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Interviews: Ask Florian Mueller About Software Patents and Copyrights
Florian Mueller is a blogger, software developer and former consultant who writes about software patents and copyright issues on his FOSSPatents blog. In 2004 he founded the NoSoftwarePatents campaign, and has written about Microsoft's multi-billion-dollar Android patent licensing business and Google's appeal of Oracle's Android-Java copyright case to the Supreme Court. Florian has agreed to give us some of his time in order to answer your questions. As usual, ask as many as you'd like, but please, one per post.
I really can't think of anything I would want to ask Florian Muller. Except maybe how much Microsoft and Oracle pay him to shill?
If you want news from today, you have to come back tomorrow.
You were a valuable unbiased source of information on software patents and patent litigation. Particularly the German court's struggle with them. However it came to light -- in a rather surprising way -- that you were paid or possibly employed by Microsoft and Oracle. I have heard much about this and it often casts a negative light on your blogging but I would like to hear your side of these relationships. I can conceivably understand how you could accept money that furthers your ideals but it is difficult to comprehend how I can be assured this does not influence your writing, position, selected details and bias. Are you able to lay my concerns to rest?
My work here is dung.
As an independent software developer, how can I avoid getting dragged into a patent lawsuit? How can I leverage my rights to ensure others aren't exploiting my patents?
As a middle management cog in a large organization, how can I impress the importance of patents on the executive leadership? How can I work with our console on ensuring that our creations are correctly patented? And what steps should I be taking to minimize our risk of being sued?
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
You write about companies. Some of them have paid you (directly or perhaps indirectly through their advertising agencies, etc). What's the intersection of that set?
Copyright (c) 1990 - 2014 Dice. All rights reserved. Use of this comment is subject to certain Terms and Conditions.
Oracle paid him (disclosed by Oracle under court order) while he was blogging in support of them. He admits to having been paid by Microsoft in the past.
Copyright (c) 1990 - 2014 Dice. All rights reserved. Use of this comment is subject to certain Terms and Conditions.
Who's idea was it to do this Q&A - Slashdot or you?
"National Security is the chief cause of national insecurity." - Celine's First Law
Holy crap, I can hardly believe this topic. Who in their right mind would want FM opinion on anything? This is really puzzling to me.
"better ways of doing things eventually just replace the inferior things" - Linus Torvalds 09-08-07
Things that people with short memories will have forgotten by now since they happened all of three years ago. Detailed summaries of his doing can still be found on Groklaw though.
You see, mr. Mueller is not just *any* publicist. He's a publicist who is, basically, for hire by large companies to provide a congenial account of their doings and their position. In short: he is a lobbyist. His (former) clients seem to include SCO (the company who tried to claim crippling copyrights on Linux and engaged in an intense campaign of legal blackmail aimed at companies using Linux) and one of his current clients seems to be Oracle (the company that reied to shut down Android by claiming copyright on Java library API's).
As summarised by the following posts:
http://www.groklaw.net/article...
http://www.dailytech.com/Top+A...
http://techrights.org/2010/08/...
My only question to him would be: who is on your current client list?
Oracle paid him (disclosed by Oracle under court order) while he was blogging in support of them. He admits to having been paid by Microsoft in the past.
He has probably since set up a series of "shells" to provide him with "plausible deniability" on this issue.
If you want news from today, you have to come back tomorrow.
Do you honestly believe that software patents do not stifle innovation?
Did you read groklaw.net and what do you think about it, e.g. do you admit that it's predictions were mostly more accurate than yours and did you look at the cases where your opinion was painted as clearly wrong there?
Is there anyone out there who you think would be even less well received by the slashdot audience than you? If so, who?
William of Ockham had no beard. The most likely explanation is that it was chewed off by squirrels every morning.
Who (or how many parties) paid you to do a Q&A on Slashdot?
Thanks
I'll see your senator, and I'll raise you two judges.
