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SCO Considering Next Steps After DC Setback & Another Novell Delay
Tuesday, January 25 2005 @ 12:07 PM EST

We were wondering what happened to Rob Enderle, and now, here he is, saying something sensible. I know. But I have to tell the truth, whatever it is. Bob Mims of the Salt Lake Tribune, in his article "Michigan ruling is a setback for SCO", asked him to comment on the appeal being dismissed in the DaimlerChrysler case, and here is what he said:

DaimlerChrysler did not answer requests for comment, but Rob Enderle, an industry analyst with San Jose, Calif.'s Enderle Group, characterized SCO's decision to sue DaimlerChrysler as one of the Utah company's "weakest actions."

"The high burden of proof . . . made this an unwise path for SCO," he added.   "The outcome should not have surprised anyone and the appeal was a waste of much needed financial resources."

You notice the really good legal firms say absolutely nothing and their executives don't either. SCO seems to be catching on and didn't want to say much about it this time either:

SCO spokesman Blake Stowell had no comment on the setback Monday, other than to say that the Lindon software company's "legal team [is] still reviewing the dismissal and considering its next steps."

News of the ruling came just days after SCO claimed a notable, albeit minor, victory in a Salt Lake City federal court case against IBM. Last week, U.S. Magistrate Brooke Wells gave IBM until March 18 to provide SCO with more than 2 billion lines of AIX and Dynix code, along with the programs' developmental details.

Dion Cornett has a few words on that subject, and he also says there is a delay again in the Novell hearing. I am hearing it is postponed to March 3 at 3 PM.

Decatur Jones' Dion Cornett, in his latest Open Source Wall Street:

SCOX decision removes near-term catalysts and Intergraph settlement on patent not copyright

As detailed in last Thursday’s e-mail note for clients, The SCO Group (SCOX: Market perform) last week won arguably its biggest legal victory to date requiring IBM (IBM: not rated) to turn over 2 billion lines of code, revision information, and 3000 developers’ names.

The decision does not alter the fundamental flaw in SCOX’s claims that it owns code never part of UNIX SysV and in some ways the judge’s favorable language regarding contract claims overriding copyright, in our view, could possibly be used against SCOX as Novell (NOVL: Outperform) argues that it has a contractual right to terminate SCOX’s legal efforts.

Furthermore, granting of such a broad discovery request places an additional onus on SCOX ahead of a ruling on IBM’s motion for Partial Summary Judgment to produce more detailed evidence of infringement. With respect to SCOX’s stock, the decision delays near-term potential catalysts related to the IBM lawsuit and we believe that an upcoming NOVL hearing is likely to be delayed as well, based on conversations with SCOX management. In SCOX’s favor we believe that analysis of the code is already factored into its $5M escrow account and the ability to look so completely into IBM’s development process is likely to produce additional ammunition for lead counsel with which to sway a jury. Separately, while Hewlett Packard’s (HPQ: not rated) $141 [million] settlement with Intergraph (INGR: not rated) last week is not necessarily analogous to SCOX’s claims because it was based on a proven patent, we note it since large copyright awards are generally rare even when the copyright holder has attempted to mitigate damages, something SCOX has not done. (Please see our Aug 2003 Initiating Coverage report for a discussion of Lemelson’s patent claims and analogies to SCOX’s lawsuit).

The other case he mentions, the HP-Intergraph case, is a stunning example of how the patent system works. Or doesn't work, depending on your viewpoint.

Intergraph sued HP, Gateway, and Dell in 2002, just after forming an intellectual property division, claiming patent infringement. Intergraph is a software company which has patents related to cache memory technology. The patents involve products containing Pentium processors.

They have now settled with all three, and their winnings for their IP enforcement campaign total $860 million in pre-tax income. If you are interested, here are the details of the recent HP-Intergraph settlement. I'm sure you can understand, when you read it, why the pro-software patent folks are unwilling to give up their hopes, and also why something really needs to be done about the patent situation as far as FOSS is concerned. To old-fashioned businesses, the patent litigation lottery is part of doing business. They do it all the time to each other, and they factor it in as a cost of doing business. But FOSS developers can't play in this millionaire's club, so that will help to clarify the importance of IBM taking the lead to create a safe patent playground for Open Source developers to play in.

