this is what I originally thought would happen, at least the settlement part."

So, Mr. Andere believed that IBM, Sun or HP would "settle this problem" by settling with (read: buying out) SCO so the UNIX code can be made public domain. Some interesting questions/points arise:

  • How did Mr. Anderer derive this settlement scenario? Could it be that Ralph Yarrow and Darl McBride told him this would be the ultimate outcome if they filed a few nuisance suits? And Mike's help was needed to shore up the "war fund?"

  • If they wanted to be bought out, doesn't this tell us they really didn't want the UNIX business anymore? Did it finally dawn on them that they paid $38 million for a pig-in-a-poke, and are attempting to redeem their mess through harrassment-type litigation? For 30X to 50X what they paid for it?

  • Does this also reveal that SCO was lying to the public about the prospects of their IP property? Here's SCO painting a rosy picture in their August 14, 2003 Press Release:
    "McBride continued, 'This is our second consecutive quarter with net income and positive cash generated from operations. [..]'

    "'We expect that revenue for our fourth quarter, ending October 31, 2003, will be in the range of $22 to 25 million. The magnitude of our SCOsource licensing opportunities and our confidence in the SCOsource revenue pipeline is growing each quarter,' said McBride."

  • At about the same time of this press release, Mike Anderer is e-mailing Chris Sontag about ways to get more cold cash into their litigation "warchest." Including getting "corporate development" money from Microsoft (read: litigation money)

    - Mike Anderer reveals that SCO being bought-out was a primary goal, most likely at the suggestion of McBride, Sontag & Yarrow.
    - SCO stating publicy that it was "confident" in their *quarterly increasing* SCOSource revenue.
    - Yet, at about the same time, SCO is actively seeking outside sources of income, using Mike Anderer as the go-between, all the time knowing full-well that SCOSource was never going to make money.


    The lawsuits have always been an extortive attempt to get SCO bought-out; this would make Darl McBride, Chris Sontag, Blake Stowell, Ralph J. Yarrow, et al multi-multi-millionaires (tens of $millions each). They never believed that SCOSource would amount to any substantial earnings; it was a front for their buyout plan from the very beginning.

    [ Reply to This | # ]

  • Create an Open Source Patent Portfolio
    Authored by: Anonymous on Saturday, March 13 2004 @ 12:17 AM EST
    In one of the early Halloween papers, there was a hint that Microsoft saw copyright litigation as one of Linux's weakest points. This SCO lawsuit seems to be the result.

    Now we have 'Fud' Anderer's Halloween X memo hinting that Microsoft is considering using patents in a massive attack on open source, with lawsuits directed against 50 or more targets. (Some might come from SCO-type stooges.) As the old adage goes, "To be forewarned is to be forearmed." We need to come up with a counter tactic.

    In the corporate world, a good patent portfolio offers a good defense. If someone threatens to sue IBM over a patent, IBM can respond, "Do and we'll sue you for ten times as many infringements. Why not just cross- license."

    One of the major open source organizations should start a patent porfolio with a GPL-type license that grants permission to use open source patents under several conditions, one of which would be a cross- licensing agreement with the open source world. Even a handful of strategically placed patents could offer quite a bit of leverage.

    Anyone who wanted could donate patents to this portfolio. Particularly good ideas could even be carried forward by open source lawyers so they become patents. Do the legal paperwork right and a donated patent could be a tax-deduction. It could also become a place for high tech firms going out of business to place their otherwise unenforcable patents. And since the goal wouldn't be to make money on the patents, merely to cross-license them, it should prove popular with businesses. Standards groups who feel they need patent protection could place them with this group.

    It might also be good to develop a Prior Art Database with legally bulletproof time stamping and public access. Someone who gets a useful idea could post it there, perhaps getting legal help with the wording. Then if someone else tries to patent the idea, the Prior Art Database could be used to say, "Nope, that idea is already well known." With a bit of pressure, patent examiners could be forced to consult the database before granting a patent. The database would be an excellent counter to a lot of all-too-obvious business and software patents (i.e. one-click online sales).

    --Mike Perry, Inkling Books, Seattle

    [ Reply to This | # ]

    Open Letter to Microsoft and Anderer
    Authored by: ErichTheWebGuy on Saturday, March 13 2004 @ 12:30 AM EST
    I think we should write an open letter to all these people. I am furious! I had
    resolve to join the fight before, and I feel like I have been doing my part by
    being an active member of the FOSS community, but now I'm just mad. (I do
    realize that we hafta be civil and adult tho :)

    Any takers?

    Striving daily to be RFC-2550 compliant

    [ Reply to This | # ]

    Technological Innovation and Intellectual Property Newsletter
    Authored by: Anonymous on Saturday, March 13 2004 @ 12:38 AM EST
    GrowLaw fans might want to check out the excellent online Technological Innovation and Intellectual Property Newsletter at:

    It has a particularly good collection of articles on patent law.

    Some of the facts are disturbing. Since the early 1980s, there has been a 700% decline in the number of patents rejected for "obviousness." The result: a lot of really dumb patents.

    --Mike Perry, Inkling Books, Seattle

    [ Reply to This | # ]

    One amazing paragrpah
    Authored by: bobn on Saturday, March 13 2004 @ 12:43 AM EST
    Since the GPL type license agreements push the liability to the users, who do you go after?

    The GPL does no such thing, at least no more than any other license, especially EULAs which attempt to relieve the manufacturer of all responibility.

    Also, see Timeline vs. Microsoft, a *real* case in which it was found in a *real* court that Microsft's abuse of Timeline's "IP" left *real* users open to suit.

    I think the dispute with SCO would have been settled a long time ago if everybody knew this was the last one. The problem is there will probably be hundreds or even thousands of these disputes in the future and the targets will be the companies with the deepest pockets.

    The best way to ensure that SCO would *not* be the last is to pay them off. Anderer has this exactly backwards as to presumed cause and effect. This so clearly cannot be by accident, or mistake, that it shows his moral corruption.

    Even if the large vendors disclaim all responsibility initially, I do not think the customers will accept this from their vendors for very long. In the meantime, I don't see anybody being in a hurry to write the first big check.

    Well at least he got one thing right. Except for fools like ev1servers, who got deservedly burnt, and questar, who made a token payment at best, nobody has given SCO money except those with a vested interest in hruting Linux.

    [ Reply to This | # ]

    • An apology? - Authored by: Anonymous on Monday, March 15 2004 @ 01:32 PM EST
    IMHO This really sheds light on the indemnification push.
    Authored by: MrEd on Saturday, March 13 2004 @ 12:44 AM EST
    MS and SCO want the big players like IBM, Novell and HP et all to indemnify
    because it narrows their target. If they can torture all the other big players
    to drop FOSS by litigating them do death then MS can solidify their hold on the
    market. I don't think they care if you and I install it on our home puters
    much... but... if IBM, Dell, and others are offering it pre-installed on their
    hardware as well as support for it as a desktop and server OS then MS is

    This will likely shape up to be the most bloody and ruthless business war of all

    Viva La FOSS

    SCO is a tale spun by an idiot full of sound and fury signifying nothing.

    [ Reply to This | # ]

    Battle almost won, rest of the war still ahead
    Authored by: Anonymous on Saturday, March 13 2004 @ 01:11 AM EST
    Very inspirational piece PJ. Excellent work!

    However, we'll have to go through a lot of pain with many greedy corporations
    before this whole thing is over. SCO is nothing, simply because they are relying
    on copyrights for their own lawsuits, a matter that's easily resolved by looking
    at the code (of which they have none). In other words, they are just a probe,
    sent out to "get the feel" for the situation.

    We have to prepare for an ongoing war against much more powerful enemies -
    dishonest companies armed with patents, Eolas style (yes, I'm on Microsoft's
    side here, on principle that all software patents are invalid).

    Finally, maybe someone will see how wrong software patents are. Then and only
    then we can go forward with no obstacles.

    [ Reply to This | # ]

    Authored by: dmscvc123 on Saturday, March 13 2004 @ 01:18 AM EST
    <<GPL type license agreements push the liability to the users>>

    It's so funny how Anderer talks about how evil wicked mean and nasty GPL
    licenses are for putting the liability on the end users right after SCO just
    sued two end users due SCO's non-GPL license!

