High Noon for M$ v Google

SJVN writes that M$ may have the most profitable operation based on Android/Linux thanks to its software patents but he also reminds us that Google is in the process of buying Motorola which is the only major Android/Linux player which has not agreed to pay M$.

It is possible that Motorola and M$ have already agreed to something but M$ states that Motorola does not have a licence. That leads to two possible outcomes:

  • M$ leaves Motorola alone to divide the Android/Linux ecosystem, or
  • M$ sues Motorola/Google sooner rather than later.

The first possibility is unlikely to fly as it deflates the FUD. The second possibility looms large as there’s no one left to sue in the big players. M$ is unlikely to bother with the small players.

That leaves a likely tangle between M$ and Google in court. Google/Motorola may have some patents to throw at M$ but M$ is the elephant in the room with many thousands of patents on the wheel, the mouse, the mouse click, etc. It could get very interesting before M$’s patented house of cards collapses. At the rate Oracle’s case v Google is collapsing, M$’s might be a huge embarassment. Oracle’s case is mostly about the Android part of Android/Linux and M$’s case would be mostly about the Linux part so together, everything would be covered. I can imagine some very interesting motions that Google might launch like getting M$ to actually list the patents it believe Linux infringes and how. Then the patents could be challenged publicly and shot to pieces. That would soon kill M$’s extortion racket.

About Robert Pogson

I am a retired teacher in Canada. I taught in the subject areas where I have worked for almost forty years: maths, physics, chemistry and computers. I love hunting, fishing, picking berries and mushrooms, too.
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63 Responses to High Noon for M$ v Google

  1. oldman says:

    Thank You Contrarian for some good fun.

    Keep up the good work.

  2. Contrarian says:

    Are you really that stupid, #oiaohm? Read you own cite:

    “As a result of the plaintiffs agreeing to dismiss the lawsuit and reinstate Actiontec’s and its customer’s rights to distribute BusyBox under the GPL, Actiontec has agreed to appoint an Open Source Compliance Officer within its organization to monitor and ensure GPL compliance, to publish the source code for the version of BusyBox it previously distributed on its Web site, and to undertake substantial efforts to notify previous recipients of BusyBox from Actiontec and its customers, including Verizon, of their rights to the software under the GPL. The settlement also includes an undisclosed amount of financial consideration paid to the plaintiffs by Actiontec”

    If you had bothered to research the case a little further, rather than accepting a rather lame and self-serving PR release by the BusyBox attorneys, you would learn that Verizon did nothing to settle and opposed the claim. The SFLC was forced to file a dismissal (with predjudice at that) and then tried to gloss over the fact that they got nowhere with Verizon by saying that the Verizon supplier, whom they had never sued or named in the complaint as a party to the action, took corrective action.

    The SFLC is currently stalled in their efforts since the Best Buy case uncovered the fact that their client does not have any registered copyright for BusyBox and is, in fact, not actually the author. Since you must register a copyright to file a suit regarding it, they cannot do much of anything.

  3. oiaohm says:

    I am not insane. Verizon retreated in 2008

    http://www.softwarefreedom.org/news/2008/mar/17/busybox-verizon/

    As per FSF settlement they had to appoint Open Source Compliance Officer. That starts the case against Westinghouse Digital Technologies, LLC and others. The agreement in full to follow busybox terms is why Verizon got let off.

    You have the wrong party retreating.

    Yes the Westinghouse Digital Technologies is part of a secound group of cases. http://www.softwarefreedom.org/news/2009/dec/14/busybox-gpl-lawsuit/

    Many in the second round have also settled to exactly the same terms as Verizon. That include best buy.

    Westinghouse Digital Technologies, LLC if you look closely worked out they had placed a incorrect legal argument before the courts. And has moved assets around to go bankrupt and rebirth.

    Sorry the order against Westinghouse Digital Technologies was not reversed anywhere I can find.

    You want to dream that Busybox has folded up there tent. Each win makes Busybox war chest of legal larger.

  4. Contrarian says:

    You are completely insane, #oiaohm. Perhaps you cannot read English. The Westinghouse Digital decision was based on them not showing up in court since they were already bankrupt and they did not have any representation. That order was later vacated anyway.

    I think that BusyBox has folded their tent in all of their ongoing cases, have either extended or filed dismissals. Verizon and Best Buy put up a defense and they had to retreat.

    Your notion of their strategy is completely wrong as well. Please read the facts or shut up. Hint: The Western Digital inclusion was not even part of the Verizon litigation. It was joined with the Best Buy as a collection of manufacturers and distributors subsequent to Verizon.

  5. oiaohm says:

    http://www.groklaw.net/article.php?story=20100803132055210 This is not the EU case I am looking for where the trying to dispute did not turn out right. This the the USA case where a party (Westinghouse Digital Technologies, LLC) tried the same defence as you are talking about.

    Busybox lost the EU case I am referring to but so did the maker so its not widely advertised. Judge let the case that the GPL code was worthless be pushed. So the product was defective so had to be recalled and destroyed for the consumers best interest. Busybox did not get paid in that case neither did the maker of the product. It cost them more than manufacture and profits because they had to track down every single unit. Also there was no option to settle with Busybox to prevent destruction.

    Also puts the maker in one hell of a bind. Latter on claim that Busybox is quality code means they are liable to pay Busybox for every item they destroyed. So basically they cannot use Busybox any more at all. This is how to win yet completely lose.

    Basically how is it quality code if it worth nothing Contrarian. This is why the line you are talking about is stupid defence you win you will lose. Remember even an item you get for free can be assessed for value. Only way it can be valued nothing is if it not quality work.

    Remember you can not legally ship a product you know is defective in most countries and that is exactly what you risk proving by the defence idea you where pushing. Only defective products have no assessable value. So you are now screwed because your defence is proving what you are shipping as defective.

