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HP memo forecasts MS patent attacks on free software

By Joe Barr on July 20, 2004 (8:00:00 AM)

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A two-year old memo from HP executive Gary Campbell to other HP execs has been wending its way around the backrooms of the Internet this past weekend. One of the places it showed up was in the NewsForge submission bin. We held off publishing the memo until we verified its authenticity and gave HP a chance to respond.

The memo -- its full text is provided later in the story, along with HP's response -- briefly explains a patent cross-licensing deal between HP and Microsoft. By itself, that's not a big deal, especially since it was sent two years ago. But the memo asserts that "Microsoft will soon be launching a patent-based legal offensive against Linux and other free software projects." Leaders in the open source community have been warning of such attacks for some time. The memo reveals there may be very good reason for the worry.

According to Campbell's memo, the GPL itself invites such an attack. He wrote:

But it probably doesn't matter, because the GPL license has a mutually assured destruction clause in section 7, if anyone is sued over a patent infringement, no one is licensed under the GPL to ship GPL-ed products. This is probably what Microsoft intends to do.

Basically Microsoft is going to use the legal system to shut down open source software, and for all of its cleverness, the GPL makes it fairly easy unless a white knight steps in.

Although the patent attacks have still not been launched, some speculate that it is only a matter of time. One well-known figure in the open source community, speaking on the condition of anonymity, told us:

MS had to hold off due to anti-trust prosecution in the EU and US, and also they didn't want to create bad news for new European software patenting laws before they got what they wanted. Now they have the prospect of being able to prosecute the same patents in Europe. My suspicion is that we could see this start very soon, or hold off for up to three years while MS establishes its commercial licensing program. If they wait to get about 10,000 licensees in their commercial program, they will be able to show in court that they license the patents "reasonably" and that will make them more difficult to fight.

As to Campbell's interpretation of Section 7 of the GPL, we asked Professor Eben Moglen of the Columbia Law School -- he also acts as the Free Software Foundation's general counsel -- if he felt Campbell was reading the GPL correctly. He replied:

The interpretation of section 7 presented in the supposed memo is not correct. The filing of a lawsuit alleging patent infringement places obligations on no one under section 7. The license says that "if restrictions imposed on you" mean that you cannot afford others all the freedoms apparently conveyed by GPL, you can't use the license. The examples given in section 7 are judgments, interim relief (preliminary injunctions, etc), or accepted licenses. Someone's allegations of infringement, whether made judicially or otherwise, do not "impose conditions" and do not trigger section 7.

Mistaken about the GPL or not, Campbell was obviously alarmed at what he had learned of Microsoft's intentions. Perhaps he was victim of FUD. Or perhaps the issue will resurface later, after we all figure it has gone away

Full text of the 'Campbell Memo'

From: Campbell, Gary [mailto:gary.campbell@hp.com]
Sent: Monday, June 03, 2002 7:27 PM
To: Stallard, Scott J; CTO Office Directs; Chaffin, Janice; Denzel, Nora; McDowell, Mary; Elias, Howard; Fink, Martin R; Becker, Rick (ISS);
Beyers, Joe
Cc: Blackmore, Peter; Robison, Shane
Subject: Microsoft Patent Cross License - Open Source Software Impact

Microsoft Patent Cross License - Open Source Software Impact

Today we agreed on a new patent cross license with Microsoft that protects HP in the short term, but it has significant impact on HP's use of Open Source software in the long term.
More importantly, we now understand that Microsoft is about to launch legal action against the industry for shipping Open Source software that may force us out of using certain popular Open Source products.
We need to create a cross-HP staffed program to understand the implication by product group and to provide the short term and long term steerage. I'll hook up with Martin tomorrow and start planning next steps for a cross-HP planning team.

Background:

HP is we believe, protected by our previous cross license for patents filed by Microsoft up to June of 2001, to ship open source software that violates Microsoft patents that was developed or shipped prior to today. This means that we can freeze on today's open source functionality and we are protected.

The new cross license does not protect us against new Microsoft patents filed after June 2001 against new open source product functionality shipped or created after today. So we have a two year window before HP has exposure on new Microsoft patents against new open source functionality, but we have exposure because of the MAD clause in the GPL if Microsoft attacks another entity with existing patents. See next section.