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Anonymous on Saturday, March 13 2004 @ 01:43 AM EST
    Before our tin foil hats start vibrating let's remember a couple of things (from
    the USA perspective):

    1. The RIAA strong arm tactics were condemned by Congress.
    The RIAA is not performing a Anderer tactic.
    The RIAA felt the heat and no monster corps came forward
    for the defense.
    Despite RIAA strong arming, their core argument is
    correct. The RIAA just needs to use more tact.
    2. The DMA was defeated by the public outcry to the FTC
    about telemarketers. The Congress, The President,
    and the court ultimately united behind the small guy.
    3. The concept of a IP ligitation business model is
    proven failure and SCO is not the first example.
    (I believe the former head of tried
    this model. Not successful and far as I know.)
    4. Oddly enough Bill Gates might actually take a stand
    against Microsoft moving in this direction. Bill
    Gates is a hacker (in the proper sense) and a good
    one from most accounts. The only difference is he
    does it from behind a cash register (which I think
    is a quote from somewhere but not sure where).
    He has said repeatedly that Microsoft is in the
    software business. Not hardware and probably not
    litigation. Gates will defend his/Microsoft
    "original inventions" vigourously however.
    5. There are a lot of one man/two man software companies.
    As well as larger companies that can't stand up
    to Microsoft. The small software companies
    constitute more votes for political office then
    Microsoft does.
    6. As someone has already pointed out Microsoft tends to be
    the defendent more often then the plantiff in
    mega-million lawsuits.
    7. If Microsoft were to take such actions I believe
    ultimately it be self defeating and while their
    army of attorneys may not agree the board of
    directors probably will. This would aggravate
    Congress in a major way despite opinions to the
    otherwise. RIAA reaction in Congress proves it.
    8. Not even Microsoft is stupid enough to sue their
    customers. At least for a couple more years,
    Microsoft will dominate the desktop.
    9. If Microsoft wanted this battle now they would have
    already started filing the patent lawsuits. I
    don't know why today is any different from
    tomorrow or yesterday for that matter.
    10. The Federal judges will see this coming. And it really
    is them that determine the future of any patent.
    If Microsoft starts a compaign like this they
    will likely receive unfavorable rulings from
    Federal benches with a bad taste in their mouth.
    11. Overall if Microsoft wants people to actually
    develop for their platform they can't be holding
    litigation over everybody's head. Microsoft's
    success is due largely to wide acceptance. This
    is possibly due to some strong arming early
    on but nevertheless that is current situation.
    12. Microsoft will never pick a fight with IBM.
    A great deal of Linux's value comes from IBM
    supporting it.
    13. I believe that despite the omninous rumblings from
    Microsoft I believe many of these "bogus" patents
    are defensive.
    14. I really don't know what to make of SCO-MS connection.
    It's possible that the left hand doesn't know what the
    right hand is doing. Microsoft most definitely does
    not want the SEC or the Justice department sniffing
    around. Which leads me to believe in the the previous
    statement is correct.

    This is not a supporting statement for software patents.
    Software patents should be made illegal or at the very least
    limited to a year or two. Business models patents should
    be outlawed.

    This is also not a supporting statement for Microsoft strong
    arming tactics.

    This whole thing sure smells of a SCO mouth piece.

    [ Reply to This | # ]

    Software licenses. . .
    Authored by: Anonymous on Saturday, March 13 2004 @ 01:44 AM EST
    Has anyone besides me ever read an M$ EULA? Or a M$ Office EULA? If you have
    purchased either product I just listed, what exactly did you pay for? What
    exactly do you 'own?'

    Nothing. In a nutshell you have purchased a pig-in-a-poke. You do *not* own
    the software you paid for. You merely have a license to *use* the software
    until or unless the owner, at their sole discretion, revokes your license.
    Further the software owner does *not* have to refund your money.

    For those that run M$, check out their EULA sometime. Then show the boss that
    all that money the company sends to M$ and similar scumbags is the same as
    sending money down a rat hole. Hmmm, M$ and rat hole. How appropriate.

    Then tell the boss about free software.


    [ Reply to This | # ]

    Bill Gates answers Groklaw
    Authored by: Anonymous on Saturday, March 13 2004 @ 02:08 AM EST
    Bill Gates ("Challenges and Strategy", 1991)
    If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique. If we assume this company has no need of any of our patents then the have a 17-year right to take as much of our profits as they want. The solution to this is patent exchanges with large companies and patenting as much as we can. Amazingly we havn't done any patent exchanges tha I am aware of. Amazingly we havn't found a way to use our licensing position to avoid having our own customers cause patent problems for us. I know these aren't simply problems but they deserve more effort by both Legal and other groups. For example we need to do a patent exchange with HP as part of our new relationship. In many application categories straighforward thinking ahead allows you to come up with patentable ideas. A recent paper from the League for Programming Freedom (available from the Legal department) explains some problems with the way patents are applied to software.
    Source: Citation from Bill Gates Memo (1991)


    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Anonymous on Saturday, March 13 2004 @ 02:38 AM EST
    Their loathsome litigation business model... is a misuse of the legal system.... It can only work for so long before everybody gets sick of it and them and changes the patent laws
    How can a paralegal be so naive?
    Yes, it's loathsome. But that doesn't mean it won't work. The free-software community is underestimating the threat.
    As for changing the patent laws because "everybody is sick of it", which planet are you living on? Laws in the USA are not changed because the people want them changed. They are changed because big corporations want them changed. Heard of DMCA? Know any ordinary people who wanted it?

    [ Reply to This | # ]

    Why Open Source is Beneficial
    Authored by: grayhawk on Saturday, March 13 2004 @ 02:51 AM EST
    In today's global market business needs to remain competitive which means
    operational costs need to be kept down. MIS to date with all the constant rapid
    changes has been nothing but a black hole financially. Microsoft has been, in
    conjuction with the hardware manufacturers, milking the customer to the point
    where it no longer is adventages to work with their products.

    Everytime a new version comes out you need new hardware and new software and
    make changes to legacy systems in order to be able to use the software tools
    upon which you have become dependant.

    You can't even buy the size of hardware that is appropriate for the job. Take
    for example the receptionist who really doesn't need a 1+ Gigaherz Pentium with
    300+ megs of ram and a 80+ Gig hard drive when all she uses the computer for is
    to write a few letters or work on a few spread sheets.

    Until the advent of Linux hardware became obsolete the day you bought it with
    all the rapid changes in an operating system. Linux also allows one to use
    hardware appropriate for the job since it works on anything from hand held to
    mainframe. This is where companies like IBM come into their own. You now can
    have a shop running disparate hardware and yet have the continuity of OS and

    The other major sticking point for businesses is the cost of software. The
    price of hardware has been decreasing over the years to where a business can
    purchase a complete system for under $500. Yet software prices have remained
    high or even increased in price with each revision. Just think an office
    software package can cost more than the hardware purchase you have made. How
    rediculous is that I ask you?

    In my estimation there is no software package worth more than $100 with most
    less than $50 and here are my reasons for stating this fact.

    Take your $500 personal computer. There has been more research, development and
    labour expended in its design and manufacture than there has been in any
    software package. You can't change just a couple of components on the
    motherboard without redesigning the whole board and yet I can change a few lines
    of code and come out with a complete "new" package and increase the
    price to boot.

    Now lets compare apples to apples. Take a computer game like Final Fantasy.
    There is far more intricate logic and code in that game then there is in any
    word processing, spread sheet or graphics package. Yet you can purchase such a
    fine piece of logic for less than $70 dollars but are required to spend hundreds
    on a office package. The reason being that the game is not required whereas the
    office package is a must if you want to use that piece of iron and electronic
    componentry sitting on your desk.

    Now along comes FOSS and makes the software available at a price that is
    reasonable, and we assume that some of us actually purchase it. No wonder
    business is falling in love and the Software and Operating System Vendors are
    crying foul. Just think you buy once and install it many times. Not only is
    the original package price within reason but you also don't pay a per seat
    license, a per site license nor do you have to maintain a costly software

    The IBM's like it because with the savings on software you can now make some
    funds available to buy that next generation piece of hardware for the shop so
    you can improve your production process. For the hardware manufacturer, FOSS is
    a godsent and so it is also becoming for business.