    You complete anti GPL plan is how to get your ass kicked resulting in either having to turn the product over for free or destruction of product.

    Tested defence along the same line is that the code you altered is worthless. Even that you have to be careful not to trigger consumer protection laws other wise the defence will turn expensive. So yes update to correct your alterations.

    Also shows you incompetence because the Verizon and Best Buy was part of the same case where Westinghouse Digital Technologies, LLC tried you stupid defence and lost because of it.

    You need to also read why Best Buy and Verizon got dismissed. Because both parties proved that Westinghouse Digital Technologies, LLC had hidden the fact that busybox and other open source tech was in the device. Yes Best Buy and Verizon helped Bussybox take on Westinghouse Digital Technologies and a few other hardware makers to save there hide. So the case was dismissed against them since they were not willing parties in the infringement and started assisting to correct the issue so proving they were not willing parties.

    Yes the way it works is nasty Busybox sues the downstream then the downstream has to help Busybox sue the up stream to save their tail. Does save on legal costs to beat the big guys.

    Yes companies are settling over Open Source stuff because most defence plans that people dream up lead in worse destruction of the company that attempts to do them.

  6. Contrarian says:

    “Yo Moron ”

    I have generally given up reading the text of the illiterate tripe that you publish here #oiaohm, having come to the conclusion that you are a generally clumsy fabricator of claims that have no merit. Now you become rude as well as obnoxious, making me take further notice.

    You have apparently claimed, in your broken English style, that “One party in the cases Busybox took the very case of no expectation of remuneration before the judge….Result was not pretty they were force to buy back every one of the offending products and crush the lot at there expense.”

    Can you provide a cite for this? I do not believe that it is true or even in the general vicinity of fact. BusyBox has a history of suing to cause downstream distributors of products containing embedded Linux to publish the BusyBox source on some website or other. Notable targets who have refused to do that and resulted in dismissal of suits have been Verizon and Best Buy. I have never heard of one of these cases actually going to judgement and certainly not one where the defendant had to destroy shipped merchandise.

  7. Web applications give OS independence.

  8. oiaohm says:

    Yo Moron Read Prior post Contrarian
    “The author has no expectation of remuneration, having granted the user a license at zero cost. Persumably anyone who took the code and extended it to form something that could be sold could simply argue that only the new part had any value, since the original part was available for free, and so there was zero profit from the original work.”

    The prior post that starts with >Contrarian legal novice< One party in the cases Busybox took the very case of no expectation of remuneration before the judge.

    Result was not pretty they were force to buy back every one of the offending products and crush the lot at there expense.

    Basically GPL does expect payment in code. So it expecting remuneration. So GPL is not a Zero cost license.

    Even so GPL does not forbid the authors selling you a different license to use the code. Yes a lot of GPL programs exist that you can buy under different licensing avoiding GPL.

    So yes judges world wide have agreed that GPL does have a payment clause. So does have expectation of remuneration.

    Contrarian why you are a legal novice and it shows.

    remuneration is a term you can use in barter. Lot of people have forgot that remuneration does not have to equal cash. It can be the company car you get to use. Free products you are given. Documentation and Code you get given.

    Its your failure to understand the word remuneration that gets you into a hole here.

    GPL is in fact asking for remuneration in the form of all modifications released back.

    Problem is the value that you owe really with GPL does not come down to the value of the GPL code in most cases but the value of the modifications you did and the profit you made from them while excluding others.

    Yes in a GPL case to reduce damage you have to argue that the part you added was in fact worthless. Mostly due to a better patch being submited up stream before you could or other wise.

    Your legal argument is backwards Contrarian unless you are wanting people to screw up and get there ass ripped off. Yes the value of payment is based on the value you failed to pay.

    Yes arguments that the GPL code is worthless is how to get your products crushed because why were you shipping defective products and the judge will rule for force recall and mandatory crushing.

    Yes the GPL code must be valueable way more value able than yours and you must be decreasing the value of it by releasing your code if you want to stand a chance of getting off.

  9. ch says:

    “FireFox”
    is whore-ware: They live off the money big G hands them over for “services”. So the “V” part of “ISV” is missing here.

    “OpenOffice.org or LibreOffice”
    LO is need-ware: RH and SuSE need it to keep up the pretense that Linux is good for something on the desktop – without an office package the bubble would finally burst. Both packages essentially are lacking the “V” part of “ISV”.

    “Opera”
    I’ll give you that one.

    “AccPac 6.0”
    pretty much proves the point oldman was making: They have a real desktop application for Windows while Linux only gets a generic web-frontend. Guess why ?

  10. Contrarian says:

    “The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’sprofits, the copyright owner is required to present proof only of the infringer’s gross
    revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.””

    The author has no expectation of remuneration, having granted the user a license at zero cost. Persumably anyone who took the code and extended it to form something that could be sold could simply argue that only the new part had any value, since the original part was available for free, and so there was zero profit from the original work.

    That is actually the case, I think, in that no one has ever actually bothered with any attempt to sell an open source product in that way. Red Hat adds proprietary pieces to RHEL in order to prevent legal copying and redistribution of its Linux versions. So does Novell/SUSE. No one else makes a dime from the software itself.

  11. oiaohm says:

    oldman
    “Were I a software developer, I have no trouble coming to financal terms to license a piece of code. I have a very big issue with being coerced by license into surrendering my code.

    Were I able to redo the law, no one could be coerced into revealing source code as a term of license, period.”

    You really don’t get right. Lets say we remove the right to demand back code just how you want.