The only question I have isn't for Florian, it's who on earth thought it would be a good idea to throw him into the lions den because he's not welcomed here.
The only reason I can think of doing an Ask is so that shills can ask questions to legitimise him in an otherwise very vocal and Florian-hostile community:
"Florian, why is it you spend so much time helping the Open Source world and spreading the Lord's work to the unwashed masses?" +5 Insightful
"I've been a heathen all my life until I read your completely unbiased and thorough articles on Microsoft/Oracle practices. Will you please continue your quest to educate us?" +5 Informative
A hundred and twenty characters ought to be enough for anyone...
Being a complete shill for positions and companies that hurt the software world, how do you live with yourself? And why haven't you just jumped off a bridge yet?
And Slashdot, WTF are you doing giving the time of day to this tool?
Whoops, I guess that's three questions.
When it was clear that Judge Alsup in Oracle vs Google can program Java, how the *#*# could you still think Oracle would get its huge victory? Do you understand that you look like a shill for such things?
Any commenter that knows about programming said in this very moment that this will become a monumental defeat for Oracle, only you still believed in Oracle (you were very wrong as we know).
It was so funny when the Judge explained that any teenager could program a range check [bool check(val, min, max) {return val >= min && val <= max;}] and the Oracle lawyer looked like a complete idiot.
What's it like being a giant douche bag who will do anything for money?
Mod me down, my New Earth Global Warmingist friends!
Why spend 3 to 4 years studying computer science just to realise at the end, that everything patentable in software has been patented (from the truly stupid, trivial to non-trivial ideas) and big firms holding the patents have been and are doing so for decades and decades!! For innovation's sake and to tell university student that they have a future in this sector, isn't it time to shorten the life of software patents or ban them all together?
He was never a valuable source for anything, which is why it was shocking to find out he became a paid shill. Who would pay for that crap writing?
How many times have you contacted news and commentary organisations to correct their description of you as a patent lawyer? How often have they made the correction?
Florian,
I once believed in you as an independent idealist, and contributed to the FFII cause you spearheaded - probably in the $50-100 range in total, plus some proselytising on your behalf. I since discover that you were a paid shill. I consider that I have been conned because you misrepresented your position while acting as a figurehead for that organisation.
So, with that in mind, would you be prepared to make, say, a $75 donation to the FSF (or to another charity, if any consensus forms in response to this comment) by way of personal apology? As well as to make good on the funds that you misled me in collecting.
Thank you.
What exactly is your association with Microsoft, Oracle and other major software companies that are major proponents of software patents, and have you any other reasons for seeding media organisations with anti-open source pro-patent scaremongering, other than of course financial incentives?
Why do you wear eye shadow and mascara? Is that normal for men where you're from?
Mod me down, my New Earth Global Warmingist friends!
Is this April 1st already? No? Then why is this cruel joke being played on the Slashdot community?
Most of us remember who and what Florian Mueller is. And there is nothing we can learn about him or from him, in an interview, that we don't already know.
How much money was /. paid, and by whom, to sponsor a Q&A with Florian Mueller?
What is your opinion of Maureen O'Gara?
How much do we have to pay, that you shut up?
instead of API copyright? It seemed it would have been a better case since there is precedence?
What do you think of MyCleanPC? Is it a good tool to protect your computer? Can you please explain its advantages to the public?
Its a very popular tool among /. users if you count by positive posts about MyCleanPC. (If you need to agree with them on payment terms, visit their website?)
*holds up mirror for Florian to gaze into*
My work here is dung.
Why would anyone ask him anything? He simply regurgitates whatever he's told to by whoever paid him.
Name names. What specific programmers not financially motivated by their employment with parties in the case disagree with the judge's decision? I've talked to quite a few people about the case and have yet to meet one who thought Alsup was wrong.
Dewey, what part of this looks like authorities should be involved?
how about the mid level manager in charge of slashdot beta?
Copyright (c) 1990 - 2014 Dice. All rights reserved. Use of this comment is subject to certain Terms and Conditions.
