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Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
Sunday, May 13 2007 @ 11:45 PM EDT

I'm being buried alive in email about the Fortune article about Microsoft's patent saber rattling, which I thought so unimportant I put it in News Picks earlier. Here's why I'm not unduly worried so far.

My reasons for not worrying are:

1. The recent KSR decision by the Supreme Court on obviousness means that suing anybody will result in a lot of those patents being thrown out. Yes. You've seen some of the issued Microsoft patents and you laughed. Extrapolate. The Microsoft v. AT&T case also has interesting implications. The patent landscape has radically altered.

2. FSF has told us that its lawyers believe that Microsoft has already become a distributor of GPL'd Linux, thanks to the SUSE vouchers and other things, so there is the defense against any patent litigation right there, because even GPLv2 has an implied patent license. Here. Read this: "Potential Defenses of Implied Patent License Under the GPL" [PDF]. Here's just one sentence: "In general, patent rights may be substantially limited due to an implied license when the target infringing activity is covered by the GPL." The GPL has power, and if Microsoft is now a distributor, that power works against it. I hope everyone out there understands now the importance of GPLv3. Read the article and you'll see that even Microsoft acknowledges that it can't use the Novell deal as a template, as it wished, for other such deals, because of GPLv3. Thank you, Eben Moglen.

3. Prior art searching is better organized. The NYLS Peer to Patent Project begins in June. We're perfectly ready, and the more we volunteer to work on that project, the more we will develop skills in prior art searching. Didn't you notice that Microsoft is quoted in the article as saying that it doesn't wish to be specific about its patents, for fear the FOSS community will challenge them? Does that sound like they are sure their patents will survive a challenge? If *they* are not sure, what are *you* paying for, and sight unseen to boot? Are any of these patents court-validated? Even one?

4. What kind of companies threaten to hurt you if you don't pay them protection money? Do you want to do business with that type of company? Can Microsoft risk that inevitable reaction?

5. To actually sue, Microsoft has to sue its own customers. Microsoft itself has told us that its customers mostly use Linux too in a mixed environment. I believe SCO can provide them a useful example of how well it works out when you sue your own customers. I just can't believe Microsoft would do it.

6. The Pentagon uses FOSS. Is Microsoft going to sue the Pentagon? If it did, would it win? Even SCO knew better than to follow through with its threats to the Pentagon, and they are dumb as rocks.

7. This is, to me, Darl II: "Our precious IP is worth beeelions, and you must honor our sacred intellectual property, which is behind this curtain. We can't exactly show you or identify it with specificity, but trust me, it's worth oodles and boodles, and you are violating it. We just can't show you precisely where and how. But we don't want to sue you, so we will let you use Linux anyway, if you just sign on the dotted line and pay us for code we didn't write but we'd like to tax because it's winning in the marketplace and we don't know how to make money fair and square against it."

Notice I didn't even list large corporate friends of FOSS with large patent portfolios or OIN's patents or even antitrust law, which I've been told can trump patent law, when push comes to shove. Go to Google and type in antitrust patent and you'll see. Anybody think Microsoft might be vulnerable there?

In short, I took it that the Novell deal isn't working out as well as they thought, and maybe customers aren't clamoring for those vouchers, and it is harder to find customers than they expected, and now GPLv3 ruined their dreams of wealth from that sort of a deal, so it's FUD time! They want all the EV1's, so to speak, to sign up right away before they smarten up. Or maybe Microsoft wants to bully Red Hat into signing up for a peace agreement before GPLv3 is final. Good luck with that. But it struck me like a dog that has decided to back down from a fight which growls one last time and then slinks away. Not that one wishes to relax as long as a mad dog is in the neighborhood. You never know. And for sure we know now that the kinder gentler Microsoft was just a mask over its snout.

Of course, I'm not a lawyer. Here's one, Dennis Crouch of Patently-O:

Microsoft refuses to state which particular patents are infringed in an attempt to avoid retaliation from FOSS advocates. However, the statements certainly put Linux and its users under a dark cloud -- potentially sufficient for a declaratory judgment action under MedImmune v. Genentech (2006).

I hope no one bothers, personally. Let Microsoft sue if it wishes. If there is one thing we've learned from the SCO saga, it's that FUD doesn't kill you, so long as you know better than to give in to it. I'm not saying that Microsoft isn't a serious problem if it chooses to be annoying, but the stakes are so high for Microsoft too that I took the article as an admission that it's all over for patent peace agreements, and from now on it's Microsoft going door-to-door, threatening to bust companies' knee caps if people don't pay up. That isn't really a longterm business plan for a company that cares about its brand, particularly not after the Supreme Court has so radically altered the patent world. Microsoft's real problem in the marketplace is that folks already hate the company's business tactics. Making folks hate them more doesn't sound so smart. Even those who pay up in fear will be looking for a way to get away from a company that acts like that, don't you think? No one respects a bully. And so I take the article as a test, to see what the reaction will be more than an immediate threat. So boo loudly, please, and maybe Microsoft will get hit by the Cluetrain.

And if not, I guess Groklaw will be busy for the rest of my natural born days. I don't mind. I like doing Groklaw. And as for paying Microsoft for running a GNU/Linux system, and I do, I plan on paying them the exact amount I paid SCO.


  


Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not. | 867 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: feldegast on Monday, May 14 2007 @ 01:10 AM EDT
So they can be fixed

---
IANAL
My posts are ©2004-2007 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or not.
Authored by: Anonymous on Monday, May 14 2007 @ 01:11 AM EDT
Don't forget that Microsoft is a convicted predatory
monopolist (and that was the findings of fact, not the
findings of law). By all means, let's re-open that can of
worms. :)

Rob Landley

[ Reply to This | # ]

Lessons learnt? Or not?
Authored by: Anonymous on Monday, May 14 2007 @ 01:18 AM EDT
This current MS behavior seems to rather indicate that there might be no strong connection between Microsoft and SCO (tSCOG). They (that is: MS) must be watching how "well" the SCO saga is proceeding and how well it is hindering adoption of Linux and other non-MS systems. In consequence they should then be well aware that Darl-tactics don't play well in the long run.

Or is this the sooper intelligent plot to make us all think that MS has no close relation with SCO in bed, as they are behaving so dumb that SCO can't be their little test?

Or is MS trying to proof that old "history repeating" meme, doomed to repeat other people's mistakes?

[ Reply to This | # ]

Off Topic
Authored by: feldegast on Monday, May 14 2007 @ 01:23 AM EDT
Please make links clickable

---
IANAL
My posts are ©2004-2007 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Groklaw will be busy for the rest of my natural born days
Authored by: JimDiGriz on Monday, May 14 2007 @ 01:26 AM EDT
What if PJ runs out of natural born days? Perhaps she'll need some unnatural
born days as well. In that case I nominate Kate Beckinsale to play PJ in the
movie version of Groklaw. In red leather.

JdG

[ Reply to This | # ]

Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
Authored by: jroyale on Monday, May 14 2007 @ 01:38 AM EDT
I'm certainly "concerned" as "we" could always draw a bad
judge in the first round. But I'm not panicking. If Microsoft really wants to
go to war, ok, I'll be spending a lot of time looking for prior art, because
sooner or later, Microsoft will HAVE to state which patent(s) they think FOSS is
violating.

[ Reply to This | # ]

so if i read that pdf right the 1st example is what ms does with the vouchers
Authored by: Anonymous on Monday, May 14 2007 @ 01:42 AM EDT
thus can be used as a defense agaisnt them bringing a patent issue on linux via
the legal estoppel or whatever this that is called.
Awful clear that they are giving rights to use gpl software and thus anyone
using the gpl software is entitled thus to the same rights forever.
Free of an infringing claim they make that is. They can rant and whine all they
like but by selling the vouchers to dell and having taken the vouchers from
novell to sell services based on linux it may be implied one would have to get
the software then too so MS would have to tell htem where to get it even if it
was dell they have to say it too.
Arguable i know. But the idea htey claim patents are in linux but allow it to be
used means or me thinks it measn this legal estoppal is in play already.

[ Reply to This | # ]

Dog?
Authored by: Anonymous on Monday, May 14 2007 @ 01:43 AM EDT
If MS is a dog, then I know someone that should be taken
for leetle walk behind the woodshed.

[ Reply to This | # ]

Microsoft vs customers
Authored by: cmc on Monday, May 14 2007 @ 01:52 AM EDT
I wouldn't be so sure that Microsoft wouldn't sue their own customers. They certainly have no problem threatening their customers. Here are two examples of Microsoft threatening their own customers. It's not a far stretch from threatening your customers to suing them.

http://architecta frica.com/bin0/news200411111_wine.html

http://news.com.com/2008-108 2_3-5065859.html

[ Reply to This | # ]

Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
Authored by: Anonymous on Monday, May 14 2007 @ 01:52 AM EDT
That does it. I'm getting some "Moglen & PJ" t-shirts made. I
love you guys just that much. :)

[ Reply to This | # ]

Some thoughts
Authored by: Anonymous on Monday, May 14 2007 @ 01:59 AM EDT
re: 1) That is why they are saber rattling now. Before it starts to fall apart.
There is more effect if they make a lot of noise before the news leaks out.

re: 6) Sigh! Another caldera? Never smeg off the guys who make BIG holes in the
ground.

If they launch an attack then what will the counter attack be like? Closed or
not their software will be ripped into with a vengeance. They will attract the
attention of just about anyone who is anybody in software. Even their sycophants
who are locked into producing apps for Windows will start to wonder why they are
being locked out of the emerging market. Not good.

There must also be an internal struggle withing Microsoft. While the upper
echelons continue with their monolithic vision there will be a realisation, from
the bottom upwards, that the model needs to change and Microsoft needs to make a
move towards Linux and Open Source if it is to survive. Where and when those two
philosophies will meet is anyones guess. Why spend umpteen squillions on Vista
if you can produce an OS based on Linux for a fraction of the cost. It has to
make economical sense for them. If they need to do that then they need to
recognise the community. Which way lies their ultimate survival?

Tufty

[ Reply to This | # ]

I say "Linux"
Authored by: jog on Monday, May 14 2007 @ 02:10 AM EDT
I say "Linux" but on the other hand I understand and use
GNU/Linux when conversing with those who can or *need* to
understand the distinction.
Mr. Parloff is being rather boorish in pointedly refusing
to use the term at the request of RMS. The distinction is
important for his article, particularly for his prospective
readers if he *wishes* to inform those who do not allready
understand.
By avoiding the proper use of the term "GNU/Linux" when
needed, he is helping MS maintain it's pet cloud.
He could have had a very informative interview with RMS
about why GNU should *not* be implied with Linux and never
have used the term at all.
jog

[ Reply to This | # ]

Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
Authored by: Samari711 on Monday, May 14 2007 @ 02:43 AM EDT
Also, by claiming that they know of violations but aren't revealing the
specifics, aren't they at the very least stopping the clock on damages if not
sinking the whole case via laches?