    Just think, no hardware upgrades, great backwards capability, the flexibility to
    choose the right hardware for the right job. You no longer need to buy a dump
    truck to do a pickup trucks worth of work. World wide support with great
    interoperability and connectivity. The ability to mix and match and even change
    on the fly. No upgrade headaches since you can go from small iron to large and
    maintain the same OS and software with the same staff.

    Those are some of the reasons that the likes of MS, SCO et al are striking out
    at FOSS. Unless they can adjust they are slowly becoming the white elephant.

    All ships are safe in a harbour but that is not where they were meant to be.

    [ Reply to This | # ]

    IBM has never been considered synonymous with innovative software???
    Authored by: Anonymous on Saturday, March 13 2004 @ 03:01 AM EST
    E.F. Codd at IBM invented the relational DB...

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Anonymous on Saturday, March 13 2004 @ 03:28 AM EST

    I think there's way too much tinfoil flying around here.

    Or perhaps- not enough- can't tell.

    I think the idea of an "IP Vampire" getting away with it as a business
    model, and then putting everyone out of business through litigation is a
    *little* far fetched. The reason I believe this is due to my perception that
    when it gets even close to that level the general public will somehow be

    And we are on the edge of that now.

    With major news services starting to pickup on these issues, the *general*
    public will now have a view into what is going on. That's dangerous for MSFT and
    SCO. It's dangerous because at some point it get's reduced to a monopolist, or
    an "IP Vampire", simply whining that something is being given away
    free. But the general public, small business, medium business, hobbyists, and
    students all like FREE very much.

    Even the peole who are writing FOSS must like FREE. They are after all giving
    the code away.

    In general, bullies fall. Usually because they are full of pride and under
    estimate their opponents.

    While it's very important that the fight be escalated by those who are
    producers, users, and advocates of FOSS. It is equally important that we don't
    forget that:

    There's more of us than them.

    Personally, I view the MSFT/SCO organizations as companies that are going to go
    down in history as the people who tried to take way YOUR right to give something
    YOU own away for free.

    And that of course seems to me to be the crux of it.

    [ Reply to This | # ]

    Southpark! Cartman's Sexual Harassment Lawsuit
    Authored by: Wesley_Parish on Saturday, March 13 2004 @ 04:25 AM EST

    was the first thing I thought of, after reading Anderer's reply on Newforge. Cartman should sue Anderer, SCO, Microsoft, et alii. for stealing his beautiful business plan of making millions from baseless lawsuits.

    Anderer's business plan will also have the - unintended of course ;) - consequence, of making the United States defenseless, just for the record. By driving the most productive members of the software development community offshore for fear of being sued into the ground and so on and so forth, they will drain the research universities of their research capability, then they will do the same for the big companies, then ... etc.

    That's a mighty fine way to greet the world, just after SCO has gratuitously advertised the fact that Free/Libre Open Source Software lowers the barriers to entry to such a degree that even your worst enemies can use it.

    It also strikes me that this patenting of software, insofar as it locks up the marketplace, is not far from aiding and abetting those very same enemies, thus being treasonous - if we wish to go down those pathways of thought so generously donated to us by SCO!

    finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

    [ Reply to This | # ]

    Ideas Wiki
    Authored by: minkwe on Saturday, March 13 2004 @ 04:38 AM EST
    We could start a website which will be a collection for ideas about software,
    well documented with entry dates where everybody is free to post their free

    That way we'll have a repository of ideas in case somebody patents it later,
    well just point to this wiki and tell them that someone else had that idea
    before and published it.

    What do you guys think?

    Just my 0.02€ contribution to the floccinaucinihilipilification of SCO.

    [ Reply to This | # ]

    • CMS? - Authored by: Anonymous on Saturday, March 13 2004 @ 07:47 AM EST
    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Rcomian on Saturday, March 13 2004 @ 06:36 AM EST
    Yeah, you had me scared there. Sorry PJ, you really have got the wrong end of
    the stick. All Mike says is that in a world of such massive litigation as Eolas
    (erm, SCO?), only large corporations can survive the suits from the natural
    infringement that occurs as you write software. "Why just look at
    Microsoft, it's got 50 more suits against it! How would a small company like
    Redhat survive this big boy's world?"
    The all out war is I think our biggest fear, but Mike isn't threatening that, he
    effectively saying that IP infringement is a fact of life, that it must be paid
    for and that only the biggest corporations can afford to do that.
    Of course, some might say there's a problem when someone writing software on
    their own can infringe someone else's IP and be sued for it, but Mike isn't
    contesting it, just accepting it and stating the corollary of this acceptance.
    It sounds bad because this corollary is exactly what we've all been fighting
    against - that only big corpations can do anything, small company's can't
    compete. It's a very strong argument against software patents and allowing SCO
    to re-write the meaning of derivative works and the way to go about IP
    infringement suits. It wasn't written with that goal, but it comes around to
    Any news on this Project Monteray research?

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: RSC on Saturday, March 13 2004 @ 06:41 AM EST
    PJ, I am stuned at this article.

    When I had finished reading the first four paragraphs, I was livid. (I don't
    think my wife has ever heard such things come from my mouth). How dare MS and
    others treat the citizens of the world so badly for nothing more than money. I
    was disgusted at the shear arrogance, and obvious hatred a few individuals have
    towards people who have donated their time, intellegence and hard work to a
    global project of startling beauty. And for what? A few bucks?

    But as I continued reading, I was amazed at the optimism that your words
    projected. I lost the feeling of hopelessness that washed over me while reading
    the MS plan.

    I know what I am about to say sounds soppy and a bit gushing, but I can't help
    it. I now know what it must have felt like when the poeple listened to Lincoln
    at Gettysberg or JFK speaking in Berlin. My fears melted away and I felt pitty
    for the Execs at MS and SCO with the realisation that these poeple have taken on
    a force that no one has ever been able to hold under their thumbs for very long,
    the public.

    Thanks PJ for making me feel both angry and boyant in the one reading. :)


    An Australian who IS interested.

    [ Reply to This | # ]

    Warning to PJ
    Authored by: stephenry on Saturday, March 13 2004 @ 06:49 AM EST
    Fantastic work PJ. We applaud you...

    I want to warn you, however, that you are now, probably, the fist major target
    in Microsoft's plan to discredit Linux. Through this whole SCO scandal, it has
    be you that has stood between FOSS and FUD. And, it's you that discredited SCO's
    claims in the most effective and public manner. You've now estabilished a name
    for yourself -quite rightly. But, before any further attempts to embroil Linux
    in a phony IP bubble, Microsoft, or their proxies, will need to find a way to
    stop the community from speaking up against them. It has this been this site
    alone that has done more to destroy the SCO case; and we can't trust IBM,
    Novell, Redhat or whomever to speak out in public, as they've refrained from
    doing so in the SCO case.

    We need to come to an arrangment where any further attacks against you can be
    defended. I don't honestly know how we can do this, and I am not doubting your
    integrity, but I think its something that the we and the community will have to
    think long and hard about.


    [ Reply to This | # ]

    Isn't there something rotten in the very US legal system? Look how easily and quickly has
    Authored by: Anonymous on Saturday, March 13 2004 @ 06:58 AM EST
    it been resolved in Germany.

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Anonymous on Saturday, March 13 2004 @ 07:20 AM EST
    Of course that assumes he wasn't reading a document written by someone else...

    [ Reply to This | # ]

    We will simply meet it.
    Authored by: Frihet on Saturday, March 13 2004 @ 07:51 AM EST
    PJ says, "There is just one problem with the plan. Most of the brains are
    on the other side of the table, as you may have discerned from the leaked memo
    and this article, and all of the pure love for software is, hence the backbone
    to fight to win is with us. If this is the plan, we will simply meet it."

    Software and business process patents are stifling innovation and limiting
    opportunity, but they are, I argue, also simply immoral. However, if the
    monopolies and their representatives on Capitol Hill want to set up these
    barriers to the advancement of arts and sciences, why don't we turn them to a
    moral purpose. We've got brains, vision, and lawyers. I'd say it's time for
    the community to start filing patents.