    How would we have todo it. Anything a user created documentation code …. is not covered by software licenses. Note GPL covers everything user creates related to the source archive includes modification to documentation sent with it. Yes common mistake that GPL is source code only when in fact is a way broader license. You can no longer demand anything back from users. So all those nice items like Windows Genuine Advantage and other DRM system to confirm that your users are not ripping off are now not bind-able by license.

    Really oldman I don’t think you want to defeat GPL. The defeat comes at a really high price of making closed source software piracy simpler. Yes redo the law you are blowing your own feet off oldman.

    Most libraries are LGPL not GPL. Even the few that are GPL have a dynamic linking exception. So closed source people are not effected as long as they are careful with the distribution system and they don’t static link.

    Really oldman provide me with a example of 1 library that you would wish to use that is GPL that terms are preventing you from releasing a closed source application. Its time to put up.

    Note QT was the only major one that was pure GPL without linking exception Nokia changed that and converted it to LGPL.

    Yes the Linux kernel has an exception protecting userspace code from GPL. Really I want to know what in heck you are complaining about oldman. Seams like you have never really done your homework.

  12. A browser is an application.

  13. oldman says:

    Firefox is a browser not an application.
    Open office is now FOSS.
    Opera is an also ran browser.

    That leaves AccPac.

    Well I guess one is better than none.

    My point stands.

  14. oldman wrote, “ISV’s of desktop software stay away,”

    I don’t see these guys staying away:

    FireFox,

    OpenOffice.org or LibreOffice,

    Opera,

    AccPac 6.0 (2010) can run on a GNU/Linux server and can be accessed from a browser on any OS.

  15. oldman says:

    “Choosing a licence under which to distribute code is not coercion.”

    If the only license available for a key library that would be needed to bring a product to desktop market on linux is to surrender my source code, then your choice is at best a hobsons choice Pog.

    Oh and by the way Pog, this is only one choice of many that one needs to make when assessing the viability of building a product for an environment where intercaction with the GPL is a reality.

    IN the end the results are predictable. ISV’s of desktop software stay away,

    as would in the end I, because its simply not worth pursuing the linux desktop market.

  16. see http://www.copyright.gov/title17/92chap5.pdf

    Damages are just one of several bases. Others are injunction, seizure of article infringing and legal costs. Courts can order illegal copying stopped and it has nothing to do with damages, just illegal copying.

    Also, akin to damages, a copyright owner has access to the infringer’s profits, if any:
    “—The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’sprofits, the copyright owner is required to present proof only of the infringer’s gross
    revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.”

  17. Choosing a licence under which to distribute code is not coercion.

  18. Contrarian says:

    “and that’s that”

    Try telling that to the judge, #pogson! See how far that takes you. 🙂

    Copyright laws provide penalties for unauthorized copying of a work. Almost all litigation is civil matters and the result turns on compensation to the author based on damages. Look it up or continue to make such uniformed pronouncement, it matters not to me. There has been nothing litigated to date in any US court that would validate your opinion.

  19. oldman says:

    “That releasing source code is payment the ask for source code is no different for the ask for money for a closed source license. Nothing by law says you have to be paid for a License in money yes demanding payment is source code is legal and above board.”

    Thats right now, mr. oiaohm. This is precisely the area than needs to be modified.

    Were I a software developer, I have no trouble coming to financal terms to license a piece of code. I have a very big issue with being coerced by license into surrendering my code.

    Were I able to redo the law, no one could be coerced into revealing source code as a term of license, period.

  20. oiaohm says:

    Technically GPL is not the worst Copyleft out there.

    Yes the copyleft is a very historic item. “@COPYLEFT ALL WRONGS RESERVED”. Yes the first Copyleft is interesting. You are prevented from knowingly passing on something that is defective. Really GPL is a pussy cat compared to the legal fall out possible by that 1 line. Because the rights to the defects is reserved.

  21. Absolute nonsense. The GPL is a licence, not a contract. It’s about the authour of a work having the right to dictate terms of distribution under copyright law. The authour demands the source code must be kept FREE and that’s that. No dark innuendo. No one is burdened by the GPL. They just get to create, use, modify and distribute code. It’s about copyright law, not contract law.

  22. oiaohm says:

    Contrarian legal novice.

    The copy of the application you place in memory or the copy on you harddrive. The MS EULA is permitting you todo that.

    Yes the EULA of Microsoft and other closed source license permit and agree to you doing coping.

    Also read GPL again it does not permit everyone. If you are violating the terms as stated in gpl version then you are not entitled to be using it at all. Reason you are no longer allowed to propagate the program into ram. Back it up or basically do anything to it other than delete it. Even then if it sent to trash/recycle bin instead of straight up deleting you are in breach.

    Yes the coping into ram is simple to forget as something you have to be permitted todo.

    Also these shows how much of a novice you are. You are aware Microsoft contracts distributors to produce the final product for you. Like HP and other companies that provide those annoying system restore disks. Remember being a distributor is making copies. What is copyright about yes the limitation of rights to make copies.

    Microsoft and others do in fact depend on the right to place license conditions on distributors making copies the same way people with open source programs do.

    In fact the requirements you can force on Distributors has been tested in Court by Microsoft. Right down to MS NDA agreements with Universities that allows Universities access to windows source code with the conditions that all alterations had to be returned to Microsoft at no charge. Yes GPL is fully legally binding and the sections of law it is using have been tested by the closed source world.

    “author of the work has essentially abandoned any expectation of financial remuneration.”
    You really need to read the busybox cases this has been answered. The judge ruled that remuneration in the form of code was expected. So author has not abandoned financial remuneration since that code might be beneficial so making his operations more profitable.

    Yes the Open Source Author has placed a bet. That you have placed a bet does not mean you have given up on receiving financial remuneration for work done. This is a big problem because this means the financial pay up figure can be based on the best possible outcome on the size payout that your code could have been that you choose to hide from the Author. Due to this fact infringing GPL may bite you many times worse than infringing a copy of a Microsoft program with a fixed value.