The man is an abomination of misinformation and paid content. He routinely missed on predictions, occasionally it is an honest mistake though. He never seems to get the difference between German law and the rest of the world. When he misses the furthest is when he uses FM-law. Which is only true in his head.
A question though. That is tough. Nobody cares about his opinion as his details and analysis are wrong more often than not. He spews regurgitated press releases and does it with the EU press style, which is loudly and with great abandon. Truth be damned! There is a contract out there somewhere!
How could FM be so wrong so consistently?
That is puzzling, even a shill should be right now and then. Less than random but never being right must reduce his possible fees from the companies he is shilling for that the courts have yet to out his connection. I suspect it is because the basic honesty assumed by many is the press is still somewhat lacking in the basic FM unit. Maybe honesty costs more and thus he has been able to avoid the sticky issue, "Sorry, we feel that the extra euro for the honesty module is overpriced".
In simplest form. If company A patented 5+5=10. Then company B patented 20/2=10. Then company C patented Sqrt(100)=10. Would companies B and C be infringing company A's patent because it produces the same output. Even though the inputs and functions used are different. Based on what I read these days, that is what it sound like. If you produce the same output, even when the code is completely different, or even a different coding language, you are likely infringing the patent. Is this how bad software patents are.
and for the rest of you flamers and trolls, this is a Q&A thread not a thread to personally attack another person. Take the insults elsewhere.
Hi Florian,
Thanks for being interviewed on Slashdot.
Could you please give us an estimate, if you have one, of how much innovation has been destroyed by patent trolls? Also, if you happen to know, how many startups?
Thanks
I'll see your senator, and I'll raise you two judges.
This smells like a PR campaign. Probably Florian is an instrument, and the target will be Google or Linux, maybe both Who is going to be paying the bills this time is everyone's guess.
Dear Florian,
What can we do to make you go away?
Slashdot, obviously, has to innovate in order to stay current. Thus, they are now taking the next step after "Anonymous Cowards". The new "Identified Troll" feature will include interviews of people who have prostituted their personal credibility to some company's calculated disinformation campaign.
Bruce Perens.
I actually want to hear what the guy has to say, but I now think it is more important to talk about trolls and threats and suggestions involving jumping off bridges.
http://seriouspony.com/trouble-at-the-koolaid-point
(Learning from that link, I'll AC this)
-1 Has Never Written a Range Check
.: Semper Absurda
So you think rangeCheck is hard to program and deserves any protection?
Anybody I know was for Google, and anybody that I know was right that the Judge will be for Google. Name one public programming figure that was for Oracle. Just one.
Yes, this is definitely a "WTF?" moment in the history of Slashdot. I suggest that you all just move on to the next story and refuse to feed the troll by asking him questions.
Bruce Perens.
As an independent software developer, how can I avoid getting dragged into a patent lawsuit? How can I leverage my rights to ensure others aren't exploiting my patents?
You can't.
A patent is just a license to sue.
It licenses others to sue you if they think you might be infringing their stuff (or they can get you to pay them to go away even if you aren't). It licenses you to sue others who are infringing your patents. That's all it is.
If you want protection for your creations, you have to be ready to put on the armor and walk into the arena to defend them.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
You were a valuable unbiased source of information on software patents and patent litigation.
In a parallel universe, perhaps.
Il n'y a pas de Planet B.
Holy crap, I can hardly believe this topic. Who in their right mind would want FM opinion on anything? This is really puzzling to me.
There's a saying that applies: Know your enemy.
I doubt anyone will be fooled into thinking his arguments are unbiased, or correct, and adopt the mindset he's pushing. (If nothing else, there will be PLENTY of warnings from posters in the discussions. B-) ) So this is a chance to do a little research: Find out what arguments are being brought into court and congressional cloakrooms by those opposed to innovation and competition from outside of established corporate monoliths, so we can get ready with counter arguments.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
"You were a valuable unbiased source of information on software patent"
No he wasn't. Not then and not now. He has always been a paid shill representing himself as an expert, independent and reliable. He has never been any of those. He is the Internet meme for dishonest paid shills.
