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Japanese FTC Warns Microsoft
ChibiOne writes "The Japanese Fair Trade Commission has ordered Microsoft to cut a restrictive contract clause, designed to protect the software giant from patent-related lawsuits by PC manufacturers that sell products using Microsoft's Windows operating systems. Under such provision, Japanese makers would be unable to sue Microsoft even if the software giant's technologies are deemed to violate their patents. The Japan Times Online has the scoop."
It does seem a bit unfair to have to agree not to sue Microsoft even if they later violate your patent(s). That seems like a "cake and eat it to" proposition.
Manufacturers have voiced concern that Microsoft could conceivably gain access to proprietary information about their cutting-edge products, and would be able to distribute their technology to competitors using the Windows operating system.
I don't know if M$ would actually do this or not, but the disputed clause in the contracts essentially gives M$ a free ride to do so. If this is as it seems, I have to wonder at the arrogance involved in telling someone that they need to agree to let me violate their patents with impunity. Somehow I think these folks are genuinely confused when someone says, "That's against the law...." or "You really can't do that..."
But he said Microsoft would drop the clause from all contracts signed from August onward. He said this decision was made following internal discussions over the past year.
Perhaps M$ agrees? Sometimes even the 900lb gorilla can catch on.
Cheers!
Erick
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They OBVIOUSLY make all the best software on the planet based on merit alone.
Which, of course, is why I am on a Macintosh... ;-P
In related news, Microsoft was found to be violating several Japenese patents on "Bukake."
Microsoft gets spanked for restrictive licensing... IN JAPAN!
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Ballmer: "Xbox can beat up Sony."
Japanese Government:
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"Piter, too, is dead."
It seems to me that a patent is a piece of property owned by a legal entity. Does the ownership of a patent differ from, say, the ownership of a car.
If there is not legal difference between what is essentially two pieces of property, would it be legal for me to draw up a contract with a client that expressly forbid them from filing a case against me if i decide to steal their car?
I do appreciate that this would be a criminal matter, but presumably a civil case could be brought also (lose of earnings for time without transportation perhaps).
Would a contract that legitimizes theft be considered valid if legally tested?
The real "Libtards" are the Libertarians!
Haven't Japan learned that M$ is invincible everywhere even in the U.S. If our very own DOJ couldn't put up a dent, what makes you think Japan would be any different.
> Japanese alphabet
Japanese alphabet?
alpha, beta...
There's no Japanese alphabet, there are character sets.
Three of them: Kanji, Hiragana, Katakana
"Piter, too, is dead."
The Japanese Fair Trade Commission has ordered Microsoft to cut a restrictive contract clause, designed to protect the software giant from patent-related lawsuits by PC manufacturers that sell products using Microsoft's Window operating systems. Under such provision, Japanese makers would be unable to sue Microsoft even if the software giant's technologies are deemed to violate their patents.
Assuming that's a fair characterization of the contract provisions, I'd have to side with Microsoft on this one. (Egad! End of the World!)
Consider this scenario:
- Some random branch of Sony (or some other japanese conglomerate) gets a JP patent on some random software/hardware thingie.
- Sony builds it into their laptops and wants Microsoft to support it.
- Microsoft supports it, and includes it in their mainline product (even if it doesn't work on non-Sony platforms). Now every copy of their software shipped on a non-Sony platform is infringing.
- Some Sony competitor clones the hardware. Suddenly the patented-in-japan feature starts running on THEIR platform.
- Sony sues Microsoft. And wins. And collects big bucks for ALL the copies of the software that went out (which WERE infringing...).
So Microsoft gets beaten up for being a good guy and supporting Sony's gimmick.
Of course Microsoft wants to head off this scenario. So they write this clause into their contract. Sony (and every other HW vendor) now has a choice: Let MS use their patents, or don't have MS support of their platform.
What's "unfair" about that? How much is it worth to Sony to have Microsoft support their products? This is the set of terms under which Microsoft is willing to do it. They can take it, leave it, or negotiate a clarifying modification.
IMHO even their defacto monopoly power isn't being misused in this case.