---
IANAL
IAASEWTHKS (I Am A Systems Engineer Who Thinks He Knows Something)

[ Reply to This | # ]

Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
Authored by: Anonymous on Monday, May 14 2007 @ 02:44 AM EDT
But he does break down the total number allegedly violated - 235 - into categories. He says that the Linux kernel - the deepest layer of the free operating system, which interacts most directly with the computer hardware - violates 42 Microsoft patents. The Linux graphical user interfaces - essentially, the way design elements like menus and toolbars are set up - run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68.
  • Linux: 42. Which are in optional kernel modules? Which are in architecture-dependent modules? (Merely having the source code on your disk cannot infringe, so it's only compiled code that matters. That's why it's ok to include the font-hinting-patent code in the source, and only compile it in the free world, leaving it out here in the USA.) How many could co-exist in the same compile of the kernel? How about the loadable binary-only modules? Who can know about those.
  • GUIs: 65. Which of the many GUIs? Do the same GUIs violate the same patents when run on *BSD, OSX, or some other Unix?
  • OOo (StarOffice, too, by implication): 45. Which programs in the OOo suite? Does he include other ODF implementations under the what he calls "Open Office"?
  • E-mail programs: 15. Which email programs? Sendmail and the like, which provide so much of the prior art that Microsoft bases its patents on?
  • Others: 68. Which of the umpty-thousand others?

    Boogeta, boogeta, yourself.

    ---
    --Bill P, not a lawyer. Question the answers, especially if I give some.

    [ Reply to This | # ]

    • Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Monday, May 14 2007 @ 02:46 AM EDT
    Nice analysis, PJ. We like you doing Groklaw too.

    [ Reply to This | # ]

    What an interesting number to use.
    Authored by: Anonymous on Monday, May 14 2007 @ 02:48 AM EDT
    I was just rereading one of the Scott Adams book ( he of Dilbert fame ) the
    other day, Way of the Weasel I believe it was. I remember a portion about
    'estimating' numbers. According to his wisdom, if you want numbers to be
    believed by people, pick a 'funny' number. Never round it off.
    What does that mean ?? Well, which of the following statements would make you
    believe that a complete and thorough comparison had been done.

    a) This code infringes 250 of our patents
    b) This code infringes 253 of our patents

    In the example cited in the book, he chose to use millions of dollars, probably
    because it is easier to come up with 'funny' numbers. I will leave it to the
    readers to fill in their own comparisons.

    [ Reply to This | # ]

    Software patents and TRIPS agreement
    Authored by: wjaguar on Monday, May 14 2007 @ 02:49 AM EDT

    This comment on Slashdot alleges that there exists some clause in the TRIPS agreement effectively mandating software patents, with language like "patents must be obtainable in any technical field".

    Could someone more knowledgeable than me comment on that?

    [ Reply to This | # ]

    Laches??
    Authored by: mrcreosote on Monday, May 14 2007 @ 02:51 AM EDT
    http://www.converium.com/2103.asp

    ---
    ----------
    mrcreosote

    [ Reply to This | # ]

    Software patents are dead
    Authored by: Anonymous on Monday, May 14 2007 @ 02:57 AM EDT
    In the recent ruling in AT&T vs Microsoft, Justice Alito's concurring opinion said
    Because no physical object originating in the United States was combined with these computers, there was no violation of §271(f). Accordingly, it is irrelevant that the Windows software was not copied onto the foreign-made computers directly from the master disk or from an electronic transmission that originated in the United States. To be sure, if these computers could not run Windows without inserting and keeping a CD-ROM in the appropriate drive, then the CD-ROMs might be components of the computer. But that is not the case here.

    I interprete this to mean that software, by itself, is not patentable. It must be combined with some hardware (i.e. it can be on firmware inside the computer) but cannot be simply present on the hard drive and executing as an application or even as part of the operating system. Of course, this was only 3 justices out of 7, but the others simply determined that they didn't have to decide this issue because, as footnote 14 says:

    We need not and do not reach that issue here.
    However, as I read Justice Ginsberg's opinion of the court, it appeared to me that "component" was generally meant to refer to something physical. I suspect that had AT&T and Microsoft not stipulated that Microsoft violated the patent in the U.S. that a majority of the justices would have joined Justice Alito's decision.

    [ Reply to This | # ]

    laches
    Authored by: Aim Here on Monday, May 14 2007 @ 02:58 AM EDT
    You missed one. Laches.

    The longer Microsoft waits to actually bring a lawsuit against anyone, the more
    chance Linux producers and users have of invoking the laches doctrine, which
    states that you can't sit on a known case of patent infringement until it's more
    advantageous or profitable to sue. If you discover an infringement, you should
    launch your lawyers at the "infringers" immediately or risk not being
    able to sue.

    Here, Microsoft has chosen to string out this 'infringement' as FUD for a long
    time now. All anyone needs to do to show that they've known about it but not
    sued anyone is to collect the Thoughts of Chairman Steve And His Big Mouth over
    the past two or three years or so, and file it as an exhibit...

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: PolR on Monday, May 14 2007 @ 03:03 AM EDT
    I love no 2 and no 4 (from PJ's list).

    I love no 2 because MS have themselves sunk their patent portfolio regarding
    everything ever included in SuSE. I now understand why the FSF didn't sue
    Microsoft and Novell for violation of GPL V2. This patent defense is much better
    than anything lawsuit over GPL2 could have given, so they just let them
    distribute. Hats off to the FSF legal team.

    I love no 4 because it makes explicit that Microsoft has a business model of
    "You must buy our products because you don't have choice". This is a
    model that work best when people are under the (misguided) perception that lack
    of choice is the natural consequence of superior work from Microsoft's part so
    they accept to put up with it. Don't laugh, there are PHBs that think that way.
    Once people understand that lack of choice is the result of threats of being
    kneecapped if you offer meaningful choice, you get a very different reaction.
    This is especially true when people are personally being threatened. No 4 means
    Microsoft themselves advertise publicly they are in the kneecapping business and
    ask everybody to feel threatened. They don't have to sue, just making the noises
    will be enough.

    Now we are poised to reap the benefits of this long fight with SCOG. Everybody
    knows suing without telling what the infringement is is nothing but bullying. It
    will be much easier to connect the dots between Microsoft behavior and SCOG in
    the mind of PHBs. After that, Microsoft's threats will be very much neutered.

    [ Reply to This | # ]

    A way to get the patents
    Authored by: Sander Marechal on Monday, May 14 2007 @ 03:04 AM EDT
    Perhaps there is a way to get the patent list from MS. Someone could take over a
    recently abandoned 1-man Linux distro and contact Microsoft for a patent license
    because, of course, we would not want to infringe on Microsoft's patents with
    out distro. Then demand a list of those 235-odd patents that are supposed to be
    infringed upon. We want to know what we are licensing of course.

    There might even be some interesting fallout if Microsoft refuses to negotiate
    or supply the list.

    ---
    Sander Marechal
    Geek, Programmer and many more, but not a lawyer

    [ Reply to This | # ]

    And there are 205 communists in the state department
    Authored by: Anonymous on Monday, May 14 2007 @ 03:11 AM EDT
    Thanks to a Slashdot contributor for suggesting that this is remarkably like Joe McCarthy's headline-grabbing, but never substantiated, claim. Censure of Senator Joe McCarthy (1954)

    Microsoft is rather neatly hoist on its own petard here. After sponsoring SCO to make similar claims, and having those claims rather comprehensively debunked, people are much more skeptical of cries of wolf.

    If Microsoft had started with this, there would have been a lot more fear of the 800 lb. gorilla. But now that people—particularly people with money and authority over buying decisions—are immunized, the response is "where's the beef?" Vague allegations aren't enough, because there's an earlier example of dire threats turning out to be 100% pure vapour.

    [ Reply to This | # ]

    What about Novell?
    Authored by: Anonymous on Monday, May 14 2007 @ 03:15 AM EDT
    Unless there is something I don't understand (very possible), if Microsoft do
    sue, it means Novell loses the right to distribute!

    [ Reply to This | # ]

    Microsoft's threats aimed at Dell and others who preload Linux?
    Authored by: Anonymous on Monday, May 14 2007 @ 03:19 AM EDT
    I can't help wondering if Microsoft's patent threat racket is being used to
    attempt to frighten off OEMs like Dell from selling Ubuntu and other not
    Microsoft controlled Linux distributions.

    DOJ and EU anti-trust authorities need to investigate.

    [ Reply to This | # ]

    To claim damages from a ptent infingement ...
    Authored by: Anonymous on Monday, May 14 2007 @ 03:27 AM EDT
    Not an expert on US (or any law) but in order to claim damages from a patent
    infringement I always thought the patent holder had to at least attempt to
    defend the patent ....

    I would have thought MS's actions here were self defeating, they've blocked
    themselves from damages claims (and possibly from ANY claims) by NOT being
    explicit about the infringement.

    Any lawyers care to comment ?

    [ Reply to This | # ]

    Counter-claims
    Authored by: Anonymous on Monday, May 14 2007 @ 03:38 AM EDT

    Surely Microsoft isn't going to sue. Microsoft has much more revenue than any member of OIN, so the counter-claims would be devastating. Let's say each party gets one patent to stick and each is assessed at 0.5% of related product revenue. That's $m paid to Microsoft and $b paid by Microsoft.

    This is pure FUD, as there's no way Microsoft can take the risk of a successful patent counter-claim.

    [ Reply to This | # ]

    We have a date and a number...
    Authored by: Anonymous on Monday, May 14 2007 @ 03:45 AM EDT
    Now that Microsoft have officially announced the number of patents 'infringed'
    by Linux. How long do they have to begin enforcing these? Surely they have to
    move soon, or as I understand it the doctrine of latches will prevent them doing
    anything at all?

    And if you think about it, once that kicks in MS are kind of stuck. They've
    claimed patents in Linux, Open office, Email and 'assorted' FOSS programs. If
    they wait too long, if they try to enforce *any* patent against any FOSS
    program, one of the first defence arguments will be to ask them to prove that
    particular patent wasn't one of the ones they knew about today. And as I don't
    see them getting around that without declaring in court exactly which patents
    they knew about today. The first case they try could blow this whole thing wide
    open.

    Personally, I've no doubt at all this is about FUD. MS know that if they name
    one, they have to name them all, and they will wait as long as they possibly can
    before they specifically name these 'violations'. They even admit in the
    article that they refuse to identify patents lest FOSS advocates start filing
    challenges to them. It seems to me that they know they're on shaky ground.

    You could even read into this that MS are running scared, and that this is more
    of a tactical retreat. They've seen SCO's attack on Linux fail miserably, their
    Novell plan looks like an approach that won't hold water, and the recent rulings
    by the Supreme Court may considerably reduce the value of the patents they do
    hold.

    MS are trying to get every ounce of value out of these patents before they have
    to write them off as worthless.

    Just my 2c.

    Myx

    (IANAL, etc...)

    [ Reply to This | # ]

    Underrating Microsoft?
    Authored by: Anonymous on Monday, May 14 2007 @ 03:49 AM EDT

    Microsoft's real problem in the marketplace is that folks already hate the company's business tactics.

    That doesn't seem to have slowed down their growth any. So why is it a problem for them?

    Let's not underrate Microsoft's power, or imagine that little problems like being hated are going to slow them down. We have a tough battle ahead of us. To win, we need to assess the situation objectively, not optimistically.