    Yes few have already tried that argument results are not health for anyone who does.

    Not all busybox cases have be unmodified source. The ones with the largest payments were modified source. Since not releasing the modifications was in fact direct financial damage to the authors.

    There has been only 1 case of fully grey that was not resolved. That company clearly had stated that the code was not modified and had provided a pointer to the not modified source code on the project site. Judge in fact did not rule. Sent parties to meditation where the issue was resolved. Mostly with the company believed in breach place copy of source code on there website no fines or anything else.

    Basically you GPL modify you don’t release source code to your third parties and send program to third parties legally tested you are screwed.

    Same way a company shipping on a copy of windows modified in a way Microsoft distributor licenses don’t allow is screwed. Notice something there. There are Microsoft licenses depending on the same kinds of conditions as GPL.

    This is the problem Contrarian GPL is not special. Might be special to the home user. But its not special to the distributor between the software creator and the end user.

  23. Contrarian says:

    The GPL grants a license automatically to anyone who wants to use a GPL-licensed work. So if there is some code lying about that I want to run, the
    GPL does nothing to prevent me from using it and specifically encourages me to do that.

    The issues with the GPL come from the distribution of the work, not from its use. The GPL tries to prohibit distribution of copies to others without the distributor meeting certain criteria, principally the publication of the source code for whatever is being distributed.

    That puts it into a sort of grey area of the law. If you have a pirated copy of Windows, you are not allowed to use it under the copyright laws. That puts some pressure on the recipient. Not so with the GPL, so what is the effect on the person doing the distribution? They are in violation of the terms of the GPL, of course, but how?

    Many legal analysts see that as a contracts issue, i.e. you have an implied contract with the original author to perform the act of publishing the source in order to distribute. That is actionable under state laws of contracts if/when violated. The problem for the GPL comes from the notion of balance of harms, i.e. is the distributor harmed by the GPL more than the benefit provided by the GPL.

    Since the author of the work has essentially abandoned any expectation of financial remuneration and only benefits to the extent that the author might obtain use of the distributor’s improvements, there is an obvious limit to the damages suffered by the author which range from zero, if no improvements have been made, to whatever the commercial value of the improved product, which can be satisfied by a grant in kind, i.e. free copies of the improved work given to the author of the original work.

    All of the case law that surrounds the GPL that I have seen only touches on the publication of the source for the original work. No GPL case has been brought that would require the distributor to publish their own work product. The only cases that I have seen in the US involve mere publication of unmodified source, mostly BusyBox utilities, and so do not reach to the real crux of the GPL contract.

    Amazon simply places all of the Kindle functionality in the Kindle application, which is a proprietary work. Similarly Google’s family jewels are contained in the search application that is not publicly published source. Android keeps a proprietary ownership of their interface layer and applications are completely proprietary as well.

  24. oiaohm says:

    oldman you are quite naive.

    Ban copyleft. You have also banned MS EULA and all other licensing travelling with applications.

    Reason they are all in fact using the same legal sections to operate. The MS EULA also depends on license applying to copies made. Yes MS EULA is viral just like GPL. Difference is the contract in MS EULA has limiting clauses that prevent it spreading as far.

    Tell me what section of GPL do you think you can hit.

    The requirement to release alterations is about the only clause you can attempt to go after in GPL. Everything else is basically stock standard to most closed source application licenses.

    That releasing source code is payment the ask for source code is no different for the ask for money for a closed source license. Nothing by law says you have to be paid for a License in money yes demanding payment is source code is legal and above board.

    Yes in the process of attempt to void your requirement to release source code you could legally void you right to be paid at all for closed source. Also risk voiding most terms of use conditions in closed source licenses.

    Yes the “perversion of copyright law” is what all closed source software depend on to exist. Only things that would be left is items like BSD licenses if you took out GPL. Yes this is why GPL is not legally attacked is insane to consider it.

    Bazaar does contain Commerce. Bazaar and Cathedral are the two most common models that Commerce normally happens in. So how can Commerce win over bazaar when it is a form of Commerce. Commerce betting Commerce what world are you living in oldman its not the real one.

    Yes your shopping centres follow the Bazaar model of Commerce. The Bazaar model open source is following is not the strange model. In fact its the most common model. The Cathedral is the rarity.

  25. oldman says:

    “Killing GPL also kills the right to copyright protection on closed source items.”

    You are quite naive Mr. oiaohm. All that needs to be done is to outlaw the particular perversion of copyright law that the GPL represents.

    Commerce will win over the bazaar any day.

  26. oiaohm says:

    Phenom so you don’t care about copyright infringement. So you would not care if people pirated copies of windows or anything else.

    Sorry Phenom GPL is just copyright. If you support copyright you have to support it. That is why most copyright infringement cases against GPL don’t get to court. Closed source depends on copyright law just as much as GPL does. Killing GPL also kills the right to copyright protection on closed source items.

    Contrarian short visioned as normal. Newer some of kindle devices are android based. Yes the application for android is based off the same code base as those other devices.

    Knock on effects have happened with Kindle.

  27. Contrarian says:

    “I stand corrected”

    Well, you are not actually wrong. I wasn’t very clear with my post, I can see after re-reading it now. Amazon has perhaps created a custom “distribution” of Linux for its own use or is using something already available, I cannot tell without years of looking at files. However, the crux of their product, i.e. the Kindle, depends on an application that is completely proprietary and not open source at all.

    Amazon did what it had to do to make the Kindle boot and start the Kindle app automatically. Where they changed any GPL code, I am sure that they published the changes in these GZ files. Big deal.

    They meet the requirements for not having to go to court, but no one is any better off.

