Headlines:
| Microsoft Files Cross Motion to Dismiss Novell's WordPerfect Antitrust Case; Novell Opposes |
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Thursday, November 19 2009 @ 01:37 PM EST
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There are more filings in the Novell v. Microsoft antitrust case over WordPerfect. Many, many more, mainly exhibits, a total of about 2,540 pages. Some exhibits themselves run to nearly 200 pages, and Novell has 158 exhibits. So, what is happening? Last time we looked in on this case, the parties had filed summary judgment motions. Now Microsoft has filed a cross motion asking the court to dismiss Novell's complaint, and Novell has filed a response in opposition. Very much at issue are exhibits in the Comes antitrust case against Microsoft. Believe it or not, no one had adequately set up a database system to be able to search through the exhibits efficiently. So Novell wanted Microsoft to look for what it was asking for in discovery, and Microsoft wanted Novell to have to do that. And the court didn't press Microsoft much. And so at the end of the day, there was no evidence on some key points that either party could find.
Groklaw is now working on such a searchable system, which we hope will be available in about a week's time, if all keeps going well, so you and I and the world can search the exhibits easily. It may be too late for this litigation, and there may not be any more relevant evidence to find -- how I wish I'd known there was this need earlier -- but now that we know, we are working on it and at least it will be in place for others.
Anyway, while the database Microsoft has is more complete than the Comes materials made public in that litigation, we certainly can arrange what we have better than that, and we are just a bunch of volunteers. Capice? If you look carefully, you will see that one of the emails [PDF] we posted on that last article is now referenced in Novell's Response as footnote 4 (I think the Hassid affidavit has transposed 4 and 5, by the way). It could be coincidence. But if not, this is surely worth doing. Anyway, it's what Groklaw was born for. It's Open Source, so many eyeballs make bugs shallow. If they belong to geeks, you can throw in some technology, and solutions are possible that law firms often can't achieve on their own. And yes, if it were the other side searching, I'd still do it, although I'd have some questions about the plausibility of such an expressed need in this case.
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| Notice of Agenda for Friday's Bankruptcy Hearing - Gray Motion and AutoZone Sealing Objection |
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Wednesday, November 18 2009 @ 02:33 PM EST
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So, what is on the agenda for Friday's hearing in the SCO bankruptcy? Several items are listed, but only two are contested.
The AutoZone settlement agreement received no written objections, but the U.S. Trustee's office does have an "informal" objection to the sealing of its terms. That means that will be at least discussed, unless they can get it resolved before Friday, and the Notice of Agenda says they're working on that. The U.S. Trustee's Office has been on the ball from the starting gate. The motion by Wayne Gray to lift the stay will also be argued at that hearing. SCO's Chapter 11 Trustee, Edward Cahn,
objected and Gray responded, so it's game on. The hearing should be pure fascination, to say the least. But I doubt the outcome is hard to guess.
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| Why the GPL Sinks SCO's Copyright Infringement Claims, Even if it Owned the Copyrights |
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Monday, November 16 2009 @ 02:56 PM EST
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I've started to wonder if Novell or IBM has explained to SCO's Chapter 11 Trustee Edward Cahn how the GPL works. It cuts through all the other ways SCO is bound to lose, in my view. Then, I thought: why not just explain it myself? You never know. It might prove useful to put it all in one place. So, here goes, SCO and the GPL. As you may recall, if you've been around since 2003, SCO's position on the GPL has been that while it may have distributed its code under the GPL, it didn't mean to do it, that it never knowingly distributed Unix or Unixware code under the GPL. I'd like to briefly explain why that excuse doesn't matter to either Novell or IBM. IBM of course has always taken the position that it hasn't infringed any copyrights, no matter who owns them. But let's take SCO's words at face value, and pretend that they are true. Then how does the GPL moot their claims?
