decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

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


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

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

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Clubbing baby Linux penguins
Monday, June 11 2007 @ 09:31 AM EDT

Some things can't be spun.

If you're clubbing baby seals into a bloody pulp, for example, I can't hear your justifications.

You can talk about needing to make a living and how this is how it's always been done, but all I'm thinking is, there is nothing you can say that will make me like you for this. Or ever agree that it is acceptable. I want you to find a better way, something that doesn't involve cruelty to adorable little creatures that never harmed a flea.

I hear them crying.

Similarly, when Microsoft joined the SCO "you must pay me forever for my precious IP" club, made up of companies that don't know enough not to club baby Linux penguins, the world said, Ewww.

Microsoft can talk about its precious IP and its shareholders' demands and its customers' needs, and all people are thinking is, This is hateful. Here Microsoft has more money than God, and when a bunch of good-hearted volunteers give the world some wonderful free code, Microsoft's reaction is to club it to death with patents. What could ever justify such a horrible course, we are thinking?

No PR in the world can fix this.

You can see what I mean if you listen to Steve Gibson and Leo LaPorte, about 17:00 minutes in to their talk show on Security Now, "The Microsoft Patent Wars," Episode 93, which Groklaw member SilverWave found and alerted me to. They have it posted as text and PDF too, as well as MP3, so you can read the transcript instead, if you prefer.

Gibson, who early in the conversation makes it clear he believes in trademarks and copyrights and intellectual property -- although he sees software patents have become a problem -- and has even applied for patents when he's done consulting work, explains how patents get written and then stretched like taffy to be broader and stupider, and then he talks about his reaction to Microsoft's claims of 235 patents:

STEVE: Well, and so, okay. So the problem is, here's Microsoft, obviously the thousand-pound elephant in the room who's just sort of - who clearly said to Novell, okay, look, you're the number two distributor of Linux. Obviously Red Hat is number one. And it's interesting because Red Hat's guys have had conversations with Microsoft, and they've never been able to strike a deal, probably because the Red Hat guys, frankly, are a little more savvy about this. You have to imagine that Novell is wondering, you know, whether they did the right thing when they did this agreement in November. But so here's Microsoft threatening to throw their substantial weight around and basically intimidating other companies into doing these sorts of deals, into doing cross-licensing and ultimately paying money for something that probably is entirely bogus. I mean, it is a problem....Basically Microsoft wants to tax free and open source software.

LEO: Oh, they want to do more than tax. They want to put it out of business. They'd like it to die and go away, wither up. I mean, that's one of the reasons I think they're not saying what these patents are. They want to put them out of business.

STEVE: Well, okay. It's very clear that if they enumerated these patents, the free and open source software community would have a field day attacking them.

LEO: Exactly.

STEVE: And that'sjust it. You end up with a distributed attack against Microsoft...

LEO: Good point. A distributed legal attack, yeah. Tie them up for years.

STEVE: Exactly. Because every patent would get tackled. People would be finding prior art because prior art is one thing that immediately invalidates a patent. ... And, you know, Linus would be happy to code the kernel around whatever Microsoft's 42 claimed patents are that they say the kernel infringes. ... So here's what's so frustrating, too, is that the fact that Microsoft won't name the patents prevents anyone from curing the problem that Microsoft is complaining about. So they really don't want the problem cured.

LEO: No. They want open source software to go away is what they want.

STEVE: Well, or, yes, in fact, I'm sort of worried because one of the side effects of the deal they did with Novell is that the idea is that anyone who gets Linux from Novell is protected because Microsoft and Novell did this cross-licensing deal. So you could see that this could tend to bias people towards Novell, concentrating Novell as a source.

LEO: Which is I'm sure Novell's interest in making the deal in the first place.

STEVE: Probably was. But it seems to me that's dangerous....I can't really articulate why this feels dangerous to me. But the idea is, I guess, as long as Linux is spread out as widely as it is, distributed as widely as it is, there's so many different ways that substantial companies can get distributions, the broader it is, the less power Microsoft has. If Microsoft can do something to focus the distribution of Linux through a fewer number of channels, to me that seems unsafe for the future of open source software. I think it really needs to be kept widespread.

So, and Microsoft does think strategically. We've seen many examples of that through the ages. So anyway, it seems really clear to me that what they're doing is not fair because they're not saying we really want the problem solved. They're really saying we've created this problem, the U.S. government is backing us with the Patent and Trademark Office, and we're so big you can never afford - even the U.S. government couldn't prevail against Microsoft in the anti-trust suit. So they're saying, we're so big, you can't even think about fighting us and challenging us. So believe me, you don't want us coming after you.

See what I mean? No one accepts Microsoft's story. And no one accepts that the Novell-Microsoft patent deal wasn't a cross license either, I notice. People are not stupid.

So when Microsoft says it respects other people's intellectual property, what everyone is thinking is, That's not true. Microsoft doesn't respect the GPL, and that's other people's property. Microsoft is just trying to kill off a competitor. Again.

Even Sys-con even got it right this time, or at least the headline: Microsoft Spits in GPL Creator Richard Stallman's Eye. [I'm not suggesting you visit that site, but if you insist, watch out for Javascript, cookies, popups and turn your sound off.]

Yes, that's it. Microsoft is deliberately disrespecting the GPL, despite it being a valid, legal license most FOSS programmers, including Linux coders, choose for their code. It is deliberately forming deals that both it and the world know are violative of the GPLv2's intent and the very wording of GPLv3 final draft. When you spit on other people's property or try to steal or control it or tax it, like some swashbuckling gang of pirates, people don't admire you.

