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Posts tagged ‘patents’

Dec 3

The Most Anti-Tech Organizations in America

History is replete with examples of products, companies, and industries that fail to adapt and adopt to new technology.  An article @PCWorld by Mark Sullivan on the 5 most anti-tech organizations in America.

Their names keep coming up over and over again in courtrooms and corridors of power across the country–those groups whose interests always seem to run counter to those of technology companies and consumers. They come in many forms: associations, think tanks, money-raising organizations, PACs, and even other tech-oriented industries like telecommunications.

The tech issues that they’re concerned with are what you might expect: digital rights management and fair use, patent law, broadband speed and reach, wireless spectrum and network neutrality. I talked to a good number of tech and media policy insiders in Washington, D.C.–mostly off the record–to find out who these groups are, how they operate, and who pays their bills. We’ll start with the biggest offenders first and work our way down.

  1. RIAA
  2. The Pharmaceutical/Biotech Industry
  3. Big Telco Companies, Industry Group USTelecom
  4. Verizon, AT&T, Progress and Freedom Foundation
  5. Large Wireless Carriers and the Cellular Telecommunications Industry Association (CTIA); TV Broadcasters and the National Association of Broadcasters (NAB)

Ok, I buy the RIAA argument. I can even see how one can make an argument about big telcos and their industry organizations are slow to adopt new technologies. But the RIAA’s biggest crime, as it were, was not being anti-tech, but being out of touch with consumers–it’s customers.

Opposition to “net neutrality” is not by definition anti-tech. Case in point broadband. Take the MSOs and the introduction of cable modems. The cable industry moved at “broadband speed” to develop, test and deploy cable modem technology to the market. Why? They understood upcoming technology and bandwidth requirements and they anticipated customers demand. The cable industry took a risk and made investments assuming returns on those investments.

I’m not sure where net neutrality got off track.  The initial mantra was equal access to information flowing over the Internet.  Sounds great.  Unfortunately proponents call for government to enforce equality.  If you follow the major tech press you’ve undoubtedly heard the pro net neutrality arguments.  For a look at an opposing viewpoint, The Cato Institute has prepared a policy analysis document which can be found athttp://www.cato.org/pubs/pas/pa-507es.html.

Such rhetoric and calls for preemptive regulation are unjustified. There is no evidence that broadband operators are unfairly blocking access to websites or online services today, and there is no reason to expect them to do so in the future. No firm or industry has any sort of “bottleneck control” over or market power in the broadband marketplace; it is very much a competitive free-for-all, and no one has any idea what the future market will look like with so many new technologies and operators entering the picture. In the absence of clear harm, government typically doesn’t regulate in a preemptive, prophylactic fashion as CBUI members are requesting.

Moreover, far from being something regulators should forbid, vertical integration of new features and services by broadband network operators is an essential part of the innovation strategy companies will need to use to compete and offer customers the services they demand. Network operators also have property rights in their systems that need to be acknowledged and honored. Net neutrality mandates would flout those property rights and reject freedom of contract in this marketplace.

The regulatory regime envisioned by Net neutrality mandates would also open the door to a great deal of potential “gaming” of the regulatory system and allow firms to use the regulatory system to hobble competitors. Worse yet, it would encourage more FCC regulation of the Internet and broadband markets in general.

waterslidesGovernment regulation of the Internet or broadband providers is a proverbial slippery slope–or in this case maybe better described as a slippery water slide.

The rest of the original article can be found at PCWorld

Jul 6

Microsoft Tries to Spit Out the GPLv3 Hook

As I have previously blogged, “Microsoft claims that free software like Linux, which runs a big chunk of corporate America, violates 235 of its patents. It wants royalties from distributors and users. Users like you, maybe.”  The latest turn in the saga of MS vs. innovation continues.  This time it could be very bad news for Microsoft.