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| Cahn Objects to Wayne Gray's Motion to Lift Stay - Updated, as text - Gray Responds |
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Monday, November 16 2009 @ 03:29 AM EST
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SCO's Chapter 11 Trustee Edward Cahn has filed an objection to the Wayne Gray motion to lift the stay. Cahn says that to characterize the Wayne Gray motion as "highly irregular" would be "an understatement".
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| Apple Wins Like a Champ - Psystar is Toast -- What? You're Surprised? |
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Saturday, November 14 2009 @ 10:45 AM EST
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Psystar just got what's coming to them in the California case. Here's the order [PDF]. It's a total massacre. Psystar's first-sale defense went down in flames. Apple's motion for summary judgment on copyright infringement and DMCA violation is granted. Apple prevailed also on its motion to seal. Psystar's motion for summary judgment on trademark infringement and trade dress is denied. So is its illusory motion for copyright misuse. There are still issues remaining for trial, despite Psystar's attempt to present everything now as being moot. Here's what's left to be decided at trial: Apple's allegations of breach of contract; induced breach of contract, trademark infringement; trademark dilution; trade dress infringement; and state unfair competition under California Business and Professions Code § 17200; and common law unfair competition. See anything on that list that will be helpful to Psystar?
So that means damages ahead for Psystar on the copyright issues just decided on summary judgment, at a minimum. The court asked for briefs on that subject. In short, Psystar is toast. Psystar's only hope now is Florida, and frankly I wouldn't bet the house on that one. Judges notice if you were just found guilty of a similar cause of action in another state. You're surprised? I told you, I told you, I told you. So, to those who feel crushed at the moment, there could be an appeal, I suppose. And if you want freedom for your code, you certainly can find it on Planet Earth. Look in the right direction. You'll be happy you did, because you can hack away to your heart's content, and it's perfectly legal. The court's message is clear: EULAs mean what they say; if you don't want to abide by its license, leave Apple's stuff alone. We have the order for you as text.
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| Bankruptcy court reschedules SCO omnibus hearing to Dec. 30 & Bert Young gets a job & Jeff Hunsaker loses one |
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Friday, November 13 2009 @ 06:50 AM EST
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The omnibus hearing scheduled for December 22nd will be held on December 30th instead. That's the one on SUSE's motion to lift the stay, I believe, so it is one not to be missed. And Bert Young has a new job. He is now CFO at a company called Benefitfocus, located in South Carolina.
Update: Jeff Hunsaker is out.
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| An Explanation of Computation Theory for Lawyers |
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Wednesday, November 11 2009 @ 07:48 PM EST
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If I had to describe the fairly universal geek reaction to the oral argument at the US Supreme Court on Monday in In Re Bilski, I would have to say it's a worry that some of the participants didn't seem to understand computers or the tech behind software very well. Groklaw member PolR has written an explanation for lawyers of computation theory to try to fill a gap in their knowledge that he has observed from reading
legal briefs.
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| Microsoft Patents Sudo?!! - Updated 3Xs |
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Wednesday, November 11 2009 @ 10:36 AM EST
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Lordy, lordy, lordy. They have no shame. It appears that Microsoft has just patented sudo, a personalized version of it. Here it is, patent number7617530. Thanks, USPTO, for giving Microsoft, which is already a monopoly, a monopoly on something that's been in use since 1980 and wasn't invented by Microsoft. Here's Wikipedia's description of sudo, which you can meaningfully compare to Microsoft's description of its "invention".
This is why what the US Supreme Court does about software patents means so much. Hopefully they will address the topic in their decision on Bilski. Sudo is an integral part of the functioning of GNU/Linux systems, and you use it in Mac OSX also. Maybe the Supreme Court doesn't know that, and maybe the USPTO didn't realize it. But do you believe Microsoft knows it?
Perhaps Microsoft would like everyone in the world to pay them a toll at least, even if they don't want to use Microsoft's software? Like SCO, but with more muscle behind the request? Or maybe it might be used as a barrier to competition? What do you personally believe Microsoft wants patents on things like sudo for? To make sure innovative new companies can compete on an even playing field with Microsoft?