    [ Reply to This | # ]

    Microsoft Will Never Sue.
    Authored by: Anonymous on Monday, May 14 2007 @ 03:53 AM EDT
    At least, Microsoft would never sue a major creator or distributor of Linux. And
    this, I suspect, means that it will never happen.

    Firstly, because of the publicity. These days, MS prefers to skulk around in the
    shadows and try and influence through intermediaries. Think Commonwealth of
    Massachusetts.

    Secondly, because they would lose, and lose big. Just imagine the discovery
    bonanza that someone like IBM would have against Microsoft...

    And the sweetest bit? If, in an alternate universe, SCO were to win on their
    "non-literal infringing" nonsense, just imagine how vulnerable that
    would make the Windows environment?

    Just think of all those software features copied by MS over the years... back
    before they decided it was bad for business to be copying other people's IP.

    Bill? Steve? Can you hear us?

    Bring it on.

    [ Reply to This | # ]

    USA Only - NOT rest of world!!!
    Authored by: Sesostris III on Monday, May 14 2007 @ 03:54 AM EDT
    Don't forget that this patent threat is valid (if at all) only in the US. In
    other parts of the world (e.g. the EU) there are no "pure" software
    patents, so (I assume) Microsoft's threat is nugatory!

    IANAL

    Sesostris III

    [ Reply to This | # ]

    What kind of companies: Really desperate ones
    Authored by: Winter on Monday, May 14 2007 @ 04:01 AM EDT
    "4. What kind of companies threaten to hurt you if you don't pay them
    protection money? Do you want to do business with that type of company? Can
    Microsoft risk that inevitable reaction?"

    Desperate companies.

    I think there is some dramatic action behind the scenes:
    - Vista is completely tanking
    MS sold assets to prop up their profits and claimed it was Vista sales. How
    desperate can you get?
    - Vista security is already broken, including users being able to circumvent ALL
    Vista DRM (using a boot kit developed by two Indian students, talk about quality
    students)
    - Vista is much worse than modern Linix distributions, HW efficiency is
    incomparable
    - The really good developers moved out of MS
    - MS/Vista DRM requirments are HW and price killers
    - MS don't have the people to accomodate new, revolutionary or evolutionary
    hardware (they couldn't get XP on the OLPC laptop)
    - There is no plan B
    - Companies are seeing MS profits are paid directly from their own net profits,
    with no increase in productivity
    - Maybe OOXML is going to tank too, and with it Sharepoint as the new toll
    booth. Remember there are only 603 OOXML documents in Google. Also, ISO might
    not be the easy ride MS thought
    - Even the Intel Classmate, Intel's OLPC crusher, is defecting and linked up
    with RedHat. So the next billion computers might run Linux either way.

    And MS are the only ones who actually KNOW how many computers are running Floss
    (ie, total number of computers sold and connected to the internet minus those
    activating XP or Vista, using MS Office).

    With a $12B or so yearly profit evaporating, I would become desperate too.

    Maybe my earlier prediction of the death of the monopoly (start 2009) might even
    have been too pessimistic.
    (http://www.groklaw.net/comment.php?mode=display&sid=2007050906365658&ti
    tle=Does%20MS%20monopoly%20live%20to%20see%202009%3F&type=article&order=
    &hideanonymous=0&pid=567902#c567988)

    Rob

    ---
    Some say the sun rises in the east, some say it rises in the west; the truth
    lies probably somewhere in between.

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: vegas_r_bust on Monday, May 14 2007 @ 04:17 AM EDT
    I was wondering if it makes sense that we as consumers should file complaints
    with the FTC. Isn't this the kind of stuff that they are supposed to deal with?
    As I see it, everything that MS says about "alleged MS IP violating"
    software is intended to put fear into the consumer about potential IP violation
    without actually having to prove anything. So the real intent is to confuse and
    deter consumers from considering alternative competing software. Correct me if
    I'm wrong, but this smells like an unfair business practice. Although the
    software is free, this illegal practice still hurts vendors who could and do
    provide services that can be used to support the use of free software. I think
    the FTC needs to get involved and force MS to either put-up or shut-up!

    "unfair competition" is sometimes used to refer only to those torts
    that are meant to confuse consumers as to the source of the product.

    [ Reply to This | # ]

    And the other great lesson learned from SCO...
    Authored by: Anonymous on Monday, May 14 2007 @ 04:34 AM EDT
    ... is that any case Microsoft were to bring can probably be tied up in court
    with sur-sur motions and replies until the (claimed) patents are invalid, or are
    no longer useful to FOSS.

    [ Reply to This | # ]

    Interix ? !(contains_gcc) : (Microsoft == toast);
    Authored by: Wesley_Parish on Monday, May 14 2007 @ 05:24 AM EDT

    FWIW, I've got a copy of Microsoft Interix sitting in my .wine/drive_c directory. And yes, it contains a bona fide version of gcc.3.3, distributed under the GPL v2, which contains the words:

    7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

    I take it as read that since Microsoft is making these threats and mutterings of patent infringement and has neglected a minor matter of specificity, the FSF and the GNU Project are obliged to point out the implications of this to Microsoft - that they are no longer permitted to distribute Microsoft Interix as it currently stands, because of their complete lack of specificity means that the gcc and other GNU Project applications included in the Interix distribution, could well be covered by their nebulous allegations.

    Indeed, Samba would also be entitled to point out to Novell that acquiescing in Microsoft's completely aspecific allegations of patent infringement means that Novell is no longer permitted to distribute Samba.

    I suspect that Microsoft is doing a SCO Group, for much the same financial reasons. I expect Microsoft to meet the same fate the SCO Group will - ignominious massive reality failure.

    ---
    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 | # ]

    Japanese move means more flying chairs in Redmond...
    Authored by: MDT on Monday, May 14 2007 @ 05:24 AM EDT

    Gotta love it if a major customer of yours says 'We specifically want to get away from using your product'. That's great for the bottom line. I bet the chairs are hitting new distance records in Redmond. I wonder if this timing had anything to do with M$'s sabre rattling.

    CLICKY

    ---
    MDT

    [ Reply to This | # ]

    Microsoft's continuing FUD strategy
    Authored by: TiddlyPom on Monday, May 14 2007 @ 06:00 AM EDT
    PJ - totally agree with you about the *likelyhood* of any action succeeding but IMHO this is just a continuation of Microsoft's dispicable FUD strategy.

    I honestly think they are starting to get a little scared that the days of (almost) complete Microsoft monopoly on Personal Computers are drawing to an end.

    Redhat/Fedora, openSUSE, Ubuntu Linux, Mandriva and many other Linux distributions are now starting to look very polished and professional and I think the general public are just beginning to notice this and the thought terrifies Redmond.

    When you have stories like this one and this one on the BBC web site in full view of the general public then a certain percentage are bound to notice.

    Microsoft seem now to be in the unenviable position of having a disintegrating monopoly which is eroding their bottom line and they are doing anything they can to hold onto power.

    Hey Redmond! Move on! Start producing innovative and exciting products like you used to do instead of fighting everybody else who actually has new ideas and you might actually hang on to customers.

    ---
    "There is no spoon?"
    "Then you will see that it is not the spoon that bends, it is only yourself."

    [ Reply to This | # ]

    What if Linux was there first?
    Authored by: Anonymous on Monday, May 14 2007 @ 07:12 AM EDT
    Okay, Microsoft has the patents, but what if the prior art shows that Linux was
    "there first?" Then it's Microsoft who's in violation of those
    230-odd patents. Isn't that their real fear?

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Monday, May 14 2007 @ 08:11 AM EDT
    Keep in mind that all this attempted extortion that Microsoft is perpetrating
    was Bill Gates' idea. Bill still has henchmen everywhere who will repeat these
    lies everywhere they can because they believe in his "genius",
    including in places like the Pentagon and Congress.

    Microsoft have used their connections to flaunt their criminal behavior before
    and it's likely they will again.

    [ Reply to This | # ]

    Scaring programmers, programmers, programmers
    Authored by: Anonymous on Monday, May 14 2007 @ 08:14 AM EDT
    As a programmer, I currently have the choice of targetting our AJAX framework at IE and/or Firefox.

    Unfortunately for IE, it seems its publisher is acting like a bunch of litigious bastards, so "run away!" - giafly.

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid threats.
    Authored by: jplatt39 on Monday, May 14 2007 @ 08:41 AM EDT
    My impression is that what they are trying to pull is the same thing those
    gangsters are pulling with the denial of service attacks. M$ is a well-heeled
    company, still and obviously many companies would rather settle than go to the
    expense of fights they might even win.

    That this seems a new low for them doesn't change that it's been coming for a
    while. They think that with enough money and influence they can pull it off.
    So far their actions haven't been affected by any consequences for their other
    actions. Can individuals bring RICO?

    [ Reply to This | # ]

    Pre-emptive strike on the horizon?
    Authored by: Anonymous on Monday, May 14 2007 @ 09:03 AM EDT
    What happens when a free software company goes pre-emptive and sues Microsoft
    Windows users?
    Windows violates many patents, some in the Linux "war chest"; I got to
    go make popcorn, the main feature is starting....


    IBM, Novell, Adaptec, HP, Intel?

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Monday, May 14 2007 @ 09:09 AM EDT
    "What kind of companies threaten to hurt you if you don't pay them
    protection money? Do you want to do business with that type of company? Can
    Microsoft risk that inevitable reaction?"

    aren't there companies doing this already?

    if there are I got some swamp land I would like to sell so please contact me.

    [ Reply to This | # ]

    save the gpl3 by dropping the drm clause
    Authored by: Anonymous on Monday, May 14 2007 @ 09:23 AM EDT
    At this point, free software and open software advocates have a common need for
    a patent clause on gplvx

    There is consensus on gpl2

    There is consensus on gpl2 + anti-patent provisions

    gpl3 = gpl2 + anti-patent provisions + anti-drm

    open sourcers do not agree (philosophically) with imposing politics or banning
    uses in licensing. Today, drm. tomorrow, porn. the day after, rock music. Be
    careful of what you ban.

    open sourcers will stick with gpl2 instead of gpl3 due to anti-drm clause

    free software ppl will hold out for purity and get no upgrade to gpl2 at all.

    so far that is the story.

    [ Reply to This | # ]

    How long before....
    Authored by: jmc on Monday, May 14 2007 @ 09:42 AM EDT

    And if not, I guess Groklaw will be busy for the rest of my natural born days. I don't mind.

    I hope my natural born days extend to when MS start saying GL was only ever set up to snipe at them!

    [ Reply to This | # ]

    This makes me think of Gandhi's Quote
    Authored by: fishyfool on Monday, May 14 2007 @ 09:47 AM EDT
    “First they ignore you, then they laugh at you, then they fight you, then you
    win.”

    Bring it on Microsoft, We've been waiting for you.

    [ Reply to This | # ]

    42 ... The Answer to Life, the Universe, and Everything
    Authored by: Anonymous on Monday, May 14 2007 @ 09:50 AM EDT
    What was the question again?

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: John Hasler on Monday, May 14 2007 @ 09:55 AM EDT
    > The Pentagon uses FOSS. Is Microsoft going to sue the
    > Pentagon?

    Lots of people sue the Pentagon.

    > If it did, would it win?

