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MS Indemnifies Customers Against IP Threats
bigtallmofo writes "Microsoft announced today that it will indemnify nearly all its customers against claims that their use of Microsoft software infringed on any intellectual property rights. The only exception will be for embedded versions of Windows, since vendors are able to modify the source code. Is Microsoft opening itself to defending thousands of lawsuits against their customers?"
This is just a case where instead of both customers and MS as target. MS says that customers are not the target its only MS. Also they probably think they could counter sue any big player suing them.
Emacs is good operating system, but it has one flaw: Its text editor could be better.
Of course they know that they're the primary instigator of the really annoying lawsuits anyway, so it's promise that doesn't cost 'em anything...
-- *My* journal is more interesting than *yours*...
That's it exactly. Sun said the same thing a few weeks back...
Jonathan Schwart's Blog. In regards to settling a lawsuit with Kodak...
It's a direct attack on Linux.In light of the switch in tactics by the RIAA and MPAA, it might have dawned on Microsoft that future litigants might go after consumers of Microsoft products, rather than Microsoft itself. Such a tactic could, potentially, reap plaintifs far more money for a lower investment. If used by a competitor, it could also potentially cripple Microsoft by scaring off customers in future.
I think Microsoft has a great deal of reason to be concerned, especially if they are continuing along the path of misappropriating other people's stuff.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Even Microsoft's 2004 May 27th changes which apply only to customers under enterprise licensing contracts, which Microsoft claims grants greater immunity, contains many loop holes which greatly negate Microsoft's liability.
r _developers_face_huge/ 4 1479.html
w ww.unisys.com/about__unisys/lzw/
The section 6 clause contain exceptions:
Our obligations will not apply to the extent that the claim or adverse final judgment is based on (i) specifications you provide to us for the service deliverables; (ii) code or materials provided by you as part of service deliverables; (iii) your running of the product, fix or service deliverables after we notify you to discontinue running due to such a claim; (iv) your combining the product, fix or service deliverables with a non-Microsoft product, data or business process; (v) damages attributable to the value of the use of a non-Microsoft product, data or business process; (vi) your altering the product, fix or service deliverables; (vii) your distribution of the product, fix or services deliverable to, or its use for the benefit of, any third party; (viii) your use of our trademark(s) without express written consent to do so; or (ix) for any trade secret claim, your acquiring a trade secret (a) through improper means; (b) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (c) from a person (other than us or our affiliates) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret. You will reimburse us for any costs or damages that result from these actions.
Loophole #1 "(ii) code or materials provided by you as part of service deliverables" This would effectively still indemnify Microsoft against most of the Timeline Inc patent claims, as it is the developer/end user's code ( even visual basic code ) which would be in violation of Timeline's patent claims.
Microsoft licensed Database/Datawarehouse technology from Timeline Inc, but unlike Oracle and other database vendors, Microsoft chose a license that did not grant Microsoft's customers the right to fully use that technology.
http://www.theregister.co.uk/2003/02/20/sql_serve
Timeline has extended it's patent claims to cover many featured widely used by developers, both ISV and in house.
http://www.winnetmag.com/Article/ArticleID/41479/
Timeline Inc has won a US Washington Court of Appeal judgment against Microsoft for the right to sue Microsoft's customers, and subsequently sued Cognos. On February 13, 2004, Cognos settled at cost to Cognos totaling $1.75 million.
http://www.timeline.com/021304PR1.htm
Microsoft has a history of licensing third party code and patents in such a manner that still leaves developers and users exposed to IP threats. Even going back to the LZH/GIF Unisys patents
http://web.archive.org/web/20020806173115/http://
"Microsoft Corporation obtained a license under the above Unisys LZW patents in September, 1996. Microsoft's license does NOT extend to software developers or third parties who use Microsoft toolkit, language, development or operating system products to provide GIF read/write and/or any other LZW capabilities in their own products(e.g., by way of DLLs and APIs)."
Other Loopholes include (v) and (vii), but the killer is (iv), which disclaims any
indemnity for users who wish to input any data. (ix)(a), also since literally it excludes trade secret liability for improper action on
anyone's part, including MS.
Does Microsoft's new agreement include such loopholes? Anyone have a link handy?
When a company offers an indemnification clause, it will contractually require you to assign it total and complete authority to defend, compromise and settle any case regarding the matter to which it grants indemnification. That means Microsoft - not company 2 - decides how vigorously to defend the lawsuit and whether or not to settle.
With very limited exceptions that don't apply here, this is the standard rule, e.g. when you have automobile insurance. If you are involved in an auto accident and considered by anyone to be at fault, your insurance company provides you with a lawyer and defends you, and if you lose at trial or they decide to settle, they pay the amount of damages up to policy limits. But the insurer decides if it will settle or defend; you do not.
Having been both the party at fault in two accident and the injured party in two others, I am fully aware of how this works. In every case the injured party and the insured usually have no contact at all, the insured's insurance company - who is providing indemnification - does everything with the injured party, the insured doen't even get involved unless it proceeds to suit.
The lessons of history teach us - if they teach us anything - that nobody learns the lessons that history teaches us.
"astroturfing" is when companies plant fake messages which make it look like their product/service/whatever enjoys massive grass roots support (hence the name). When a company releases a press release, that's not astroturfing since a) you know the statement is being made by the company and not some "man on the street" and b) you (hopefully) know enough to take anything a company says with a grain of salt (including official financial statements).
As for IP issues being "manufactured"... that's debateable. We don't need to get into a long debate about the merits of a certain Utah based firm's claims, but people at all levels of open source development are certainly more aware that there are more questions than "does it compile?" when receiving a patch.