    The framework is present now. All we need to do is to create a documentation
    process -- CVS for patents :-) -- and get rolling. PJ has a lawyer friend with
    a "silly patent" web site that might be able to keep us on track.


    Repeal the Digital Monopoly Conservation Act.
    Write your congress folks!

    [ Reply to This | # ]

    Anderer's avoids answering relevant questions
    Authored by: Anonymous on Saturday, March 13 2004 @ 07:53 AM EST
    Sorry, but the stuff he wrote is just blablabla about how smart he is, and
    further avoids mentioning any information regarding Microsoft, SCO and his

    If this is the best answer he comes up with (after a week of silence), than I
    believe Microsoft is even MORE involved.

    About the patents:
    1) IBM is to involved with Linux. Microsoft, or partners, dumping their patent
    portfolio on opens-source projects will have a direct impact on IBM's business,
    and will respond by opening their patent guns.
    2) If a patent war would ever happen, many companies will go abroad to other
    places in the world; it's happening today already.

    [ Reply to This | # ]

    SCO's demise could nip this in the bud
    Authored by: Sam Lowry on Saturday, March 13 2004 @ 09:30 AM EST
    It's a pretty dismal vision, a future full of patent infringement claims and
    endless litigation designed to make open-source software seem like a huge risk.
    But there's a much brighter alternative -- if the companies who try it go down
    in flames, especially the first one, not too many others will want to go down
    the same road.

    It's hard to predict what will happen in a courtroom, but at this point I think
    everyone can see that SCO runs a significant risk of crashing and burning. PJ
    and Groklaw, and a lot of other people commenting on these cases, have done at
    least enough to expose some gaping holes in SCO's side of the story. Unless they
    come up with something a great deal better than what has been made public so
    far, it's hard to see how they will make a compelling case, even when their
    arguments are taken in the best light. I know that I'm a legal layman, perhaps
    naive and perhaps indulging in wishful thinking, but still I think there's good
    reason to think positive.

    And by all indications, SCO has bet their entire future on their lawsuits. The
    financial reports suggest that they'd hardly have a leg to stand on without MS's
    backing. The litigation appears to have propped up their stock price, but that
    seems to be backfiring of late, and if they start losing lawsuits, the bottom
    may drop out. If SCO starts failing in every courtroom in sight, which might
    very well happen, it could be devastating to their business, possibly fatal.

    And that's the bright alternative to Anderer's dismal vision. A lot of people
    are watching these cases, and if it was meant to be the first shot of a legal
    barrage, then a crushing blow to SCO could have a salutory effect. Not too many
    others would want to follow them down the road to catastrophe.

    All the more reason to keep up the pressure and the bright light of scrutiny on
    SCO. Keep up the good work, PJ and all you Groklawyers!

    [ Reply to This | # ]

    Going Overboard
    Authored by: Anonymous on Saturday, March 13 2004 @ 09:32 AM EST
    PJ, as you know I enjoy Groklaw and always find your comments and those of
    our friends in this community to be informative and insightful. As you've
    pointed out in your interviews, it's very like an "open legal"
    community, and I enjoy it.

    In this instance though I must say that some of the comments you've made
    seem a little over the top. While it may well be true that some branch of MS
    has encouraged their friends to put some money in to prop up the SCO
    nonsense, presumably because it annoys and derails Linux and the open
    source software movement, I don't think it's appropriate to cast MS in its
    entirety as Darth Vader.

    I think we should remember that like us the MS crowd consists of a large
    community of mostly well intentioned individual developers (in their case
    many of them working for MS itself). I'm not a big MS user myself, having
    used Macs, Linux and now Darwin since their inception, but I know enough
    Windows developers to know that they work hard to serve their user
    community and they do strive for quality and resposibility in what they do.
    Moreover, the company tries hard to provide a quality product and to be
    responsive to its user community, not unlike what we do.

    Polarizing the whole situation to good guys - bad guys may be in the best
    interests of the SCO-umbags, but it is not in our best interests and it's
    contrary to the atmosphere of respect and laissez-faire that characterizes our

    The best future does not have winners and losers, it has alternatives offered
    in an environment free of litigation and with real choices and differences
    available. I think it's worth remembering that when commenting on MS and
    its community. We want thir respect, and respect is a two way street.


    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: zjimward on Saturday, March 13 2004 @ 09:58 AM EST

    Another part of this working is calling the open source movement overzealous.
    Any time some one makes a comment it is a threat, not out of knowledge, but like
    some one from a fanatical terrorist group. Take a look around at responses from
    people that believe Microsoft is innovative and Windows is a great product. Some
    of them go a bit over the top too. Does this reflect on the professionalism at
    Microsoft? If we hold the same ruler up to Microsoft and SCO that the press does
    to Linux people it should. I have read through the comments to some articles on
    SCO vs Linux and Microsoft vs Linux. Yes, there are people that make rude
    comments, but there are some that make good valid points. It's these bad
    comments that get published in the writers next piece as "look at the Linux
    terrorist". It doesn't surprise me that patents is the next step in the
    effort to get rid of Linux. If you've ever looked at the number of patents held
    by companies like Microsoft you would wonder why they aren't suing more
    companies. The answer, hold them until you really want to use them to acquire
    other technologies. Tell the public these people are theives. Stealing your
    innovations and that by doing so the public will see the company as worthless.
    Sort of reminds you of the days of robber barons.

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Bon on Saturday, March 13 2004 @ 10:43 AM EST
    I posted this into 'A Marketing Idea' because I felt it was relevant there, and
    having moved onto the next story about Anderer, I thought it was also relevant
    here. Business has to accept new models, but we have to overcome this mind-set.
    I had a suggestion as to how, and here it is again,(apols if you have already
    read this):

    I have never doubted we have some brilliant minds all posting to Groklaw, but
    reading all these postings to this story I could not believe everyone missed
    main problem with Linux at the moment.
    I'm not out to go trolling, because I totally agree that live-cd distros and
    distributing OOo is a good idea, but it's a good idea to get company's and the
    'productivity' markets to Linux.
    However, I really believe to get people to Linux, we need to encorage a new
    generation to *NIX systems.
    I grew up with the ZX81, the Com64, the Sam Coupe (remember them?), the Amiga
    and I remember what drove me to get those machines. There were some bloody good
    games! Yes, they were simple, but they were good.
    I started learning about programming on the ZX81, in BASIC, when you loaded a
    game (as long as your 16k RAM pack didn't wobble!), then you pressed 'break'
    you could look at the game code. My C64 had a 360k disk drive, and I learned
    about Peeking and poking just to get the drive lit up! With my first PC, using
    DOS (MS *sic* before u ask) I started to use Borland Pascal to hit memory
    vectors and make it do things.

    Ok, I digress, but my point is to get Linux mainstream and to build a new
    generation of writers, we need a killer app.

    We need a decent game.

    We need a game in the FOSS that everyone wants, everyone can see how it works,
    and learn from it. ID software have been gracious to release their old games to
    the community, but for the latest 'killer' games you need Windows.

    I really believe that when we get our act together and launch a game based
    distro, we will be home and dry.

    We need some 'killer' games on the CD.

    We need the source for the games on that CD.

    We need that CD in places like Electronics Boutique and GAME.

    We need kids able to pick up that CD (or DVD, with respect to another learned
    friend posting here) and turn their PC into a games console, without ruining
    Mum's or Dad's official documents.

    As those games are played, kids will be encoraged to learn how they work and
    maybe work on their own. AMOS and Blitz basic on the Amiga formed a huge range
    of great games, but getting people learning C++ from an early age would lead to
    great things for the future, I'm sure.

    Linux games sites at the moment are not brilliant, lets be honest. However, to
    promote *NIX to a new generation, it's games we need.

    I am not a programmer, IANAL, but I would be happy to help a group of
    create a distro based on games, because I believe thats where the next
    generation is. NOT in giving away copies Linux or OOo. Thats a short term
    The PS2 and the X-Box(sic) run Linux, so lets create a distro that turns home
    into a console with development potential. Expand that distro to the consoles.
    And lets get some 'killer' games on that disc.

    Then, maybe, the future of *NIX, and Linux in particular, is assured.

