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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.

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Laura and Me - Updated

Tuesday, June 19 2007 @ 12:19 PM EDT

I wrote once that I wanted to be a tech analyst when I grew up, because no one seems to expect them to get their facts right. That, I reasoned, would make it an easy gig. I could lean back in my chair, put my feet up on the desk, and just make things up. Why research? And people would actually print it as if it were true. And next time they wanted to know something, they would call me up again, even though I called it completely wrong the last time, had huge gaps in my knowledge, got random but truly vital facts utterly wrong, and said the opposite of what is observably true.

And we have another fine example this morning, from the lovely and tireless Laura DiDio of Yankee Group. That's if the journalist got it right. One never knows with LinuxInsider. In an article by Kimberly Hill of LinuxInsider on TechNewsWorld about the Microsoft patent saber rattling and how Ubuntu isn't buying it, it suggests that Laura DiDio of Yankee Group says that I did the OSRM patent study three years ago. That is not true. I wasn't even involved peripherally. I didn't even read the report before it was published. (Red Hat isn't either, by the way, nor Mandriva.)

I publicly quit my job there in 2004 because SCO was going around falsely claiming that I did the study and that it "proved" that I thought Linux had serious IP issues. I didn't think that then and I still don't. My point is that this was a public event, reported widely in the press. So can she or LinuxInsider claim there was no way to check this fact? And if you say something negative about someone and it's provably not true, what do we call that, class? The law calls it libel. Perhaps they need to brush up on the subject of the importance of fact checking.

Microsoft has been misrepresenting that OSRM study for three years now, as far as I'm concerned. Would the world be a better place if that company put its energy into great code instead of FUD? What do you think? Try Vista and then come back and tell me.

In fact, I read the study as proving that Linux didn't have any more IP worries than any other chunk of code, and probably less than Microsoft's, because the study didn't find a single court-validated patent that Linux by any stretch could be claimed to be infringing. Not one. That is what the study said. So not only does LinuxInsider and DiDio get it wrong factually about who did the study, they get wrong what the study found too.

Microsoft can't say that about its code, now can it? It regularly goes to court and ends up paying for patent infringement. There has never been a patent infringement lawsuit against Linux, by the way, something else Microsoft can't claim about itself.

The study also didn't say Microsoft had 200+ patents infringed by Linux. It said it had a few that might or might not be valid that it might try to claim Linux infringed. Probably not valid, actually, now that the US Supreme Court has raised the bar on obviousness. Yet, here is Ms. DiDio channeling SCO and Microsoft's meme. Hit me with a feather, someone, so I can fall down from surprise.

Here's the part about me in today's article:

The recent uproar in the open source community about Microsoft's claims, though, ignores an important chapter in the community's history, Laura DiDio, research fellow with Yankee Group, told LinuxInsider.
"Some of the stuff coming out of the open source community about Microsoft and the patent infringement issues is very disingenuous," she asserted. "Four years ago, the people banging the drum about patent infringement were in the open source community."
Back in 2004, said DiDio, then-fledging insurance firm Open Source Risk Management commissioned a study to determine just how many patients Linux may infringe upon. At that time, the number was pinned at 280 or so, most of them owned by IBM (NYSE: IBM) Latest News about IBM, with about 30 held by Microsoft.
The now-infamous study was performed by Pamela Jones of Groklaw, and its methods and conflicts have seen much comment since then. Still, DiDio asserted, the open source community itself was the first to raise the issue of how much Linux actually overlapped, in terms of intellectual property, with proprietary software.

Microsoft has made it infamous, for sure, by misrepresenting it. But the facts are simply not true. In any case, thanks to the Supreme Court, the danger, if any, is considerably less today than three years ago.

If Linux did have any IP issues, Microsoft really should put its patents openly on the table, so everyone can remove any patent infringement. That's how it's done, except when somebody is trying to build a bully business with FUDly unspecified and unproven IP infringement claims, à la SCO. Forcing people to perpetually infringe by not telling them where to find the infringement is not a longterm business plan, Microsoft. Look at SCO.

Here is what Dan Ravicher, who did the study, said at the time:

"I'm a patent attorney, and I'm often the one least concerned about a patent threat. It's like jay walking is illegal in NYC, but everyone does it because the fine is not significant enough," he says. "Likewise with patent infringement, if you are held to infringe a patent, there's no windfall. It's rare for a patent holder to get an injunction, especially against a smaller competitor, just because of anti competitive terms."
The free software and open source communities should remember, he says, that a patent isn't the end of the world; that workarounds can be implemented quickly and often painlessly.