    And they often win. The US government is subject to patent law. If it lost
    such a patent suit and Microsoft refused reasonable royalties the government
    might grant itself a compulsory license, but so what? Microsoft would still get
    paid and a precedent would be set.

    ---
    IOANAL. Licensed under the GNU General Public License

    [ Reply to This | # ]

    Time to fill warchest?
    Authored by: Anonymous on Monday, May 14 2007 @ 10:06 AM EDT
    How many lawyers needed on a legal team to invalidate a patent assuming you have
    community support for finding prior art and doing legal research?
    Would be kind of cool if our response to their hollow threats was a very real
    effort to invalidate all their patents.
    Imagine community slowly accumulating data and research needed to invalidate
    each patent they own while gathering funds to hire lawyers to argue the cases.
    Once cases against a bunch of patents seemed invincible lawyers could be hired
    to take them to court.

    [ Reply to This | # ]

    A legal question
    Authored by: Alan(UK) on Monday, May 14 2007 @ 10:11 AM EDT
    IANAL. It seems to me that this statement by Microsoft is damaging other
    people's businesses. Most people are not in a position to do anything about it.
    One company that is affected and has the resources to do something is IBM. When
    faced with a similar situation with Caldera/SCO they did not have to initiate
    anything because Darl made the first move. As we have come to know, the IBM
    legal team grind like the mills of the gods. Even Billy G acknowledges that IBM
    is a four-times heavier gorilla than Microsoft.

    Now my question is: disregarding the terms of the GPL and disregarding whether
    Microsoft (or indeed IBM) actually distribute Linux or the other allegedly
    offending code; does IBM have standing to bring a case on the grounds that
    Microsoft are damaging their business by making false statements about products
    upon which IBM depends for a section of its business? As Microsoft has
    effectively made 235 independent claims of patent infringement, IBM could
    presumably make Microsoft justify every one of these separately in court and
    claim damages for each one shown to be false.

    I cannot see how Microsoft can buy their way out of this one. They could agree
    to settle out of court for some substantial sum of money but the problem is that
    they cannot make 'denying liability' part of the settlement; having made the
    statement they would be obliged to withdraw it. Withdrawing it would mean
    admitting that all the patents are invalid (or at least irrelevant to the
    software in question) which would leave them open to further claims by other
    interested parties.



    ---
    Microsoft is nailing up its own coffin from the inside.

    [ Reply to This | # ]

    Giving out vouchers is NOT distribution - repeat after me
    Authored by: Anonymous on Monday, May 14 2007 @ 10:34 AM EDT
    Giving out or assigning vouchers is NOT distribution.

    This was discussed earlier. I think FSF mis-spoke. It's definitely incorrect.

    A voucher is distribution of only a voucher, not actual product. If you are not
    the one doing the fulfillment of the product, then you never distribute.

    If Novell or Red Hat or whoever does fulfillment, they are the ones doing
    distribution.

    Only the entity doing the actual distribution is encumbered by the GPL (even
    under GPLv3 this is the case!)

    So in this way Microsoft avoids the GPL rules, they're smarter than you think
    (sometimes). Doesn't mean their patent BS holds water, it just means that
    sometimes Microsoft does smart things. not often though.

    So Microsoft gets to FUD stuff to death, scott clean (sorry Scott!)

    [ Reply to This | # ]

    Why I Now Love SCO
    Authored by: Anonymous on Monday, May 14 2007 @ 10:37 AM EDT
    The comments on this story are thrilling. No yelling, no screaming, no apocalypse. Cool headed reasoning and analysis.

    SCO gave us this. They were like an inoculation. A weakened virus that gives immunity when the real thing comes along. Microsoft waited too long to use the patent weapon. The community is now mostly immune.

    The big corporate customers have heard it before, and nothing came of it. Why are they going to worry now? It wasn't like SCO didn't have the money to press their claims. Waiving a briefcase full of copyright or patent violations just doesn't scare anyone anymore. If MS had an ironclad case, they would bring it to court, not to Fortune Magazine.

    So thanks SCO. Thanks Darryl. It turns out that you have made it impossible for Microsoft to succeed by playing the intellectual property card. I still hope you rot in hell Darryl, but its an ill wind that blows nobody good.

    [ Reply to This | # ]

    Peer to Patent at the New York Law School
    Authored by: andyo on Monday, May 14 2007 @ 10:51 AM EDT
    Minor correction: this project was started at the New York Law School, which is
    down the block a ways from NYU.

    Thanks for a wonderful article.

    Andy Oram

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Monday, May 14 2007 @ 11:01 AM EDT
    My guess is that most of these so called "patents" are so broad that
    they not only potentially affect Linux, they potentially affect all operating
    systems and software. That would mean that Microsoft would be targeting not just
    Linux, but anyone creating operating systems and software.
    By actually making such an arrogant move Microsoft declares themselves owed not
    only the position of being the current overbearing monopoly they are, but the
    right to be the ONLY legitimate OS at all allowed to "innovate" in the
    marketplace.

    I don't think so Microsoft.

    [ Reply to This | # ]

    Ooh, ooh, Let's Sue CHINA!!!
    Authored by: mdarmistead on Monday, May 14 2007 @ 11:02 AM EDT
    Let's see, anybody dealing in Linux and FOSS is guilty of infringing OUR (M$)
    patents. So... LET'S SUE CHINA!!! Whoa there, why stop with China? How about
    the good ol' NSA, after all, they created a distribution of Linux. How about
    NASA, the USPS, DOD, Germany, Brazil??? You ask: USPS??? Yep, the US Postal
    Service uses Linux clusters for address OCR. My, the list of who WE (M$) could
    sue is ENDLESS! BEEEELLIONS, and BEEELIONS of dollars!!!!

    [ Reply to This | # ]

    I hope the EU is watching this closely
    Authored by: Anonymous on Monday, May 14 2007 @ 11:05 AM EDT
    Microsoft making vague threats about patents in order to try to weaken its
    competition and destroy FOSS.

    Anybody who still thinks it is a good idea to introduce software patents in
    Europe should take notice of this.

    [ Reply to This | # ]

    Funny theory
    Authored by: PolR on Monday, May 14 2007 @ 11:07 AM EDT
    From the Sam Varghese's ITWire newspick
    I doubt that there will be legal action any time soon. No, this move by Microsoft is designed to do one thing - cut a deal with the people at the Free Software Foundation so that when the third revision of the General Public Licence is finally introduced, there is no clause in it which can cause problems for Microsoft.
    Could it be Microsoft's dream? This would be like trying to figure how to make a deal with the pope on abortion.

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Monday, May 14 2007 @ 11:14 AM EDT
    Anybody who works for Microsoft should hang their head in shame about this.

    Anybody who believes that Microsoft has "changed its ways" and is
    trying to work with FOSS should remember this article.

    [ Reply to This | # ]

    Fighting fire with fire
    Authored by: Anonymous on Monday, May 14 2007 @ 11:37 AM EDT
    The general belief seems to be that this is posturing: Microsoft isn't going to
    sue anyone. I think their fear of letting people know which patents are being
    violated is pretty good proof of that.

    So the only reasons they could be doing this is: 1) they hope to sell licenses,
    or 2) they're trying to create market uncertainty.

    Both are certainly working at least a little, but probably not enough. And if
    someone, say in germany, were to sue saying "put up or shut up", like
    what happened with SCO, that would do alot.

    But I think there is more we can do. OIN could start making press releases. IBM
    could too. A few "microsoft is violating 22 THOUSAND patents with its OS
    and office products." would get them scrambling, *AND* be a taste of their
    own medicine.

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Monday, May 14 2007 @ 11:45 AM EDT
    Not to correct PJ, but the US Government can use ANY patent it wants, when it
    wants. Usually the government works with the company it is taking IP from and
    comes to a mutually beneficial arrangement. But if there is no
    "agreement" the government can just take the IP and do with it as it
    pleases.

    So Microsoft won't be suing the Pentagon or any other government agency (DOT,
    NOAA, etc.)

    I don't think MS has a leg to stand on anyway, I just wanted to make a
    correction to PJ's comment.

    [ Reply to This | # ]

    Question for the Legal Eagles
    Authored by: Anonymous on Monday, May 14 2007 @ 12:05 PM EDT

    Is it possible to petition the courts in some way so as to have a court-order forcing MS to disclose the patents MS feels Open Source is infringing?

    Petition may be a bad word. I don't mean to petition by having half a million people sign something. I'm refering more to the definition:

      Petition - request: a formal message requesting something that is submitted to an authority.

    I'm thinking there must be some way you can present some kind of filing that will:

    1. Outline the fact that Patents are publicly available information.
    2. MS claims GNU/Linux infringes a number of their patents.
    3. MS has made it clear they don't want to inform what the patents are.
    4. At least a portion of the open source industry does not want or need the MS patents.
    5. That portion would like the oppertunity to stop the infringing action.
    So the request would be: please order MS to disclose under public terms the patents that they feel GNU/Linux infringes.

    Is there some way to do that which would be significantly more cost-effective then raising a whole lawsuit?

    RAS

    [ Reply to This | # ]

    But what if.....
    Authored by: Anonymous on Monday, May 14 2007 @ 12:24 PM EDT
    MS decides to go after the small time developers one at a time.? They mostly do
    not have the resources to fight in court. It's the riaa tactic that might wear
    down a lot of people and set dangerous precedents.

    I think you have good arguments but as we know, and have seen in the SCO case,
    good arguments and being right have little effect in a multi million dollar case
    spanning several years. How many smalltime developers can afford cases like
    that.

    To me as an outsider, being dutch, it looks like getting justice is something
    only the rich are able to do in the US

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Monday, May 14 2007 @ 12:35 PM EDT
    I saw a comment elsewhere to the effect that, so far the FOSS community has
    played nice with Microsoft, competing on merits, but if it comes down to
    hardball on both sides, Microsoft's lock-out strategy could easily be turned
    around and used against them. The FOSS community, having quite a bit of control
    over the workings of the internet (FOSS software is used in the majority for
    web-servers, routers, firewalls, DNS, etc. on the web), could simply stop
    supporting Microsoft's non-standard quirks which they used in their futile
    attempts to take over the web, and Microsoft software would suddenly quit
    working correctly on the internet.

    Think about that for a while...

    [ Reply to This | # ]

    time to revisit the MS-Sun 2004 agreement...!
    Authored by: Anonymous on Monday, May 14 2007 @ 12:38 PM EDT
    OOo violates 45 patents .... Did Sun know this number when it signed the
    LIMITED PATENT COVENANT AND STAND-STILL AGREEMENT in 2004 .

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Monday, May 14 2007 @ 12:42 PM EDT
    OK, let's see....

    1.Microsoft cries communist's and criminals in regard to
    people who use LINUX...This fails

    2. Microsoft has a second party ( SCO ) to sue over IP
    issues, throws alot of FUD in the mix....This is failing

    3.Microsoft threatens to sue over IP..... This is supposed
    to succede?

    And in between all of those are things like, a cut up version of XP for a couple
    of bucks.

    And I'm sure the usual threats to computer dealers and
    software developers and all the other dirty tricks M$
    tries to stay ahead.

    Anyone in the DOJ watching this?

    Probably not, stupid question...

