Slashdot Mirror
Author of Linux Patent Study Contradicts Ballmer
An anonymous reader sends us this EWeek story, following-up on the recent Linux patent scare. The author of the patent study is contacted, and says, "Open source faces no more, if not less, legal risk than proprietary software. The market needs to understand that the study Microsoft is citing actually proves the opposite of what they claim it does."
Now Microsoft will have to buy a new study that says what they want.
Microsoft mischaracterizes what someone says just for FUD purposes? Naaa, that would never happen.
From the article: "Consider this--not a single open-source software program has ever been sued for patent infringement, much less been found to infringe. On the contrary, proprietary software, like Windows, is sued and found guilty of patent infringement quite frequently."
While I am glad that OSS hasn't been suded yet, I think it's a bit immature to use this as a defence. First of all, you don't need to actually do anything wrong to be sued, and usually you're sued because you're making enough money that the plantiff might take a bite of it, or you have conflict of interest with the plantiff.
Wasn't it not long ago we read about SCO/MS Connection? It's pretty obvious now that the litigation is baseless, but this doesn't not stop corporates from taking it to the court.
Another example is FireFox, many claimed it's flawless, but the realistic others know that no software is bugless, but its OPEN status allows things to be fixed relatively quickly. So it would be unwise to claim that FireFox has fewer bugs and more secure because it hasn't been exploited yet.
So a better argument might be OSS, given it's open, any potential patent infringement will be digged out before it goes far.
However, this brings another question, can we safely assume that nothing incriminating is in the source? Patent itself is illusive enough, and how easy it is to find out about a particular patent, and then relate it to a certain class in the source?
Rock that crushes, Paper & Scissors that don't matter.
...more breaking news at eleven.
So are open source vendors indemnifying end-users or not? Microsoft's legal exposure is priced into their software and the end user doesn't need to worry - can Linux users say the same or should they take out open source insurance?
"In fact, the study said Linux potentially violates 283 software patents, not
...
'over 228' as Ballmer said in his speech."
Last time I checked 283 was over 228
Why would they be charging you as an individual with patent infringement?
I've this question. If I implement a piece of software that is already patented and put it in the public domain, can I be sued for this?
I mean in many CG books they describe algorithms that are patented, yet nobody sues the authors of the books. Can someone write a free implementation of a patented idea just for the sake of other people doing research on the idea (e.g timing and comparing certain patented algorithms, etc.)? This doesn't seem different from publication of said idea/algorithm.
It is my understanding that if somebody uses it for commercial purposes or if I try to sell it, then I/they 'd be liable. But can source code be considered as a publication in certain cases?
Except that if Microsoft violates 100 patents, they can just license or buy the company out that owns it.
If one patent is broken by an OSS Project, its much more of a burden.
OK, am I the only one who is seeing a legal problem here? If Coca-Cola said some study proves their cola is good for teeth, but the study shows it is harmful to teeth, don't you think the gov't, media, and a flock of 3rd party lawyers would descend upon Atlanta post-haste?
So what'll happen with this? Nothing. Your boss will still think MS is the bestest ever, the average dingaling will keep using Win98 SP1, and no major media outlet will make the tiniest peep.
Fight the power!
did you win a free ipod? build a case for it here
Microsoft has been taken to court over patent violations before. Regardless of the outcome, it shows quite clearly that nobody is safe from the looming threat of software patents.
I'm sure Linux and Windows both violate some rediculous patents out there that have not been upheld in court.
But Ballmer is saying here, "Windows is 100% free from patent violations, Linux is one big huge patent violation. Yes, I know there is really no proof I can show you to back up what I'm saying, but you should take my word for it. After all, MS is run by businessmen and Linux is run by dirty pot smoking communist hippies."
"You spoony bard!" -Tellah
Seeing as they don't really care what the studies are saying, I'm not sure why you think they'd need to buy one.
Study concludes A.
MS decides B.
MS distributes B across the globe, everyone repeats. End of story.
No new study required.
``The market needs to understand that the study Microsoft is citing actually proves the opposite of what they claim it does.''
This has been a common theme lately. Microsoft did the same thing with various other studies. The Bush administration used reports that claimed the non-existence of WMD in Iraq to support its claims that Iraq was dangerous. Recently, I read a column where someone claimed that increased Firefox use would harm security (the larger target theory), with a reference to a report that showed IE gets more exploits per user than does Firefox.
People get away with spreading all this FUD, because readers don't verify the information that's being cited. When Microsoft says the report found Windows cheaper than Linux, people assume the report indeed said so. Unless, of course, they are inquiring minds and want to know how the report arrived at its conclusion. Then they suddenly find the report concluded the opposite!