To Florian: How does scum like yourself look in the mirror and not vomit?
Why should anyone care what you have to say, since you're almost always in your own little Bizarro universe that is devoid of anything resembling the reality in which the rest of us live?
This is my first reply here because I can easily clarify the question of why, when and how disclosures were made and address some misconceptions.
The "court order" mentioned above came down in August 2012, see e.g. http://www.cnet.com/news/judge-to-oracle-google-did-you-pay-off-bloggers/, approximately four months after a voluntary, proactive disclosure I had made in April 2012, see http://www.fosspatents.com/2012/04/oracle-v-google-trial-evidence-of.html#oracledisclosure. Oracle attached that previous disclosure to its response to the court order:
I disclosed consulting work for Microsoft in October 2011, see http://www.fosspatents.com/2011/10/study-on-worldwide-use-of-frand.html. At that point, no judge had asked for a disclosure, nor has this happened to date. I did it because it was the right thing to do.
At the end of last month I shut down my consulting firm in order to focus on my (Android and iOS) app development project. I'm still blogging, but less than before.
My consulting business had served numerous clients, not just Microsoft and Oracle. There were dozens of investment banks and funds who paid me to answer questions or participate in conference calls. I also did research for a couple of law firms and a German car manufacturer (that company allows me to refer to them like this but not to disclose the name, just industry and country).
I wish all others commenting on these types of issues were equally transparent.
Slashdot invited me and I was happy to accept. I know there are some misconceptions out there, but that doesn't have to prevent me from sharing opinions and information on more important issues.
Oracle "retained" Florian Müller as a consultant ref. Groklaw answering Florian Mueller FUD ref ref.
It doesn't really matter what the thread was supposed to be for; there's no useful information on software IP that can possibly be received from this paid shill, as you have no idea if he's presenting the viewpoint he's simply paid to espouse.
You'd be just as likely to get useful answers in a Q&A on family law from Hans Reiser.
You may or may not be surprised, but despite various disagreements over the years I'd have liked Groklaw to continue or, after its 2013 shutdown, to have come back. For example, I think Groklaw could have made some useful contributions to the public debate over this year's Apple v. Samsung trial in the Northern District of California. Also, I do regret some of my derogatory comments about PJ, including that I wondered at some point whether there was more than one person behind the PJ name. Earlier this year I met a highly trustworthy source (a corporate executive) who confirmed PJ's participation in a certain (patent-related) meeting years ago.
The part I don't understand is how Groklaws "predictions were mostly more accurate than [mine]" or "[my] opinion was painted as clearly wrong there." With respect to approximately 98% of the IP lawsuits I covered, Groklaw never made any prediction whatsoever (for example, you won't find any Groklaw prediction concerning German smartphone patent disputes, and very few relating to U.S. smartphone patent cases). The overlap essentially came down to API copyright matters: the use of Linux kernel headers in Android and the API copyright part of Oracle v. Google. While Groklaw's position on API copyright was shared by one district judge in California, my opinion was unanimously validated by three circuit (i.e., higher-level) judges in Washington DC this year. Now Google is trying to take that case to the Supreme Court. Any conspiracy theory concerning the opinions I had expressed about API copyrightability in general and the API copyright part of Oracle v. Google in particular makes no sense unless someone is crazy enough to believe that those Federal Circuit judges are part of the conspiracy.
He has always been a paid shill representing himself as an expert, independent and reliable.
The "paid shill" argument is worthless anyway. If you can't come up with a well-reasoned rebuttal to somebody's argument then whether they have been paid to make that argument or not is of little consequence, yes it means they have an agenda but that doesn't make their point any less valid. Dismissing any argument on the basis of the author's motives rather than the merit of the argument just demonstrates either its validity or the incompetence of person attempting to rebut it.