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| SUSE Moves to Lift Stay on Arbitration; Novell Asks to Consolidate with IBM Litigation or Have Both Cases Assigned to That Judge |
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Tuesday, November 10 2009 @ 05:42 PM EST
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Novell has made two moves. In bankruptcy court, SUSE asks that the stay be lifted so the arbitration can go forward. And in Utah, Novell has filed a Notice of Related Proceeding, asking that the SCO v. Novell and SCO v. IBM litigations either be consolidated with SCO v. IBM or at least be assigned to the same judge, Tena Campbell.
Updated with further filings, including the transcript of the October 23, 2009 bankruptcy hearing.
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| In Re Bilski - Transcript of Today's Oral Argument at the US Supreme Court - Updated 3Xs |
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Monday, November 09 2009 @ 09:14 PM EST
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I know you are dying to know what happened today in oral argument in
In Re Bilski before the US Supreme Court. Here is the transcript [PDF] so you can read it for yourself and not have to depend on me or any journalist. For sure the questions from the court to Bilski's attorney, J. Michael Jakes, and to the attorney for the government, Deputy Solicitor General Malcolm L. Stewart, are interesting. I conclude that the justices are way ahead of them on just how crazy the current patent system has become. Thank heaven there were so many amicus briefs, because reasonable, logical arguments were few and far between from either attorney, in my view, in that they each seemed to argue very much for the status quo, or in the case of Bilski's lawyer for an even broader free-for-all in patentability.
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Judge sets February hearing for new Google Books deal
Like before, opponents of Google's settlement with groups representing authors and publishers will have a comment period in which to file objections, and books rights holders who want to preserve their abilty to sue Google for scanning their books will have an opt-out deadline. The final hearing is set for February 18 in U.S. District Court for the Southern District of New York....Opponents will have until January 28th to file objections with the court. That's also the same date for affected class members to decide whether or not they would like to opt out of the amended agreement. - Tom Krazit, CNET
Microsoft Azure set to capture open source revenue streams
According to Microsoft, Azure SQL will support MySQL, and Azure .Net Services will support Apache Tomcat. Microsoft will also support PHP and Apache Web Server on Azure....
As in my previous post, I don't want this to be about Amazon or Microsoft versus Sun/MySQL.
The larger point is if Amazon, Microsoft, IBM, HP, Google, Cisco, EMC/VMware, or Oracle/Sun offer a simple and supported cloud service for running MySQL, Tomcat, JBoss, Mule, or Apache HTTP instances, what reason do customers have to acquire "enterprise subscriptions" from the vendors developing these open source projects? Until now, the value of an open source "enterprise subscription" has largely been access to support and access to administration and management tooling. In the case of MySQL, the former is provided by Amazon RDS and Azure SQL as part of the per-hour service. Again in the case of MySQL, the latter is rendered unnecessary or replicated through Amazon RDS and Azure SQL tools. [PJ: Now think about Oracle and the EU Commission complaints. Then think about Microsoft supporting Apache. Embrace is followed by what, again?] - Savio Rodrigues, InfoWorld
EU Community Patent And UPLS: Will There Be A Political Breakthrough Soon?
The Intellectual Property Expert Group (ipeg) are feeding hopes in their Blog that the Swedish EU Presidency might be lucky enough to successfully forge some sort of political compromise on the EU Community Patent as well as on the Unified Patent Litigation System (UPLS) later this year. - Axel H. Horns, IPJUR
Call to Action: Amici Briefs in ACLU Gene Patent Challenge
If the arguments of the ACLU prevail there is no reason those same arguments couldn’t be used against any patent owner. All patents are exclusive rights by nature, so if gene patents violate the First Amendment then all patents will violate the First Amendment....Imagine the emboldening of the radical anti-patent crowd with a decision from an Article III Judge that patents violate the First Amendment. The thought is chilling. This is not a fight for Myriad, this is not a fight for the Patent Office, this is a fight that affects all innovators and those who use the patent system. We simply cannot allow the ACLU to prevail and a massive show of support is necessary to make it unequivocally clear that this is not a Right vs. Left dispute, this is a right vs. wrong dispute....