“When you convey a covered work, you waive any legal power to forbid circumvention of technological measures to the extent such circumvention is effected by exercising rights under this License with respect to the covered work, and you disclaim any intention to limit operation or modification of the work as a means of enforcing, against the work’s users, yours or third parties’ legal rights to forbid circumvention of technological measures.”

Richard Fontana, counsel for the Software Freedom Law Center and one of GPLv3′s authors, told me awhile back, “Now that Microsoft has effectively become a distributor of Linux, by distributing some 50,000 or so Novell SLES coupons, it has perhaps unwittingly restricted its ability to sue Linux users over its patents.

“While this is particularly clear under the forthcoming Version 3 of the GPL, the Microsoft lawyers who helped craft the MS-Novell deal appear to have overlooked the fact that, by procuring the distribution of lots of free software under GPL Version 2, among other licenses, Microsoft has already lost some of its power to assert patents against subsequent distributors and users of that software,” Fontana said.

Microsoft is doing its best to wiggle out of this. Gutierrez said, “We do not believe that Microsoft needs a license under GPL to carry out any aspect of its collaboration with Novell, including its distribution of support certificates, even if Novell chooses to distribute GPLv3 code in the future. Furthermore, Microsoft does not grant any implied or express patent rights under or as a result of GPLv3, and GPLv3 licensors have no authority to represent or bind Microsoft in any way.”

Microsoft contends they are not bound by the GPLv3.

Microsoft is “not a party to the GPLv3 license, and none of its actions are to be misinterpreted as accepting status as a contracting party of GPLv3 or assuming any legal obligations under such license,” Horacio Gutierrez, Microsoft’s vice president of intellectual property and licensing, said July 5.

“While there have been some claims that Microsoft’s distribution of certificates for Novell support services, under our interoperability collaboration with Novell, constitutes acceptance of the GPLv3 license, we do not believe that such claims have a valid legal basis under contract, intellectual property or any other law,” said Gutierrez, in a July 5 statement.

“In fact, we do not believe that Microsoft needs a license under GPL to carry out any aspect of its collaboration with Novell, including its distribution of support certificates, even if Novell chooses to distribute GPLv3 code in the future. Furthermore, Microsoft does not grant any implied or express patent rights under or as a result of GPLv3, and GPLv3 licensors have no authority to represent or bind Microsoft in any way,” he said.

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May 14

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Microsoft Patent Claims Hint at Internal Issues

PC World – Microsoft Patent Claims Hint at Internal Issues

In a follow up to Microsoft takes on the free world, PC World has an article today which points to internal issues as Microsoft that may be driving their recent “behavior” vis-a-vis patents.

Microsoft’s claims that it will ask distributors and users to pay royalties for up to 235 of its patents included in open-source software, including Linux, is clearly an attempt to spread fear, uncertainty and doubt and make people hesitant to use open source as an alternative to commercial products, intellectual-property (IP) attorneys said. But the claims also raise questions about the business strategy behind Microsoft’s aggressive moves to seek licensing money from patents amid rumbles that customers have been slow to adopt Windows Vista and Office 2007, while new products such as the Xbox 360 remain unprofitable.

There may be a link between the timing of Microsoft’s claims against open source and the release of its Windows Vista product, said Stuart Meyer, partner at Fenwick & West in Mountain View, California. Rather than add features to Vista that would make business users want to adopt it, the OS’ distinguishing characteristic is the addition of an engine that will shut down users access to Vista if they are using a counterfeit or pirated version of the software, he said.

“Why do people want to want to switch to an OS that just includes new hurdles that have to be cleared?” he said. Microsoft may have decided that enforcing its IP through litigation is more important than offering innovative software that can compete on its own merits, a strategy that may leave many users unimpressed, Meyer suggested.

It remains to be seen whether Microsoft will be able to collect on its claims or if the open-source community will use them to strive for patent reform, currently a popular issue before the U.S. Congress. However, the claims certainly will raise important issues around how patent-infringement cases will be litigated in the future, said Paul Lesko, head of the IP litigation group at SimmonsCooper LLC in St. Louis.