Here's an article by Stephen R. Walli, who used to work for Microsoft, and his view is that patent infringement is so typical, so inevitable, that FOSS will just have to learn to play that way:

Every day developers may be infringing the claims of other people's patents. This has nothing to do with open source development methods or licensing. No developer can actually be aware of it. Developers read the news and trade journals, and then go to work. There are seldom warnings in articles about pending patents. Debate rages on whether or not developers should ever attempt to understand the patent infringement risk for the code they write. With patents written in legal language and targeted as broadly as possible (semantic shotguns instead of rifles) it would be almost impossible for a developer to track the patents relevant to their work. And of course the lag problem still exists, meaning even if the developer had the time and training to review patents in their area of expertise, they cannot know whether or not their work infringes someone's patent claims in any meaningful time frame. And if it looks like a developer may have attempted to study the problem, and perhaps misread or misinterpreted a patent's claims, then they may be construed as having “willfully” infringed a patent's claims by the court and that brings additional financial damages.

So when Linus Torvalds suggests that developers ignore patents, he is not some OSS mongering communist that believes intellectual property has no value, but rather he's simply working with the reality the system presents to him. Large software development companies shipping proprietary closed source products also tell their developers to not investigate the patent space for the same reasons. It would be interesting for the large vendors to come forward to discuss their practices for developers around patent investigation, rather than slinging useless rhetoric. . . .

Santa Cruz Operation was a company with a product it sold to customers. They are no more. . . . The SCO Group appears to be a litigious engine that is designed to sue another vendor for damages, not unlike previous legal forays of some Canopy Group companies. SCO Group appears not to be in business to sell to customers, indeed they can “sue a customer” to appear to put pressure on the primary lawsuit. The Daimler-Chrysler and Autozone suits hit the news in March 2004. So far the tactic has failed in relation to the primary suit. This is not a business with customers, but a legal play to siphon money out of the system.

So as OSS continues to deploy and grow in enterprises, those companies will need to consider the source of the technology they use, and their vendor relationships, which is no different than any other technology shift in the past decades. As for OSS developers and vendors themselves, David McGowan may have said it best:

“If the F/OSS community wants to be in commercial space, community members will have to learn to deal calmly with IP litigation. The F/OSS production model will work where it makes sense, and it will not work where it doesn’t. It’s really just that simple. Particular claims in individual suits—even one against a flagship program such as the GNU/Linux OS—will not determine the fate of the community. Such cases present factual issues that will get resolved one way or another; they do not represent a crisis for F/OSS production as a whole. Norm entrepreneurial rhetoric that plays off such cases should be treated as entertainment. Enjoy it if you like it, take inspiration from it if you must, but don’t confuse it with the way things actually get done.”

He isn't kidding about the business without customers part. Netcraft looked to see how many SSL-enabled websites run SCO Unix, and they found only 70, which they felt was why their not patching security flaws for almost a year didn't have more of an impact. Of course there are others that are not set up for SSL, but still. That last quote is from McGowan's paper “SCO What? Rhetoric, Law, and the Future of F/OSS Production”, in which he sneers at FOSS and says we essentially need to grow up:

The community’s shocked and outraged reaction to a perfectly ordinary suit by SCO against IBM suggests that community members need to adjust to the space they wish to invade.

First, I think he has it backwards. It is corporations that discovered Linux and wanted it for their own purposes. But if they want it, they have to play by the rules, and that means the GPL. So many folks don't get the GPL and why this "ordinary" lawsuit isn't ordinary at all, but is a direct attack on the free as in speech aspect of the GPL, as well as attacking the new method of software development, which the GPL enables.

People care about free as in speech. We just do. And how foolish would one have to be not to choose a better way of innovating in software development?

But, if I may be allowed to say it, the thought of adjusting to proprietary ways is patent nonsense. Trying to extrapolate from the old business model and slapping on the new is never going to work. All it can do, if allowed, is kill off the new, and that's unthinkable. The public wants better software, and they want software that comes to them under the GPL. I know, because I am a member of the public, and that is what I want. Why? Because it benefits me as an end user. The world at large, outside the US, is simply not interested in letting Linux be killed off. Linux comes with the GPL, and that is an unchangeable fact, so the world will have to bend and change its ways of doing business, not the other way around. Barring, as I always say, martial law, and assuming a free market, where we actually get to choose what we want, people will choose free and open source software, and specifically GNU/Linux systems. They already are.