If you have a patent line item in your budget you absolutely need to take notice of what is going on in the Southern District of New York and you need to at least consider getting involved and filing an amicus brief in support of Myriad Genetics and the Patent Office position.... Sure, you can wait for everything to go wrong, hope for the best and then consider filing an amicus brief at the Federal Circuit. But do we really want an organization like the ACLU to enjoy this victory? Do anti-patent folks need more ammunition or emboldening? A victory at the district court level will irrevocably affect the hearts and minds of those who think all patents are garbage and violate free market principles. Once this cat is out of the bag it is going to be extraordinarily difficult to get it back into the bag and radicals will forever throw this decision into the mix, and will use it to sway public opinion against patents. [PJ: Gene, calm down. This isn't about patents on cotton gins and such. It's about gene patents. Read the complaint [pdf] again, particularly paragraph 103, and is there really a need for such pejorative speech? It is challenging the claims as being on "abstract ideas or basic human knowledge and/or thought" and as "products of nature, laws of nature and/or natural phenomena". How is that going to affect all patents?] - Gene Quinn, IP Watchdog
Nil: The Value of Patents in a Major Crisis Such as an Influenza Pandemic
Part V of the essay recognizes that innovation still takes place in the absence of enforceable patent rights. A wide variety of incentives play a role in innovation policy, and reduced patent value will not end innovation. - Patently O
Patent That: Reporter Invents Way to Reach PTO Director
So when ABA Journal senior writer Terry Carter got nowhere in his recent effort to reach Patent and Trademark Office director David Kappos through spokesman Peter Pappas for a story he was writing, he posted a humorous patent application for a "method to get an interview with USPTO Director David Kappos." ...
Asked for comment, PTO spokeswoman Jennifer Rankin Byrne offered this statement: “While we regret that Terry Carter had the misfortune of having his request fall through the cracks, we were only partially amused by his unorthodox method of gaining our attention. But, in the spirit of the coming holiday season, let us respond with humor and good cheer: The application is denied for lack of subtlety. And we are working with the ABA Journal to schedule an interview." - Tony Mauro, BLT
Microsoft Retail Store Dancing Video Goes Viral
Brad Slavin, who owns a San Diego-based search engine optimization firm call Webheat, attracted attention earlier this week with a video he claims to have taken in the Microsoft store in Mission Viejo, Calif., which shows employees dancing in clearly rehearsed fashion to the music of the Black Eyed Peas. - Kevin McLaughlin, ChannelWeb
H-1B Visa Beef May End Up in Supreme Court
H-1B visa opponents have turned to the Supreme Court in a last-ditch effort to overturn a 2008 Department of Homeland Security decision that the Programmers Guild, the Immigration Reform Law Institute and others claim is a back-door circumvention of the H-1B visa cap.
In a Nov. 13 filing, the coalition asked the Supreme Court to hear the case after a U.S. District Court in New Jersey and the U.S. Court of Appeals in Philadelphia both rejected the original lawsuit. The Supreme Court is not obligated to hear the case. - Roy Mark, eWeek
Releasing the Chromium OS open source project
Second, because all apps live within the browser, there are significant benefits to security. Unlike traditional operating systems, Chrome OS doesn't trust the applications you run. Each app is contained within a security sandbox making it harder for malware and viruses to infect your computer. Furthermore, Chrome OS barely trusts itself. Every time you restart your computer the operating system verifies the integrity of its code. If your system has been compromised, it is designed to fix itself with a reboot. While no computer can be made completely secure, we're going to make life much harder (and less profitable) for the bad guys. If you dig security, read the Chrome OS Security Overview or watch the video.- Official Google Blog
YouTube's Auto Caps Not Only Help The Deaf, But Searchers Too
In a move that will make hundreds of thousands more videos accessible to the deaf and hearing impaired, Google Thursday announced that videos on its YouTube site would sport machine-generated automatic captions.
- ChannelWeb
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