    Just my 2 penneth, mail me directly if u r interested in working on such a
    project, Ian.bonham at,


    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Anonymous on Saturday, March 13 2004 @ 11:12 AM EST

    I know that this kind of trickery should get me steaming mad.
    This cold and hard reasoning on matters that influence so many lives
    and the mathematical accuracy that these people utilize to try and destroy
    something because it's good.
    On moral grounds this alone is enough to let the world know that THERE software
    is build with bloodmoney, polished with lies and scams. The company everybody
    made so rich
    is overly eager to completely whipe out a small branche of industrie made by
    people who DO follow the
    same goals and ideals that Microsoft still claims they have.
    Microsofts loyalty to the computer industrie pales in comparison to that of one
    OSS developer that does it "for the fun of it".

    they are loyal only to themselfes.
    THEY do not INVENT. they buy out and take over.
    THEY do not DEVELOPE. they sell sell sell and want to sell more.

    I say "there software" because those of us that made the choice of
    open source are confronted and affected
    with these matters in a complete opposite way that OTHER people see these
    As a group or community we have less to do with these companies then just about
    anybody else.
    And still they can't leave us alone or compete with us in a fair way.
    Hence my choice of creating 2 camps. those who are willing to sponsor the man
    with the gun.
    and those who have the gun aimed at there heads.
    This seems very black and white but that is the same position that microsoft and
    co take on us.
    These people can truly say that they choose to work on a way to eliminate a form
    of art
    and idealism never before seen working successfully on such a global scale.
    And the worst part is that they can still live with themselfes.

    When you pay microsoft for there "services" you could be paying them
    for putting your next door neighbour OSS developer
    out of work.

    The tricky part is that these companies are ready to reinvent life for just
    about everybody everywhere. As software keeps impacting our
    lives on a larger scale we can determin that this is a trend that we can never
    So with these facts in mind must we not really question who WE want to scape
    this future ?

    And now that round after round it proves very difficult to hit the target the
    gunfire is finaly heard all over the world.
    We can now see these companies for what they realy are and represent.
    I do not see how after this is all over we can simply coexist in peace.
    They made it painfully clear that they believe this world is to small for the
    both of us.
    Well if that is the case lets give them a bludy good run for there money.
    We know our stuff is better and we know that it matters.
    We know that what the community does is important for everybody.
    People will choose open source and will do that for all the right reasons.
    Now is the time to use this momentum.
    The nature of the dynosaur is exposed to the world.
    They create not software but they slow us down.

    Maybe they know if they do not stop OSS people will see that though they are the
    global market leader they do NOT lead anything.
    It will become clear that having a 95% grip on a market does not make you it's
    commander or maintainer.
    If OSS is here to stay MS will be known as the people who drew the marketing
    lottery ticket for succes and spend it all on warfare before there downfall.

    No, this does not get me steaming mad. I pitty them more then ever.

    If it's survival they are after I can only advice one thing.
    Join in or prepare to fall.

    retep vosnul.

    [ Reply to This | # ]

    Patent pending
    Authored by: borneo on Saturday, March 13 2004 @ 11:15 AM EST
    Pj said she want no politics on her site. I think she's right. When you can read
    this :
    "The key to Atomz Publish is its patent-pending template management system,
    which allows Web designers to clearly separate Web content from site design, and
    then give access to non-technical users of the Web site so that they can edit
    the content themselves. Using a series of straightforward HTML-like tags, the
    Web designer completely customizes the areas of the site that he wants content
    editors to be able to work in. In addition to setting levels of editing
    capability and customizing the editing interface, the Web site manager also can
    give editors access to publish their changes directly to the Web site or to a
    staging server, or both."

    Webmasters or users of some free cms like PHP-NUKE, TYPO3, GEEKLOG, SPIP, and
    many others prepare yourself to pay some royalties....
    ATOMZ is the cms that drive the website of a presidential candidate.

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: fmouse on Saturday, March 13 2004 @ 11:48 AM EST
    Never was Victor Hugo's famous quote more relevant ...

    "No army can withstand the power of an idea whose time has come".

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Anonymous on Saturday, March 13 2004 @ 12:06 PM EST
    I have said it before. We need a fund, a patent fund, to help OSS patents. We
    can licenses them the same way IBM licensed patents to Linux. Redhat even gets
    the point we are not going to win say software patents are wrong. We are going
    to win by being the brains in the tech world and patenting our ideas and only
    licensing them to OSS. If we don't get on this path i think OSS has a long road
    ahead of them.

    [ Reply to This | # ]

    Patented technology under GPL
    Authored by: Anonymous on Saturday, March 13 2004 @ 12:50 PM EST
    So what happens if someone writes GPL software which turns out to actually
    be covered under someone else's patent? What then? FOSS is all well and
    good - I write plenty of it myself - but I wonder what happens when patents
    figure into all of this.

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Anonymous on Saturday, March 13 2004 @ 12:55 PM EST
    Back in October Lawrence Goldfarb did an interview with Forbes and said this:
    "We spent a lot of time calling around to potential licensees, and we
    believe SCO is going to sign enough companies to make this an interesting growth

    It's mind blowing to imagine how those conversations could have gone.
    I mean how do you ask a company if they're going to pay extortion money so that
    you can have "an interesting growth story"?
    I think the whole thing would make a great scene for a Mel Brooks movie.

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Anonymous on Saturday, March 13 2004 @ 01:02 PM EST
    My respect for Groklaw has dropped to zero. Learn to parse basic grammar before
    strapping on the tinfoil hat.

    [ Reply to This | # ]

    A few questions . .. ... ..... ....... a good troll
    Authored by: Anonymous on Saturday, March 13 2004 @ 01:03 PM EST
    Concerning IP/patent infringement lawsuits:
    Anders states. "The problem is there will probably be hundreds or even
    thousands of these disputes in the future and the targets will be the companies
    with the deepest pockets."

    IPX the one mentioned in Halloween X Is owned by ITX and on their website; ;

    "The world's licensing market is expected to grow to US$500 billion by
    2005. Profit generation through technology transfer and cost reduction and cost
    reduction, therefore, are urgent issues for those with proprietary patents and
    technologies. IPX develops various professional services worldwide, covering
    such issues as technological license transfer, patent infringement lawsuits,
    royalty auditing and consulting surveillance."

    There have been numerous compnaies that claim to be the watchdogs for industrial
    IP/patents such as IPX, Wisdomain, Delphion and Infocom (patent management not
    the game manufacturer)

    I have a few of questions about IP/patents enforcement primarily concerning
    software since it seems that proprietary software companies are no longer trying
    to bring legal action about infringing code but legal action concerning the idea
    of what code does:

    1) What methods do IP/patents investigation companies employ to verify their
    clients IP/patents is not infringed?

    2) Though there are some .org organizations that deal with IP/patents like the
    World Intellectual Property Organization (WIPO) and the American Intellectual
    Property Law Association (AIPLA) they seemed to be comprised of those that serve
    industry. So the question is, is/are there public interest organization(s) that
    watch for new software patents that are filed when there is prior art?

    3) Is there at least one of these organizations that protects OSS and would
    oppose the filing of patents when there is prior art?

    4) Is there any GNU/OSS software that searchs for any OSS IP infringments?

    It seems that some proprietary software companies are going going to try to
    usurp and discredit Open Source Software and have declared war on the Open
    Source Community.

    from under the bridge

    I realize I'm only the hired help here but I don't do Windows.

    [ Reply to This | # ]

    The Fallacy of Size, or Why Liabilities Matter
    Authored by: jdg on Saturday, March 13 2004 @ 01:47 PM EST
    There are flaws in the argument that size is necessary to be able to survive
    and, by implication, one BIG company doing a lot of things is much better placed
    than a number of small companies doing one or two things. Some of the flaws
    have to do with a misunderstanding of Economies of Scale and what avenues exist
    for smaller companies to exploit these economies without becoming the larger
    firm (marketing channels, standards groups etc.). However, I want to focus on
    one specific issue that has arisen in the SCOG/IBM case.