So, that is why IBM is thinking fresh about patents and looking for ways to enable the new, not that everyone has yet fully grasped the significance of what they are doing. Some, though, do understand:

While the contribution is significant, it's not entirely unexpected, adds Dan Ravicher, executive director of the Public Patent Foundation, a nonprofit legal services organization in New York working toward patent system reform. Most legal observers would have presumed before the announcement that IBM would not sue, at least in the near term, the makers of open source products off of which it is making money, Ravicher says.

To IBM's credit, by granting access to any open source developer, not just those with which it partners, the company is allowing broader access than what had been presumed, Ravicher says.

Linux creator Linus Torvalds says IBM's move is a good first step toward solving some of the problems with software patents. "Will this make patent problems go away? Obviously not. Would I have preferred that IBM open all their patents and speak out against software patents in general? Hey, sure," Torvalds wrote in an e-mail interview. "But no, that's not how things work. I'm pragmatic."

It isn't just in software that there exists this tension between patents and innovation. The scientific community, academics and nonprofits, are also struggling to keep patents from choking off innovation that is, some believe, costing the human family advances they could otherwise be benefitting from. Some there too are also thinking along the lines of a patent commons:

Just like open-source software, open-source biology users own the patents to their creations, but cannot hinder others from using the original shared information to develop similar products. Any improvements of the shared methods of BIOS, the Science Commons or other open-source communities must be made public, as well as any health hazards that are discovered.

BIOS has called on Brian Behlendorf, CTO of ColabNet, to create the web tools the open-source community platform will run on. Those should be up in the coming weeks.

Nipping at its heels is the Science Commons. The outgrowth project of Creative Commons will have a hand in all areas of science, not just the life sciences like BIOS, and is getting ready to launch its open-source community in the next two to three weeks, said John Wilbanks, executive director of Science Commons.

It's actually CollabNet an alert reader tells me. When universities decided to try to get in on the patent game and get a taste of the action instead of fixing the patent mess, they didn't think it through to the end point. You can't beat the millionaire's patent club. Whoever has the most patents and the most money always wins that game. Now they find themselves blocked from doing fundamental research. Live and learn.

I'm sure you can see from the Intergraph math that IBM has no power to eliminate the old patent system all by itself. It's a matter of education, and taking that first step and getting others to follow, but companies like Intergraph are certainly helping to educate the world. I trust HP, for one, is currently thinking deep patent thoughts.


  


SCO Considering Next Steps After DC Setback & Another Novell Delay | 218 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT
Authored by: Anonymous on Tuesday, January 25 2005 @ 02:03 PM EST
<A HREF="http://www.example.com">Clickable link</A>

[ Reply to This | # ]

Corrections
Authored by: Anonymous on Tuesday, January 25 2005 @ 02:04 PM EST
Where and What...

[ Reply to This | # ]

About IBM's code and SCO
Authored by: Anonymous on Tuesday, January 25 2005 @ 02:18 PM EST
If I remember right, wasn't there a clause that the IBM's code was to be seen by
3rd parties only because of the proprietary nature of the code? If that's true,
who is going to do the analysis? Boise? Are they going to trust lawyers to
understand the code? The reason I ask is SCO is running out of money and
2billion lines of code is going to take a hellava lot of manpower to process to
make any real use of data contained in so much information. If they run out of
money, who are they going to pay to process the code? Boise is payed up but is
he going to flip the bill? If they can't do the analysis, and they can't hire
someone to do it, and their lawyers arn't qualified or willing to spend their
paycheck to findout, I have a feeling their small victory the other day may not
do them any good.

[ Reply to This | # ]

SCO Considering Next Steps After DC Setback & Another Novell Delay
Authored by: Lionel_Hutz on Tuesday, January 25 2005 @ 02:21 PM EST
Let me play with the quote a little bit :).
"The high burden of proof . . . made this an unwise path for SCO," he added. "The outcome should not have surprised anyone and the appeal this whole fiasco was a waste of much needed financial resources."
Now Rob can use this quote after all the SCO law suits are over with and it will still apply. :)

---
Hutz: Well, Your Honor. We've plenty of hearsay and conjecture. Those are kinds of evidence.

[ Reply to This | # ]

Intergraph
Authored by: overshoot on Tuesday, January 25 2005 @ 02:23 PM EST
Intergraph wasn't originally a software company. Once upon a time they made high-end scientific workstations (located in Huntsville, AL, they were heavily into NASA projects.) Quite a bit of their patent portfolio dates back to when they did heavy hardware development.