That is Microsoft's dilemma. It played its card and people either laughed or were deeply angered and disgusted.

And when customers get disgusted enough, they won't buy what you are selling any more.

Ask the music industry. Or just ask SCO.


Graphic by Feldegast. Baby Tux by Nicolas Rougier and contributed to the GNU Project under the GPL.


  


Clubbing baby Linux penguins | 529 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: feldegast on Monday, June 11 2007 @ 09:40 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 | # ]

Off topic thread
Authored by: MathFox on Monday, June 11 2007 @ 09:45 AM EDT
Other Open Source and legal issues. Clickable links are appreciated, with a
description of the page they lead to.

---
If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.

[ Reply to This | # ]

Clubbing baby Linux penguins
Authored by: Anonymous on Monday, June 11 2007 @ 10:07 AM EDT
Novell,
I've had high hopes for Novell but I think their ship is sinking. Most of their
best Linux contributors have left Suse/Novell. Second - they never learned from
the Netware days how to market anything they bought or sold- ex Corel. I've had
Novell servers for 10 years, and haven't once heard from their salesman. With
all their "new management" I've not seen anything to convince me they
aren't driving off their Linux people and the kernel support they made. Third-
well Microsoft has Vista and it is another porker that's unreliable, resource
hog that 95% of existing PC's can't run.

Microsoft's problem is they have no real design or quality base in their
operating system.

So their answer is threat of litigation like Lotus tried. Well the rest of the
world just innovated right past Lotus. Now Linux is moving in a lot of
directions past Microsoft. They Linux community has the best assembled team of
motivated volunteers around the world working like real scientists, in
collaboration, to make it better. Linux developers are an inspired and highly
motivated team from around the world. They move to places where they can
continue to contribute, like the people that are leaving Novell. With the
internet they can continue to contribute from anyplace they can find a home in
the world.

And as soon as Microsoft points to a patent they have two things will happen,
one- people will find the prior art and groups will nullify the patent, and two-
the Linux community will innovate a solution around the patent.

Yoda 1

[ Reply to This | # ]

Clubbing baby Linux penguins
Authored by: Anonymous on Monday, June 11 2007 @ 10:16 AM EDT
I don't think that M$ really cares what other people think.
M$ will continue to do whatever it wants until the people
who run M$ start to feel real pain whether it be from loss
of income or jail time. Loss of income is really unlikely
because M$ is a monopoly that the US Gov has only token
thoughts about correcting. The second is unlikely because
M$ people are very careful about running afoul of laws that
punish with jail time. Its too bad that the US has allowed
this type of behaviour to happen but that is one of the
results of a system of government run amuck. Sorry about
the politcal connection but M$ is money, money is power,
and power is politics.

[ Reply to This | # ]

Clubbing ugly monsters spreading disease
Authored by: Anonymous on Monday, June 11 2007 @ 10:21 AM EDT
The fact is that Linux and all around it is not like a cute baby penguin.

[ Reply to This | # ]

Clubbing baby Linux penguins
Authored by: arthurpaliden on Monday, June 11 2007 @ 10:21 AM EDT
Please note that no one is protesting the fact the fish when harvested from the
oceans are suffocated and then frozen to death and in some cases procesed ,while
still alive, on factory ships. I guess it is just because they are not as
'cute' as a baby seals.

I also don't hear any complaints about the cattle that are clubed to death in
slaughter houses befor they are butchered. Guess they are not 'cute' either.

---
Have you payed your legal tax today?

[ Reply to This | # ]

Creating a Prior Art Repository
Authored by: Anonymous on Monday, June 11 2007 @ 10:29 AM EDT
Specifically go thru every MS patent and create a prior art repository MS's
competitors are welcome to use against MS. Then chose some particularly stupid
patents and knock them down, but do a PR storm about yet another stupid MS
patent taken down and how much MS patents are stupid and that should help
deflate MS's FUD.

We will also know what's what and code accordingly making sure FOSS doesn't
violate any MS patents.

Think of it as a treasure hunt >:)

[ Reply to This | # ]

Isn't making false claims, False Advertising?
Authored by: Anonymous on Monday, June 11 2007 @ 10:33 AM EDT
Couldn't $MS be sued for false advertising? Other companies who make claims
about X,Y,Z have to be able to support X,Y,Z or face penalties.

[ Reply to This | # ]

Clubbing baby Linux penguins
Authored by: rsi on Monday, June 11 2007 @ 10:38 AM EDT
So when Microsoft says it respects other people's intellectual property,...

And HOW MANY lawsuits have been filed against Mickey$oft over the years for doing JUST THAT??? Too many!!!, M$ is the WORST offender of violating other companies "IP".

I call on ALL authors and distributors of Linux, and Open Source software to RESIST ALL ATTEMPTS to do a "Deal with the Devil"!!! We ALL have to stand together, and fight against EXTORTION!!! Let Mickey$oft to LIST ALL their alleged Software Patents, they claim we violate,so we can examine them in detail!!!

Let M$ know, WE ARE NOT AFRAID!!!

Rick Stanley

[ Reply to This | # ]

Because every patent would get tackled
Authored by: hAckz0r on Monday, June 11 2007 @ 10:44 AM EDT
Since Microsoft's goal is to extort Linux out of business by not divulging which patents are in question then the only way to handle this is to attack each and every patent that Microsoft owns. This would be a daunting task to say the least, but if the OSS community works together in an organized fashion and became a big enough thorn in their side, then Microsoft might relent and stop trying to muscle people around using the word patents in the same breath. Most of their patents are more than just “obvious” to even a beginner software engineer. Calling all patents into question which “could” be in Linux should get their attention.