That was before KSR, by the way, when folks were already mocking Microsoft's patent saber rattling by pointing out the fatuousness of Microsoft's IS NOT patent, one example of the "strength" of its patent claims. And here's a segment from an article Ravicher wrote for Groklaw on why nonfree software may have more to fear from patents than FOSS:

Now, assume there exists a patent that arguably covers Free Software and the patent holder brings a patent infringement law suit to stop such infringement. It is highly unlikely that the patent holder would receive a preliminary injunction, as they are highly unusual in patent infringement cases to begin with. Further, the equities and public harm would very rarely be in favor of the patent holder, because Free Software is a public good, on which many individuals, businesses, and government rely. Lastly, the wide spread distribution of Free Software would render any such injunction meaningless, unless it attached to every single possessor of a copy of the allegedly infringing code, a highly unlikely scenario for any Free Software project of significance.
This is where free software is very different from non-free software, and why patents are more of a threat to the latter, than the former. A non-free software product will have a harder time defending against a preliminary injunction as, although they might be able to argue equities, they will have much more difficulty arguing a public harm. Further, their product can indeed be easily stopped because they have complete distribution control over it.
Having virtually no chance at preliminary relief, the patent holder will then seek damages, but here they are in a catch-22 when it comes to Free Software. If they go after deep pockets, the defendant will, by the fact that they are a "deep pocket," be more than capable of defending itself against the patent assertion. Such defendants have a very high success rate in patent cases, as about half of all litigated patents are held invalid and many of those that are held valid are nonetheless held not infringed.
If, instead, the patent holder sues a little guy, there will be no money to recover, because the defendant is a "little guy." Additionally, there are several reasons why a deep pocket may step up to protect any such little guy.

And that's why you may have noticed that Microsoft's patent saber rattling this year elicited yawns, jokes, and anger, particularly after the KSR decision altered the patent landscape. The only folks acting scared are journalists, emphasis on the verb.

Laura and Me

Laura and me. Through the years of the SCO saga, on opposite sides intellectually. Factually too. Which of us got it right, looking back? Let's see.

You probably remember that she looked at the SCO code and opined that it surely looked very bad for Linux. Hardy har. It was not BSD code she looked at, she said, those 80 lines SCO showed her, because SCO said it wasn't. Of course, the code turned out to be BSD code after all. It's comical to read about the MIT deepdivers, a story she swallowed whole as well:

SCO hired three separate teams of code experts, including a group from the Massachusetts Institute of Technology. According to SCO, these groups all found code in Linux that purportedly originated in the Unix System V kernel and not BSD.

It's so fun going down Memory Lane, isn't it? Especially now that no one can find any MIT code experts, SCO later admitted that its experts weren't actually from MIT, and they've disappeared into the mists of time without ever showing up in court. Not to mention the code they supposedly found, which has also simply vanished, I fear. She garbled some information about the GPL too, but even lawyers do that, so I give her a pass on that.

More of her pearls of wisdom from -- where else? -- LinuxInsider in a story from 2005 about how some in the media, with the initials MOG, messed up and reported the Linux kernel was being rewritten to avoid patent worries, which wasn't true. Here's what DiDio said:

"If you look at the success of Linux you have to ask how it got so good so fast," Didio said. "Well there's a reason. A lot of people will maintain that Linux is ripped-off Unix code -- and certainly there is a lot of Unix in Linux."

Lots and lots, eh? Certainly? No doubt about it? Except no one can actually show any unequivocably infringing code to the court after 4 or 5 years of studiously looking. We're on planet "methods and concepts" now. Poor SCO. And heaven only knows, they have put forth a diligent effort trying. And trying. And trying. They could have just listened to Groklaw, but no, they just had to spend millions on their quest, their impossible dream.

So, I'd have to regretfully conclude that Ms. DiDio got that one wrong. But who's counting? She's an analyst, after all. They don't have to get things right.

Here's where DiDio told the world that if companies want to switch to Linux, they need to "upgrade things like storage, bandwidth and security". That might make you laugh if you are a geek. Here's why: Linux runs on anything from a wristwatch to a supercomputer. The one thing you can pretty much guarantee is that it will run on older hardware that Microsoft's products can't. And as for security upgrading, it is my opinion that just switching to Linux accomplishes that for you.