  28. Phenom says:

    #Contrarian, I stand corrected. Thanks for the info, this was new to me.

    #Pogson, I can’t care less if anyone anywhere violates GPL.

  29. oiaohm says:

    Phenom you really need to do you homework.

    http://www.google.com/talk/intl/en-GB/developer.html

    Google talk codecs are in fact open source the back end interface library is open source. The only bit that is not open source is the little bit of gui code. Yes the source code of the server google uses for gtalk operations is around as well.

    Google Earth – closed is the price of access to particular maps.

    Google is a mixture of closed and open source.

    Contrarian its not the fixing the kindle as such. It being able to extract the fixes Amazon has done for your own device if you are using a related SOC.

    Really ms sueing Android is helpful. Now hardware makers are looking at Tizen that will fall under OIN protection also be more GPL code based. Google not protecting hardware makers are really causing hardware makers to reconsider there stance on requiring BSD like license stuff. Even nokia planned low end Linux is based on Meego tech so is inside the OIN protection shield. Where Android is outside.

    Issue with Linux is what does not kill it just makes it stronger the next time it comes back.

  30. Contrarian says:

    “Then Amazon simply close the code.”

    I would have expected the FOSS cops to scream if that were the case, #phenom, so I took a look for Kindle source and found:

    http://www.amazon.com/gp/help/customer/display.html?ie=UTF8&nodeId=200203720

    I downloaded one of the GZ files and looked through it. It seems to me that it is a likely complete set of the files that they use to build their Linux core and maybe even their application since there is a version of BusyBox there along with some other open source utilities, but I do not see anything that has anything to do with actually reading a book or ordering one from Amazon via 3G or wi-fi.

    I would presume that is just the Amazon Kindle application, built by Amazon from scratch, that runs on the Linux OS however stripped and modified. It is likely that they just removed anything that they didn’t need to save space and added their proprietary app to do the work needed.

    It seems clear to me that having this code is not very useful for anyone who has a Kindle or anyone who might want to manufacture their own. If my Kindle didn’t work correctly, I would just get a refund and buy a Nook. They are down to less than a $100 these days anyway. #pogson would doubtless hire an engineer to fix it for him, but that is another matter entirely.

  31. If you have evidence that Amazon violates the GPL, tell the world.

  32. Phenom says:

    Nice one, Pogson. So, Google are the unlucky victim, aren’t they? They use parents, but only while loathing them.

    Google are as close as they can be. Google pretend to support FOSS only as long as it suits them. The source code of Google Earth – closed. The source code of their search engine – closed. The source code of GTalk and its voice codec – closed. The source code of their webcam / voice ActiveX plugin – closed. The source code of GMail – closed. Do I need to continue?

    You are too excited over the fact that Android is based on Linux. So what. Mac OS X is based on NeXT, which is based on BSD, but no one declares it desktop victory for BSD. Even though theorists Mac OS X is the only working desktop OS, based on Unix, it is treated as Apple thing, and no one bothers to poke at its historical roots. Heck, Linux is based on Minix, and now you have to declare the win for Minix.

    A kernel in a OS is just a foundation, a basic set of system services, on which you build up. The kernel itself is nothing. It is the drivers and the other layers – communications, UI, API, applications, which make an OS worthy.

    Linux is cheap to take as kernel, trim it to your needs, built something upon it and close it for your internal use. Many people do it. Amazon did it with Kindle, now they do the same for Android. Don’t fool yourself. Amazon tweak Linux / Android so heavily, that no one can tell what’s beneath. Then Amazon simply close the code.

  33. oiaohm says:

    Contrarian and oldman repairing a system is never simple. Basically the patent system has a loop hole in large enough to get a lot of stuff past that should not be.

    Its not that I cannot do nothing. The issue is working out the exact reforms so you don’t make the matters worse.

    The miss use of patents is in fact killing people due to blocking medicine in the USA going into cheaper production. Yes there have been many cases with the Australian drug produces being patent attacked and point to the Australian PBS and say hey that drug is old how in hell do you have it patented. The medical side invented a process of patents call ever-greening where you have a patent it expires you change the wording minor-ally and reapply then use the new patent to stop any competitor producing the same drug.

    oldman wrote, “you can probably forget any heavy punishment clauses being explicitly added to patent law by any country, because this could potentially stifle the filing of any patents”

    There is a issue there are coming more and more patent cases filling the courts up. At some point something will have to change. With current growth rates in cases it will be impossible in 4 years to get a patent case threw the USA court system before it expires even if you file exactly when it was granted. Stifle the filing of patents is going to happen one way or the other.

    Oldman open source software in the form of GPL is just as dependant on copyright as closed source software. Just as demanding about playing by the rules.

    Contrarian OpenOffice is not a Clone of MS Office as such since Staroffice was using the model of menubar and toolbars before MS Office or even MS Works existed. There are also unique features in the Staroffice design. Like how gallery works. Also the fact there is background and foreground separation of images. These features pre-date MS even creating MS Works as well. So OpenOffice/Libreoffice contain unique features. Those unique features is why ODF import into MS Office is so hard.

    Also the menu layout of StarOffice and MS Office were always close but the closeness is not based on MS Office. There was a convention for doing menu bars with the order of entries. The convention was created by Apple. Yes if you want to claim clone of something find the application that run on apple and only apple that both MS Office and Star Office copied there menu design from. Yes they are the clone of something but it is not each other. Basically Contrarian you claim here is not historically correct.

    Linux as a clone of Unix that is a valid claim since those two are in historic order and that was exactly what Linus was out to achieve since he could not afford Unix. I like historically correct.

  34. Contrarian says:

    “Software is rarely cloned but built from scratch for the same purposes.”