Other than that: yeah, it's just more Microsoft marketing mumbo-jumbo, designed to furthur the "nobody ever got fired for buying Microsoft" line. In a way it's kind of flattering that this 300 billion USD gorilla seems so threatened by linux. On the other hand... marketing is what commercial companies do.
#!/usr/bin/english
You are being totally suckered by Microsoft and now is the time to start thinking about what alternative software solutions exist for your enterprise.
No, I am not talking about rolling Linux out on all your corporate desktops and servers overnight - far from it.
However, as every day goes by, you are being dragged deeper and deeper into the Microsoft web without realising it. Attractive licensing deals from MS offer financial discounts to you but in the long term, they lock you more and more into the proprietary world one a single organisation who is just out to do one thing - to make money.
So while you may be spending less money on MS products, just how much money are you now spending on securing mail servers and your intranets from the endless assaults of virii and worms? How much extra have you had to spend on virus checkers in the past year? How many "personal firewalls" have you now deployed over and above the two layer firewalling system that worked perfectly adequately until 18 months ago? How often are you replacing laptops and PCs in your organisation because of the extra demands Microsoft products now make on those machines?
Now Microsoft make this offer of indemnity. What do you think this means to you? What it actually does is drag you in deeper with your Microsoft partnership, you become more dependent on Microsoft, you cannot run your organisation without Microsoft products, Microsoft end up controlling you. In future, it won't matter how insecure or shabby Microsoft products get because you will be so locked into their licensing schemes, you will not be able to escape from them - they become the drug dealer, your corporation becomes the addict.
Think about this now and start to think at other software solutions. Invest some money in looking at alternative ways of doing things in your enterprise - spend some money on a few extra servers, load them with open source alternatives, train some of your IT people to administer them properly, decide for yourself whether open source software is right for your enterprise.
Open source will not give you all you need now - it will do some things better than your existing Microsoft solutions, others it will do worse. However, the open source developers will listen to you if you tell them why you don't like their software and they will try to do something about it if there is a genuine need to make improvements.
But please ACT NOW. Give yourself that lifeline, that "opt-out clause" you create for yourself just in case Microsoft really starts getting heavy on you - believe me, it will happen.
Remember, Microsoft is nothing more than one of your suppliers and should be treated as such - if a supplier lets you down, you start looking at alternative suppliers - the company that provides you with software solutions is no different.
So, spend some money now. Run a few open source servers in parallel to your Microsoft ones, use them, evaluate them, get your users to test them.
But make yourself smarter about the alternatives now before it really is too late for you...
Gentoo Linux - another day, another USE flag.
Back in the 1980s, the Washington (D.C.) Metropolitan Area Transit Authority was sued by the owner of a patent on the fare collection system that they were using that was built by one of their vendors. It wasn't stated why the patent holder didn't sue the manufacturer but instead sued the transit authority. WMATA settled with the patent holder for an undisclosed sum, and presumably obtained restitution from the manufacturer for the costs involved.
While it is rare for the third party user to be sued, they are also infringing and thus they can be if the patent holder chooses to do so.
Write your congressman and tell him/her that. Not that they will listen, but...The lessons of history teach us - if they teach us anything - that nobody learns the lessons that history teaches us.
You didn't even bother to try to look that up, did you? As of last January, MS was a defendant in 30 patent lawsuits, many of these are sure to be going on still today. Some that made the papers:
Teleshuttle Technologies, LLC - software updates
Eolas - browser plugins
Interactive Data (TVI) - autoplay of cds
Research Corporation Technologies - resolution enhancement
InterTrust Technologies - software registration and activation
And don't forget Allan M. Konrad, who sued hotels and airlines for using MS (and other) software to accept reservations online. He didn't sue Microsoft. Why? Because Redmond's revenues were chump change compared to the revenue from all those travel reservations. Konrad lost, but he won't be the last to try.
"We reject as false the choice between our safety and our ideals." --The American President (20.1.2009)
Hi!
What is Microsoft doing?
Microsoft is shifting more and more of their revenue stream to server products. There are only so many features you can stuff into Word, and let's face it, OpenOffice is perfectly suitable for most office workers. Microsoft is also pushing hard to have third-party software (and hardware) vendors embed Microsoft components in their software. We're in the Microsoft ISV program--and I have spent time with the corporate legal staff discussing whether or not Microsoft will indemnify us against any claim for IP infringement. This announcement clears the issue up--they will.
What's the big deal?
I work for a company that makes lighting controls. We make the dimmer in your dining room--but we also make control systems for very large projects, such as Lincoln Financial Field (home of the Philadelphia Eagles). We provide Windows-based control software (among lots of other things)--it would be a serious issue if a vendor to Microsoft sued us for infringement based on Microsoft's code. That's exactly what SCO did to AutoZone. SCO didn't contend that AutoZone intentionally infringed--they alleged that AutoZone was using an app developed by IBM that infringed. Nonetheless, AutoZone lands in court in an IP infringement case. Microsoft's indemnification effectively means that if somebody sues us on the same kind of claim, we don't have to worry. Microsoft will defend the case, bankrupt the attorneys, crush the plaintiffs, reduce their homes to rubble, enslave their children, and--and ruin their self-esteem!. We won't have to be involved at all. 8-)
From our perspective, that's a good thing.
But doesn't this portend an onslaught of Microsoft attorneys arrayed against the forces of Open Source? Isn't the battle of Armageddon nigh?
No. This simply means that Microsoft is telling vendors that embed Microsoft products that they do not have to worry about getting caught up in an IP infringement case. That's all.