Open Source Software is described as a license that follows the intent and process of GPL or GPL lite. Additionally several major products are explicitly called out as not protected by the cross license, such as Samba, Wine, KDE, Gnome, Apache, Sendmail, and Linux.

Microsoft's Intentions:

Microsoft could attack Open Source Software for patent infringements against OEMs, Linux distributors, and least likely open source developers. They are specifically upset about Samba, Apache and Sendmail. We believe Samba is first, and they will attempt to prove it isn't covered by prior patent cross as a so called "clone" product carve out in the previous agreement.

OEMs that don't have a cross(like SUN), or OEMs like HP that they force a change in their cross license to exclude open source software are probably the first target. Intel, Red Hat, SuSE, UBL, Oracle are probably in the first wave as well.

IBM we don't know what the status of termination of their Microsoft cross license is. They could be protected by their previous OS/2 deals?

Mutually Assured Destruction Clause:

But it probably doesn't matter, because the GPL license has a mutually assured destruction clause in section 7, if anyone is sued over a patent infringement, no one is licensed under the GPL to ship GPL-ed products. This is probably what Microsoft intends to do.

Basically Microsoft is going to use the legal system to shut down open source software, and for all of its cleverness, the GPL makes it fairly easy unless a white knight steps in.

Best guess on the timing, this fall when they are finished settling with DOJ and the states.

Industry Reaction:

At this point we have no information on who would defend open source with another patent portfolio. IBM does not appear to have a plan. Dell backed out of a lot of Linux activity and laid off their Linux marketing group, and Intel went radio silent on Linux publicity in March( I guess that they figured this out before, possibly from a new patent cross license activity!!!).

Short Term Action:

We need to create a cross HP action plan with a staffed team. We don't have to exit selling to the open source market, but we need to plan smartly where to reduce our exposure.

1 - Embedded Linux/Open source in HP products and devices

Open source technology is today in embedded printers, our storage NAS product, HP-UX with Gnome, Linux affinity, Apache in multiple products.

We need a cross company planning team to address this, we are protected for 2 years, longer if we freeze on today's functionality, or possibly only until fall if MSFT triggers the GPL MAD clause.

2 - Non-Embedded Linux/Open Source on top of HP products

Microsoft intends to sue companies shipping Open Source products that potentially violate their patents. Even though we have short term protection, we need to lower our profile while still shipping products. We need to examine reducing our exposure on pre-loading Linux by off loading it to the channels exclusively.

Again we need a cross company plan.

3 - Donating Software to the Open Source

We will need to change how we donate software to the open source, probably the type of license we use, lower the profile of our opensource portal, etc.

4 - Legal Plan

We need to explore how to better protect our products in the court and be prepared with a plan that we are willing to execute against."

HP's response

Monday, July 19, we received an email from HP spokesperon Elizabeth Phillips that said:

As this memo was created over 2 years ago, we believe it is not relevant today. That said, HP has a proven history of taking measured steps to put its customers first and provide them with the functionality and benefits of open source software. Demonstrating unwavering commitment to meet the needs of its customers, HP was the first major Linux vendor to offer indemnification protection against SCO-related lawsuits, thus enabling HP's customers to continue their Linux deployment plans with confidence.

Microsoft continues to be one of HP's strongest partners. HP is committed to delivering choice for its customers and this is done through a multi-OS strategy of Windows, Linux and HP-UX on industry-standard platforms.

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on HP memo forecasts MS patent attacks on free software

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killer virus

Posted by: Anonymous Coward on July 20, 2004 09:13 AM
Most Microsoft Windows systems will stop working about 20 minutes after they try something like this.

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Re:killer virus

Posted by: Anonymous Coward on July 20, 2004 09:08 PM
While this sounds like a beautiful sentiment, it's not likely to happen and wouldn't be a very good thing if it did. WHile I have wished for the ultimate worm that would completely destroy all MS software beyond patching, all it would do is create sympathy for MS and built support for them.<nobr> <wbr></nobr>:-(

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Re:killer virus

Posted by: Anonymous Coward on July 21, 2004 10:19 PM
Doing that would definately turn M$ into martyrs, and gain more steam than anyone can think is possible. What needs to be done is a carefully planned destruction of their public image, ie small worms, virii, bugs, exploits, etc... and make sure that every one of these makes it into the news. Throw a few people loosing their personal information to crackers and that will be the best way to destroy Microsloth. Destroy what they are trying to maintain the most, public image.