<evil grin>
Another angle would be through enforcement of copyrights. Microsoft has been known to use code that they did not develop. It would be interesting to see what code they actually used that might be copyrighted by some OSS friendly author that did not give their permission for its use. Yes, I hate SCO too, but paybacks are h3!! for those that like to fight dirty. Proving that the code was derived from the OSS community code is a very difficult task, but one that I have been studying for other purposes for quite some time but did not have enough personal motivation yet to put those thoughts into code as of yet. The landscape has changed. Microsoft may be too big for any "company" to fight with, but they can't kill the hydra of OSS. The only way for Microsoft to win this game is to simply not play the game. There are just too many of us to play whack-a-mole with for them to come out on top. Excuse me, I hear my compilers calling...
</evil grin>

---
DRM - As a "solution", it solves the wrong problem; As a technology its logically infeasible.

[ Reply to This | # ]

Only one way to end Microsoft's abuse.
Authored by: Anonymous on Monday, June 11 2007 @ 10:50 AM EDT
Focus single mindedly on putting them out of business as soon as possible.

Whether you are an open source company, ot a closed source third party
competitor, there is no way to co-exist with Microsoft - kill them or be killed.
The only good Microsoft is a dead Microsoft.

[ Reply to This | # ]

Better Question
Authored by: Anonymous on Monday, June 11 2007 @ 10:50 AM EDT
If I stood up and said, I have a patent, M$ is in violation of that patent.
Hey, M$, Pay up!!!!

P.S.: I'm not going to tell you what its all about.

What do you think the reaction would be?

[ Reply to This | # ]

Where is that judge?
Authored by: Stumbles on Monday, June 11 2007 @ 10:51 AM EDT
Isn't there supposed to be some judge overlooking
Microsoft's activities to ensure they stop their
monopolistic actions? Oh wait, Microsoft has a
representative on that panel.... oh well fox and hen
house.

---
You can tuna piano but you can't tune a fish.

[ Reply to This | # ]

Show us the code
Authored by: Anonymous on Monday, June 11 2007 @ 10:56 AM EDT
Dirty tricks played by sports teams, businesses or even individuals is a
indication of a once successful competitor that is going down, it's human nature
to want a fair game.

BG's aura emulates sneaky, sly, down & dirty, the chair thrower is what he
looks like. This speaks volumes about their future, the force is not with them.

The World has a gotten a good look at our rotten legal system here, is America
going to be represented by the actions of these greedy, power grabbing throw
backs to the dark ages?

Anyway it's not about the U.S. anymore, it's about the world. We have always
been a open country, a country that shares and helps others become the best they
can be, kind of like investing it always works with a payback in the future for
our good deeds.

A true American lets the facts speak for themselves.

A true American has a choice.

A true American has freedom.





[ Reply to This | # ]

Use it or loose it
Authored by: JamesK on Monday, June 11 2007 @ 10:57 AM EDT
I seem to recall reading somewhere (here?) that if a company fails to enforce a
patent that they know is being violated then they lose the right to enforce it.
Is that the case? If so, does that mean MS is setting themselves up to lose
whatever patents they might have?


---
Let me know if you don't receive this message.

[ Reply to This | # ]

When customers get disgusted enough...
Authored by: DannyB on Monday, June 11 2007 @ 11:03 AM EDT
And when customers get disgusted enough, they won't buy what you are selling any more.
If you don't believe it, just ask Darl.

---
The price of freedom is eternal litigation.

[ Reply to This | # ]

Clubbing customers
Authored by: DannyB on Monday, June 11 2007 @ 11:11 AM EDT
> Ask the music industry.
The music industry is clubbing customers. They call it "whack a mole". You club one. Another two pop up to take its place. It is a strategy for success.

---
The price of freedom is eternal litigation.

[ Reply to This | # ]

And WHO's patents are they anyway.
Authored by: Liquor A. on Monday, June 11 2007 @ 11:35 AM EDT
The magic number '42' has been tossed around for the number of patents that the Linux kernel infringes upon, and it appears that it may be taken from the original report that specified the number of infringements, but not who owned them. I have a strong suspicion that IBM might own a few of them, and it's even possible that Microsoft doesn't own ANY of them.

That would be in keeping with the precedents that the SCO accusations have made, and it's pretty much a certainty that Microsoft kernels infringe on the same patents. On the same theme, I would suspect that Microsoft tried to get some third party patent owner to shake down challenge RedHat - and found no willing takers. That would explain why Microsoft has resorted to direct bluster.

I also suspect that from the few Microsoft patents that I have seen, that they fail the obviousness requirement, especially in light of KSR. After all, since 'obviousness' applies as seen by one 'skilled in the art', and the description should be sufficient that the same 'skilled in the art' expert should be able to recreate the invention, the patents are invalid on either or both accounts. It's not reasonable (though it has been patent office practice) to assume that 'skilled in the art' in the context of 'obvious' means "someone without a shred of original thought", while 'skilled in the art' in the context of the description means "able to leap from cursory descriptions to full blown implementations in a single bound".

---
Liquor A.

[ Reply to This | # ]

Clubbing baby Linux penguins
Authored by: Anonymous on Monday, June 11 2007 @ 11:46 AM EDT
Go on then I'll post some and try to collate any replies.

M S patent of the week.