    That sounds a bit like Bill Clinton’s definition of not having sex, #pogson. Something that is a work-alike is a “clone” in the vernacular, making OpenOffice a clone of MS Office and Linux a clone of unix. If you want to split some sort of hair, then use the term “copycat” in place of “clone”. It ends up in the same place.

  35. oldman says:

    “Software is rarely cloned but built from scratch for the same purposes. ”

    Some software maybe. But as far as I have seen much of the desktop FOSS (with the exception of web browsers and email) is made up of work alikes of applications that were first created for either the windows or Mac Markets.

  36. “Cloning” in biology copies DNA. Software is rarely cloned but built from scratch for the same purposes. Is your music cloned because it sounds something like another piece? Neither is GNU/Linux a clone of that other OS. Rectangular regions of the screen used to interact with processes antedate that other OS too.

  37. oldman says:

    “Well, I have to agree with just about everything that you said there, #pogson. I must be losing my grip.”

    I think my real reason in wanting software patents has been in watching the general disrespect given to copyright by those who seem to think that software should be free. It seems to me that ideas are regularly cloned in the name of “freedom” and copyright be damned!.

    Perhaps this is wrong headed of me, but I would actually be in favor of a much shorter (say 7-10 years) span for software patents to address those who seem to think that they can bring a cloned product to market without paying its originator.

  38. Contrarian says:

    Well, I have to agree with just about everything that you said there, #pogson. I must be losing my grip.

  39. oldman wrote, “you can probably forget any heavy punishment clauses being explicitly added to patent law by any country, because this could potentially stifle the filing of any patents”

    This gets to the crux of the issue. Patents are being sought and granted not for reasons supporting the core business but to mess with or defend against other businesses. That is patents could disappear tomorrow and nothing would be stifled except lawyers. Software, in particular is created, distributed, used and discarded in a few years and yet patent coverage goes for 18-20 years? Does this make any sense? No. It is not about technology nor doing business. Consider the iPad as an example. Assume there were no patents. Would any product have come to market sooner because of patents? No. Apple has even claimed in court that other products “slavishly” copy their work and yet iPad still has a large market lead. That’s the result of marketing and being first to market, not patents. Apple would still have produced the iPad with or without patents. Patents are totally useless in consumer tech. It’s all about price, margin and volume, not monopoly. Of course, some want it to be about monopoly but insisting on monopoly is psychotic. There is still some value in a shorter period of monopoly to cover R&D costs but, in consumer software, R&D costs are trivial in comparison to revenue. M$ claims to spend $8billion annually on R&D but they actually pay programmers out of that and only chalk it up to other categories of spending after the product is released. They would make that expenditure whether or not there were software patents. Their work is protected by copyright.

  40. oldman says:

    “Please just accept the fact its broken I know its hard for you to lose to me.”

    Okay, its Broken, so now what Mr. oiaohm? What can YOU do…

    Nothing.

    So all of this verbiage is meaningless.

    One thing I do know is that any reform that is arrived at is going to err on the side of commerce. So you can probably forget any heavy punishment clauses being explicitly added to patent law by any country, because this could potentially stifle the filing of any patents.

    Likewise IMHO you can forget the banning of software patents. In a world where intellectual property is no longer necessarily tangible, It would seem to me that there has to be some protections for anyone who thinks that they can just clone someone elses good idea and bring it to market without paying for same.

    Bottom line – nobody, be it closed or open source entity is going to get a free ride out of any reform.

  41. Contrarian says:

    “Contrarian I know this topic inside and out because I am currently doing up research for applications for patent system reform.”

    #oiaohm, have you noticed that no one pays much attention to your ideas? The fact that you are so ineffective in what you achieve should give you a clue.

  42. oiaohm says:

    Contrarian
    “Think again, #oiaohm, and go study up on the terms such as “barratry”, “frivolous or vexatious filings”, or “abuse of process”. I am sure that even the Australian judges are quite miffed to see any of that in their courtrooms. Anyone asserting a patent for a wheel would certainly qualify for a thrashing.”

    Sorry no the judge in a patent case cannot use any of those for a patent office approved patent. The application should have been rejected by the patent office if it was frivolous or vexatious so since you tricked the patent office into approval you are free and clear. The liability is not on the applicant or the lawyer that helped them. Liability for frivolous or vexatious lands on the patent office.

    Patent office has no legal power to go after people filing for patents that are frivolous or vexatious. So you can try as many times as you like and have money to do it so you get a frivolous or vexatious patent past so there is no legal means of kick back at all.

    Abuse of process again does not apply since the abuse of process happened at the patent office so is outside the legal systems right to enforce.

    Barratry also does not apply because since patent office approved patent is must not have been frivolous. Even if the patent is frivolous and you know it the fact the patent office approves says that you must be miss reading something so now magically protected from kick back.

    Legally all the judge can do is over turn the patent. No other option is really on the table.

    Yes its all because patent application fillings are not protected by normal legal conventions you can get away with the business equal to murder with patents.

    Yep the patent office approval is the protection against kick back. So nice really for those doing the wrong thing. This is also why there is no way to get the money got for bogus patents back from the person who got it.

    Contrarian I know this topic inside and out because I am currently doing up research for applications for patent system reform. I know exactly how the patent system is bust. Question is how to get it fixed. Getting the system fixed is not helped by people like you Contrarian saying it is not broken. Please just accept the fact its broken I know its hard for you to lose to me.

  43. In a patent war, one may do the unthinkable to stay alive just as in a real war.

  44. “non-obvious to one skilled in the art”

    How can any software written in a high-level language as most are these days be non-obvious? If a compiler can make sense of it, a human certainly could.

  45. oldman says:

    “That is proof that computer programmes are not patentable. One does not need to copy them to reproduce the desired results and anyone can do it.”

    Opinion, Pog. Nothing more.