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The Patent War

Posted by: Anonymous Coward on July 20, 2004 10:13 AM
Even if the big players (HP, Dell, IBM, etc) wanted to drop Free & Open Source Software (FOSS), they'd have to drop large portions of their customer bases. It's not just GNU/Linux but also apache and samba on HP-UX, AIX, etc.

And IBM has a lot at stake here while at the same time holding the worlds largest technology patent portfolio. That fact might hold Microsoft at bay. But maybe only partially as Microsoft is currently on a patent frenzy over long-horn.

My best guess is that their patent war will begin perhaps six months to a year prior to the release of long-horn. And it will focus on desktop functionality one by one, as opposed to a massive onslaught. I think so because they will want a competitive edge in the desktop market without prevoking a huge and costly war.

On each case won by Microsoft, they will at best get those features dropped out of GNU/Linux systems and perhaps collect a settlement on past distribution.

Hitting samba or apache would force the hand of IBM. Or, would this end as a game of chicken in which IBM folds and gives into Microsoft by allowing the lawsuites to destroy GNU/Linux on condition of an easy path to conversion back to a Micrsoft-centric market?

We should bare in mind that each party must make sound business decisions and a large-scale war isn't good for anyone.

What are our best options? We need to build a huge repository of prior-art. We need to both collect prior art examples (already being done somewhere, I believe) and create a large repository of new ideas.. Most of these things are silly--but so is the concept of patenting software. We must or the whole world will suffer dearly for it.

Matthew

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Re:The Patent War

Posted by: Anonymous Coward on July 20, 2004 10:18 AM
I don't know about the US, but I am pretty sure that in Europe, if you don't protect your patents, you loose them.
I don't believe for a second that MS isn't aware of which patents, if any, are being infringed on. According to the logic above, if MS allows infringement to go on for an extended period of time (We all know the neither Apache nor Samba is new), the loose the right to sue over said infringement.
Please correct me if this is not the case in the US.

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Re:The Patent War

Posted by: Anonymous Coward on July 20, 2004 10:31 AM
Trademarks must be protected. Patents not, afaik. Also, patents expire. Trademarks do not.

I doubt the jurisdiction matters.

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Re:The Patent War

Posted by: Edward Macnaghten on July 20, 2004 11:34 AM
Please correct me if this is not the case in the US.



IANAL - but I am pretty sure it is not the case in neither US nor Europe.



Patents last their term regardless if you protect it or not - assuming it does not get invalidated due to a "prior art" claim - which is very unlikely to happen once it has been granted (unfortunately).



You lose Trademarks if you do not protect them.



Europe currently has the advantage that US style software patents have yet to be implemented (you can get them, but you cannot enforce them). However, the pro-patent lobby here (Microsoft etc) is working hard at getting them implemented, and we are battling here to try and stop that happening. Hopefully the majority of legislators here will see sense....

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Not true in the EU or the US

Posted by: Anonymous Coward on July 20, 2004 12:05 PM
You are thinking of trademarks. Copyrights and patents don't work that way. Also, if you fail to prosecute infringement which you know is occuring for a number of years (usually four), a defendant can use that as a defence, but that doesn't mean you lose the copyright or patent or that you can't successfully sue other people.

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Re:The Patent War

Posted by: Anonymous Coward on July 20, 2004 03:01 PM
Right... sorry to be pedantic but I see this EVERYWHERE and it's driving me CRAZY!!! It's LOSE!!!! not loose. Loose is the opposite of tight!

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loose/lose

Posted by: Anonymous Coward on July 20, 2004 08:33 PM
Actually, in this case, "loose" may well be correct, though I'm sure the original poster didn't mean it that way. "Loose" can also mean, "to free," in which case "loosing patents," can mean "to free the IP." I agree with you, that the original poster probably meant "lose patents," as in "lose control of the IP." This may be one of the few instances where "lose" and "loose" come out with similar meaning.

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The MAD interpretation

Posted by: Anonymous Coward on July 20, 2004 11:05 AM
Uh, I only write code myself under GPL, but I think Campbell has a point that Moglen missed.