Then they got smashed by Intel. Intel wasn't exactly a saint in that little drama, and ended up paying Intergraph a bundle to avoid having a Federal court rule that Intel had abused its monopoly power. Please note that unlike Microsoft, Intel has tried quite hard to avoid going over the monopoly line with defense in depth:

  • don't do things that would be a violation if Intel were ruled to hold monopoly power, and
  • pay what's needed to prevent rulings that it does have that power.

Much like SGI, Intergraph found that there wasn't enough money in the high end to support continuing development of high-end hardware. Thus the current focus on software, which they originally picked up while a workstation company as a natural extension (same story as Mentor Graphics.)

IIRC their go-around with Intel left them with something we've discussed here before, though: patent claims that should have been compulsory and thus were not assertable against Intel. Instead, they decided that rather than write off any value from the patents they would go after Intel's OEM customers.

Looks like it worked, and there's enough bad karma to go around for everyone.

[ Reply to This | # ]

"Please stay away from commercial success"
Authored by: Nick on Tuesday, January 25 2005 @ 02:24 PM EST
"The F/OSS production model will work where it makes sense, and it will not work where it doesn’t. "

When I read that quote the first thing I thought of was that it was code for 'stay out of our playground.' That is, if FOSS developers want to play in the hobbyist space, that's all well and good to the commercial software development houses. But the one thing they don't want is to lose business to FOSS software. Stay in your own playground, they seem to be saying, and if you don't, why we'll just have to...

They are losing the battle for mindshare, so now comes friendly advice that seems to be to be a thinly disguised plea to go away, backed with a threat behind the plea.

[ Reply to This | # ]

When are you going to sue your customers?
Authored by: lachoneus on Tuesday, January 25 2005 @ 02:37 PM EST

This article may have been posted on Groklaw in the past, but I haven't seen it, so I have linked to it here.

The article, by Stephen Walli, is an excellent analysis of the relationship between customers and vendors in the open source space.

PJ, please note: This piece deserves its own article on Groklaw, IMHO.

[ Reply to This | # ]

Secrecy is the best defense
Authored by: UglyGreenTroll on Tuesday, January 25 2005 @ 02:58 PM EST

So when Linus Torvalds suggests that developers ignore patents, he is not some OSS mongering communist that believes intellectual property has no value, but rather he's simply working with the reality the system presents to him. Large software development companies shipping proprietary closed source products also tell their developers to not investigate the patent space for the same reasons.

Apart from not investigating what has been patented, corporations have other ways to avoid the inconvenience of other people's IP:

  • Don't make code viewable to the public (not that they have much incentive to do so anyway).
  • Don't publically discuss algorithms.

In other words, secrecy is the best defense. By not investigating patents, and by keeping everything secret, corporations can go about the business of developing the software they want to develop.

It's an interesting question whether intentionally staying ignorant about other people's IP is unethical. I would say not. Legally (at least) one should not violate someone else's IP, but I know of no legal requirement that one be diligent about trying not to violate IP. Perhaps someone could enlighten me on this.

Open source, of course, can not use secrecy to defend against IP litigation. It's all out there.

[ Reply to This | # ]

"I trust HP, for one, is currently thinking deep patent thoughts"
Authored by: Anonymous on Tuesday, January 25 2005 @ 02:59 PM EST
I'm not entirely sure. SUN seems to like patents even though they have got a
punch lately.
You can't even be sure about IBM. Though, I think their current tactic (release
only a small amount of patents) is quite sensible.

[ Reply to This | # ]

SCO Considering Next Steps After DC Setback & Another Novell Delay
Authored by: Anonymous on Tuesday, January 25 2005 @ 03:03 PM EST
"The high burden of proof . . . made this an unwise path for SCO,"

Anyone else see this as playing with words to gently get around saying "SCO
lied so it was a stupid idea in the first place?"

All court cases have a burden of proof. You can either prove something or you
can't. How can there be a higher burden of proof? The only way I can see is if
you don't have any proof in the first place and have to try weaseling in
different explanations for why you have a case.

There was nothing for SCO to prove against DC in the first place.