Linux evangelist Eric Raymond seems to think the patents at issue fall under the latter category. “It is nearly as certain that those patents are all junk,” he said in an e-mail interview. “If Microsoft had sound and critically relevant patents to assert, they wouldn’t need to screw around with vague threats. They’d simply publish the patent numbers and it would be game over for Linux.”

May 14

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Microsoft takes on the free world

Microsoft claims software like Linux violates its patents

Microsoft claims that free software like Linux, which runs a big chunk of corporate America, violates 235 of its patents. It wants royalties from distributors and users. Users like you, maybe.

Folks, it is time to take a stand. Yes, everyone is doing it (see patent activity chart), but that doesn’t make it right. I have quoted extensively from this well written article. Of course, Microsoft likes to play both sides of the issue, with their arguments carefully crafted to support their MBAs (Microsoft Benefit Analysis). Once again, innovation takes a back seat when Microsoft steps in.

Free software is great, and corporate America loves it. It’s often high-quality stuff that can be downloaded free off the Internet and then copied at will. It’s versatile – it can be customized to perform almost any large-scale computing task – and it’s blessedly crash-resistant.

A broad community of developers, from individuals to large companies like IBM, is constantly working to improve it and introduce new features. No wonder the business world has embraced it so enthusiastically: More than half the companies in the Fortune 500 are thought to be using the free operating system Linux in their data centers.

But now there’s a shadow hanging over Linux and other free software, and it’s being cast by Microsoft. The Redmond behemoth asserts that one reason free software is of such high quality is that it violates more than 200 of Microsoft’s patents. And as a mature company facing unfavorable market trends and fearsome competitors like Google, Microsoft is pulling no punches: It wants royalties. If the company gets its way, free software won’t be free anymore.

The free world appears to be uncowed by Microsoft’s claims. Its master legal strategist is Eben Moglen, longtime counsel to the Free Software Foundation and the head of the Software Freedom Law Center, which counsels FOSS projects on how to protect themselves from patent aggression. (He’s also a professor on leave from Columbia Law School, where he teaches cyberlaw and the history of political economy.)

Moglen contends that software is a mathematical algorithm and, as such, not patentable. (The Supreme Court has never expressly ruled on the question.) In any case, the fact that Microsoft might possess many relevant patents doesn’t impress him. “Numbers aren’t where the action is,” he says. “The action is in very tight qualitative analysis of individual situations.” Patents can be invalidated in court on numerous grounds, he observes. Others can easily be “invented around.” Still others might be valid, yet not infringed under the particular circumstances.

Moglen’s hand got stronger just last month when the Supreme Court stated in a unanimous opinion that patents have been issued too readily for the past two decades, and lots are probably invalid. For a variety of technical reasons, many dispassionate observers suspect that software patents are especially vulnerable to court challenge.

Furthermore, FOSS has powerful corporate patrons and allies. In 2005, six of them – IBM (Charts, Fortune 500), Sony, Philips, Novell, Red Hat (Charts) and NEC – set up the Open Invention Network to acquire a portfolio of patents that might pose problems for companies like Microsoft, which are known to pose a patent threat to Linux.

FOSS developers, who do not have the resources to defend themselves against a Microsoft patent suit, felt safe as long as powerful corporate Linux users shared their cause. But now the big boys could just buy their Linux from a royalty-paying vendor like Novell, getting protection from lawsuits and leaving the little guys to fend for themselves. What the shortsighted corporate types didn’t grasp was that without the little-guy developers there might not be any high-quality FOSS for them to use five years down the road.

Microsoft’s big nightmare: free online apps

Moglen had another card to play. In his view, the fact that Microsoft was selling coupons that customers could trade in for Novell Linux subscriptions meant that Microsoft was now a Linux distributor. And that, as Moglen saw it, meant that Microsoft was itself subject to the terms of the GPL. So he’d write a clause saying, in effect, that if Microsoft continued to issue Novell Linux coupons after the revised GPL took effect, it would be waiving its right to bring patent suits not just against Novell customers, but against all Linux users. “I told Brad,” he recalls, “‘I think you should just walk away from the patent part of the deal now.’”