The fact that the only Judge involved who actually understands programming didn't just dismiss Oracle's allegations out of hand, he ridiculed them. How many of the programmers you refer to are also Judges who actually understand copyright law?
As always, all IMO. Insert "I think" everywhere grammatically possible.
Time and time again your forecasts about legal disputes have been falsified in court. How can you still offer your allegedly unbiased opinion as an expert on patent law and still keep a straight face? Aren't you perhaps confusing what you (or your sponsors) wish the body of the law is with what it actually is?
I’m a graduate student who wants to take my thesis research* with machine learning technology for engine combustion control and develop it into a startup company. Being a student, I must publish all of my work (there is no room for trade secrets). There are also many incumbent players in the field of engine combustion control that could easily squash my startup with better brand recognition. How else, besides software patent protection, can I protect my startup company? I honestly don’t see any alternative. * Short video description: https://www.youtube.com/watch?...
Have you thought about writing a book about your days with Kraftwerk?
whats the name of your apps, I would like to be forewarned to avoid them
Because very little of the Android documentation ever mentions Java. What mention there is, mostly as a file name suffix or package name, is likely covered under the nominative use exception. A trademark cannot be used as an ersatz copyright according to Sega v. Accolade and Dastar v. Fox.
Doesn't change the fact that you for years let people believe you were a patent lawyer when you were never a lawyer, and even encouraged such misperceptions.
Doesn't change the fact that you shilled for years, pushing all sorts of bogus "patent claims by microsoft that threaten linux" when they never existed.
Doesn't change the fact that you simply are not perceived as being even half-way honest by those who have been around the block a few times - with reason.
We've had this discussion before. You were caught misrepresenting yourself and your history too many times. And now you must be getting desperate, delusional, or both, because for some reason you believe that doing a Q and A on slashdot won't once more expose your BS to the light. Wow. You're google-bombing yourself. Again. Payback is a b*tch.
"Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
Oh c'mon. You can't honestly say you were surprised by this. It was clear for months, years before the Oracle docs came out that he was shilling.
As the majority of the comments here should have made clear,
the last thing the community wants to hear is his opinion on the
topic (or rather the opinion that he is paid to disseminate) !
Slashdot should rather ask actual proper lawyers on the topic
known and active in the support of the open source movement,
I would nominate Richard Fontana myself as being the expert I
would love to hear more from, people can just reply to suggest
other appropriate persons.
But FM, no we don't want to hear anymore about this person,
thanks
Daniel Veillard !
Why are you giving this paid shill for Oracle and Microsoft a platform to spread more slime?
As someone who read groklaw and loved it, I have only one question: aside from the sensationalist point of view, why would anyone ask anything from this guy? And /. above all, giving him even more traffic...
I am putting myself to the fullest possible use, which is all I can think that any conscious entity can ever hope to do.
Really.
How did you get setup with such a sweet job? Do you have to use your blood to sign the contract?
Fuckwit.
I've been looking at /. less and less because it just isn't as useful / relevant for me as it was years ago.
But I couldn't sleep, it's 0 Dark 30, and I thought, Why not look at what's happening on /.?
Florian Mueller? ARE YOU FUCKING KIDDING ME?!?!
I won't mourn the passing of /. like I did Groklaw, because even on it's best day /. was never as good as PJ on a bad one. As long as you're on a roll, why not invite Larry "Yes, I am an asshole" Ellison to give us instruction in the care and feeding of an Open Source project?
But seriously ... Florian Mueller? On patents and copyright?
I mean, Florian. Fucking. Mueller?
ARE YOU FUCKING KIDDING ME?!?!
I was surprised that anyone would pay him. He's obviously an idiot, why would anyone think he was worth the money. I'll pay him $1 to shut up though...
I am TheRaven on Soylent News
> When it was clear that Judge Alsup in Oracle vs Google can program Java, how the *#*# could you still think Oracle would get its huge victory?