    If SCOG were a large company and a lot of assets, I do not think that SCOG would
    have pursued the litigation path that they have taken. Why not? The strategy
    that SCOG has taken is a very risky one that has opened them up to a number of
    liabilities if they lose, even if they only lose on a few issues. The
    counterclaims are likely to be larger, maybe much larger, than the value of the
    company. What will happen in the case that they lose, will they payout on all
    of these counterclaims? No, they will not, they will simply go bankrupt.
    However, if they were BIG, then the other assets owned by other parts of the
    company would sustain them enough for IBM et al. to be paid on these
    counterclaims. Being BIG allows your opponents to capture the value in the
    other unrelated business lines.

    SCOG is so “dangerous” because it has nothing to lose. (The value of the
    company was less than they are paying Boies and the cost-revenue gap was
    widening, not shrinking, as it is continuing to do under their litigate it or
    lose it strategy.) Now, there are complications to a simple argument because of
    Canopy’s involvement. The Canopy arrangement is an attempt to have the
    advantages of size while doling out the liability to small subsets with limited
    liability that legally (Canopy hopes) stand alone. Of course, it appears that,
    IMHO, IBM might take a run at them because of the careless and crass actions of
    the principals involved.

    IANAL, but I sometimes practice economics (and I even have a license, but do not
    tell SCOG).

    SCO is trying to appropriate the "commons"; don't let them

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Anonymous on Saturday, March 13 2004 @ 02:09 PM EST
    We are fighting the wrong fight. Open source may beat SCO in the long run. It
    may outlast Microsoft, but that's going to be one tough fight. The question is
    why is it a problem in the first place? The answer lies in problems within our
    legal system. To win this fight once and for all, you will need to change the
    legal system.

    I expect there would be a lot of support for that. Even Microsoft recognizes
    that the whole patent problem is absurd, despite having enough money to protect
    themselves. Fights over patents, copyrights, or "intellectual
    property" just migrate money away from the tech sector where it's doing
    something useful to lawyers who perpetuate these problems. If I were a software
    company, I'd much rather be paying money to develop products instead of paying
    money to lawyers to protect myself from frivolous lawsuits.

    I guess my point is that win, lose, or draw with SCO, you're going to see this
    happen over and over again unless we change the laws to support creativity and
    productivity rather than anarchy in the software industry. This would be a good
    place to start discussing how we could change the legal system for the better.

    [ Reply to This | # ]

    We've talked about this before
    Authored by: PeteS on Saturday, March 13 2004 @ 02:29 PM EST
    Some time ago, when looking at the overall case, I mentioned that Linux (and
    FOSS in general) is a disruptive technology. Disruptive technologies are hardly
    new; they have been the agents of major change for millenia.

    Every time a disruptive technology has come along, it has been fought tooth and
    nail by those with a vested interest in maintaining the existing status quo, but
    those efforts have always been unsuccessful, although on occasion they were

    The disruption caused by Linux (and FOSS) is to commoditize major software
    components. A commodity (by definition) is ssold at or close to the cost to
    produce it. For FOSS, this is literally the case, but there is money to be made
    for real value (such as support, customizing etc).

    (Note that this is also true of anything that becomes widely used, and as such
    garners sufficient competition to render the object a commodity - anyone can
    make it with the right equipment, reducing the equation to the most efficient

    It is because of this that we actually have patents; so people will have an
    incentive to invent things without it being rendered a commodity before they
    have a chance to reap a profit from it.

    SCOG and others are using the system to (as noted) prevent new inventions that
    would compete with their business model, but I look at these efforts with the
    same view of those older failed attempts to stand in the way of new
    technologies. Those older failed models also wielded the majority of the power
    (money in this case) and yet still failed, because the new technologies provided
    a superior product at a lower cost.

    This is as true of FOSS as it was of other major changes in the economic
    landscape such as the industrial revolution.

    So hang on to your hats for a wild ride, and keep plugging away with facts,
    because ultimately that is what will undo the opposition. The facts of the
    matter show FOSS is a more suitable plan for underlying system components in
    widely used areas. These facts are being noticed, and many companies will be
    forced to change their business model, but as noted, that is not a new
    This does not mean there is not space for proprietary solutions, of course; in
    fact moving to FOSS for commodity objects frees up significant capital to work
    on new inventions.

    Anderer et. al. are simply part of the new luddites who wish to hang on to their
    old comfortable ways, not realizing that history is not on their side.

    Today's subliminal thought is:

    [ Reply to This | # ]

    ..Anderer's business model?
    Authored by: Anonymous on Saturday, March 13 2004 @ 02:52 PM EST
    ..he says he is "in integration"., he patented integration without integrity? ;-)

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Anonymous on Saturday, March 13 2004 @ 03:08 PM EST
    A nation that started out with 3/5 of a person and then went to Dred Scott and
    Plessy vs. Ferguson before getting to Brown vs. the Board of Ed.. Love vs.
    Virginia, and all the rest will weather the DMCA and DRM.
    What it won't survive are citizens who think it's useless to bother.

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Peter H. Salus on Saturday, March 13 2004 @ 03:53 PM EST
    Thank God for the fact that neither
    FORTRAN nor APL were innovative.


    Peter H. Salus

    [ Reply to This | # ]

    Anderer's "Old Think" Tries to Justify A Dying Business Model
    Authored by: Anonymous on Saturday, March 13 2004 @ 04:56 PM EST
    In other words, M$ wishes to turn the IP domain into a
    "demolition derby"

    SCO was just one rig they salvaged from the junkyard just for
    the race....

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Stumbles on Saturday, March 13 2004 @ 04:56 PM EST
    I just read this over at the Inquirer. A very good article.

    [ Reply to This | # ]

    OT: Cheap Joke and Serious Question
    Authored by: geoff lane on Saturday, March 13 2004 @ 05:21 PM EST
    One definition of insanity is doing the same thing time after time expecting a
    different outcome.

    By that definition The SCO Group is insane.

    What happens if Microsoft catches Mad SCO Disease? The obvious first target
    would be Samba (or the users of Samba.) Who would act as their White Knight?
    Who has deep enough pockets?

    [ Reply to This | # ]

    Anderer's posting on Newsforge?
    Authored by: Arthur Marsh on Saturday, March 13 2004 @ 06:24 PM EST

    Hi, Mike Anderer seems to have posted here


    [ Reply to This | # ]

    Newsforge confirmed that they asked Anderer other questions
    Authored by: Arthur Marsh on Saturday, March 13 2004 @ 06:33 PM EST
    I received a reply from one of the Newsforge editors that Newsforge had asked
    Anderer a few questions about subjects like S2 vanishing, but that Newsforge
    hadn't received a reply to them. I'm glad that Newsforge asked such questions,
    even if they went unanswered.


    [ Reply to This | # ]

    Speaking of FUD
    Authored by: Anonymous on Saturday, March 13 2004 @ 07:17 PM EST
    Mr. Anderer says:

    "In a world where there are $500 million dollar patent infringement
    lawsuits imposed on OS companies (although this is not completely settled yet),
    how would somebody like Red Hat compete when 6 months ago they only had $80-$90
    million in cash?"

    First of all the value of the award in a lawsuit is based on the assessment of
    the damage/loss. So in the RedHat example, if RedHat only had $90 million, it
    would be pretty obvious they hadn't made $500 million off a patent

    More importantly, it's going to be obvious early on if they are infringing,
    because it's open source.

    In addition, sticking to open, international (or as Anderer says,
    "commoditized" - another noun verbed) standards helps avoid the patent
    quagmire. Thats also why MS does the embrace and extend waltz so well.

    Ya gotta hand it to the guy, he spreads it smooth and thick.

    [ Reply to This | # ]

    New Article
    Authored by: on Saturday, March 13 2004 @ 07:17 PM EST

    IANAL, IANAP, IAAC (I am a Canadian)

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Anonymous on Saturday, March 13 2004 @ 07:46 PM EST
    It is interesting that this guy thinks it is perfectly OK to set up I.P.
    roadblocks as a means to stifle competition. The truth is many businesses and
    industries operate this way and the I.P. gets wielded when the holders start
    failing of facing fierce competition in the market place.

    Legally they may have a case however others also hold Patent I.P. notably IBM
    & other Linux adopters.