[ Reply to This | # ]

Bad M$ Public Image - Cured
Authored by: Anonymous on Monday, June 11 2007 @ 11:59 AM EDT
Micro$oft had big public image problems about a decade back. They fixed much of
it by putting Balmer in charge and having Bill Gates III start focusing on
philanthropy. Gates is the public face of Micro$oft. If he is doing good
things, they have to be banking on the fact that what he does will balance the
negative that the company is doing. It has worked so far.

-- Alma

[ Reply to This | # ]

Clubbing baby Linux penguins
Authored by: Anonymous on Monday, June 11 2007 @ 12:26 PM EDT
I have had it with Microsoft..... I just don't want to deal with a criminal
organization anymore.

The next laptop I am buying is going to be a Macbook Pro, it will be the first
apple product that I will have purchased. I have used Microsoft products since
my first IBM PC that was purchased in 1981. I have several computers, two are
Windows XP computers.... (one with Linux). After I get the Macbook, I will be
switching over those computers to Linux rather than upgrade to Vista.

Two major reasons:
- Vista seems to be a disaster (IMHO)
- And their determination to become a mafia extortion ring.

[ Reply to This | # ]

Another thought about IBM
Authored by: Anonymous on Monday, June 11 2007 @ 12:28 PM EDT
Doesn't IBM have massive cross-licensing agreements with Microsoft?

And IBM and Novell are partners in Linux development, etc.

And Novell also now has this agreement with Microsoft.
And Novell and IBM are partners, so IBM gets that protection
"defacto"

soo, in the end, as per the "who owns them" post above, what it really
boils down to is this.

None of this matters to or affects Microsoft, Novell, or IBM, but it does make a
huge target out of Red Hat.

[ Reply to This | # ]

Are there more shows featuring Steve&Leo talking to each other?
Authored by: Anonymous on Monday, June 11 2007 @ 12:34 PM EDT
Sounds like fun. They sure drive each other nuts. Something for YouTube perhaps?

[ Reply to This | # ]

Haven't all corporations behaved like this?
Authored by: Sesostris III on Monday, June 11 2007 @ 12:42 PM EDT
I'm not sure Microsoft is unique in all this. Corporations and "Business
People" have always behaved like this. Whatever you may think of them, the
Trade Unions of the world (US, Europe and elsewhere) didn't come into being
because everything was sweetness and light!

The modern zeitgeist seems to be to "maximise shareholder value" at
whatever the cost. This just doesn't affect Microsoft. Look at the behaviour of
some of the large corporations in the third world!

There also seems to be a tendency amongst shareholders to sue if their value
isn't being "maximised". Really, I'm not sure Microsoft have any
choice in this matter.

If they have a competitor, and they have a chance of "maximising
shareholder value" through weakening this competitor, it could be argued
that they almost have a duty (under current law) to do so!

That does not make it right. The ways to deal with this may be through
legislation and/or regulation and/or enforcement buy the authorities and/or a
sustained campaign of "bad publicity" (that affects business) and/or
"changing the parameters" in some way. The most effective of these are
probably legislative and enforcement. Bad publicity (which seems to be the
current strategy) is not guaranteed to succeed (unfortunately!)

In this specific case, the US patent legislation is borked. Fix that, and the
problem of Microsoft diminishes. While it is borked, you can hardly blaim
Microsoft for using it against a competitor - after all, it has been used
against Microsoft (Eolas).

Sesostris III

[ Reply to This | # ]

Solaris + Linux = GPL3?
Authored by: stites on Monday, June 11 2007 @ 01:32 PM EDT

Sun is considering releasing Solaris under GPL3.

CNET

Linus Torvalds is considering releasing Linux under GPL3 if Solaris is released under GPL3.

Linux.com

------------------
Steve Stites

[ Reply to This | # ]

Stop Clubbing a Baby Elephant
Authored by: Anonymous on Monday, June 11 2007 @ 01:34 PM EDT
Microsoft, obviously the thousand-pound elephant in the room
An elephant calf weighs 265 lb, the biggest adult male ever weighed 26,400 lb.

The author clearly considers Microsoft to be still a tiny baby elephant, so please stop clubbing it - giafly.

[ Reply to This | # ]

Clubbing baby Linux penguins - is Steve missing point?
Authored by: Anonymous on Monday, June 11 2007 @ 02:13 PM EDT
"STEVE: Well, okay. It's very clear that if they enumerated these patents,
the free and open source software community would have a field day attacking
them."

Microsoft has no desire to enumerate. Their whole purpose in these
announcements is FUD, an attempt to keep corporations from breaking free from
Microsoft.

[ Reply to This | # ]

PJ & co. correct me, but Duty to Mitigate?
Authored by: tz on Monday, June 11 2007 @ 02:22 PM EDT
At this point Microsoft's accusations on patents is probably beyond where they
could actually file a claim.

Here's the example I've heard. You have a sunroom on your house, and a candle
starts a fire. You notice the sunroom is in flames and evacuate. But you have
replacement insurance and really want a new house, so you wait until calling the
fire department. When you file the claim, the insurance company only will pay
to replace your sunroom. This is because you have a reason to mitigate any harm
or damage caused. In this case, you still have to call the FD as early as
reasonably possible.

A similar problem is there is a requirement to be timely about filing lawsuits -
you can't just let the meter run and file the day before the statute of
limitations kicks in.

So, how can Microsoft claim any Damages (even if infringement continues) from
something they knew was in violation a decade ago? Linux has always been in the
open, so they would have the opportunity to know about anything they think would
violate some of their IP almost immediately.