He calls it mutually assured destruction as once a patent has been successful in proving it is valid against a GPLed product, the GPL can never be used as the license again.

Whoever is forced to take the patent license needs to encumber the GPL, and the GPL encumbered can't be a valid license. The software itself also can't be used/distributed by anyone else either by threat of patent enforcement (and patents cover use not just distribution). This leaves distributors forced to get new licenses from all authors involved (one that can be encumbered) and forces them to pony up for a distribution patent license(to cover distribution and new end users) and current end users would need to individually get an end user license. (Remember the early days of SSL and RSA?)

Patent enforcement is nasty (ie. jack-booted fbi raids going after end-users and customs agents permanently impounding all products at port). No one could even fathom using the software then. The threat alone is a severe chilling effect even now - to currently distribute GPL software you have to be prepared to fight AND succeed in overturning any and all possible patents that might effect the software, otherwise it is useless. To use it, you have to prepared to end up swallowing some crappy SCO-like license.

Crap! I think I am going to go give some money to EFF... We need to stop software patents not just overturn a few (some may be 'valid' or defendable after all).

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Re:The MAD interpretation

Posted by: Anonymous Coward on July 20, 2004 11:34 AM
Yes, I think Cambells point was that even though they are cross licensed, if someone is sued and loses then the MAD clause negates the cross licensing agreements.

In other words send the law professor back to law school.

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Re:The MAD interpretation

Posted by: Anonymous Coward on July 20, 2004 01:33 PM
Here is how I read this:

1. Distributor releases software and is sued.
2. Some form of injunction is passed that prohibits the distributor from allowing all of the freedoms the GPL requires.
3. Distributor is no longer allowed to distribute GPL software until they can allow the freedoms.

However, a person does not have to loose a court case for step 3 to kick in, they might sign an agreement which would prohibit the GPL freedoms. Under that circumstance they would not be allowed to distribute the GPL software in binary form either; but other people would still be able to distribute the software.

If a piece of software is found to infringe a patent then everyone using that software is infringing, no matter what license they use. i.e., the patent portion is not specific to the GPL.

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Some incentive

Posted by: Anonymous Coward on July 20, 2004 09:41 PM
Upstream authors need to make it double-dog clear NOW that such alternative licenses will NOT be granted. Since the distributors have had extensive enjoyment of GPL freedoms they can pay a little to fight for them.

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Re:The MAD interpretation

Posted by: Anonymous Coward on July 22, 2004 04:24 AM
I think you're right. IANAL but I do think that versions released before a patent was granted or written in countries where the patents are not valid (eg finland?) are not affected. In any case though, this could make life a lot harder for open source developers. Forward this story to your representatives if you're a european.<nobr> <wbr></nobr>:)

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dam MAD

Posted by: Galik on July 20, 2004 11:45 AM
The way I thought this worked was that if a piece of software is found to contain a patented method then it could not be licensed under the GPL. So if microsoft uncovers a patent in Linux (for example) the file that contains it would not be licensable under the GPL. It would still be copyright the author who would then have the choice of either striking up his own personal cross-licensing deal with the patent owner and redistributing the file under a different license (unlikely) or changing the file so that it no longer infringes the patent and re-releasing it under the GPL. Think about the GIF patent. The result of that merely caused people to go out and make the png/mng image format as a replacement. Obviously this could be enormously inconvenient and damaging. However free software can and will survive. The whole process will serve to eradicate patent encumbered software from the Free Software fold and this will make it even more valuable and desirable to use. In a world where software litigation is becoming the norm, won't businesses be crying out for a pool of software that is patent free?

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Re:dam MAD

Posted by: Anonymous Coward on July 20, 2004 12:06 PM
The problem is the tactic that IBM did to Sun(story paraphrased from memory).
IBM: We have these seven or so patents that you need to license.
Sun: We have looked through these patents and we feel we don't violate most and some probably aren't valid.
IBM: OK, well we'll just go back and find some more and add those to this list. Do you think we can't find one you are violating?
Sun: Alright we give, here is 20mil plus cross-licensing.

Now it is MSFT going around and noticing what nice software HP's got there and it would be a shame if anything 'happened' to it.

