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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?"
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?
"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.
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