    His comment about who do you go after, implying that customers are next reflects
    the arrogance of these people and their willingness to consider the kinds of
    despicable tactics SCO has employed like suing end users as a means of seeding
    fear. They forget that the artificial monopoly that patents afford their holders
    is granted by congress and is not a God given right. Patent holders have no
    natural right to exclusively monopolize an idea to the exclusion of other
    independent inventors, and with increasing emphasis on software patents that are
    obvious or derivative and in many cases algorithmic in nature or even pertaining
    to an obvious application of computers in a business environment, this is
    becomming a nasty man made problem that already does more to stifle innovation
    than to foster it.

    Patents are supposed to foster investment and innovation when they stop doing
    that their nature and application must be changed. In addition other antitrust
    laws still apply even with intellectual property in the mix.

    [ Reply to This | # ]

    What if IBM isn't really a friend to FOSS?
    Authored by: Anonymous on Saturday, March 13 2004 @ 08:05 PM EST
    I'm still somewhat leary of IBM in this case against SCO. I think IBM's
    interests are not idealistic like the free software movement and they could do
    things that we might not like. Anderers suggests that the source code could be
    placed in the public domain as settlement in this case. I think that is what MS
    and the IP heads want. Public domain is much better than the GPL for MS. Public
    domain means that companies can take the work and steal it for proprietary
    closed source work. Thus the interest in trying to claim the GPL is

    IBM has vast interest in the patent system and supports the concept of IP in a
    way that the FOSS world does not. It could be that IBM in the end will decide
    that it's interests are better served without the GPL as it will do too much
    damage to IBM's vested interest in IP.

    [ Reply to This | # ]

    How dangerous are patents really to GPL software
    Authored by: Anonymous on Sunday, March 14 2004 @ 04:19 AM EST
    The conventional wisdom seems to be that software patents are a big danger to
    GPL software. Is this really true?

    Look at the Eolas patent thing. They went after Microsoft. They didn't go after
    any of the GPL web browsers which it could also be argued violated the same
    (thankfully now invalidated) patent. Microsoft is (according Mr Anderson)
    apparently facing 50 similar suits. Linux is involved in ... how many?

    Anyone who programs cannot avoid violating silly patents. But not everyone gets
    sued. It is greed that determines who gets sued. The patent extortionists go
    after the big payout. GPL software actually makes a very lousy target for these
    people, for the following reasons

    1. GPL software is usually written by a small army of diverse contributers.
    Determining who to sue is likely to be a big problem.

    2. Many of the members of this army are students or private individuals with
    quite shallow pockets. It just isn't worth suing them.

    3. Many of the members of this army live in places that do not recognise
    software patents. You simply cannot sue `em.

    4. Even if you find someone with deep pockets that the US law can reach, you
    might have trouble pinning any violation specifically to them and not to these
    other contributers.

    5. GPL software is protected by a small army of motivated groklawyers, who will
    swarm to the defense of any member of the GPL community, and who are quite
    likely to be able to dig up all sorts of examples of prior art. Legal expenses
    are likely to be payed by the free software foundation. There is a very good
    chance that if you sue them, they will not settle, and you'll have a bloody hard
    time proving your case and a very real chance of losing.

    6. The Nazguls of IBM may decide to take an interest if your suit looks like
    impacting on the activities of IBM.

    7. GPL software is usually quite inexpensive. The software writers often do not
    directly benefit monetarily from the software they write. Those who may have
    violated your patent probably did not profit by it, so you will have a great
    deal of trouble justifying a damage figure.

    8. Those who do profit from open source software do so indirectly, by offering
    support services or advice, or by repackaging and distributing what others have
    written. They are like the mechanics who service the car or the sales reps who
    sell it. If a car violates a patent these are not the kinds of people who can be
    targetted by a patent suit. Normally you would have to go after the
    manufacturer. Patent law just isn't set up to deal with the economics of open
    source software.

    9. In the unlikely event that you succeed in getting a payout from one GPL
    contributer, a thousand others will spring up to fill the hole. The GPL
    community is a highly distributed network. There is no irreplacable node. And
    large parts of the network are actually immune, being located in places where
    software cannot be patented. Even if a patent suit succeeds in targetting one
    member of the community the movement as a whole will be largely undamaged.

    Proprietary software is MUCH more vulnerable to patent suits than GPL software.
    trying to attack the GPL community with patent suits would be like attacking a
    swarm of bees with a rifle. Those who have these weapons will want to go after
    the elephants and tigers instead.

    Yes microsoft proably would love to see GPL software tangled up in patent
    issues. But microsoft lives in a glasshouse as far as patents are concerned, and
    they would be stupid to start throwing stones.

    Microsoft would probably face antitrust issues if it went after linux this way.
    And microsoft might have a hard time persuading others to target GPL software
    particularly since Microsoft itself is likely to present a much juicier target.

    I don't think the GPL community actually has much to fear. The proprietary
    software people will be much more inconvenienced by general patent
    litigiousness, and will probably pay to get the law changed long before patents
    become a serious threat to the GPL community.

    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Anonymous on Sunday, March 14 2004 @ 04:23 AM EST
    I see a few significant problem in this masterplan:

    The only obvious beneficiaries here are the lawyers. The rest are just loosing
    money. For examplpe, it is only a speculation, that even if SCO wins, it will
    have the necessary licensing income to cover the litigation costs.

    It is more likely, that whatever copyrighted code (if any) is included in Linux
    will be replaced in a matter of days. It is very unlikely, that court will
    order milions of costumers to pay royalty to SCO, without giving them the chance
    to replace the "offending" code.

    The second problem comes with the "viral" nature of the GPL, in a good
    sense of the word. The fact is, that viruses and bacteria extremeley hard to
    kill off. You have to destroy each and every of them, otherwise they will start
    to grow and multiply again, in a stronger form. This might happen with the Open
    Source/Free software movements. Some of them will be killed off with patent
    litigations, but the rest will grow stronger and stronger and will cost more and
    more to destroy. At the end, copyright will not be an effective weapon anymore,
    just like the old antibiotics today...

    Open source movement survived for more than a decade without major industry
    support. What is the worst thing what can happen?

    We might have to wait a couple of more years for complete dominance in the
    software world!

    Sandor Laza

    [ Reply to This | # ]

    Not just open source
    Authored by: skyisland on Sunday, March 14 2004 @ 09:31 AM EST
    The business model of intimidation by threat of litigation
    is not just an issue for open-source development. If the
    vehicle is patent litigation, they don't necessarily have
    to see your source in order to allege infringement. Recall
    SCO's claim that the rapidity of Linux's improvement was
    evidence that infringement "must have" occurred.

    Imagine your innovative company is growing well enough to
    show up on Microsoft's radar. Their rep shows at your
    company and explains that MS engineers have analyzed the
    behavior of your product and are convinced that it infringes
    on a number of patents. He says, just buy this license,
    to avoid any consequences. Or, are you feeling lucky--punk?

    [ Reply to This | # ]

    NOT a dying business model....
    Authored by: Anonymous on Sunday, March 14 2004 @ 11:35 AM EST
    This whole thing has actually gone way tooo far.

    The guys who push this stuff believe it and always will. They don't get rich by
    working - they get rich by manipulating - and the worst thing is they think it
    is totally reasonable.

    I now believe that the big mistake was the 'big' names on our side calling for
    restraint when the whole thing started. To hell with restraint - you will just
    get mired in court for years while things slowly die. Action would actually do
    the trick - sinks sites - DoS attacks - the whole thing on such a massive scale
    that dealing with it would be impossible. You have to make these guys lives
    impossible otherwise they will never go away. If they lose one court round they
    will just be back with another - it is a way of life for them. You have to hit
    them where it hurts - and that is in their ability to lead a meaningful
    lifestyle. We actually need to find out where they live and where they shop and
    where they go on holiday and make their lives a personal misery. Then we could
    get back to business - and believe me no damage would really be done. It would
    just be acknowledged in business that this is no joke and you can't operate in
    the traditional way with this new stuff.
    At the moment we are being suckered - though right is on our side - the courts
    don't care about rights - only about the letter of the law - and that stinks
    because the guys we are trying to deal with have no honour. They really need to
    get their hands burnt - and in such a way that it sends a message to others

    So I say to hell with them - it's time for action....and there are more of us
    than them.