Here is another pearl of wisdom from July of 2003, when SCO pulled out of UnitedLinux:

"SCO's decision [to pull out of UL, according to Ms. DiDio] has not killed UnitedLinux as a project by any means, DiDio told the E-Commerce Times.

By no means. Except it did. And here's the most famous quote of all:

And when it comes to companies who have bet their fortunes on Linux and other open-source software, Didio says she sees much to criticize.
"The thing about Linux is, you can talk about a free, open operating system all you want, but you can't take that idea of free and open and put it into a capitalist system and maintain it as though it is some kind of hippie commune or ashram," she said in a phone interview from her home in Massachusetts. "Because if you can do it like that, at that point I'm like, 'Pass the hookah please!'"

Ah! that elusive Cluetrain. Is Red Hat making money? Is IBM? Might her analysis be wrong, then? You think?

And would an article about analysts be complete without this gem from Rob Enderle at SCOForum in 2004?

His speech, originally announced as having the theme of how SCO can win in the courts was reportedly changed to another theme: "Free Software and the Fools Who Use It".... Oh, and he suggested to those who wish to slam the company that they should get a clue and invest in the company instead. "It's the best investment you'll ever make."

I certainly hope he followed his own advice. Here's coverage of Day 1, by the way. And here's Enderle's speech, since you can no longer find it on SCO's website. It's so much fun to look back now that the danger is so over.

Here's one part from today's article that illustrates quite well how much of an insider LinuxInsider is not:

What the companies making agreements with Microsoft are doing, then, is simply conducting business. Managing the risk of doing business in the software world is just business as usual, DiDio asserts, and nothing more malignant than observing the rules of corporate behavior.
Shuttleworth himself places the emphasis of his announcement not on the open source nature of his company's software, but on the fact that it's distributed for free.
"In the Ubuntu community, we believe that the freedom in free software is what's powerful, not the openness of the code," Shuttleworth stated.

Ah yes, the rules of corporate behavior. And how we all admire them. Obviously, the journalist doesn't realize that Shuttleworth was talking about free as in speech, not free as in beer. In fact, he used the word freedom, not free. But it whizzed right over her head. That is so basic, I will opine, with my feet up on the desk, that she hasn't a clue what FOSS is about and did not a minute's research on what freedom means in this quotation. Hint: it doesn't mean free as in beer. Perhaps she is auditioning to be an analyst.

So, after our little stroll down memory lane with Laura, who would you say got it right time after time, Laura or me? And that, I suppose, is why no one has ever offered me a job as an analyst. Sadly, I'm overqualified.

P.S. I believe this is a resurrection of the smear campaign against me and Groklaw. I think that because just before the LinuxInsider article appeared, one of the lesser stars in Microsoft and SCO's lightshow said the same factually incorrect thing. [ Update: It has been removed.] Excuse his language. I just thought I'd also record it here, that he'd like me to drop dead and calls me libelous things. Can't Microsoft and SCO get any nice people to support their cause, I wondered? Why might that be? He's at it again today with the same libel. [ Update: The comment is now removed.] So I expect more of the same. If I were Microsoft or even SCO, I'd be disturbed to have a supporter who conducts himself like that. It is a violation of the law, after all. Do they not care enough to tell him to stop? I've now shown them where to find it. Perhaps it calls for a statement from them that they don't condone such behavior? If not, what might we all conclude?

So, without holding our breath, what can we do? Whenever you see this lie, you can just politely link to this article to correct the libel. I stress politely. One cure for libelous words can just be correcting them. And if you wanted to let Yahoo know that there is libel on its message boards, that would be helpful. Link to this article in your own blogs, by all means, also, if you write about that article and quote a sentence or two from it. That way when that LinuxInsider article appears in searches on Google and other search engines, so will your correction. It all helps to protect my good name, which I obviously care about and should care about. Their purpose may be to damage Groklaw's reputation so people discount what they read here; so our goal is to protect it, so they will not be misled. And a little geek smarts can go a long way.

Laura and Me - Updated | 260 comments | Create New Account

Comments belong to whoever posts them. Please notify us of inappropriate comments.

Corrections here please

Authored by: WhiteFang on Tuesday, June 19 2007 @ 12:40 PM EDT

If needed.

:-D

---
"When listening to MS, always remember the tongue speaking is forked." -
gormanly