That ruling was reversed on appeal and is now headed to the Supreme Court. I strongly believe that Alsup's ruling *should* be upheld, but the legal experts I've seen say that the reversal was closer to the conventional interpretations of the law. In other words, as expected, the current precedent on that is bogus. I hope Oracle loses, but they haven't yet.
That aside, I did correctly predict that Alsup would rule against Oracle at the time. I mean, I feel like anyone watching the case would've said the same, but I did see skilled lawyers predicting otherwise as well. So I can't claim too much credit for winning something where my odds start at 50%.
The "wrong decision" referred to the GP isn't about the trivial range check, but rather the notion that APIs are not copyrightable.
It would be really shitty if APIs were copyrightable, but, as the GP said, that has been the conventional understanding of copyright law for a long time.
It would be interesting to see how the story unfolds, but really, there's nothing funny about the notion of APIs being copyrightable.
Don't quote me on this.
When naming your blog, why did you choose an oxymoron of such contradictory terms? Sort of like Microsoft Morals. Or Apple Humility.
Thanks
I'll see your senator, and I'll raise you two judges.
Alternatively, someone wielding too much market power based on ownership of APIs may have to grant a (compulsory) license on fair, reasonable and non-discriminatory (FRAND) terms.
"FRAND", also called a uniform royalty regime, has been used to deliberately shut out free software and low-volume proprietary software. Let's hope a broad fair use argument can be made, or else the lack of interoperability will cause the software market to balkanize even more than it already has. For instance, The SCO Group might pop back up and accuse FSF of infringing its UNIX copyright through copying of the UNIX API into the GNU system without an explicit license through The Open Group.
He was never a valuable source for anything [...]
You're entitled to your opinion on this, but it is not shared by some very credible people in the intellectual property universe:
- Managing Intellectual Property (ManagingIP) magazine has put me on its annual list of the top 50 most influential people in IP five times so far (2005, 2006, 2012, 2013, 2014).
- IAM (Intellectual Asset Management) magazine named me one of the IP personalities of 2011 (and had me on some other ranking that I can't find at the moment).
- Canadian IP lawyer Barry Sookman conducted some research on the leading IP and tech law blogs. According to his analysis (published in early 2013), my FOSS Patents blog was the #3 U.S. patent law blog at the time.
- I have received invitations to speak at conferences organized by universities and around the globe (in the U.S., literally from California to New York) and at commercial conferences in the U.S., different European countries, different Asian countries, and New Zealand. Only for logistical reasons I have had to politely decline except for invitations in my home region. I have spoken at the renowned Max Planck Institute for IP and Competition Law in Munich, at the Munich University of Technology (three times already), and the University of Bayreuth, where I shared a panel with a judge from the patent-specialized division of Germany's equivalent of the U.S. Supreme Court (see page 2 of the conference program), who is also widely expected to become one of the top-ranking judges of Europe's future Unified Patent Court. This incredibly well-respected patent judge and I both addressed the same topic, from our different vantage points, and had a panel discussion with questions from the audience and our moderator, a Switzerland-based patent law professor.
- Professor Thomas Cotter (University of Minnesota), an expert in comparative patent remedies (he travels the world to research differences between national patent laws), wrote this post about the significance of FOSS Patents earlier this year. Professor Cotter's independence is underscored by the fact that he has in recent years signed amicus curiae briefs supporting a core Apple position (on FRAND) and opposing a core Apple position (on design patent remedies).
- I could give more examples, but suffice it to say that any of the above references easily outweighs whatever a blog like Groklaw may have written about me over the years.
Java API copyrightability is now on petition for certiorari at the Supreme Court:
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/14-410.htm
Free and Open Source software developers know when the source code they work with is copyrightable, and how to reimplement proprietary libraries or platforms by implementing APIs, so that you can achieve compatibility, partially or fully. With the federal circuit's insane decision for Oracle, people are stopping from doing so. Even if nothing in the reimplementation substantial code infringes any copyright.