    [ Reply to This | # ]

    Microsoft secretly lobbied in Europe for Software Patents!
    Authored by: Anonymous on Sunday, March 14 2004 @ 12:18 PM EST
    Wether his argument is strong or not, Microsoft secretly lobbied in Europe for
    Software Patents! This was pointed out on and later of Unfortunately, i can't find the source. But it should be there.
    They secretly did so and argued before software patents.

    Before one thinks this is fine, think about the huge impact Microsoft has and
    about the fact that they did it in secret. Why not just say in public what your
    opinion is? We'll get to a discussion in which we'll most likely come to a best
    end conclusion. No, Microsoft decided not to which results in me getting the
    feeling of dealing with a "behind one's back arms dealer" after it was
    found out. I hope you get that point thus i decided to share the information

    Currently, the Australians are in a same problem regarding software patents [1].
    Hopefully, any secret lobbies are made public there as well. Perhaps they need


    [ Reply to This | # ]

    MS new /old FUD
    Authored by: Anonymous on Sunday, March 14 2004 @ 05:39 PM EST
    Jason Matusow, head of MS Shared Source has this to say on eweek:

    "There are no pure-play open-source companies today that are allowing
    complete and total free access to source code and still maintaining a very
    strong business model. Even Red Hat [Inc.], which comes the closest to this
    model, now in their support agreement say that if customers modify the source
    code, they invalidate the support agreement."

    It's a little more sophisticated, and a little less strident than their usual
    stuff. He's now saying that MS is doing open source.

    Here's the link:,1759,1548991,00.asp

    [ Reply to This | # ]

    SCO is reduced to the waterbug defense
    Authored by: Anonymous on Sunday, March 14 2004 @ 08:33 PM EST
    Watch the waterbugs on a pond. Random circling is their defense. Now so is

    [ Reply to This | # ]

    "Free as water" - just look at Coca Cola
    Authored by: chiark on Monday, March 15 2004 @ 04:25 AM EST
    Hmm, this "free as water" analogy is a superb one, as it encapsulates
    a couple of subtleties.

    1 - Anyone can collect water and do what they want with it (eg gentoo, or a
    downloaded distro), or you can pay a utility to do it for you, and pipe it to
    your house on potable form (eg buying from Redhat)

    2 - People have tried to over-commercialise plain old water, and are finding
    themselves on the end of legal attention as well as consumer indignation. Take
    the example of Dasani, from Coca-cola group. In the UK, this is advertised as
    "pure, still water". People are taking objection to this...
    - its source is the tap water supply in Kent, England.
    - the water is then purified by a "reverse osmosis" process (!),
    - extra stuff is added (making it less than pure, surely?)
    - it's bottled in a fashionable blue bottle, called a stupid name, and hawked
    out at 99p for half a litre.

    The ASA may prosecute over the use of the word "pure", and the water
    companies in the UK are seriously considering action as Coca cola could be seen
    as implying that their water is "less pure".

    Furthermore, consumers are waking up to the fact that this is quite possibly the
    biggest rip-off that Coca-cola has attempted to pull yet, and there are signs
    that they've had enough.


    [ Reply to This | # ]

    PJ-This thread is way off base
    Authored by: Anonymous on Monday, March 15 2004 @ 01:16 PM EST

    My speculation

    by mikes2 (187904) on Saturday March 13, @11:33PM (#87961)

    would just like to clarify a point that may kill a whole cottage industry where
    the speculation was that I meant Microsoft intended 50 lawsuits against other
    people. This rampant speculation was completely off base.

    I stated that I
    thought Microsoft might have about 50 of these lawsuits queued up ( I meant
    patent lawsuits AGAINST Them). This was a statement (and just speculation) that
    was meant more as a commentary on the messed up way things are, than how they
    should be. It is the legal system, as it exists today, and it may not change
    quickly. Patent law is at some level tied to the constitution and to several
    international treaties (my understanding).

    As for my understanding of
    patent and copyright law, I think it is like quantam mechanics, (paraphrasing)
    "anyone who is not totally confused and amazed by patent and copyright law, does
    not truly understand it"

    There were no threats in there, just observations that
    were my own.

    I am not an attorney, I am not LDS (mormon), just because I am
    from Utah, I was not even a very good Catholic so why would they want me?

    anybody wants to let the people at Groklaw know the whole premise for the
    article they put out is just a misreading of what I wrote here. The same goes
    for The Inquirer, and Erik Raymond, maybe it will save a couple trees.The truth
    is occasionally less interesting.

    I apologize for the lack of clarity that
    caused so much heated writing in response.


    [ Reply to This | # ]

    Anderer's &quot;Old Think&quot; Tries to Justify A Dying Business Model
    Authored by: Anonymous on Monday, March 15 2004 @ 05:28 PM EST
    I believe that what SCo is doing is anathema to the proper business model; that
    of providing products to the consumer at a reasonable price in a reasonable way.
    their model is precisely what M$ wants; sue all of the competition out of

    After all, if a woman in California can get (possible) millions from MacDonalds
    for spilling hot coffee on her lap while shewas driving, why can't a third-rate
    software company, backed by M$ dollars, sue everyone whom M$ doesn't like and
    fears? It looks like the litigation-happy US has almost gone the distance in
    bogus lawsuits with this one (I'm Canadian, BTW).

    I certainly hope that this does not become the business model of the future, or
    else it will mean the end of proper business preactices and the beginning of a
    new class of profiteering: "let's take our competition to court over being
    in the same business as us".

    [ Reply to This | # ]

    OT (sort of) MS Sighting.
    Authored by: Anonymous on Wednesday, March 17 2004 @ 10:35 AM EST
    Looks like someone wants to tie up Kazaa in the court system.
    LOS ANGELES (AP) - A native of Romania who claims to have written the source code to the popular file-sharing software Kazaa is suing the program's distributor over the rights to the software and seeking $25 million in compensation.

    ...Toader, now a programmer for Microsoft, seeks a judgment confirming his rights to the program.

    The Article

    [ Reply to This | # ]

    Why no injunction in the US?
    Authored by: Anonymous on Thursday, March 18 2004 @ 07:59 AM EST

    I am German, but I am not a laywer, of course.

    In areas governed by civil law, either the law currently supports GPL, or it doesn't. Theoretically at least, the interpretation of the courts should be secondary.

    Still the courts need to decide what exactly the GPL means in the context of our law. Such decisions are not at all obvious (otherwise we wouldn't need courts ;-)). Previous rulings play an important role to estimate how the law will and should be interpreted, both for the interested parties as well as for the court itself.

    (Sidebar: The German legal system is, generally, much more willing than that of the United States to restrict individual (or corporate) speech for the common good. [...] no pesky First Amendment to worry about.)

    Just to clarify, there is of course a free speech garantee in the German constitution. OTOH, in keeping with our history, the very first article of the constitution is "Human dignity is inviolable" (this sounds much better in German ;-)). This is not just rhetoric, there are real consequences from that article, and it probably is also interpreted to justify some limits on free speech.

    Back to the topic. As long as SCO doesn't give proof, what it says looks like slander to me (not sure about the right English terminology here). Threatening people with which SCO doesn't even have contract relations using vague allegations so that they buy "licenses" seems extortion to me. Indeed it seems that SCO so far has avoided actually making any of its threats true, except for companies with which they do have contracts.

    If there are violations of copyright, I should think SCO would have to give appropriate warnings, so that the people in violation (programmers that may, after all, not know that they are using material copyrighted by SCO) can decide if they want to either get a license or just stop using the copyrighted material.

    So I wonder why an injunction or something similar against SCO has not been tried yet in US courts (or has it?). Is that because it is diffult to determine who would be slandered? Or would any decision have to wait until the IBM case is decided anyway under US procedures? Companies and individuals have real losses because of SCOs behaviour in the meantime, I would think. So how can people protect themself in the context of US law?


    [ Reply to This | # ]

    Groklaw © Copyright 2003-2013 Pamela Jones.
    All trademarks and copyrights on this page are owned by their respective owners.
    Comments are owned by the individual posters.

    PJ's articles are licensed under a Creative Commons License. ( Details )