  46. There are five or ten top producers in most areas of tech. M$ probably would have nothing to gain by going after the bottom ten…

  47. “The U.S. Constitution, which is the foundation of US patent law, was drafted during the Industrial Revolution. Adopted in 1789, the Constitution grants Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”. At this time, John Fitch was developing his steam boat. It is believed that the Constitutional Committee went to see a trial of the steam boat. The Industrial Revolution and the quest for technology, prompted a pro-patent environment throughout the 19th century.[2]

    The modern stored-programme computer and programming languages and instruction sets are completely different kettles of fish from gears and pulleys. Computer programmes are not “discovered”. They are scripted from discrete mathematical/logical operations. Anyone skilled in the art can produce just about anything but now USPTO has been issuing patents for obvious stuff… FLOSS programmers are often accused here of “cloning”/copying programmes. That is proof that computer programmes are not patentable. One does not need to copy them to reproduce the desired results and anyone can do it.

  48. Contrarian says:

    #oiaohm, you are full of crap as usual.

    “The lawyer that helps me to write up a invalid application even if they know its invalid has done nothing legally wrong submitting it.”

    Think again, #oiaohm, and go study up on the terms such as “barratry”, “frivolous or vexatious filings”, or “abuse of process”. I am sure that even the Australian judges are quite miffed to see any of that in their courtrooms. Anyone asserting a patent for a wheel would certainly qualify for a thrashing.

  49. oiaohm says:

    Contrarian most people have not dared try with something in “obvious and existing device” as a wheel but a few lawyers have had success with it in different countries when they did try..

    Basically yes you can get something like that past examiners at the moment. Reason they are overworked to the extrema. So most patents only have a light inspection. Complex enough that is seams valid the patent is issued no matter how invalid the patent is.

    Contrarian most patent cases are settled out of court. Google vs Oracle has seen many patents MS is paying Oracle be voided by the judge due to demanding full examination of the patents before they are used.

    Patent law is a bugger. “abuse of the legal system” Does not apply in patent law cases. So patent attorneys would be free to attempt such a farce without any kick back at all for taking a farce like 5,704,669 or the wheel one to court.

    There is no punish for having or using invalid patents. There is no requirement to make sure you patents are truly valid before demanding people pay you for them.This is why the patent system has gone to hell.

    Remember I am only a research assistant when it comes to legal work. Because I know my writing style is crap. Yes I could get patent for a wheel issued. Of course I would be having someone else help me write the application for the patent.

    Yes this is a serous point I don’t need good english or anything else to get a invalid patent issued to me this is the point Contrarian. If I could pull it off the system is in a really bad way.

    The lawyer that helps me to write up a invalid application even if they know its invalid has done nothing legally wrong submitting it.

    Then when that lawyer goes around enforcing payment of the patent they know is invalid they still have done nothing wrong by the law.

    Finally when it finally gets before a full inspect or a judge and gets thrown out every cent of income people paid me for the invalid patent is still mine. No refunding. So basically if I was evil I could make a good money dreaming up bogus patents and threatening other companies with it.

    Yes Contrarian the compete patent system is a farce at the moment. We all need to admit up to it. If it was working right it would be doing good. Since its not working right is doing harm.

  50. Contrarian says:

    “I could basically get issued a patent for a wheel this days as long I could hide the fact that its a wheel under enough complex wording”

    Well, you are arrogant beyond belief, #oiaohm. With your clumsy style and poorly constructed sentences, you could never get past even the laziest patent examiner. I would agree, though, that a clever lawyer could possibly present an obvious and existing device in such a way that a patent might issue for it. I do not think that anyone has had much success with the wheel, but I do remember someone patenting a tree swing, just to prove the same point:

    http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=5704669.PN.&OS=PN/5704669&RS=PN/5704669

    I think that there would be a real problem if anyone tried to assert that patent, though. The judge would likely see it as an abuse of the legal system and patent attorneys are likely to value their bar status too highly to attempt such a farce.

  51. Ivan says:

    “Software patents are not supported in legislation.”

    On the contrary Bob, they are. Otherwise the courts would not have ordered them to be granted.

    “The constitution certainly does not envision such nonsense.”

    While it is nice that you have an opinion about it and you are certainly entitled to that opinion, you have not studied Constitutional Law, you are not a lawyer, and you are not even a citizen of the United States, you are not qualified to lecture anyone on what was or was not envisioned by a group of wealthy slave owners that didn’t want to pay taxes.

  52. oiaohm says:

    Yes wish I could remember the number but one patent lawyer for the hell of it did manage to get issued a usa patent number for a circular locomotion device that full description was basically a stone wheel.

    Just to see how crap the current system really was it stood for 3 and a half years before he owed up to what he had done.

  53. oiaohm says:

    You are missing a basic fact here. Contrarian

    “That is the foundation for the granting of patents to begin with. It matters not whether the patented method involves software or is implemented with a mechanical device as long as it can be demonstrated to be a better way to do something and a way that is non-obvious to one skilled in the art.”

    The is complete bull by the real world implementation of patents. I could basically get issued a patent for a wheel this days as long I could hide the fact that its a wheel under enough complex wording.

    There is in fact no punishment for submitting bogus claims then enforcing them to the patent system. Yes stupid as is sounds in most countries its not fraud to push a person to pay a patent you know in advance is bogus.

    The idea of patents use to work when every patent was proper inspected before being granted.

    The law of patents needs major reforms. Most are simple. Some form of punishment for having invalid patents needs to be created.

  54. TechCreative says:

    “M$ is unlikely to bother with the small players.”

    Actually, they have been targeting the smaller players and companies for whom Linux is of peripheral importance — such as HTC and Samsung — who are likely to settle out of court because they either don’t have the resources or don’t care enough to go through a protracted legal battle. So far they haven’t dared go after IBM, Google, or even Red Hat.