(Besides: If Sony {or whomever} doesn't like it, they can always drop Microsoft and ship Linux, BSD, or what-have-you. B-) )
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I believe the technical term for Hiragana and Katakana would be "syllabary".
...because patents are IP, it can exist at multiple locations at once. It would be possible for Microsoft to licence all their patents through a contract, so I would assume anything less than that can also be put into a contract.
To follow up on your analogy, you could not sign away their right to sue. But they could sign a contract that would allow you to take possession of their car, e.g. as security for a loan.
Now to take that to an extreme, let us say their contract allow you to take possession of it any time you want, by any means, no notice, permanently etc. Essentially, a licence to steal. And they can't sue you for stealing it, since you're allowed to by the contract.
In short, there's a lot of wierd stuff you can do with contracts. Ask a contract lawyer, not slashdot, what is legally possible and not possible.
Kjella
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The Apache liscense has a similar clause (mostly to protect against SCO-like suits). It will be interesting to see if they are asked to revise their liscense as well.
Is Apache okay because they don't actually say 'you can't take us to court'? Rather they say 'taking action terminates this license'. Consequently the patent holder is free to take action, as long as they wear the consequences of their Apache license being cancelled?
contracts that Microsoft has with the PC manufacturers here? Or has it been conveniently overlooked by bought out politicians/FTC? I wouldn't be surprised if that is the case.
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I wonder why existing contracts are still valid if the government says it's illegal and wants the clause taken out? Seems to me their FTC should be able to say "take out the clause or we will rule it invalid". That would signal the other companies (and MS) that their patents would be enforceable regardless of the contract. When it got to court, the contract clause would be a useless defense because the court would invalidate it.
And it's right to do so. The only way any company agrees to terms like this is when their arm is being twisted. Wanna sell PC's? Agree to our outrageous terms or sell them without Windows. Sadly, the market for non-win PC's just isn't big enough for Sony, et al (yet).
History shows that a company needs to be VERY careful doing any kind of business with MS. These companies need this protection.
http://www.theinquirer.net/?article=6905w ww.theinquirer.net/?article=7015
http://
and so on
I have a copy of Windows XP Professional OEM version running on my PC. It set me back a whole 28,000 yen (Roughly US$280) Please somebody, tell me that what the Japanese pay for Windows is not ridiculously overpriced. The full boxed version of XP over here actually verges on US$400... so the OEM version looks cheap in comparison. MS must think that XP is worth the price of a CPU or top-of-the-line motherboard.
READY.
PRINT ""+-0
Sony (and every other HW vendor) now has a choice: Let MS use their patents, or don't have MS support of their platform.
What's "unfair" about that?
As has been pointed out many times before, Microsoft has a (virtual) monopoly on operating systems. If Microsoft were the little guy, this wouldn't be so much of a problem, but they're not; shipping computers without Windows is tantamount to corporate suicide. This gives Microsoft immense leverage in contracts.
Now, keep in mind this is happening in Japan. Japan's anti-monopoly law has a clause forbidding "yuuetsu-teki chii ranyou", literally "abuse of overpowering status": in other words, if one of the parties to a contract or agreement has significantly more power or authority than the other(s), then that party is not allowed to dictate terms freely--they have to limit themselves to what they could reasonably expect to get agreement on without such power. This clause is applied not infrequently(*); in this case, the FTC decided that OEMs would not have agreed to the no-sue clause if they had not been in the position of having to accept whatever terms Microsoft gave them, and so it declared the clause "unfair" and issued the warning.
(*)For example, the yuuetsu-teki chii ranyou clause was recently used to prevent retail stores from forcing distributors to cut wholesale prices in response to a new law requiring sales tax to be included in display prices.
Dear Japan,
We apologize for Microsoft. You kneel behind and we'll push them over.
Sincecerly,
The United States.
Then Microsoft should ask for licenses to the specific patents that Sony wants it to use in Windows. That way, Microsoft doesn't get to steal Sony's patent on a "system and method for inducing the destruction of a city by means of a giant robot" or any other patents totally irrelevant to supporting Sony's hardware.