    [ Reply to This | # ]

    It isn't just Microsoft's business practices
    Authored by: rweiler on Monday, May 14 2007 @ 12:43 PM EDT
    People dislike their products too,and the prices, but as a result of those
    business practices, they don't really feel they have any choice. The proof of
    the effectiveness of Microsoft's monopoly power is that they have achieved and
    maintained market dominance despite the fact that their products aren't very
    good, and they certainly aren't competitively priced. It is the hammerlock on
    the distribution channels that makes all the difference.

    ---
    Sometimes the measured use of force is the only thing that keeps the world from
    being ruled by force. -- G. W. Bush

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Monday, May 14 2007 @ 01:11 PM EDT
    All of Microsoft's patents are publicly described, albeit with some delay, in
    the IBM patent database. Let's not wait for them to try to use their patents.
    Let's try to invalidate them now -- even the ones that have nothing to do with
    F/OSS. The software patent gold rush has caused so many overlapping patents that
    you'd be hard pressed to find a software company that is not violating at least
    one patent.

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: blacklight on Monday, May 14 2007 @ 01:20 PM EDT
    "And if not, I guess Groklaw will be busy for the rest of my natural born
    days. I don't mind. I like doing Groklaw. And as for paying Microsoft for
    running a GNU/Linux system, and I do, I plan on paying them the exact amount I
    paid SCO." PJ

    And as a groklaw regular but a sniveling coward, I am going to hide behind PJ's
    skirts and pay Microsoft three times as much as PJ plans to pay Microsoft :)

    ---
    Know your enemies well, because that's the only way you are going to defeat
    them. And know your friends even better, just in case they become your enemies.

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: jamesdelong on Monday, May 14 2007 @ 01:31 PM EDT
    Three questions:

    <p>1) Why doesn't the FSF create a GPLv4, which would say that Microsoft
    can use GPLed code if it allows open source programs to use Windows code -- in
    short, cross-licensing, such as is endemic in the tech world.

    <p>2) Why is it fine for the Free Software Foundation to enforce its
    intellectual property rights, but immoral for Microsoft to do the same?

    <p>3) Many firms in the open source world profit quite well from selling
    hardware, services, proprietary software applications, and internet services
    related to Linux. Why is moral to make money from these activities, but not
    moral to make money from selling an operating system?

    [ Reply to This | # ]

    M$ Really Needs to Think About This.
    Authored by: iamajoat on Monday, May 14 2007 @ 01:34 PM EDT
    I build electronic equipment that is used by the Department of Defense. This
    equipment contains a variety of computers, some of which use Linux. The
    equipment connects to even more equipment, which also uses Linux.

    This is only one system out of hundreds, maybe thousands.

    Lets see...Who exactly was it that came up with SELinux? I know it was some
    three letter government organization.

    So M$ is going to walk up and tell these folks that they are infringing - I
    don't think so.

    Obviously, though we don't know the exact stupid motive, this is just more FUD.

    ---
    If you want to be free, there is but one way; it is to guarantee an equally full
    measure of liberty to all your neighbors. There is no other.

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Monday, May 14 2007 @ 01:48 PM EDT
    I found one of them: System and method for populating forms with previously used data values (issued in 1999).

    [ Reply to This | # ]

    Looks like we're heading into stage 3.
    Authored by: GrueMaster on Monday, May 14 2007 @ 02:01 PM EDT
    "First they ignore you, then they laugh at you, then they fight you, then you win." - Mahatma Gandhi

    Time to get our hands dirty and dig through the pile of patent manure.

    ---
    You've entered a dark place. You are likely to be eaten by a Grue!

    [ Reply to This | # ]

    The real target
    Authored by: Anonymous on Monday, May 14 2007 @ 02:23 PM EDT
    I too find it hard to imagine Microsoft suing its own customers and being
    successful in the long run. I wonder if the real target may be software
    developers and/or software companies?

    Think about the real roadblock to business adoption of Linux as a desktop. For
    most, it's getting your business critical apps to run on Linux and for many,
    there is no Linux version of what they need so you have to rely upon an
    emulator, which most large corporations are just not going to do. Large
    companies want reliability and if they have to pay Microsoft several million a
    year to feel secure then they do it without thinking twice about it.

    [ Reply to This | # ]

    For me, this is MS jumping ship on SCO
    Authored by: Anonymous on Monday, May 14 2007 @ 02:36 PM EDT
    I am not a trader, but a knew a few in my times, and if they followed my train
    of thought the SCO stock would be at 0.01$ right now.

    Isn't it obvious? SCO has played its role, SCO may leave the stage now (exit
    left with a hook around the neck). All the "real patents" (we will see
    how real...) are held by MS, not SCO, these guys are of no more use, and next
    time Darl tries to ring someone to bail him out even the secretary will laugh at
    him.

    And - in respect to the claims by MS - i absolutely share PJs view of things and
    sleep safe and sound at night...

    Linux_Inside

    [ Reply to This | # ]

    Cease and desist letters to the World? :D
    Authored by: Anonymous on Monday, May 14 2007 @ 03:03 PM EDT
    I'm curious: exactly where Microsoft is going to send its cease and desist
    letters?
    And who is it going to sue? Linux is being developed by LOTS of people, and
    noone really owns it.

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Monday, May 14 2007 @ 03:03 PM EDT
    It just seems interesting to me that the article that I read mentioned IBM,
    NOVELL, RED HAT, et al, as supports of FOSS that M$ has to contend with.
    Interesting that M$/Novell has a deal, and that M$ approached Red Hat to come up
    with a deal. Maybe to shut them up??

    wb

    [ Reply to This | # ]

    Much Ado About the Wrong Thing
    Authored by: RCW on Monday, May 14 2007 @ 03:28 PM EDT
    PJ says she is not unduly worried about “Microsoft's patent saber rattling” in
    the Fortune article. I agree, but for different reasons.

    The article quotes Linus Torvalds - he is also not worried because while the
    “FSF considers proprietary software to be something evil and immoral” he just
    doesn’t care about it. Well, that’s refreshing. It is what I believe Roger
    Parloff was getting at earlier in the article when he talks about businesses
    working out non-GPL licenses that that accommodate to the proprietary sector.

    It is in that same vein that Microsoft has worked out licenses with customers
    and the agreement last year with Novell.

    Richard Stallman once referred to a study - and I don’t remember the source -
    that the Linux kernel infringed more than the 235 patents cited to in the
    Fortune article. So, patents on Linux is not new. What is new is a statement
    that Microsoft has identified 235 patents in its patent portfolio that cover
    free and open source software.

    Unlike the way PJ has covered the article, the statements by Ballmer and Smith
    are not a call to a war on patents. Stallman and Moglen seem to be the ones
    calling for that. Rather, Ballmer and Smith talk about licensing and not patent
    infringement actions. I suppose that that is one of the reasons for not naming
    specific patents and specific products covered by them - to avoid being dragged
    into court where they don’t want to be on declaratory judgment actions.

    It is true that recent Supreme Court decisions have pared back patentability of
    inventions and infringement actions - but I think that is an evolutionary and
    not radical alteration as suggested by PJ. There is also the peer to patent
    project of NYU that PJ mentions. Really, all of this is good if it means
    weeding out good patents from bad. But none of this goes to the true desire of
    the FSF - to eliminate patent protection for software.

    PJ suggests that Microsoft is already a distributor of GPL’d Linux under GPLv2.
    I don’t think so, and neither does she, really, given her reference to GPLv3.
    In GPLv3, FSF makes their disdain for patents on computer software clear. But
    rather than taking the issue to the only party that can do something about it -
    the US Congress - FSF is more inclined to take it to the streets and fan the
    flames to ignite the “tinderbox” that Moglen referred to in the article. They
    would apparently welcome it. But it is cooperation and not conflagration that
    Microsoft is interested in. No, we cannot all be friends - but we need not put
    our friends, customers, and software users in a cross fire, which is precisely
    what the GPLv3 does.

    So, I am not worried about proprietary software or patents. I am not worried
    about how many patents Richard Stallman or Brad Smith thinks cover Linux. I am
    worried about the combatants on the anti-patent side of the aisle that do not
    take the issue on directly but who actively seek confrontation instead.

    [ Reply to This | # ]

    Today. my wife asked about a new computer
    Authored by: PeteS on Monday, May 14 2007 @ 03:30 PM EDT
    Had she asked two years ago, I might have considered getting a laptop with W2K
    pro (actually a pretty decent OS) for her. Now, I will not even consider getting
    a MS OS at all. I will note I have used Linux and various *nices for decades,
    but there are some games we have that were then only available on Windoze.

    Vista, because it was written for, and at the behest of, the 'content industry'
    (sure seems like it at least) was not written to be a proper OS, but rather a
    revenue stream guarantee tool. My views on that are not printable.

    I will simply set up a system using one of the various Linux distros which will
    give her all she needs for the system.

    Score one own goal, Steve.

    PeteS


    ---
    Only the truly mediocre are always at their best

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: kindhornman on Monday, May 14 2007 @ 03:31 PM EDT
    Here they go again ! It seems that since the SCOfiasco
    began we Open Source users have been threatened,
    intimidated and harassed. I'm sure that every one of us
    has had this deep feeling of doubt in our conscious as to
    the 'final' outcome in the courts of these
    larger-than-life nuissance lawsuits and public slanders..

    As has been stated so many times at Groklaw...show us the
    code !! In the IBM, Novell, Red Hat and related suits we
    must wait for final disposition to know what the TRUTH is.
    And wait we must.

    What we all would like to see is for this whole thing to
    be over so we can get on with our lives and use great
    software of our own choice. Not asking too much in my
    opinion. So what are we to do ??

    So I'm wondering how it will all pan out as are you. It's
    been said many times that if they 'show us the code' we
    could remove it and come up with non-infringing
    replacements. That is obvious but probably an over
    simplification. As in the SCOX case, if we replace the
    supposedly infringing code with something that 'seems' to
    be non-patent infringing than they come back and say that
    it isn't the 'actual' code but rather the 'method' that is
    infringing, then what is next ?? Do we come up with a new
    method ?? This just seems to be a never ending vicious
    cycle. So many patents out there we don't even know
    about. All it takes is $MONEY and a lawyer to keep going
    and going and...

    A few years ago (2001) I switched from Red Hat to SuSE.
    The reason(s) doesn't really matter. I thought all was
    well until the SCOXtorsion began. FUD to the nth degree.
    Then the announcement that Novell was buying SuSE came
    along.. I, as well as many others, wondered what that
    might portend in the future. Now the MS$/Novell deal is
    history. And we hear about 'patent protection'
    agreements. AND WE DON'T KNOW WHAT THAT MEANS !! What
    patents ?? (sorry for shouting.) We need all this out
    in the open !! We need to either show that ALL purported
    patents are invalid or else get rid of the infringing
    code. Period !! Unless large corporate entities such as
    Novell, IBM, etc. pay 'out of their pockets' to get
    PERMANENT, royalty free use of these patents for all end
    users then either we rid ourselves of this code or prove
    it non-infringing. Either way we MUST see the code. One
    vendor making an agreement with another vendor does not
    remove the threat to the community at large.

    I, for one, do not like this deal Novell has made with
    MS$. It stinks. I am keeping my mind open as to
    switching to another distribution as are, no doubt, many
    other SuSE/openSuSE users... I may even roll my own as
    I'm not totally pleased with any one distribution I'm
    aware of.