What I don't understand is why the authorities get away with it. THESE PEOPLE ARE LYING TO US. Have you seen Ballmer in court over his allegations? Or Bush?
Please correct me if I got my facts wrong.
Perception keeps the "Linux is hard" mantra in people's mind, even when useability and ease continue to improve. I hope Slashdotters understand this.
So do not expect *cough*, *cough*, Monkey boy to stop his gospel soon, because I know that he knows that; you guessed it...It's all about Perception."
Cb..
Microsoft is willing to patent things, and to assume there are no patent infringments in the open source seems short sighted. And if they don't have the patents yet, eventually they will, as they push their technology forward. It isn't as if Microsoft consists of a bunch of incapable people, so eventually they will have, if they don't already, a lot of important patents open source will infringe upon.
When I was working at one large software company, we wrote a number of patents. One of the reason was that companies like IBM might sue you, and if you don't have patents you can exchange with them, the cost is higher during the settlement.
Honestly, it seems without "open source" patents, the open source community is fighting without an important tool, and like all wars of attrition with a determined foe, will eventually lose.
Ed Barbar, President and General Manager, Furnit USA
Microsoft have teams of lawyers working to patent everything and anything and it gets granted (et al the 'to-do list').
OK, supposedly the system only works when a patent is contested in Court. But due to the $$$$ Microsoft have in reserves, anybody that legally owns (or doesn't infringe) CANNOT afford to mount a defence against the diatribe of ligation, and has to recede.
Microsoft win everytime, whether legal or not (and if it dubious, they buy them out anyway).
Monopoly rules... do NOT pass go.
That's the nice thing about modern justice. If you are a pattentholder and you want to sue microsoft in the best case you get the case settled and it will cost them a small fortune. Like they care.
OTOH if they sue any small developer he won't even have the money to defend his case and will be bankrupted even if he is guilty or not.
For a company that is so phenomenally rich you'd think they'd settle down and go enjoy the rest of their lives and do something usefull, like sitting in the garden. At least that's what I would if I was given a few billions. But instead they keep bullying the rest of the world.
If I was in their position, I wouldn't care a bit about the successes of others, like the playstation and the open source projects.
Steve is not stupid by any means. He knew full well that he was lying. As we all know in business, the liars typically get away with their lies. Steve is scaring his audience into sticking with the devil they know. In the 1980's you could not get fired for sticking with IBM regardless of whether the product worked or not. That is how things are now. Just stick with Micro$oft and you keep your job. Whether your products work or not is not relevant. Essentially, Balmer is stating that the United States will eventually go after them. Given our recent escapades invading Countries with no pretense, I am sure places like Singapore are plenty scared. Sure he lied, but his audience will accept it hook, line and sinker.
I take issue with this. You're (unintentionally I assume) implying that because Firefox is not flawless, it doesn't have fewer bugs than IE. This is the fallacy of the excluded middle.
Nobody with a clue claims that Firefox is flawless. Just that it's more secure than IE. Which, when you think about it, is not a very strong assertion at all.
And how many patent lawsuits has Microsoft been involved in:
Microsoft, Tiscali sued over European download patent
Sun, Microsoft settle suit in billion dollar pact
Microsoft settles Intertrust patent lawsuit
Microsoft settles suit with Immersion
Microsoft settles 1999 Patent Infringement Case
Vintage computer adverts: http://www.vintageadbrowser.com/computers-and-software-ads
Of this I am fairly certain. Per my blog, regarding this article.
There is no lack of buzz around patents. This article garnered opinions from some big names in the patent world, like Free Software Foundation counsel Dan Ravicher, law firms Phillips Fox and Baker & McKenzie.
Dan Ravicher of the FSF made this point: "patents pose less of a threat to open-source software than they do to proprietary software". He also states: "There are no patents that choose only to be infringed by open source. Any patent that imposes a threat to open-source software is going to impose a threat to proprietary software."
Well, the first point doesn't flow logically from the second point. Open source and proprietary software are in two different categories, from an evidientiary and a monetary point of view.
Access to source code
As a matter of evidence, violating patents in open source software is evident on its face: you can read the source code. Legible code makes a patent infringement case trivial. Proprietary software may require expensive reverse engineering, to devise how it operates and whether that operation violates the patent. There may be some legal questions regarding your capacity to reverse engineer legally, particularly with oppressive legislation such as the DMCA.
Access to software
Also, in this vein, to determine a violation of proprietary software, you must also have access to it. Proprietary software, particularly custom or enterprise software, may not be readily available to examine. Even if the software is available, it may require an onerous license that prohibits reverse engineering. Open source software is, almost by definition, accessible to anyone for examinition. Having a clause to prevent reverse engineering would be contrary to its object.