Of course, GPL software has nothing to cross-license and no money and all they need is one possible infringement on any important software to take down a whole distribution. It doesn't have to be their patent, they can help notify other companies and provide funding like they did with SCO(only this time we will be in trouble). We are looking at defending against all software patents no matter who owns them (so IBM is GPL friendly now, what about next year?).

There is no clear way to work around all patented functionality (some are unbelievably broad). We must all fight to stop software patents everywhere and force the USPTO to stop granting/enforcing them now.

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Haloween anyone

Posted by: Galik on July 20, 2004 12:00 PM
Sounds like a good excuse for ESR to knock out another on of those documents<nobr> <wbr></nobr>:)

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Could but would they?

Posted by: Anonymous Coward on July 20, 2004 12:41 PM
They could but would they? If Open Source software does infringe on their patents and or IP rights then yes Open Source software distributors need to be shut down. This memo strikes me more of a "What if" more than a declaration of Microsoft then a possible wide spread attack on Open Source software.

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apache is NOT GPL

Posted by: Anonymous Coward on July 20, 2004 12:57 PM

Re:apache is NOT GPL

Posted by: Anonymous Coward on July 20, 2004 01:21 PM
Glad SOMEBODY besides me caught that!

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Re:apache is NOT GPL

Posted by: ammoQ on July 20, 2004 09:20 PM
Right, but it is - like any other software - vulnerable to possible patent claims. IMO the clause in section 7 is overstated. If a patent makes it impossible to freely distribute a program, what difference does it make when the license says: Under this circumstances, you may not distribute the program? It only means you cannot buy yourself out, so for example a commercial distributor could not legaly buy a MS patent license and keep distributing Linux. But it is unlikely anyway that a distributor would want to go that way and the free software community would definitely not support it.

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MAD provision in GPL

Posted by: Anonymous Coward on July 20, 2004 01:19 PM
I've always understood the GPL's patent clause to protect users from patent-poisoning on the part of GPL authors. The scenario is like this:

1. I patent some piece of technology.
2. I release a GPL implementation of it, or patch someone else's product to include it, not telling anyone about the patent.
3. I wait for the code to become widely used and a de facto standard.
4. I now demand royalties from everyone using the code.

Section 7 prevents this scenario from unfolding by saying that if I demand royalties, then all users immediately lose the license. If they lose the license, they aren't "using" my software, and hence there is no one to collect royalties from.

A slightly different scenario plays out if someone else infringed my patent in GPL code. If I demand royalties, then the code cannot be distributed and once again, there are no users for me to collect money from. My attempt to collect royalties instantly kills my ability to do so.

The danger here is that Microsoft may not be seeking to force people to pay royalties. They may instead be happy with "the GPL software is now contraband".

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Re:MAD provision in GPL

Posted by: Joe Klemmer on July 20, 2004 09:50 PM
> The danger here is that Microsoft may not be seeking to force people to pay royalties.

> They may instead be happy with "the GPL software is now contraband".


Uhm, that was the point of the article in the first place.


FWLIW, it seems to me that it makes the source undistributible. Nothing about delivering binary only versions of the program. And even if the GPL did say you can't distibute bin only packages it doesn't matter 'cause the whole patent thing blew it all to hell anyway. If this happened to me I'd just say fuck-it and pump out binary packages for every concievable platform I could make.

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Re:MAD provision in GPL

Posted by: Anonymous Coward on July 21, 2004 08:51 PM
So this is like 1776 and rebellion against the Crown?



Microsoft's behavior to date makes multiple attacks by Microsoft against the GPL inevitable, by patents and other means, inevitable, but note the following.



1. Convictions on monopoly charges on two continents may have delayed Microsoft perhaps a little.



2. Resistance to patent<nobr> <wbr></nobr>;egislation in Europe seems also to have delayed the Microsoft offensive against open source, or limited them to using proxies such as TSCOG.



3. My belief is that the US presidential elections also delayed Microsoft, because they want to avoid issues which would discredit Dubya. Note the gentle handslap sentence handed to Microsoft.



Since this patent war is no longer just a theory, what open source needs right away is a firm defensive strategy. Like SCO2's attack on Linux, most of that strategy will evolve as it happens. As is still being demonstrated, collaboration works, even against legal attacks. Open source advocates are not to be taken likely.