    This may seem a bit crazy but I've often wondered if we,
    as a community, have the right to sue SCOX and now MS$ for
    emotional distress !! After all haven't they intimidated
    all of us as well as threatened us with possible law
    suits ? Haven't they spread FUD enough to cause
    irreparable damage to the reputation of FOSS companies and
    users alike ? How much larger would the community be by
    now without these constant threats and lawsuits ?

    Here's a wild idea. Why not start a campaign to spread
    truth, expose evil and spread the word to the rest of the
    world about FOSS ? Bumper stickers, T-shirts, signs.
    The works. A grass roots effort to enlighten the
    un-knowing. I still don't see much advertisement out
    there. Except for a few commercials by IBM
    regarding 'Linux Servers' I've NEVER seen advertisements
    on television or in the local paper (L.A. Times) for FOSS.
    Considering all those advertisements we see for Mac v PC's
    (sic) shouldn't there bee ads for Mac v Windows v FOSS ?
    Or perhaps that should be Proprietary Silo v Freedom
    Software ?

    This gives me an idea. Start my own business selling
    promotional FOSS items with a share going to the FSF..
    Who said you can't make money selling Freedom ?

    Probably said too much but it needs to be said.

    "Give Me Freedom or get the hell out of the way"

    P.S. Of course I would contact FOSS first to make sure I
    am in compliance with the present/Future version of the
    GPL... Because we all respect legitimate legal
    rights :-)

    [ Reply to This | # ]

    N * 235 Patents
    Authored by: Anonymous on Monday, May 14 2007 @ 03:43 PM EDT
    IN my opinion the open source community should start
    comparing the Windows code against Linux code in order to
    find illegal use of copyrighted Linux code in Windows. My
    guess is that the number of infringments is N times 235,
    with N much larger then one

    [ Reply to This | # ]

    Where does Novell fit in all this?
    Authored by: dht on Monday, May 14 2007 @ 04:08 PM EDT

    Something occurred to me while reading the comments.. The Novell/MS deal has some points to it that may apply here. The GPL specifically forbids distribution, if the distributor knowingly infringes copyrights, trademarks, or patents. At the time of the deal, Novell stated that they did not know of any code in SuSE that infringed an MS patent. Now MS has come out with a specific count of MS patents which they feel Linux infringes upon.

    When the Novell/MS deal was first announced, Novell could hide behind a nebulous cloud of "vague unknown" generalized patent protection from MS prosecution. Now MS has put a specific number to the "unknown".

    Now a few questions occur to me:

    • Can Novell still hide behind a generalized statement?
    • Is Novell legally obligated to obtain a list of these patents?
    • Is Novell legally obligated to stop distribution of SuSE?
    • Can any recipient of a "covenant" from MS (through Novell) demand the list of patent numbers from MS?
    • Can Dell demand the list of patent numbers from MS?

    The way I see it, this puts Novell in a tight spot. They cooked up this deal with MS, and now "generalities" have become more specific with this statement from MS. They have a business relationship with MS, specificly relating to patents in SuSE (GNU/Linux). This statement from MS puts them in a very awkward position with their continued distribution of SuSE under the GPL. If Novell doesn't already have lawyers crawling all over this, they should be very soon. I suspect the first sign that MS may actually have something tangible will be when Novell stops distributing SuSE.

    Novell will be the canary to pay atention to.

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: fredex on Monday, May 14 2007 @ 04:18 PM EDT
    I hope no one bothers, personally. Let Microsoft sue if it wishes. If there is one thing we've learned from the SCO saga, it's that FUD doesn't kill you, so long as you know better than to give in to it.
    Unfortunately, what they may do (i.e., they may not be as stupid as SCOG has been) is sue someone who DOES NOT have deep pockets, so it would be very difficult for the victim(s) to defend themself(ves). Like the RIAA, sue a bunch of relatively defenseless small fry and build up some legal precedents. Or try, anyway.

    It's not at all clear to me, being NAL, that the "innocent" end-user should be liable when they get allegedly patent-violating stuff from someone else, but rather the actual violator. That would force the predator at least a LITTLE bit higher up the food chain.

    [ Reply to This | # ]

    Why not..... ?
    Authored by: Anonymous on Monday, May 14 2007 @ 04:38 PM EDT
    I wish someone like Eben Moglen would come out with a statement saying something
    like "Microsoft software is found to violate 23,653 patents according to a
    recent study." (the number is probably higher, but I was being
    conservative) Follow that up with a few stories about the likelihood of
    distribution of all MS software being stopped, and how MS could never bring
    itself into compliance given the huge amount of work involved. Have Stallman and
    some others make some speeches about how OSS has always respected other people's
    IP.

    I would love to see that in print. Surely the process' that went into finding
    the patents that Stallman was talking about could be applied to MS software? And
    not just windows, every single microsoft product. It's not as if MS makes any
    distinctions.
    MS have left themselves wide open with this, I hope it will be exploited to it's
    fullest.

    [ Reply to This | # ]

    Downtime tonight
    Authored by: PJ on Monday, May 14 2007 @ 05:16 PM EDT
    Hopefully it will be brief, but we may go
    off line briefly in about an hour and half,
    as they do some necessary stuff. Just keep
    trying.

    [ Reply to This | # ]

    Sorry... I Think Microsoft Wants To and There is a Danger
    Authored by: Anonymous on Monday, May 14 2007 @ 05:29 PM EDT
    P.J. et al, I'd like not to think so, but realistically I don't think your
    arguments are strong enough.

    (1) It seems very weak to suggest that Microsoft's distribution of SuSE Linux
    vouchers constitutes distribution of SuSE GNU/Linux. It is indirect, at
    best--essentially sub-contracting for someone else to distribute the product.
    (2) Many of their patents will be defeated but it only takes one to succeed.
    The surviving patents will be stronger than the 235 were originally.
    (3) I don't think the damage to Microsoft's reputation will extend beyond those
    who don't already dislike Microsoft. Did the anti-trust trial? Furthermore, I
    think many of Microsoft's business customers also feel strongly about "IP
    rights". They will support Microsoft blindly on this. And regular
    consumers won't care... as usual.
    (4) Considering the stakes, I don't think many (if any) judges would be willing
    to up-root the whole basis of software patents. If the argument of software is
    mathematic algorithms comes up, the judge will take any excuse he can find
    validate the legality of software patents. Remember the DeCSS/2600 case where
    the judge finally accepted that DeCSS was speech but said it was a different
    kind of speech and therefore not protected under the 1st amendment?

    Everyone wants the good guy to win, but we shouldn't be so naive to always
    think that's going to happen. A lot of power and influence stands against us.
    I wouldn't be surprised if congress even stepped in to enact legislation
    protecting Microsoft and software patents. Didn't they get off scott-free from
    an absolutely damning anti-trust conviction?

    Matthew

    [ Reply to This | # ]

    Man...
    Authored by: Anonymous on Monday, May 14 2007 @ 05:42 PM EDT

    The shills sure are out in force at ZDNet...

    Apparently Microsoft is afraid the big bad GPL3 is going to kill their racketeerring plans and they want it stopped, obviously so they can extort more money and/or steal code from the community.

    Oh, yeah, Microsoft never steals, do they?

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Monday, May 14 2007 @ 05:43 PM EDT
    MS does not want to sue Linux users -- it wants to TAX them.

    The next question is to figure how they will go about doing this and not kill
    what is left of their business.

    Any suggestions?

    [ Reply to This | # ]

    "I hope no one bothers, personally."
    Authored by: overshoot on Monday, May 14 2007 @ 06:14 PM EDT
    Or not.

    Personally, I'd love to see IBM, Google, Red Hat, and a few others file an action for declaratory judgment on the grounds that MS' public statements, plus their stated demands for royalties from Linux users, constitute sufficient grounds for apprehension of lawsuit.

    Of course, discovery would likely cover the licenses they've already entered into and the terms thereof, although I'm pretty sure we wouldn't see that thanks to presumptive confidentiality of the agreements. There's a rumor circulating (and, no, I don't even know the source) that MS' NDA for even opening negotiations is so strict that they don't even allow outside counsel to be informed.

    I still have a problem with that one, but IANAL and all that.

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Monday, May 14 2007 @ 06:21 PM EDT
    It is actually very simple why they will most likely never sue.

    1. No one to sue. The copyright holders are spread through out the world and if
    the sue a small company or anyone the FSF will jump to defend them.

    2. If they file, discovery will require opening up the MS source code to the
    defense. The defense will then in addition to tearing up their patents look at
    all the other code that may exist that is "copied" from open source or
    other locations for counter suites.

    3. No money in it. Sue a small fry and you get noting but bad press even if you
    win. Sue big company, spend alot of time/money in court and get bad press to
    boot. Loose the case and potentially destroy MS patents as defense against
    other companies patent claims.

    [ Reply to This | # ]

    You say you don't do distribution ...
    Authored by: Toon Moene on Monday, May 14 2007 @ 06:28 PM EDT

    [ To the tune of "You say you want a revolution ..." ]

    But he does break down the total number allegedly violated - 235 - into categories. He says that the Linux kernel - the deepest layer of the free operating system, which interacts most directly with the computer hardware - violates 42 Microsoft patents. The Linux graphical user interfaces - essentially, the way design elements like menus and toolbars are set up - run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68.

    "while other assorted FOSS programs allegedly transgress 68."

    Hmmm, he doesn't - perhaps - mean those programs, by the way ? [ Note the "5. To install the GNU SDK and GNU Utilities ...", i.e., GCC, gas, gld, gdb, etc. ]

    Because there is no doubt that Microsoft is distributing them ...

    ---
    Toon Moene (A GNU Fortran maintainer and physicist at large)

    [ Reply to This | # ]

    Did MS really do this analysis ...
    Authored by: Anonymous on Monday, May 14 2007 @ 06:28 PM EDT
    ... or did they pick it up from someone else. I seem to recall OSDL or some
    other free software people (some of the indemnity insurers) did a study that
    said Linux *might* violate 200 something patents. Anyone remember this?

    [ Reply to This | # ]

    Linux users confession list - Reply to this and publicly state to Microsoft you are a Linux User
    Authored by: clark_kent on Monday, May 14 2007 @ 08:07 PM EDT
    Ok, I'll be the first one. I want to see Microsoft's legal force in action
    against Linux users and see what Microsoft and it's lofty words are made of.

    ------------------------

    Come and get me Steve Ballmer and Bill Gates. Go right ahead and tell a judge I
    am infringing on your software patents because I use Linux. You will have to
    subpoena Groklaw or PJ to get my IP address first.

    I USE LINUX!!!!!!!!!!! AND I HOPE IT INFRINGES ON A 10000 OF YOUR STUPID
    WORTHLESS BASELESS PATENTS!!!!!!!

    [ Reply to This | # ]

    Dog co-exists with Penguin
    Authored by: scooterJRT on Monday, May 14 2007 @ 08:31 PM EDT
    Except for Jack Russell Terriers -- one of which is on record as playing
    football in the Antarctic. My JRT Scooter is a consumer of Ubuntu and CentOS,
    but otherwise passes on penguins.