[ Reply to This | # ]

Patent Pools, Cross-Licensing, and Protection
Authored by: joef on Tuesday, January 25 2005 @ 03:05 PM EST
Those who would get into this arena might do well to heed the advice in the
monologue by the king, from the musical "Anna and the King of Siam":

"Shall I join with othr nations in alliance?
If allies are weak then I go best alone.
If allies are strong with power to protect me
might they not protect me out of all I own?"

And in another context, some of the "partners" of Microsoft (and, yes,
others) have learned this lesson the hard way.

[ Reply to This | # ]

SCO Considering Next Steps After DC Setback & Another Novell Delay
Authored by: blacklight on Tuesday, January 25 2005 @ 03:29 PM EST
"We were wondering what happened to Rob Enderle, and now, here he is,
saying something sensible."

Most people get beaten senseless. Rob Enderle was beaten until he said something
that made sense. Should he be given credit for that? My view is that if he is is
saying anything sensible, it's pure coincidence. Recall the disclaimer at the
beginning of some action movies: "any resemblance between the events
depicted in the film and actual events and any resemblance between the
characters in the film and real persons are purely coincidental"

[ Reply to This | # ]

SCO Considering Next Steps After DC Setback & Another Novell Delay
Authored by: blacklight on Tuesday, January 25 2005 @ 03:43 PM EST
"SCO spokesman Blake Stowell had no comment on the setback Monday, other
than to say that the Lindon software company's "legal team [is] still
reviewing the dismissal and considering its next steps.""

Translation: "We, SCOG, are licking our wounds"

[ Reply to This | # ]

Limited damage
Authored by: Vaino Vaher on Tuesday, January 25 2005 @ 03:55 PM EST
As long as we manage to fend off software patents in the rest of the world, all
this will be a domestic problem in the US.

Now, if we could find a way to hinder US citizens and US residents from
downloading OSS, then we could have a beer an relax.
The relative importance of the US market is strongly overestimated. Since OSS
doesn't produce licensing revenue, any gain will have to come from support and
consulting. And *that* is a local market.

In fact, apart from some major OSS projects (notably MySQL, Eclipse, JBoss,
Fedora, Mozilla and OpenOffice) most of us write OSS for fun, not for profit. We
don't make any money off our code in any way whatsoever. By banning US users we
hurt our ego, but not our wallet.

If we sucessfully cut off US from most OSS project we will almost eliminate the
software patent problem (at least for now). And should we choose to take that
path then it certainly will help change the way americans look at the software
patent issue.

Does any of you out there think that this reasoning has some merit, or should we
valiantly expose us to all kind of future legal trouble just because we want
EVERYBODY in this world to have equal access to our creations?

PS! This may seem a bit anti-american. But I'm trying to figure out how I can
write and publsh code w/o getting hurt. This is by no means a scheme to 'punish'
the american users. And remember that a similar plan was deployed by the US
during the cold war, limiting the availability of software produced in the USA.
We can learn from the masters here! DS!

[ Reply to This | # ]

SCO Considering Next Steps After DC Setback & Another Novell Delay
Authored by: SpaceLifeForm on Tuesday, January 25 2005 @ 04:08 PM EST
which they felt was why their not patching security flaws for almost a year...

s/their/they're/

[ Reply to This | # ]

OT: OpenSolaris.org now &#8220;open&#8221; for business
Authored by: Anonymous on Tuesday, January 25 2005 @ 04:31 PM EST
http://www.opensolaris.org/
http://blogs.sun.com/bmc

[ Reply to This | # ]

The reason Darl's not frothing at the mouth
Authored by: Anonymous on Tuesday, January 25 2005 @ 04:47 PM EST
is not because he got better lawyers.

It's because he now believes no one will pay him to shut up.

PS I've always believed that Boies SF ordered darl to foam at the mouth, to
"encourage" IBM to settle or to get someone to buy SCOG.

Note that Darl stopped frothing around the time BSF stocks/options became
worthless & BSF took cash instead.

No incentive to pump the stock, so Darl shuts up.

[ Reply to This | # ]

The Universal Software Patent Exception
Authored by: BitOBear on Tuesday, January 25 2005 @ 05:03 PM EST
I think any solution to the paten problem should contain two provisions:

1) Any program, library, or body of code that _can_ run on commodity, general
purpose computer hardware is not subject to patent (e.g. cannot be patented).

2) Any program, library, or body of code that _can_ run on commodity, general
purpose computer hardware can _not_ be held to infringe any patent.