If you have need for GPL/Linux and software licensed similarly, consider this to start. Donations of time and (if it exists where you are) money should be consentrated where it will be most effective.



I have donated (back when the Microsoft FAT patent challenge was announced) to PUBPAT. because the PUBPAT organization seems to be a good leverage point. Please consider checking them out and linking to PUBPAT from your web sites, if you agree.



As in Groklaw (and maybe AT Groklaw), collaborative planning will happen, and it will be effective. Who wants to be coordinator for the "Overturn- Patents- HOWTO"?





PS: Linus and team, I am a passive and pragmatic person, but I am no longer inclined to stay neutral on Miscrosoft. Do not waver, F/OSS developers, many, many individuals and large corporations are and will support you in every way we legally can.

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Re:MAD provision in GPL

Posted by: Joe Klemmer on July 21, 2004 09:52 PM
> So this is like 1776 and rebellion against the Crown?


Not a bad analogy. MS is definitely a dominating dictator and we are definitely rebelling.

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IBM won't capitulate IMO

Posted by: Howard B. Golden on July 20, 2004 02:09 PM
I believe that IBM has crossed the Rubicon with respect to Microsoft. If Microsoft attempts to use its patents to shut down Linux, Apache, Samba or any other FOSS that IBM uses, I believe that IBM will fight this with every weapon at its disposal, including exerting its considerable influence (as the biggest patentholder) to destroy software patents and the dysfunctional patent system.


Perhaps you find my prediction hard to believe, but I believe that IBM has no choice but to fight to the death, unless it is willing to become Microsoft's slave, which I highly doubt!


As I see the GPL, it is the only rational choice of competitors of monopolists. This is true whether the monopoly is achieved through the market or by government fiat (e.g., patents).


The current patent system is severely broken in granting monopolies without due process to the competitors and customers who are subjugated thereby. If necessary, I believe that IBM will lead the campaign to achieve the necessary reform of the patent system.


US patents are provided for in the Constitution for a specific purpose. However, this provision does not eliminate the other constitutional provisions like due process. It is well recognized that the current patent law is seriously biased in favor of patent applicants and patentholders and against competitors and customers. IMO, such bias, if properly challenged on due process grounds as well as the fundamental Constitutional limitations on Congress's right to grant patents, could be sufficient to destroy the current patent law and the patent office.


I believe that the above is exactly where we will end up, because I see that it is inevitable that Microsoft will attempt to use patents to destroy FOSS, and IBM will fight this with all its might.

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Re:IBM won't capitulate IMO

Posted by: Galik on July 20, 2004 04:53 PM
I hope you're right. This may be exactly where the MAD clause steps in. You see if it wasn't for that clause then nothing would stop IBM doing a cross-licensing deal with MS and becoming the *only* Linux destributer. But this clause prevents that.

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Re:IBM won't capitulate IMO

Posted by: Howard B. Golden on July 21, 2004 12:38 AM
Galik, good point about the MAD clause!

Perhaps RMS was thinking several moves ahead in the game.<nobr> <wbr></nobr>;-)

This is total war. I believe IBM realizes this.

You may find the war metaphor implausible. However, IMO, there is no peaceful coexistence with Microsoft as ego-multiplier for Bill Gates. As much as companies hate to fight, I believe the fight is inevitable. Companies will have to choose sides, either for MS or against. There will be no room for neutrals.

I don't put IBM on a pedestal as the paragon of corporate morality. I've been around a long time, and I know that IBM knew how to use monopoly power when it had it. However, in this case, I believe that IBM will be FOSS's ally, not because of superior morality (though, IMO, IBM has improved a great deal), but because IBM has no other choice.

(Full disclosure: I own approx. 20 shares of IBM stock. However, all views I've expressed are mine alone, which I've formed by watching IBM's behavior over 35 years and Microsoft's behavior over 28 years.)

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Re:IBM won't capitulate IMO

Posted by: Anonymous Coward on July 21, 2004 06:30 AM
While MS is a major partner for IBM, it provides just one of the operating systems IBM supports.

On Intel/AMD servers IBM has the many MS Windows products and Linux. On POWER servers IBM has i5/OS (formerly OS/400), AIX and Linux. On zSeries mainframes IBM has z/OS, z/VM, z/VSE, TPF and Linux.