Someone should ask Microsoft just to list their 10 top patents (most likely to
survive a search for prior art, etc.) they think Linux violates.

But I suspect they would be like errno.h and that greek-lettered section of BSD
code SCO didn't own but was using to show everyone Linux infringed.

You cannot be trespassing when there is no boundary.

But to get to the title of the post, would it be OK to break a few penguin eggs?
Or even draw diagonal lines around them so they would be hatched prematurely?

[ Reply to This | # ]

Clubbing by proxy
Authored by: glitch on Monday, June 11 2007 @ 02:50 PM EDT
If M$ had a case it would have filed it a long time ago, there may be a few
issues that are legitimate but it will expose their technology to scrutiny, this
tells me they have more to lose than to gain by direct confrontation.So clubbing
by proxy or serving up kool aid is the method of choice for now.

Shareholders and CEO's started the game of outsourcing American jobs to line
their pockets & "increase shareholder value",but this sword has
another side.
China, for example is now our sugar momma, we depend on her money & goods.
Thanks to greed it has become a need.
( They do need us also)

M$ should open their hearts and minds to complete interoperability( while they
still have time), it would serve our nation well.


[ Reply to This | # ]

Clubbing baby Linux penguins--Why Linux needs a legal co-op!
Authored by: wvhillbilly on Monday, June 11 2007 @ 03:13 PM EDT
From the discussion between Steve Gibson and Leo LaPorte on M$ and patents:
STEVE: ...Basically Microsoft wants to tax free and open source software.

LEO: Oh, they want to do more than tax. They want to put it out of business. They'd like it to die and go away, wither up. I mean, that's one of the reasons I think they're not saying what these patents are. They want to put them out of business.

My bold

This is why I have been harping for years that Linux people need to form a cooperative such that an attack on any member of the Linux community is an attack on the entire community, and all can come together to fight the attack as a combined effort. Otherwise Microsoft and perhaps other patent trolls will be able to pick Linux apart, piece by piece, like they are doing with Novell, and attempting with Red hat. And a combined counterattack can be much stronger than the sum of its various parts.

Further, a good show of force can be a great deterrent. If a bully sees he's going to be overpowered, usually he'll run away with his tail between his legs, so to speak.

Just as a side thought--unless M$ reveals the allegedly infringed patents and mitigates the damage, they can't collect any damages anyway. And if they do the community can come together and fight it to the death with prior art, obviousness and all the other things that can invalidate patents. So my thought would be to consider their threats totally empty, tell Microsoft to take a long walk off a short pier, and go on about my business. And if they attack, then let them have it back with all the heavy artillery the community can muster.

IANAL and this is not legal advice, just my personal opinion.

---
What goes around comes around, and the longer it goes the bigger it grows.

[ Reply to This | # ]

Crack-attempts
Authored by: Anonymous on Monday, June 11 2007 @ 03:17 PM EDT
There are online services to test your system. I run Ubuntu (with firestarter).
The online service where not able to find open ports except 21 which was open on
purpose. I have had more that 10000 (50000?) break in attempts by brute force
through port 21 without luck (afaik).

I guess Ubuntu i pretty safe.


Pål

[ Reply to This | # ]

Spin vs FUD
Authored by: Anonymous on Monday, June 11 2007 @ 03:34 PM EDT
Was it really necessary to compare implied threats of litigation to clubbing
small animals?

You stated "Some things can't be spun." Well, other things shouldn't
be spun. Frankly, the comparison simply detracts from an otherwise well-reasoned
argument. It does make an eye catching headline though – as do headlines
accusing OSS of IP infringements by the hundreds.

[ Reply to This | # ]

The STRATEGY
Authored by: dodger on Monday, June 11 2007 @ 04:08 PM EDT
As I see it, the strategy is not to win with patents. It is simply to roll as
many companies into covenants 'not to sue' with enough linux companies, until
when the inevitable litigation occurs (for whatever reason) the court case that
will ensue will compare to the SCO vs. IBM case look like a nuclear missile to a
pea shooter. The ultimate FUD: a once successful company (Microsoft) is claiming
it is losing market share to 'Free/Non-commercial' software. It's unamerican and
unfair.......They will tie up all distributions for years with injunctions,
until the case is resolved.

[ Reply to This | # ]

  • The STRATEGY - Authored by: Anonymous on Monday, June 11 2007 @ 04:17 PM EDT
  • The REAL STRATEGY - Authored by: Anonymous on Monday, June 11 2007 @ 07:54 PM EDT
The answer is simple
Authored by: Anonymous on Monday, June 11 2007 @ 04:45 PM EDT
Don't eat penguins.

[ Reply to This | # ]

Ever See "Alien"
Authored by: sproggit on Monday, June 11 2007 @ 05:10 PM EDT
In 1979 Ridley Scott re-defined scary movies when he produced "Alien".
Apparenty the entire process of making the film was so convincing that the
actors refused to go on set except in broad daylight and with a full film crew
present.

The movie itself is a masterpiece of suspense. Part of the success and effect of
the film is the fact that the audience does not actually 'see' the alien
properly until the closing few minutes of the film. Right up until that point
all the viewer sees is a vague outline, a flash of movement, or the screams of
another victim.

When, right at the end of the film, the audience gets to see the creature, it is
*so* obvious that all you're seeing is an actor in a rubber suit that the
let-down is palpable.

This is exactly where Microsft have got to with their IP FUD around GNU/Linux.