    That doesn’t mean they won’t, of course, but they do know the risks involved in suing a company willing to go to the mat on this and fight them all the way to the Supreme Court.

  55. Ray says:

    Like I said, it’s much less of an effort to end software patents through Congress/Parliament, then to have it through the courts.

  56. ChrisTX says:

    “•M$ sues Motorola/Google sooner rather than later.”

    Sorry to interrupt, but that trial began a month ago…
    http://www.zdnet.com/blog/microsoft/microsoft-vs-motorola-a-look-ahead-to-next-weeks-itc-patent-trial/10387
    …very late actually…
    http://www.digitaltrends.com/mobile/microsoft-sues-motorola-over-android/

  57. Contrarian says:

    #mc, you seem to totally miss the point here. A patent has value to the extent that it provides a better way to do something, hence the notion of beneficial use. If you do not understand that, then you should go away and study until you do.

    That is the foundation for the granting of patents to begin with. It matters not whether the patented method involves software or is implemented with a mechanical device as long as it can be demonstrated to be a better way to do something and a way that is non-obvious to one skilled in the art.

    “It seems you only “seeked” out patents. Probably without a prototype to demonstrate to the world? Probably without a product? Just to keep your job? or to feed a patent troll?”

    You seem to be taking lessons from #oiaohm in how to write an indecipherable message, #wc. When we changed the way that our product worked, it was usually because we thought that the new way was better and we would file a patent disclosure that defined what was better and why it was better. A legal review committee decided which disclosures might be patentable and would commission patent attorneys to prepare the applications. It was company policy to do that.

    I won’t tell you the name of the company, since you are sort of a nut job, based on your posts, with marginal emotional stability. I will state that it was NOT Microsoft, though. In any case, I am now retired. I have worked for several companies and they all did the same sort of thing although the reward for successful filings was not as great in some cases.

  58. MC says:

    Contrarian, you are barking up the wrong tree.

    Nothing you said makes me believe software patents creates anything. Software without a CPU is nothing, much as schooling without a child is ridiculous.

    Contrarian, the purpose of patents is not to “benefit to a user”. That’s how blind you are about the history of patents. It seems you only “seeked” out patents. Probably without a prototype to demonstrate to the world? Probably without a product? Just to keep your job? or to feed a patent troll?

    What we need to do is to abolish or RE-EVALUATE ALL patents.

    By the way, “Contrarian” who is your employer?

  59. Contrarian says:

    “Software patents are not supported in legislation.”

    You are barking up the wrong tree, #pogson. What is being patented is always an improved method for doing something that has a greater benefit to a user than previous methods which may have been the basis for the improved method or not. As long as the invention is reduced to a practice, it does not matter if it is made out of metal, wood, clay, or software.

    What is wrong with the system is the continued ignoring of the requirement that the improvement be something that is non-obvious to “one skilled in the art”. Software companies and other companies in tech businesses are continually patenting things that are simply engineering solutions to conditions that arise during development. Any one of ten thousand or more engineers could have and would have arrived at such a solution if and when the need arose. The only reason that most of these patents were not invented earlier is because there was no need for the solution.

    I personally have several of these patents due to the policy of my employer to seek them out. The company policy was to require every development engineer to apply for something several times per year and to reward successful applicants with a couple of thousand bucks for each patent filed plus qualify the inventory and significant other to attend a gala dinner and multi-day event held at some suitable resort or destination such as San Fransisco or Atlantis in the Bahamas. It was fun for all, but the net result was just a lot of tiny incremental improvements in things that only served to confuse the technology.

    There is no confusion between and among most big companies that cross-license one another with blanket agreements that cover these patents. Microsoft has such agreements with Apple and Oracle, for example, and you do not see them suing one another any more.

    If you look around, you will see that Microsoft is as vocal as anyone in regard to getting rid of many if not all patents that touch on software development and use. It costs them a lot of money to maintain a defensive position that is not recouped with license fees received. There is no need for Microsoft to “steal” anyone’s IP, they are quite capable of inventing what they need on there own, as are the open source developers who do the same thing.

  60. Software patents are not supported in legislation. They are a creation of lawyers. SCOTUS has not yet ruled on the validity of them, just some narrow interpretations dancing around the issue. The constitution certainly does not envision such nonsense. The hardware patents are another issue but if one considers information as binary data, they are on shaky ground too. Putting a mathematical algorithm in silicon does not make it patentable any more than putting it in a computer. In the long run, Google/Motorola will win. It’s just a matter of time and Google has the mindset and deep pockets to stay the course. Google has argued that the patents are not on patentable subject matter so they could eventually get these issues to SCOTUS. That will take years and, during appeals, M$ will not likely get its way even if it wins in lower courts. The nonsense from Apple will suffer a similar fate but because it has spilled over to the world may actually be decided sooner.

  61. Contrarian says:

    Motorola has a lot of patents that involve phones, of course, but Microsoft does not manufacture a phone. It would seem to me that the phone makers, i.e. Nokia, Sony, HTC, Samsung, et al, would have come to some sort of equilibrium on RF and such things that affect cell phones long ago. Android is an OS that has sort of dropped on the scene in an environment that had no real shakeout in the past and Android has no significant IP arsenal of its own.

    Microsoft is suggesting that the OS aspects of Android violate its patents and has licensed the phone makers who really only want to sell phones. A few bucks for patent immunity is not a show stopper. Taken as a whole, these companies have pretty large and competent legal staffs who have come to the belief that they need to pay to stay in the business. Maybe Motorola is much more perceptive than they are and can successfully stave off Microsoft’s efforts to collect. The smart money is not with Motorola on this, though.

  62. Ray says:

    This could be one long high noon.

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