The niceties are thus:

The "can run on" wording means that If I write a program and it runs
on my PC then the provisions apply, and they _continue_ to apply if you take
that code and run it on some specialty box. The reason this is reasonable is
that if the code can run on the generic box, then whatever makes the specialty
box special clearly doesn't have a deterministic impact on the code. So the
special box doesn't net special treatment. Which means that the unscrupulous
cannot sell you a box and then use the specialness of their box to keep you from
running your common code.

Now the first provision as a whole means that you cannot patent software or
anything that exists _only_ as software, but it does so in a way that continues
to let things like CPU Microcode to be patented when it exists as part of the
CPU. It also allows for the "patented system" which _contains_
software as one-of-many parts is still patentable as a whole system.

The second provision prevents a patent on a physical system from being
"extended" onto software. This prevents someone from making a
specialty invention and then using argument-by-analogy to lay claim to a bunch
of software. It also prevents patents from, in turn, preventing emulators. If
you invent a specialty box that can be emulated completely in software, then it
is fair-and-just to have the device and the emulator compete. This is ok
because where the patent has meaning the emulation will be ineffective (e.g. A
palm pilot will always beat out a palm-pilot emulator because the palm pilot is
portable in a way that the emulator isn't; contrapositively, a $20m piece of lab
equipment that is "only as good as" an off the shelf DSP plugged into
a PC, isn't "promoting innovation" by charging $20m.)

Finally there is that "commodity hardware" language. It serves two
purposes too. Commodity hardware is something that you can buy anywhere for
just about anything. An Ethernet card is a piece of commodity hardware. And if
you have a cool and amazing design for an Ethernet card you can patent that
innovation, a feature that remains unchanged by these provisions.

You could even sell that patented card tightly bound to your specialty
software.

But the instant that you start licensing that card to the commodity hardware
market producers, so that the card is being sold for “all your networking needs”
(Etc) you have surrendered your right to control the system by _requiring_ the
specialty software. You have, in essence, switched from selling the patented
system of hardware and software and started selling “a bunch of parts” instead.
So you have to chose control or commonality. (That's the first purpose)

The second is that the “commodity hardware” language prevents someone from
taking an existing pattern of common feature hardware and software and “stealing
it” by creating a “accelerator” and then throwing up a curtain of FUD about the
claims of the new patent now owning some section of the common function.

Basically, the provisions become: if you can buy a bunch of stuff from some
store and put in a CD and now the system is doing whatever the patent-holder
doesn't like, it is, by definition not actionable and the case is over.

This is the minimum patent system fix (In My Humble Opinion, of course 8-).

[ Reply to This | # ]

McGowan misses important point
Authored by: Anonymous on Tuesday, January 25 2005 @ 05:16 PM EST
David McGowan may have said it best: [ referring to SCO's piracy legal action]
“... Such cases present factual issues that will get resolved one way or another; they do not represent a crisis for F/OSS production as a whole. ...”
One big problem with McGowan's assertion is that SCO's (and many other) IP assults do not rest on, nor are they resolved by, "factual issues." They are resolved by money, more money, and nothing but the money. The vaporous cloud of "factual issues" are in reality only smoke blown by the pirates in order to get into the legal system. To wit: how many IP cases actually go to trial, or result in a judgement on the facts?

I honestly don't know the answer to that, but my guess is: very few. It's often not worth the risk of long, expensive litigation to obtain a decision on the "facts". In this case, I will be extremely suprised if we ever get a definitive ruling on any of the factual issues raised in the SCO case.

It's a shame really, and high time the system was exposed and reformed.

[ Reply to This | # ]

    OT "GNU GPL, get outta here" Micro$oft settlement fud
    Authored by: Anonymous on Tuesday, January 25 2005 @ 05:17 PM EST
    http://www.eweek.com/article2/0,1759,1754361,00.asp

    [ Reply to This | # ]

    Hypothetical
    Authored by: sjgibbs on Tuesday, January 25 2005 @ 06:11 PM EST

    Lets imagine a world ("Stallmania"?) in which Patents don't exist,
    they were never invented, but FOSS was and does in fact exist in this world
    alongside proprietary closed source software. A bunch of guys come along and say
    :

    "I want the government to give corporations small and large an incentive to
    innovate by giving them some exclusivity on a specific disclosed invention,
    rather than using trade secrets all the time. That way knowledge will get
    shared, like in FOSS, but companies get some perks to encourage them to go to
    market with neat stuff. Its a trade with society as a whole for the long term
    good - a swap if you like - all very fair."