They don't want to get specific with their claims, because to do so is the
equivalent of donning that prosthetic rubber and walking around like the
Creature from the Black Lagoon, or some other cheesy 50s B-Movie flick.

Microsft understand basic psychology.

They know that the implied threat of something vague and menacing is 10 times
more powerful than a threat that is carefully and precisely defined, unless that
precise definition has real teeth. Without substance, they know that they are
better off with the vague and the implied and to rely upon our deep subconscious
to fill in the blanks. It is our own fear of the unknown that Microsoft is
relying upon to convey their message.

The moment that Microsoft - or any other litigous company for that matter -
stakes a claim against Linux and gets specific with their claims, the entire
community will mobilise against them. Microsoft watched as the SCO Group's
campaign has been systematically decimated by diligent research and careful
counter-argument. They could see, in a moment, that had SCO been completely open
and transparent about their claims on day one, the entire case would have been
over in less than a month.


In "The Art of War", Sun Tzu rightly tells us that the most capable,
the most fearsome warrior is not the one who can defeat mighty armies with sheer
force of arms or skill in battle, but the one who can defeat an army without
having to raise his hand at all.

Microsoft know that to join in battle with the Linux community is to lose. They
cannot afford a patent war now, and as time goes by the cost will increase. All
they can do is bluff - and it seems that they are very good at that.


But the truth is that right now, they best they've got is Steve Ballmer running
round in a big rubber suit and making gnashing noises.

Ooh.

Scary.

The sooner a few more people realise this, the sooner we can have a *lot* more
entertainment poking some gentle fun at them...

[ Reply to This | # ]

Focusing Linux Distributions
Authored by: SilverWave on Monday, June 11 2007 @ 05:47 PM EDT
This is the interesting point to me...

It would, possibly, be easier to influence a small number of friendly
distributions... and we fight this battle on ground of their choosing (wealth
power influence) we are going to lose.

Maybe this is an attempt to create some kind of Frankenstein Linux someone that
they can defeat or subvert?
Or maybe a fifth column?

---
Linus
The bulk of all patents are [bad]...
Spending time reading them is stupid...

Moglen
I can change the rules...
The coupons have no expiration date..

[ Reply to This | # ]

With all due respect, PJ
Authored by: overshoot on Monday, June 11 2007 @ 06:55 PM EDT
... but seals are carnivores. If a baby seal has never hurt anything, it's
because it isn't weaned yet.

The metaphor is particularly inapt, though, because the main predator of
penguins are (you guessed it) ... seals.

[ Reply to This | # ]

    Clubbing baby Linux penguins
    Authored by: iceworm on Monday, June 11 2007 @ 08:50 PM EDT

    Oh dear! This is really over the top as the saying goes. In my opinion based upon my observation of the GPL (RMS, FSF, etc.) community over the past twenty years or so, there has been absolutely no effort to seek sympathy from the General Public much less corporate or geek communities. No, RMS had compassion for the end user (of software and of course the hardware). He took action to design a license to ensure the end user had the freedom to use, improve, correct, and distribute the software.

    As I see it, GNU, BSD, Apache, TeX, Linux (the kernel), et. al. never were baby ... penguins. Perhaps Feldegast could exercise his talents along the lines of showing a puny, 98 pound weakling of a Bill Gates with a club facing an army of well armed and armored penguins. Supporting Gates would be a few fellow weaklings like Novel, Ballmer (with a spindly chair), Xandros, and of course tSCOG (very weak). The penguin army would show various divisions, regiments, batallions, companies, and small units each with an identifying flag. This is, in my opinion closer to reality.

    [ Reply to This | # ]

    *sigh* Looks like Ballmer has new wallpaper (N/T)
    Authored by: Ikester on Monday, June 11 2007 @ 09:04 PM EDT
    .

    [ Reply to This | # ]

    "I'm not a vegetarian because I love animals"
    Authored by: mexaly on Monday, June 11 2007 @ 09:46 PM EDT
    "I'm a vegetarian because I hate plants."

    Ever eat a beautiful flower?

    By the way what about preditors, should they be fed? Maybe only the cute
    preditors, and fed only ugly animals. Ugly preditors can starve.

    If smallpox is a species, should it be protected as endangered? Mosquitos?
    Rats? Hookworms?

    And what about Naomi?

    It's a bonfire of the misapprehensions!

    ---
    My thanks go out to PJ and the legal experts that make Groklaw great.

    [ Reply to This | # ]

    IBM as a baby penguin?
    Authored by: mattflaschen on Monday, June 11 2007 @ 10:29 PM EDT
    It's really no longer true that only volunteers develop GNU/Linux. A lot of
    good work is done by employees big corporations with their own agendas. There's
    absolutely nothing wrong with that, as long as they play by the rules. It's
    even good, because they can defend the community from those who would threaten
    our freedom. But it's very hard for me to see IBM or Red Hat as a baby penguin.

    [ Reply to This | # ]

    Let's go after Microsoft's patent portfolio
    Authored by: Night Flyer on Tuesday, June 12 2007 @ 01:05 AM EDT
    It seems that Microsoft will continue to intimidate Linux users and developers
    with its patent portfolio...

    (but we don't know which ones - What to do ???)

    The Linux community must use its distributed power to neutralize the threat.

    Assign each and every of Microsoft's patents for a given year (ie: 2004) to a
    group in the Linux community. The group's job is to find prior art, or to
    determine if a patent is otherwise invalid in terms of being trivial, or an
    improper time extension on a trivial adjustment to an expired patent.