You will of course notice that Linux is the common item here. Linux and Open Source are CORE to IBM's On Demand Business strategy. IBM will not, and can not afford to, give in to MS.

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Enforcing Patents

Posted by: Anonymous Coward on July 20, 2004 05:04 PM
Actually enforcing patents can be very very difficult. Each suit takes millions of dollars in legal fees. If the infringers are structured so they have no assets (as is typical in some industries already) after years of litigation you end up with nothing.

The USA always complains about other countries not enforcing intellectual property but in fact the USA is one of the worst violators. American corporations routinely set up 'affiliates' that own nothing but have their assets stripped by paying back 'loans' and 'fees' back to the parent. When sued for patent infringment they stall, then fold, and start all over again with another front company.

This dirty trick could, of course, be used on American companies. Bogus software patents will just hasten the process of destroying the patent system entirely.

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Re:Enforcing Patents

Posted by: Anonymous Coward on July 20, 2004 07:23 PM
M$ has all the money they could ever possibly need to file and prosecute as many patent or other suits as they want to bring. Their object is to squash and destroy all other software, nothing less. If using the court system as a weapon to enforce and firm up their monopoly costs them a few Billion$, so what? They can afford it, it's a good investment. The issue to them is not damages, much as they may loudly say it is. Their issue is to stomp out the competition, period. Maybe they are using $CO as an opening act to warm up the audience and then they will follow up with their patent actions.

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Re:Enforcing Patents

Posted by: Anonymous Coward on July 21, 2004 04:07 PM
As recent events have shown, many American companies have much less cash than they claim. Even with alot of cash, expensive lawsuits that do not generate any income is a fast way of burning cash.

The court system is also not infinitely fast, in fact it is often quite slow with commercial cases taking years before a hearing. Piles of frivolous patent cases would totally bog the courts.

Virtually nobody was prosecuted in the Texas Savings and Loan swindles/crash mostly as a result of the courts clogging up with millions of defaults. Perpertrators and victoms figured out it would take a few hundred years before their cases would come up for hearing.

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Hmmm....

Posted by: Anonymous Coward on July 20, 2004 08:40 PM
David vs Goliath... and we all know who won.

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Re:Hmmm....

Posted by: Anonymous Coward on July 20, 2004 11:32 PM
There is a saying: "The battle is not always to the strong, nor the race to the swift...but that's the way to bet." David vs. Goliath is remembered for several reasons, not the least among them that it is so very exceptional for a weaker force to defeat a stronger force. We should not count on the David vs. Goliath principle, but rather count our shekels and compute how many we would contribute to the defense of FOSS. And it will come down to money for lawyers.

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Re:Hmmm....

Posted by: hanelyp on July 21, 2004 01:44 AM
David won by hitting Goliath with an unexpected weapon in an unexpected vulnerability. Had David gone with the expected armor and sword he'd have lost badly.

Where might M$ et all have a soft spot?

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Re:Hmmm....

Posted by: Anonymous Coward on July 22, 2004 03:25 PM
well that's easy<nobr> <wbr></nobr>... in their eternal greed.

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Double-edged sword

Posted by: Anonymous Coward on July 20, 2004 09:03 PM
It's pretty safe to assume that there are way many more people creating OSS than are working at Microsoft... Should M$ should begin such a campaign, they may just find themselves suddenly fighting ever-evolving software that not only works around their patents; but becomes incrementally better than the crap they ship...

We've seen the OS community become pseudo-legal experts on <A HREF="http://www.groklaw.net/" title="groklaw.net">GrokLaw</a groklaw.net>; maybe M$ would like to see OSS become a formidable patent-busting movement too...

If M$ haven't been watching the SCO cases, then they are sure to repeat SCO's business model -- that might suit me just fine...

SCO+MS (pronounced "scums")

PF

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Patent war

Posted by: Anonymous Coward on July 20, 2004 09:44 PM
If more OSS coders would patent their own software AND gpl the patent MS would lose again....

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that's tough

Posted by: Anonymous Coward on July 20, 2004 10:19 PM
that is though because requesting for a patent to be granted costs a lot of time and money... and then you are not even sure you will actually get it.