Smith didn’t, and Moglen kept his promise. On March 28, the Free Software Foundation made public revised GPL provisions, which are expected to take effect in July.

Microsoft and Novell both vow to proceed with their deal as planned. Microsoft claims that its mere distribution of coupons won’t make it subject to the GPL, as Moglen asserts. But even if Microsoft is right about that, there’s no doubt that distributors remain subject to it, and Moglen’s revisions will bar them from trying to strike deals like Novell’s.

That may be bad news for big corporate customers, which, judging from early reports, like the Novell deal. Presumably at least part of its appeal is that it provides peace of mind about Microsoft’s patent claims. In the first six months, such marquee clients as Credit Suisse, Deutsche Bank, AIG Technologies, HSBC, Wal-Mart, Dell and Reed Elsevier have all acquired Novell Linux coupons from Microsoft.

Microsoft had hoped that the Novell deal would become a model it could use to collect patent royalties from other distributors of free software. In that respect, its “bridge” to the free world appears to have failed. That, in turn, seems to have taken us a step closer to patent Armageddon.

“The only real solution that [the free-software] folks have to offer,” Smith says, “is that they first burn down the bridge, and then they burn down the patent system. That to me is not a goal that’s likely to be achieved, and not a goal that should be achieved.”

When it comes to software patents, though, Moglen thinks that’s exactly the goal to be achieved. “The free world says that software is the embodiment of knowledge about technology, which needs to be free in the same way that mathematics is free,” he says. “Everybody is allowed to know as much of it as he wants, regardless of whether he can pay for it, and everybody can contribute and everybody can share.”

In the meantime, with Microsoft seemingly barred from striking pacts with distributors, only one avenue appears open to it: paying more friendly visits to its Fortune 500 customers, seeking direct licenses.

If push comes to shove, would Microsoft sue its customers for royalties, the way the record industry has?

“That’s not a bridge we’ve crossed,” says CEO Ballmer, “and not a bridge I want to cross today on the phone with you.”

I wonder why not, Steve?

UPDATE: Response has been swift and almost unanimously against Microsoft.

More from the Seattle-PI

Mary Jo Foley’s reaction over at ZDNet

May 12

Is a $200 Billion Suit Headed Microsoft and Apple’s Way?

Is a $200 Billion Suit Headed Microsoft and Apple’s Way?

All I can say, for fear of being sued, or should I say it, for fear of being sued for NOT saying it??? We have sunk to a new low…

With the rise of intellectual property (whether it be patents or content, like Pirates of the Caribbean, for example) has come a rise in the number of patent suits. Unfortunately, this has meant the emergence of companies like Acacia Technologies, which has used the IP laws to its advantage, acquiring patents and filing lawsuits against any number of industries, including porn providers.

The way a suit usually works, however, is that Company A sues Company B for “infringing” upon its technology, or using it illegally. On Friday, however, a startup sent a number of cease-and-desist letters to several tech bigwigs (Microsoft, Adobe, Real Networks and Apple) accusing them of not using their technology. This could be a first.

According to a press release, a company called Media Rights Technologies and BlueBeat.com, an Internet radio station that is owned by MRT, said that it has developed and tested the X1 SeCure Recording Control, a technology to prevent digital audio streams from being “ripped,” or copied.

What MRT claims, however, is this: “MRT asserts Apple, Microsoft, Real and Adobe have produced billions of these products without regard for the DMCA or the rights of American Intellectual Property owners, actively avoiding the use of MRT’s technologies. Failure to comply with this demand could result in a federal court injunction to any of the above named parties to cease production or sale of their products and/or the imposition of statutory damages of at least $200 to $2500 for each product distributed or sold.”

What this says to me is that the companies may be sued for not infringing upon MRT’s technology, a rather novel take.