    A set of guidelines on what to look for could be circulated, and a small central
    group could offer guidance on procedures, should something be found.

    Make it clear that the intent is to eventually go after ALL the Microsoft
    patents.

    (With some intelligent triage, - pick out the critical ones or the ones that
    seem vulnerable first, and flood the patent offices with relevant complaints and
    objections ...)

    Every time Microsoft threatens with software patents, make it perfectly clear
    that the distributed Linux community will respond with a challenge of its
    critical patents.

    I know that there is a group that is working this angle, but we need to have a
    broader organized effort by 242 times.

    Also, go after trade marks. Do background checks and challenges, based on
    findings of facts, on each and every one found to be vulnerable.

    Set up a group to copyright trademarks that are logical extensions that
    Microsoft might choose to use in the future, and assign them to someone we trust
    (Linus?).

    (BTW, What ever happened to Lindows challenge to "Windows" ?)

    ---
    Veritas Vincit - Truth Conquers

    [ Reply to This | # ]

    Size of the penguin disguises the target.
    Authored by: stomfi on Tuesday, June 12 2007 @ 07:15 AM EDT
    According to IDC Linux has 1.5% of the market, whereas Apple has 4.5%, and MS
    has 90%.

    It does seem rather strange that a company that usually doesn't get interested
    in competing products until they achieve 20%, is going after such small fry.

    Obviously they are going after competitors in markets they wish to dominate that
    use Linux and FLOSS. Namely Google and Yahoo, who admit that they wouldn't have
    achieved their current success without Linux on their servers.

    The MS attack on these companies may be two pronged. One, to tax Linux servers,
    increasing their operating costs, and two, run approved SLES, paying the tax to
    themselves, on their own search/web 2 farms.

    Accepting this scenario makes a lot of sense to the Novell and Xandros
    interoperability efforts. MS is making sure that Linux on the server will talk
    to Windows and Office on the Desktop without the need for SAMBA, and getting the
    would be desktop Linux companies to do all the hard work with proven OSS
    methodology.

    I think it's about time Google and Yahoo woke up, joined hands in a class action
    with whoever else is interested and used some of their Linux gleaned profits to
    be the ones to take MS to court about these patents. It might last as long as
    the SCO fight, but MS wouldn't get any good publicity, something that always
    hurts and may try to drop the whole thing. Hopefully Google and Yahoo would see
    it was in their interest to insist on patent disclosure.

    [ Reply to This | # ]

    Im not so sure...
    Authored by: Long time CNE on Tuesday, June 12 2007 @ 08:44 AM EDT
    "So the problem is, here's Microsoft, obviously the thousand-pound elephant
    in the room who's just sort of - who clearly said to Novell, okay, look, you're
    the number two distributor of Linux."

    Are we really sure that it was Microsoft who were the thousand-pound elephant?

    Novell had eDirectory when Microsoft had domains, Groupwise, Zenworks, Netware
    and so on. Novell have been a proprietary company for 20 years, their patent
    portfolio isn't limited to what they got from aquiring Suse. My guess is that it
    were Novell who were the patent elephant of that room.

    If we look at how the money were distributed we might get a better insight on
    whether there were any elephants and who they were in that case. I don't have
    the exact numbers but didn't Microsoft pay about ten times as much as Novell?
    Why would they do that if Microsoft were the thousand-pound elephant dictating
    the deals in the room?



    Beware! Only personal opinions below: (I'm not trolling tough, this is just my
    humble belief as a network engineer with more then ten years of experience)

    Why did Novell then sign this "evil deal"?
    (apart from that shiny pile of money)
    My guess is that they've done their homework, they've had 20 years realizing
    that superior technology (compare NDS to domains for instance) isn't worth
    anything when the only one who knows the difference doesn't have a voice when
    the choice is made.

    IMHO: Novell doesn't want to circumvent the GPL, they want to be an alternative
    in the boardroom.

    ..and if they are their solutions will be based on GPL. Leading to greater
    adoption of GPL software. Now if Novell manages to circumvent GPL (this cannot
    be said often enough) it will be so much easier to migrate from Suse to Redhat
    than from Windows to Redhat.

    The last fact is of course the most important, don't remove the splinter in the
    finger when you're bleeding from the main arteries. It's Microsoft who's out to
    kill GPL not Novell. Novell is still a proprietary company adopting to a future
    with GPL. They'll make more "misstakes" but they're nevertheless one
    of the fastest ways to get GPL awareness into the boardrooms.

    We do need GPL awareness in the boardrooms, that's the bleeding in the arteries,
    GPL is a huge benefit for customers in the long run. But as long as the
    boardrooms get Microsoft VoIP for free with the next Office servicepack they'll
    go for the Microsoft solution. In their world it's cheap, cheap expenses meen
    low priority and since noone ever got fired for choosing Microsoft...


    *Getting up on soapbox, waving with arms*
    We cannot fight Microsoft divided, bare with Novell and every other company who
    adopts or tries to adopt the GPL. Educate them, don't force them back into the
    proprietary world. And please, remember that Novell is whipping SCO's butt
    (which I assume isn't cheap) So one could argue it's 1-1 in the evil-good
    scorechart
    *Getting off soapbox*

    And of course "guilty by association" and so on :(

    [ Reply to This | # ]

    Clubbing baby Linux penguins
    Authored by: Anonymous on Tuesday, June 12 2007 @ 05:51 PM EDT
    Replace the penguin with a baby gnu, and make it photorealistic with
    considerably more gore...maybe some half splattered brains, (sound effects
    involving the animal screaming for its' mother right before the crunch of the
    club repeatedly colliding with its' skull would be good, too) and I'd mount it,
    frame it, put it on my bedroom wall, and build a shrine around it.