Licensing capacity
The lucid nature of open source software means that to obtain a mandatory license for a patent would be prohibitively expensive for two reasons. First, open source software does not have deep pockets or the capacity for a cross licensing agreement. Second, even if either were available, the nature of open source software would wholly undermine the purpose of the patent: an open source implementation of the patent would be available for free, unrestricted use.
A proprietary software company, on the other hand, has the economic means and an economic incentive to obtain a license or cross license, and would presumably do so only for the benefit of the company, and would not threaten the other economic interests of the patent.
Compulsory Licensing
Patent legislation provides for compulsory licensing, I understand, if it is in the public interest. However, even though a proprietary company could enforce this licensing by challenging it at the patent office, currently the cost would be prohibitively expensive to many, if not most, open source software developers. As well, compulsory licensing that undermines the patent, by creating an open source unrestricted implementation, would create contentious arguments about the real public interest. Patents protect the patentor, and as a secondary consideration they may have licensing imposed against the will of the patentor, if it is in the public interest. Their rights would likely trump.
For at least these reasons open source software is in a different situation than proprietary software, and as a result I am not entirely convinced of Mr. Ravichers's assertion, as they are quoted in the linked article.
But that's my point. If OSS was so flawed as MSFT is trying to maintain than *BSD would equally be flawed.
The fact that they don't pick on OSS universally and focus merely on Linux is a strong indication they just want to pick on Linux and are looking for any excuse todo it.
Tom
Someday, I'll have a real sig.
They simply deal with patent problems as they are contacted by people who claim to own patents they infringe upon. They'll look at the patents, the demanded licence fee and at the company, and depending on the outcome they'll cross-license, pay a license fee or try to get the patent invalidated in a lawsuit (and possibly countersue the other company for patent infringement)
Those "solutions" are usually only viable for large companies though (regardless of whether it's about open or closed source), and not for small ones or individuals (again regardless of whether it's about open or closed source). In that sense the patent problems are indeed entirely independent of open vs closed source (who's going to attack IBM about patent infringements by Eclipse?), and only a matter of big vs small.
Donate free food here
A quick google for "false advertising" turns up this, and mentions:
"[False Advertising] also includes advertisements that make representations that the advertiser has no reasonable basis to believe, even if the representations turn out to be true. An example would be an advertisement for a photocopier machine which stated that the machine used less toner than any comparable machine. The advertiser would have committed false advertising if it had no reasonable basis to believe the truth of this claim (such as through comparative tests), even if it turned out to be true."
Sounds to me like MS's Windows Server 2k3 vs Linux TCO analysis definatly comes under this catagory.
Linux Wireless Hardware in the UK
TCO only covers daily operation costs, upgrades, air conditioning, employees, etc.
All of the migration costs go under the category of "migration costs".
Otherwise, it is easy to increase the "TCO" of any other product to any amount you want by "assuming" that the company in the example will be running your product and that it will cost $X to migrate from your product.
$X includes all data migration costs, educational expenses, etc. So, you "estimate" that it will cost $500/person/hour to "re-train" the existing staff. If that isn't enough, then "estimate" that it will cost $750/person/hour to "re-train".
You can do the same with the data migration costs. If the company selling Product A needs Product B to be $100,000 more expensive, just "assume" that the example company will be running Product A and then "estimate" that it will cost $100,000 to migrate the data to Product B.I don't think so. They can add whatever costs they want to the migration cost amount, but they won't ever split it out correctly.
Otherwise, people could easily see that other solutions are far less expensive to run
"Your assertion is that Linux violates a set of patents, and therefore as an end user I might be found liable and forced to pay dammages at some future date.* Does using Windows remove this problem for me? Are you willing to either guarantee that Windows does not have any IP property issues or to indemnify me if someone decides that they want $699 for every copy of XP that I use because they think one of their patents is being violated?"
cricket... cricket... Mr. Balmer - are you still there?
* For the sake of argument, I'm going along with Blamers FUD that end users are responsible for paying for IP violations, not the producers of the software.
Technically unrelated to this article, but Fox News did go to court for making a story appear the oppisite of the facts. They lost at first, but won on appeal. Now they are suing journalists who refused to publish the false version of the report for court costs.
Fox News was able to get a court to rule that they have no responsibility to tell the truth because there is no specific law that say they have too. So if a news station can not be required to report on things honestly, then I don't think there is much change of getting a company (especially MS) to do so.
On of Many Links to this story
It's probably very easy to imagine it. Just like people can imagine the flying cars and vast underwater cities.