    How in this world without patents, but with closed and open source models living
    together nicely would you justify adding a new law to allow a legal rights
    holder to sue a FOSS company? OK, let them sue a closed source firm, they aren't
    contributing knowledge to society, and aren't sharing like the FOSS guy, or the
    patent holder, so they can get sued and thats fair.

    The nice thing about this hypothesis is, of course, that the same logic applies
    if patents existed all along and FOSS is the new factor. How do you justify
    maintaining a Law originally designed to encourage disclosure that allows open
    and especially Free software developers to get sued? Clearly, there is no
    justification, and my view would be that no newly expanded patent laws can
    ignore the concept that some people might want to disclose knowledge without a
    20 year monopoly. There motivation is nobodies business but their's but say that
    they get something from that sharing. Isn't that a good, valid, alternative?
    Should that be barred by law?

    If the EU ultimately decides to grant exclusive rights on software ideas then, I
    humbly suggest, they should include a legal benchmark process similar to the
    Open Source Definition that protects developers whose work meets the benchmark.
    The benchmark would differ in one important way from the OSD, that being that
    there should be protection for society from closed source firms that want to
    rip-off the code and go do stuff without sharing, like Apple did for example.
    This would actually stifle innovation by encouraging corporates to be lazy and
    sponge off OSS.

    Obviously, the benchmark described above is currently best embodied in law by
    the General Public License.

    SJG,
    Simple Programmer

    [ Reply to This | # ]

      Microsoft's loss......
      Authored by: tiger99 on Tuesday, January 25 2005 @ 06:57 PM EST
      Stephen R. Walli seems to be a very astute and articulate person. I don't know why he left the Monopoly, but I think they have lost someone valuable, who can see all sides of an argument, unlike Gates and Ballmer.

      And he makes a convincing case for the need to reform patent law. At present no-one gains, except patent lawyers, although some may imagine that they do.

      [ Reply to This | # ]

      20/20
      Authored by: Observer on Tuesday, January 25 2005 @ 08:01 PM EST
      > "The outcome should not have surprised anyone and the appeal was a waste of much needed financial resources."

      What's the saying? "Everyone has 20/20 hindsight" I'd have to go back to check what Rob Enderle was saying before this case was a done deal, but I don't think he was calling it a "waste of much needed financial resources." To his credit, perhaps he knows enough to abandon a sinking ship just moments before it goes under.

      ---
      The Observer

      [ Reply to This | # ]

      • 20/20 - Authored by: belboz on Wednesday, January 26 2005 @ 07:13 AM EST
      Sun Patents can only be used in CDDL projects?
      Authored by: rm6990 on Tuesday, January 25 2005 @ 08:17 PM EST
      You all might be interested in this....it sort of relates to the whole IBM
      releasing patents to the F/OSS community (which is why I did not post this in
      OT) but it is to do with Sun.

      http://lxer.com/module/newswire/view/30438/index.html

      Can Sun's patents only be used in CDDL projects? That's what I got from the
      article, but I could be wrong.

      [ Reply to This | # ]

      McGowan's paper
      Authored by: tangomike on Tuesday, January 25 2005 @ 09:46 PM EST
      I read the paper. I found it quite useful. Maybe I'm numbed by the whole TSCOG
      fantasy world, but I didn't get a sense that he's snearing at FOSS. He does
      suggest three areas of the GPL that he thinks need some discussion. One of them
      is the question of what happens if a copyright holder rescinds the GPL license
      for his/her code. He points out that the FSF says this can't stop you from using
      the code. He argues that nothing in the current GPL says that. I reread the GPL
      and I agree with him.

      If you're going to read the paper, you really owe it to McGowan to read the
      discussion about law and 'norm entrepreneur'. Otherwise you run a high risk of
      getting upset by some of his statements, and maybe flaming the messenger.


      ---
      In a recent survey 87% of respondents thought TSCOG are greedy and dishonest.
      The other 13% thought they are also stupid.

      [ Reply to This | # ]

      SCO Considering Next Steps After DC Setback & Another Novell Delay
      Authored by: Anonymous on Wednesday, January 26 2005 @ 06:10 AM EST
      Linux comes with the GPL, and that is an unchangeable fact.

      That is, until the copyright on (old versions of) Linux expires.

      [ Reply to This | # ]

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