    [ Reply to This | # ]

    Buffet on Novell's customers.
    Authored by: Anonymous on Wednesday, June 13 2007 @ 02:40 AM EDT
    Novell's customers seem to put enough pressure on Novell to get Novell to open
    its checkbook for anyone looking to sue Novell's customers.

    I mean, look at all the trouble Novell went through to protect its customers
    from a single aggressor who Novell acknowledged didn't even have a good patent
    case to begin with.

    Could Novell have put any larger of an X on its customers' backs? A big red X
    with inscription, "Sue me, threaten me, and drag me through the courts if
    necessary. Novell will come to my rescue whatever your demands and however weak
    your case."

    Ring. Ding. Ding. All those with patents (especially weak patents), come and get
    it!

    I pity the fool that buys into SLEDs and company. Novell has sold you up the
    river by catering to the terrorist's demands ..happily [I am refering to
    BoomBoom Microsoft].

    The door has been blown wide open. The easy meals have been singled out. All
    that is left to be done is the YouTube welcoming series and the SuperBowl 30sec
    invitation.

    It was a Microsoft club alright. But that pup was not a baby penguin. And the
    patent hyaenas are hungry.

    [ Reply to This | # ]

    Suggested method of counterattack
    Authored by: Wesley_Parish on Wednesday, June 13 2007 @ 06:44 AM EDT

    Around the time the Microsoft Patent attack started, I wrote an email to one of the financial magazines publishing the guff. Here's what I wrote. It may be useful:

    It might be worth pointing out in relation to the article "Microsoft takes on the free world" http://money.cnn.com/magazines/fortune/fortune_archive/2007/05/28/100033867/ that Microsoft (MSFT) has now put itself in exactly the same position that The SCO Group (SCOX) put itself in, in 2003, with its broad claims that avoided specificity like the plague.

    We know where that has led to, if you have been following the story through the pages of Groklaw.net, etc.  SCOX is now tottering on the brink of bankruptcy, and was already facing financial ruin when it took its actions against IBM, Novell, etc.

    In those circumstances, is MSFT a trustworthy stock?  What are their _real_ motives for talking like this?  Oh, yes, they talk big about their IPR, and getting returns on it, etc.  Precisely the same arguments that one Darl McBride made, before SCOX shut him up.

    Once again, should any reputable financial manager or stockbroker retain an investment in Microsoft?  Judging from their efforts to turn themselves into a litigation company instead of a company producing satisfied customers, I'd say they are going down, fast.

    Wesley Parish

    It's not exactly FUD - it's more a call to take thought and reflect deeply on the consequences of one's actions.

    But if every financial brokerage house on Wall Street was asked those questions, by knowledgeable individuals, not an identifiable thus dismissable "clique" or "group", on the basis that MSFT is following in SCOX's footsteps with its broad claims unrelated to any specificity, how long would it take before Microsoft would be burning through its $49 billion just to stay afloat?

    That is dirty fighting, yes. But it's true, it doesn't make broad, unsubstantiated claims, and it hits Microsoft where it is weakest.

    ---
    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 | # ]

    Clubbing baby Linux penguins
    Authored by: Anonymous on Wednesday, June 13 2007 @ 04:06 PM EDT
    Animals serve three purposes:

    a. Food.
    b. Tools.
    c. Clothing.

    Hence, killing them is just fine by me.

    krp

    [ Reply to This | # ]

    • ??? - Authored by: Anonymous on Wednesday, June 13 2007 @ 09:20 PM EDT
    • Clubbing baby Linux penguins - Authored by: Anonymous on Wednesday, June 13 2007 @ 09:47 PM EDT
    This will not be resolved while....
    Authored by: hamstring on Thursday, June 14 2007 @ 09:26 AM EDT
    People allow corruption in their elected government officials.

    People need to wake up, and learn that the government works for them. Corrupt
    politicians need to be voted out of office or have legal actions taken to remove
    them (depending on the severity).

    Lobbyists defined the penalties for Microsoft in the penalty phase of their
    anti-trust case, not legal merit or fairness. Lobbyists continue to define
    rules of engagement for large companies. (Think of not only M$, but any huge
    company/corporation). Lobbyists get their way by "paying off"
    officials, sugar coat it all you like.

    Sure, it takes people who care in order to expose those "seal
    clubbers". It takes far more people to tell the Government to fix the
    issues, especially when the violators are paying the government to look the
    other way.

    NOTE: My use of "People" refers to the mass majority, not literally
    everyone.
    Disclaimer: There are some very good and caring politicians who would never
    think of entertaining a lobbyist or swaying opinions based on "gifts".
    Those politicians are in the minority sadly.

    ---
    # echo "Mjdsptpgu Svdlt" | tr [b-z] [a-y]
    # IANAL and do not like Monopoly

    [ Reply to This | # ]

    Clubbing baby Linux penguins
    Authored by: Anonymous on Thursday, June 14 2007 @ 05:30 PM EDT
    Actually, I see nothing wrong with clubbing baby seals, or shooting an elk, or
    using a nail gun to kill a beef cow or pig in a slaughter house.
    Anthropomorphizing cute, cuddly, fuzzy creatures does a disservice to us all.
    Remember, baby seals grow up to be BIG seals, that terrorize cute little fishies
    by eating them.

    [ Reply to This | # ]

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

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