Meanwhile, back in the real world (http://www.eeye.com/html/research/upcoming/index
Security is based upon your security model and your implementation of it. A good model can still have buggy code. As the bugs are found and fixed, there are fewer problems.
A bad security model can have great code, but the problems keep coming. See all of the Windows anti-virus companies for a real world example of this. Rather than Microsoft fixing their security model, they rely upon 3rd parties to issue daily patches that are unbelievably specific to an individual exploit.
"Open source faces no more, if not less, legal risk than proprietary software."
This statement is based on the premise that legal action will actually be based on perceived patent violations in open source software and that open source software contains either no legitimate violations or at least no more violations than most proprietary software. That is, all of the patents that it does violate are bogus being issued on prior art or trivial methods by a broken patent system.
Although it may well be the case that most of Microsoft's patent portfolio is unenforceable if contested by an entity with sufficiently deep pockets, I doubt that actual violations will be the deciding factor if litigations are pursued. I believe that Microsoft will weigh many factors before pursuing litigation and the legitimacy of their claim will weigh far less than any tactical or strategical advantage that perusing even a bogus law suit will offer.
Microsoft has repeatedly shown that it does not care about a fair and open market and is unconcerned of going afoul of antitrust laws. Indeed the weak response by the US justice system to Microsoft's past transgressions has had the same effect on this corporate bully as passive behavior has on the playground bully or the bully in the work place. A bully won't changed until forced to do so and some can never change.
To Microsoft, software patents are just another weapon to be wielded against anyone who would dare attempt to take a slice of the market. It is just another anticompetitive tool that they will use directly though litigation or indirectly though a FUD campaign.
It's time that the DOJ got their act together and removed this bully from the corporate playground. Microsoft needs to be broken into at least two and probably three separate entities before their blatant disregard for the antitrust laws permanently destroy any chance of an open and fair market in the software sector.
The race isn't always to the swift... but that's the way to bet!
The parent post is NOT A TROLL...
/. loses its credibility.
Even though we may not agree with the poster his post was not trolling but rather a valid point.
Please do not mod people down based on wether or not you agree. Be fair or
The race isn't always to the swift... but that's the way to bet!
The thing that really gets me all confused is why in 's holy name do those enterprise people still use MS products in the first place.
Overpriced, under specced, complicated in the extreme and simply not fun to use.
Corporate IT is a weird, weird thing...
- It took western civilisation 2000 years to ensure popular literacy, and now we work with icon driven GUI's. Go figure.
Ballmer's statement sounds eerily similar to Joe McCarthy's "I have here in my hand a list of 205 known members of the communist party..."
Probably just about as credible, too.
I think it makes an interesting statement about MSFT products to hear them bashing the competition instead of selling the competitive strengths of their products.
To me it's almost an admission that their product line is not cost competitve with OSS. That's not strictly a price comparison, it's a value comparison. MSFT products do not give you the same value for the $$$ that LInux and OSS. Something most of us here have known for a long time.
MSFT has been sticking it to their customers for years with higher and higher license fees, back-stabbing EULA's and Naziesque business practices. I think they're really underestimating how bad people dislike being dicked and how long their memories can be.
I know it sounds a little Pollyanna but it's unfortunate that going negative can be so effective. It's kind of like spam. Everyone complains about it but as long as it's effective we're going to keep getting buried buy it.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
It's also interesting to see the lawsuits that Microsoft has filed:
Microsoft sues controversial system assembler
Microsoft Sues Lindows.com Over Name
Microsoft takes on teen's site MikeRoweSoft.com
Microsoft sues Lucent in old dispute
Microsoft sues Brazilian magazine, IT official for defamation
Microsoft files lawsuit against five Md. firms
Of course, since they usually either buy out the company, develop and market a competing product, they don't need to resort to lawsuits for those type of situations.
Vintage computer adverts: http://www.vintageadbrowser.com/computers-and-software-ads
...since end-users are not liable for patent infringement, anyway - only the producer (and possibly (ob IANAL) distributor) of the allegedly infringing product would have any liability whatsoever. Besides which, software patents are ridiculous - if I can think through the "patented" fucntion in my head, it's just logic and math. Some day, maybe TPTB will finally get that.
That would make sense for copyright infringment, but not patent infringement. You don't patent source code. Technically your not supposed to patent a function either, only a physical object which you've actually constructed. But software patents are on functions the software performs, most violations can be seen at a higher level than the sourcecode. For instance "A method by which an ascii encoded text file is interpreted for the purpose of deriving values".
It doesn't take seeing the sourcecode to determine if a program uses a text based configuration file. The reason every program violates so many patents is that our wonderful patent office would rant the above patent tomorrow if filed by a customer who spends enough on patent fees each year!