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Re:Patent war

Posted by: Anonymous Coward on July 22, 2004 10:30 AM
Really OSS coders don't NEED to patent their software.. the existence of the software itself should be enough to prove prior art.

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US patent nightmare

Posted by: Anonymous Coward on July 21, 2004 12:20 AM
In think the United States are in lack of a strong developer organisation such as FFII that combats Software patents. By the way, there is a US swpat Mailing list of FFII.

http://lists.ffii.org/mailman/listinfo/us-parl

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Software Patents can't kill GPL....

Posted by: Anonymous Coward on July 21, 2004 02:32 AM
... until *ALL* jurisdictions enforce software patents. If MicroSoft managed to get an injunction against a key piece of technology (something that couldn't be coded around), that could very well disrupt the use of GPLed code in the US and anywhere else that reconizes these silly things.

Then India, China, and Brazil (for three examples of countries that *don't* recognize software patents) would be the only places where that technology could be used. They would then have an even *better* offshore business cases, and many corporations would quickly ship their critical business functionality to those countries (it'd be cheaper than migrating to Windows or shutting them

**Then** the citizens of US and European would squak loudly, and the legislatures would step in and either (a) void software patents altogether, (b) use eminent domain to socialize the MicroSoft patent in question, or (c) do nothing and watch their IT industries collapse and move offshore.

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Re:Software Patents can't kill GPL....

Posted by: Anonymous Coward on July 21, 2004 06:50 AM

Or (d) invade India, China, and Brazil. Hey, if they can do it over oil, they can do it over IT.

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Invasion? Dream On!

Posted by: Anonymous Coward on July 21, 2004 11:29 AM
Did you really think about that? The West would be outnumbered if they tried such an invasion. India has a billion people, for example.

The U.S. did it for cheap oil; India and China already are providing cheap products. The populace of the U.S. would never go along with such a foot-shooting action - what all-American wants an empty WalMart?

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It's called MAD for a reason!

Posted by: Anonymous Coward on July 21, 2004 03:56 AM
If M$ invoked such a thing, they too would be subject to the restriction. They use open source stuff in their products too. The MAD clause would destroy them too because they would have to deal with thousands of very hostile open source people. They could have the dubious destinction of being the equivelent of the tobacco lobby.


Their best plan is to dump the windows OS turd and migrate all their apps to Linux.

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FOSS Patents

Posted by: stomfi on July 21, 2004 09:04 AM
If M$ has patents in FOSS, does that mean they have patents in UNIX as well?
They have shown in the past that they are against humanitarian IT developments, so have they got patents in Plan 9 as well?
Hopefully their last century ideas will cause the USA to become isolationist and the rest of the world can get on with the development of the Model T computer.

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revise the MAD clause?

Posted by: Anonymous Coward on July 21, 2004 04:48 PM
If the wording of clause 7 is ambiguous or leaves the GPL open, clause 9 offers the possibility to revise or tighten up the license (centrally, by the FSF, not by any old licensee). This provides a pretty good defence against proprietary interests finding loopholes in the wording - could it be used here? I don't see an easy way to do so, but the question is worth putting to sharper legal minds than my own.

Peace,

Dave

Excerpt from clause 9:
'Each version is given a distinguishing version number. If the Program
specifies a version number of this License which applies to it and "any
later version", you have the option of following the terms and conditions
either of that version or of any later version published by the Free
Software Foundation. If the Program does not specify a version number of
this License, you may choose any version ever published by the Free Software
Foundation.'

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Apocalypse

Posted by: Anonymous Coward on July 22, 2004 12:24 AM
It has already begun..

<A HREF="http://www.tinyurl.com/2psu7" title="tinyurl.com">The Patent</a tinyurl.com>

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OSS used in government funded science

Posted by: Anonymous Coward on August 06, 2004 11:33 PM
There seems to be "a lot" of OSS used in US governement funded scientific projects. Since some/most (all for the tinfoil hat wearers) of these projects have Department of Defense ties, I wonder how far Microsoft would get? The government isn't going to shoot itself in the foot over this. "We sorry but we need to raise your taxes 200% to cover software licenses that we used to get for free" won't win any elections.

Also, isn't there a problem of critical mass? So much open source software exists out there I don't see an effective way to neutralize it. Delay the spread, yes. Stagnate it, maybe. Get rid of it all? Not likely.

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