    [ Reply to This | # ]

    For Pamela Jones
    Authored by: Starlite528 on Monday, May 14 2007 @ 08:46 PM EDT
    In the news picks article you posted "Why Microsoft hasn't sued (yet)"
    He mentions at the bottom of the article that IBM vs. SCO 'is now at trial'.

    Is this for real?

    ---
    "Death continues to be our nations number one killer."
    Henry Gibson

    [ Reply to This | # ]

    It is called. . .
    Authored by: Anonymous on Monday, May 14 2007 @ 08:56 PM EDT
    . . .Extortion.

    krp

    [ Reply to This | # ]

    Is that it ?
    Authored by: Anonymous on Monday, May 14 2007 @ 09:00 PM EDT
    After years of planning this, building up their patent portfolio, and then
    making this last-ditch attempt at heading off FOSS, they have found exactly 68
    patents which FOSS projects infringe on. 68 ? Is that it ?

    Even if it costs $1 million to overturn each of those, FOSS can be free from M$
    for a mere $68 million. That sounds like a pretty good deal to me.

    Give us the list of patents, Microsoft, and we'll get to work on those 68.

    [ Reply to This | # ]

    Audit MS code
    Authored by: Anonymous on Monday, May 14 2007 @ 10:09 PM EDT
    Whenever they decide to sue someone for real, it will open their own code to an
    audit. Do you really think that MS is not using GPL code somewhere in their OS?
    Don't be so foolish.

    [ Reply to This | # ]

    • Audit MS code - Authored by: Anonymous on Monday, May 14 2007 @ 10:45 PM EDT
    • Audit MS code - Authored by: PJ on Monday, May 14 2007 @ 10:52 PM EDT
    • Why? - Authored by: Anonymous on Monday, May 14 2007 @ 11:55 PM EDT
    • Audit MS code - Authored by: Anonymous on Tuesday, May 15 2007 @ 06:14 PM EDT
    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Monday, May 14 2007 @ 10:39 PM EDT
    Now that Steve has made it clear that as far as he's concerned Microsoft is owed
    money, doesn't he have a duty to the investors in Microsoft to sue? If he
    doesn't sue, isn't he really committing fraud? Could the investors in Microsoft
    sue him if backs down?

    [ Reply to This | # ]

    this sounds like a job for Supergran! :)
    Authored by: Wesley_Parish on Monday, May 14 2007 @ 11:03 PM EDT

    A quote from the Fortune cookie ... oops, that should read "legal blog":

    Well, perhaps this is just the next level of work required from the folks who support the GPL. How much work would be required to look at Microsoft’s patent portfolio, and find those 235 patents that need to be examined at and debunked? An open source wiki or database that listed software patents from all relevant tech companies, with relevant comments and relevant prior art, would be an extremely beneficial resource to the world at large. Is anyone building this?

    Posted By Anca, Oakland, CA : May 14, 2007 1:55 pm

    Isn't this what Groklaw was set up for, PJ? At least in part?

    ---
    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 | # ]

    Likely Implications
    Authored by: rsteinmetz70112 on Monday, May 14 2007 @ 11:28 PM EDT
    As I think of the likely implications of this for US policy it seems that one of
    the most preeminent is a major source of US overseas payment will likely
    increase animosity towards US trade policy.

    It seems they are also likely to increase resistance to US sponsored trade
    agreements.

    It seems to me that it will hurt Microsoft domestically.

    In the law of unintended consequences department, it seems the Berne
    Convention's first to file (favored by the EU over the US first to invent) may
    come back to haunt the EU.

    ---
    Rsteinmetz - IANAL therefore my opinions are illegal.

    "I could be wrong now, but I don't think so."
    Randy Newman - The Title Theme from Monk

    [ Reply to This | # ]

    Youtube Video - Short UNIX History.
    Authored by: Starlite528 on Tuesday, May 15 2007 @ 12:14 AM EDT
    He talks about sharing, and community. You wouldn't think it in the current affairs of the world! http://www.youtube.co m/watch?v=VaZOvE1VjbI&NR=1

    ---
    "Death continues to be our nations number one killer."
    Henry Gibson

    [ Reply to This | # ]

    Microsoft is not going to sue anyone over patents violations in FOSS because...
    Authored by: polymath on Tuesday, May 15 2007 @ 12:52 AM EDT
    1) If MS thought that it could win a law suit it would have picked a weak
    opponent and made an example it.

    2) Most of its patents would be invalidated due to obviousness and prior art.

    3) Discovery (as seen in SCO v. IBM and reported here) would reveal MS's
    repeated, intentional, persistent and ongoing violations of others' patents.

    4) Discovery would also reveal MS violations of FOSS licenses. MS has
    repeatedly been sued (and settled to avoid disclosure of their malfeasance) for
    copyright/patent violation. That is just the stuff easily identified without
    access to the source. With the army of developers that they have its inevitable
    that some have cribbed FOSS get out of a tight spot (with and without sanction).
    MS knows that it's vunerable and can't stand the scrutiny.

    5) Since only the US allows fullfledged software patents any success will be
    limited to the US market and to a lesser extent the EU. This would put US firms
    at a competative disadvantage and congress would be forced to limit or eliminate
    software patents. Other jurisdictions would definitively reject software
    patents to curtail MS's monopoly power. Outcomes that MS wants to avoid at any
    cost; much less the loss of theoretical royalties on shaky patents.

    [ Reply to This | # ]

    Free Associating
    Authored by: webster on Tuesday, May 15 2007 @ 03:00 AM EDT
    ..
    They don't think its fair to have to compete with Open Source. It doesn't
    follow the same rules. They blame open source for all hackers, virus writers,
    zombie managers and spammers. They think it is fair and essential to cheat back
    under the circumastances. Lying about their opposition, filing dubious patents,
    embracing and extending, sponsoring bogus suits, retailer manipulation, sabotage
    code, stringing out the DOJ and Europe, incomprehensible standards, lobbying and
    political intimidation, all the dirty tricks.

    They believe they are the chosen. They are right. They know what is best for
    the world. Their wealth is confirmation of their superiority. All is fair
    since maintaining their dominance is a good thing for them and the world. They
    do only good with their business and charities.

    The spread of Red Hat and other Linux distributions has taken its toll. It must
    be killed. If it hangs around on the server and more desktops, people will find
    how secure, stable, and economical it is, to use open source and avoid Monopoly
    products. They can not compete fairly with an office suite that does almost as
    much as their suite and far more than the average consumer will ever realize.
    It is also free. It is as if the workers of the wourld have risen up and made
    propietary software obsolete. They have eliminated concern for patents and
    copyright. They have eliminated the need for lawyers. If allowed to run
    rampant, businesses would require open source software, and hardware too! It is
    better, cheaper, and adaptable. It is the only way any of the disenfranchised,
    or locked out, coder community could compete with the Monopoly.

    FUD is all they have. The patent threats today are lies,...LInus has a job,
    Linux is dead. They misconstrue their oponents in the finest political
    tradition. They have billions to spend to stay on top. They have lawyers and
    publicists all toeing the party line. VISTA proves they are liars. It requires
    a heavy hardware upgrade for a marginal improvement inperformance. Why bother
    or why not try something else like Mac or Ubuntu, that catchy, insidious new
    stuff. It is new, marvellous, and cheap. Not only does some of it replace
    Monopoly product, but clever procurement officers use it to drive down Monopoly
    prices.

    This is a bad time to rely on software patents. They are not in favor with the
    Supreme Court. This weapon is lethal no more. The Supreme Court outlined how
    the District Court Judges could grant summary judgments against obvious patents.
    They also eased up on the obvious tests. What's more it is further weakened
    when wielded by a Monopoly supposedly under a supervised settlement. Opening a
    new patent front in the FUD campaign will begin with a wave of obvious patents
    being eliminated by the Judge. Word is getting out that VISTA is bad and the
    Monopoly relies on FUD and power. Their innovation is devoted to lock-in and
    lock-out, with bloat and complexity. They must sense a weakness in their
    entrenchment. Although unappreciated by the consuming masses, Open Source
    products like Ubuntu, OO and others are just too good to be permitted to thrive
    at Monopoly expense.

    Litigation is a very risky step for the Monopoly. The DoJ may perk up in an
    effort to show that they can function with Gonzalez sans deputies. They have a
    problem showing actual damages since open source software is free. One pays
    basically for support when corporations buy Red Hat. Without damages, an
    injunction is less likely. They are more likely to face appeals and lose
    patents every step of the way. The patentability of software will also get a
    good review. There are some intelligent receptive justices amongst the
    Supremes. The Linusians would probably form a class action defense. Imagine
    IBM and Moglen involved. The patent Office and system is so disfunctional. The
    Monopoly has argued against it itself since it is sued so often. Their own
    words wil be turned against them. Plus if they start a patent war on Linux, IBM
    could try to join their part of it into the SCO trial. SCO and the Monopoly
    telling Judge Wells she doesn't understand her own orders.

    It will be a marvellous war. The code doesn't use the patent. If it does, the
    patent does not give notice. The patent if it does give notice, is invalid. It
    is invalid because their is prior art. It is also invalid because it is
    obvious. It is invalid because software is merely a business method or math,
    which can't be patented. You can't patent something just because someone put it
    on a computer. Software is just language, talking to a computer. It deserves
    copyright protection only.

    ---
    webster

    [ Reply to This | # ]

    OK. Linux DOES violate software patents. So what?
    Authored by: troll on Tuesday, May 15 2007 @ 03:40 AM EDT
    There are two groups of people.

    Group one knows that Linux DOES violate lots of software patents. They do not
    know what patents exactly and they have no way of knowing. It is simple. It is
    impossible to write ANY reasonable program nowdays that does not violate some
    patents. I you looked hard enough, even
    10 REM MY FIRST PROGRAM
    15 LET A$="HELLO WORLD"
    20 PRINT A$
    copied from the manual for the first "personal computer" I had ever
    touched. (Sinclair ZX Spectrum.)
    The problem is, there is no way for developers to know that they are infringing.
    And to do any reasonable research to establish if some obscure aspect of your
    software does not infringe some of the waguely defined submarine patent is
    impossible.

    Group two does not know and does not care. Period.

    Come on, Microsoft. Do you really want to start software patent war? There is
    enough code written by MS programmers to infringe all software patents in
    existence.

    Yours truly ...

    [ Reply to This | # ]

    Patent Reform - A Modest Proposal for Reform.
    Authored by: Anonymous on Tuesday, May 15 2007 @ 03:41 AM EDT
    One of the biggest problems in the US patent system is the lack of transparency. What the US patent system needs is some sunlight shed on what has become a rather murky and disreputable business.