And it is certainly an abuse of Microsoft's monopoly to demand the use of hardware companies' entire patent portfolios. Choosing to drop Microsoft is committing financial seppuku right now, although in a few years it might not be as big a deal. Microsoft would never be able to get away with a contract like that if manufacturers had an alternative other than bankruptcy.
There is an obvious way out of your scenario. Microsoft only supports the feature if they are given a license to the particular patent for use in the Windows OS. Of course, even this is probably unnecessary since hopefully the patent is on the hardware and not on some unwritten OS software that communicates with the hardware. (Otherwise, Linux is in a heap of trouble.)
A much more problematic scenario is that Microsoft uses the contract to include patented features in it's hardware products, such as the XBox. Essentially all the Japanese computer makers have to give up their patent rights in order to install Windows, an obvious abuse of the desktop monopoly. Hopefully the forced contract wasn't this broad.
Chris Mesterharm
>Have you considered fucking off to slashdot.jp? Just a thought.
I'll have more of the fourth word than you in my lifetime. How does that make you feel, troll?
To the others:
Indeed, Romaji is an official character set in Japanese. Also, Hiragana, Katakana, and Kanji _are_ syllabaries.
"Piter, too, is dead."
Microsoft insists there is a sanity clause while the Japanese assert that no sanity clause exists.
-- thinkyhead software and media
How exactly is this a warning for MS? Sounds more like a "do whatever the fuck you want, we won't hold anyone responsible" message, to me.
The haijo-kankoku (FTC warning, literally "recommendation to eliminate [illegal behavior]") isn't just a "slap on the wrist" in Japan--it's the first step in taking real action against the company. The procedure goes something like this:
The modern japanese 'alphabet' includes roman characters. Officially there are three character sets: hiragana, katakana, kanji. sound based characters for official japanese words, sound based characters for foreign words, chinese characters respectively. However if you go to any Japanese site you're likely to see roman characters somewhere, often used for modern terminology, titles of some things, and many times company or organizational names, ex. FTC.
In other words, the FTCs contract protects Microsoft from lawsuits in the way that plastic wrap protects a steel block from bee stings.
Ahhh! Software Patents and Frivilious Lawsuits are evil! But Microsoft is also evil! AHHHHH!!!!!! *HEAD EXPLODES*
... and in the DRM, bind them.
Under the provision, Japanese makers would be unable to sue Microsoft even if the software giant's technologies are deemed to violate their patents
Is this the same Microsoft that claims that Open Source software destroys intellectual property?
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While I agree that microsoft is rather underhanded in their buisness practices, the accusation of them stealing the windows concept from apple isn't true. Both apple and ms got the idea from xerox...
True, but Apple engineers took what they saw at Xerox and expanded upon it into a fully-fledged OS. Microsoft added a clause into a product for the Macintosh which Apple believed was giving a license for UI use on just Windows 1.0 as a cooling off period, but instead gave away the look and feel of the Macintosh to Microsoft entirely, which MS then proceeded to plunder in legendary fashion.
Ironically, Either Apple or Microsoft could theoretically have sued many of the Xwindows systems out of existence, but once the (legally protected) Windows prescident was set, the (non-legally protected) flood of similar Operating Systems with similar looks and feels was released upon the world.
Theoretically, this has allowed Operating System creators to learn freely from eachother, which should allow us to reach a state of computing Nirvana. Freeflow of ideas, yadda yadda. Sadly, in many ways it allows the dominant OS vendor to stay "good enough" at all times, freely stealing the fruits of other people's software when it becomes important, and allowing them to fail with their own experiments without contributing to the pot.
So yes, while Apple was inspired by the work at Xerox, Microsoft's arrangement with Apple more directly resembles contract theft.
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The Apache liscense has a similar clause (mostly to protect against SCO-like suits). It will be interesting to see if they are asked to revise their liscense as well.
Don't confuse licenses with contracts. As much as some entities would like us to believe they're one and the same, they're not. What's more, the Apache Foundation doesn't charge money for use of its licensed software, in contrast to Microsoft.
Logic is a wonderful thing but doesn't always beat actual thought. -Terry Pratchett