    Perhaps a modest reform would be to require patent holders to declare their interests in any proposed standards. This could take the form of something like the following proposal:

  • Nationally recognised standards bodies would publish official review draft copies of their proposed standards with a declaration that the standard is intended to be unencumbered by patents.
  • A patent holder would have a period of time (6 to 12 months) from the draft being published to "declare an interest" (say that it believes one of its patents may be incorporated in the standard). The declared interest must be specific and detailed.
  • The standards body could challenge the patent (on any of the usual grounds), or it may choose to simply excise the covered functionality from the standard.
  • The first level of challenge would be for the standards body to ask the patent office for an administrative ruling on whether the patent is valid and whether it covers the disputed function on the standard. Patent office rulings could be appealed to the usual courts by either the patent holder or by any member of the standards committee. Some appropriate rules would be needed here to prevent patent holders from simply automatically appealing every ruling against them (standards members on the other hand are less likely to appeal a ruling which goes against them).
  • Once the final standard had been published (after the waiting period has elapsed) without a valid interest being declared, any implementation feature covered by the standard is considered to be non-infringing on any patent and no patent holder has the right to sue for infringement. This would not affect rights to the patent when used in areas not covered by the standard.
  • If at the time of publishing there is still a question as to whether the patent covers anything in the standard, the standard could be published as being "in dispute" (on the shelf, but not to be used). When the issue is settled one way or the other, the standard could then be fully released (found not to be encumbered) or withdrawn (found to be encumbered and sent back to committee).
  • Any standards (including draft copies) intended to be covered by this rule would have to be available to anyone at no charge (preferably on a web site).
  • Existing standards or industry practices could be submitted as standards in this same manner to bring existing practices under the same rules.

    • This would mean that any software which incorporated unencumbered standards in its essential functions would not be subject to the sort of patent FUD and trolling we have seen lately. What this proposal would do is to place the onus of monitoring for potential patent infringement where it belongs - on the patent holders.

    Instead of a software developer having to plow through hundreds of thousands of vaguely worded patents to ensure he is not infringing on any of them, the patent holder need only monitor a much smaller number of standards. Standards, unlike patents, must by their nature be clearly worded to be useful. While not everything in software can be covered by standards, the essential functions which cannot be avoided could be.

    The proposal is also quite equitable to patent holders. Since standards which are intended to make use of this proposed rule must be available free of charge to anyone, a patent holder would not face any charges to obtain copies of them for review. Since a patent holder is supposed to be an expert in their field of endeavour (i.e. they come up with ideas which are not obvious to the average practitioner), it is reasonable to expect them to keep up with standards being published in their field. If they are not aware of work being conducted in areas which the patent could cover and they lose their potential rights as a result, then they can't really be considered to have lost anything (they weren't trying to do anything useful with it in that area anyway).

    In general, there are many benefits to this proposal.

  • Society as a whole would benefit, as each software developer would no longer be expected to duplicate wasted effort looking at the same patents. Instead, the patent holder would need to look at the standard just once.
  • It is much more equitable. The burden of monitoring the patents would fall on those who expect to benefit from them.
  • Less money would be spend on legal disputes and on insurance against legal disputes. Money spent on these things is a total loss to society.
  • The software industry would have greater incentive to document its practices so they may be incorporated into standards.
  • Official standards would be more readily available to everyone, instead of only to paying members of organizations (as is the case for many standards).
  • Software developers could spend their time attracting users by developing good software instead of by employing good lawyers.
  • Patent holders would be encouraged to concentrate on patent quality instead of patent quantity.

    • The above may not satisfy those who wish to simply abolish software patents altogether where they current exist, but it is perhaps a good second best. It is also something that could apply to any field which is covered by patents, not just software.

    [ Reply to This | # ]

    Extremely interesting post
    Authored by: Anonymous on Tuesday, May 15 2007 @ 05:55 AM EDT
    Link
    It’s been reported in a lot of places, but I read on ArsTechnica that Microsoft is yelling something about patents and linux again. Ballmer must be off his meds. The last time Microsoft tried this strategy, members of the linux community told him to “put up or shut up,” and Microsoft shut up for a while. Will play out the same way this time?

    It then gets into VERY interesting specifics about how this might play out in court, including laches and the Medimmune v. Genentech decision that would let copyright holders sue Microsoft for their statements before MS sues anyone, themselves.

    [ Reply to This | # ]

    Computer Business Review: The patent cold war in the software industry.
    Authored by: Anonymous on Tuesday, May 15 2007 @ 07:45 AM EDT
    Well, well, well:
    While Microsoft can claim to have been mainly defensive in its actions around the use of patents, the words it is currently using are pushing the industry closer to the equivalent of the Cuban missile crisis.

    An interesting article

    Toon Moene (not logged in while at "work")

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Tuesday, May 15 2007 @ 07:51 AM EDT
    How about the Government regulating Microsoft as a public utility and it's
    monopoly position like AT&T, the utilities, the railroads? It is a
    monopoly, it is using is monopolistic position to drive out all competition,
    that certainly is anti-competive.

    Yoda1

    [ Reply to This | # ]

    Patented GUI interfaces?
    Authored by: Anonymous on Tuesday, May 15 2007 @ 09:16 AM EDT
    Didn't MS and Apple already fight it out over whether the 'Look and Feel' of an
    interface can be patented? I thought MS won that suit and the courts ruled that
    'Look and Feel' cannot be patented. So, how can a GUI be patented now if a
    lawsuit brought against MS by Apple says it can't?

    [ Reply to This | # ]

    estoppale and patents
    Authored by: JasonWard on Tuesday, May 15 2007 @ 09:38 AM EDT
    Surely... at some point if MS takes no action to protect "its" patents
    it will become estopped from protecting them at all?

    So for the Linux distros out there that have been doing so for say 10 years and
    MS has never made a move to prevent the use of its patented ideas in that distro
    then surely MS have no access to "redress"?

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: vadim on Tuesday, May 15 2007 @ 09:46 AM EDT
    IANAL,

    But as far as i know Microsft declariations implies the millions Linux users
    could be liable for patent infringement.
    These declartion causes big distress to Linux users which is agravated by
    Microsoft refusal to specify the patents in question, which prevent us from
    mitigating the liablities.
    So i believe that Linux users could launch a class action lawsuit against
    Microsoft and claim damages for caused distress.
    BTW it could be good way to obtain a list of patents in questions. An as far as
    i understand EACH member of the class will have the right to examine the list.

    [ Reply to This | # ]

    Call Gates's bluff: FSF needs to do an open letter to Microsoft
    Authored by: Anonymous on Tuesday, May 15 2007 @ 09:57 AM EDT
    In the letter, explain that free software does not wish to infringe on
    *anyone's* patents. As such, call upon Microsoft to divulge which Microsoft
    patents free software infringes, so we can clean up open source code.

    If Microsoft refuses to divulge their patent data, they'll have a huge uphill
    climb in order to claim any damages.

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Tuesday, May 15 2007 @ 10:02 AM EDT
    I think what is going on here is that Microsoft is desperate to get more
    companies to sign up for Novell type deals before GPL v3 goes live. Maybe this
    way they are hoping to prevent GPL3 from becoming mainstream, or else try to
    portray it as an anti-business license. Like: "See this new GPL3 thing is
    hurting so many companies! Doesn't let them distribute open source because of
    their deal with us! This FSF is just a gang of commies!" and so on.

    I don't think it will work, but still getting GPL v3 out the door as soon as
    possible would be a very good thing.

    [ Reply to This | # ]

    Let them sue! PLEASE!!
    Authored by: hamstring on Tuesday, May 15 2007 @ 10:04 AM EDT
    I really want Microsoft to open this can of worms! I am still extremely
    disappointed in the lack of punishment the DOJ layed out in the monopoly trial
    where Microsoft was found guilty.

    This is the best and fastest way for the Government to re-open that case and
    perhaps "fix" the monopoly!

    Remember, that one of the biggest users of Linux is the Fedaral Government.
    DoD, DoJ, IRS, NASA, etc.. etc.. etc...

    Sadly Microsoft realizes that those second 2 acronyms could/would really put a
    hurting on them so will never follow up on anything.. it's just FUD.


    ---
    * Necessity is the mother of invention. Microsoft is
    * result of greed

    [ Reply to This | # ]

    Patent #1 .... linux dare not infringe
    Authored by: Anonymous on Tuesday, May 15 2007 @ 10:53 AM EDT
    just found that M$ has a patent for - "consistently producing bug filled
    software products". So, Linux developers beware - bugs in Linux would be
    termed as patent infringement.
    On a serious note - M$ ought to concentrate on delivering a "good"
    product instead of indulging in bullying to sell an inferior product. During
    the last few weeks there have been numerous complaints from users about the M$
    updates site freezing/hanging. The very page that is supposed to deliver bug
    fixes/patches to users is hanging up on them - not due to a virus or hack attack
    - but plain buggy software.

    [ Reply to This | # ]

    Ooh, ooh, the bogeyman is gonna getcha with his stupid patents. Or maybe not.
    Authored by: Anonymous on Tuesday, May 15 2007 @ 03:19 PM EDT
    I don't know if anyone has mentioned this yet, but it my be time for the FOSS
    community to start reviewing all Microsoft's patents (non-programmers anyway).
    If someone set up a webpage it probably wouldn't be very hard to start attacking
    their portfolio. It could maybe even get some press and damage their share
    price (which is what they really care about anyway).

    [ Reply to This | # ]

    FUDzilla
    Authored by: RealProgrammer on Tuesday, May 15 2007 @ 04:19 PM EDT
    Tee hee†:
    I'm not against profit, even obscene profit. I think it's fine to develop software and sell it. But I don't like legal maneuvering to achieve the former because of a poor effort at the latter.

    --
    † Old English for "LOL"

    ---
    (I'm not a lawyer, but I know right from wrong)

    [ Reply to This | # ]

    Can we as a community sue for liable?
    Authored by: Anonymous on Wednesday, May 16 2007 @ 12:46 AM EDT
    Since this all started I've been wanting to find out instead if we the community
    can't simply sue for something like liable instead? Something along the lines
    to make them prove it or shut up.

    It seems to me that a declaratory judgment is not the direction we want to go.
    I'm no legal expert but my 5 minutes of research (lol) says that we have to
    first violate the patent and then get the courts to throw it out. Something
    like this would mean we are acknowledging the accusations. While everyone seems
    to think that there may be some infringing patents, no one knows what patents we
    are infringing. The suspected ones (like Fat32) don't in all actuality have a
    existing patent and therefor Linux is not infringing on it.

    I've been wanting to know what some people with more experience then I say about
    this situation. The comments made by Microsoft hurt FOSS on a ridicules claim
    of patent infringements and MS needs to be called out on this one. Win or
    loose, they would still be forced to tell us where the infringements are in
    Linux and we can then resolve the issue's or look into a declaratory judgment
    for the one's with no workaround.

    All I know that if Linux was my company and some other company just publicly
    made a statement for the sole purpose of harming my company and not disclosing
    the facts, you'd better believe I'd take legal action of some kind to make
    them.

    Your Thoughts?

    [ Reply to This | # ]

    Microsoft 'evidence' turns against them
    Authored by: spiff on Wednesday, May 16 2007 @ 11:11 AM EDT
    from Techtonic: Microsoft 'evidence' turns against them

    Ballmer is lying.

    [ Reply to This | # ]

    Mountain of evidence
    Authored by: Anonymous on Wednesday, May 16 2007 @ 05:25 PM EDT
    I'm sure Microsoft has a mountain of evidence that their patents are being
    violated.

    [ Reply to This | # ]

    OLPC
    Authored by: Anonymous on Thursday, May 17 2007 @ 12:33 PM EDT
    Is this threat also directed towards OLPC ?

    [ Reply to This | # ]
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