One can only hope that SCOTUS will take the case. You have already started your politics against it. Haven't you spread enough mindless stuff? You don't seem aware of the consequences of your actions, on the uncertainty and doubt and blocking people from REIMPLEMENTING software. Guess Oracle's money are too good to care.
Time and time again your forecasts about legal disputes have been falsified in court.
Quite the contrary. The Federal Circuit reversed Judge Alsup's grossly erroneous non-copyrightability ruling, so I got this one right and most others got it wrong.
I was demonstrably spot-on on five of the six most important smartphone IP decisions that came down in 2014.
It would be really shitty if APIs were copyrightable, but, as the GP said, that has been the conventional understanding of copyright law for a long time.
It would be interesting to see how the story unfolds, but really, there's nothing funny about the notion of APIs being copyrightable.
It hasn't been "conventional understanding" in copyright law that APIs were possibly copyrightable. On the contrary, in Sega, the intermediate copying was done precisely to uncover how to interact with the copyrighted program, meaning those elements not covered by copyright. OTOH, intermediate copying would have been infringing if it weren't eventually deemed fair use, but those elements never were.
To be perfectly honest, if I had anticipated what my blog was ultimately going to focus on (smartphone IP disputes), I'd have called it "Mobile Patents" or "Smartphone Patents", not "FOSS Patents." But by the time I knew, it was already too well-known under its original name.
I actually agree the name is an oxymoron, but you may not have applied the same definition of "oxymoron": it means that two terms appear contradictory -- not that they necessarily are contradictory. In this case, they do appear contradictory (FOSS philosophy is irreconcilable with patent protection) but they are not in reality, with 27 companies paying Microsoft royalties on Android devices, for example. The name was brutally realistic. Let's face it, even Red Hat has paid off a number of patent trolls.
But it hasn't. Looking at a couple of potentially-relevant aspects:
The standard for copyrightability of facts is "particular selection, coordination, or arrangement" of facts -- it's why maps are copyrightable but data dumps like phone books aren't -- phone books don't really select, they take pretty much all of them, coordination doesn't really apply, and arrangement is a simple mechanical process that nobody would regard as identifiable as any particular author's work.
The standard for copyright of other useful works has been
If a pictorial, graphic or sculptural work is a useful article, it is copyrighted only if its aesthetic features are separable from its utilitarian features. A useful article is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. They must be separable from the functional aspect to be copyrighted.
The problem there is, clean-room reimplementation is legal. Dalvik is a clean-room reimplementation of the Java API. Headers are an integral part of an API implementation; you can't make them work, at all, without headers using matching names. Not even Microsoft has dared try anything so pathetic as Oracle's argument: Wine is legal, and it implements the Win32 API, names included. Samba is legal, and it implements the CIFS API, names included. Maybe this would be a good starting point for more.
As always, all IMO. Insert "I think" everywhere grammatically possible.
Last year, NZ abolished patents for basic software, bringing it in line with Britain and Europe by acknowledging that 20th-century patent law is ridiculous when applied to software. What will it take for the USA to join in? Is the US gov't too far gone (pwned by corps) to even consider it?
this was supposed to run on April 1st, right?
clean-room reimplementation is legal
Clean room reimplementation is legal as long as the specification used by the implementors is free of copyright (and other I.P.) issues.
I definitely agree that some of the prior cases of clean-room implementation is at odds with the notion that APIs are copyrightable. To be honest, copyright law has never been logically consistent to me -- which is why I don't even pretend to have knowledge of it unless I'm arguing about legal topics on slashdot ...
Don't quote me on this.
With that popcorn after you shot your mouth off & couldn't back it up quoted here:
"I tore apart your stupid hosts file crapola." - by BarbaraHudson (3785311) on Tuesday August 19, 2014 @10:46AM (#47703255) Homepage
Oh, really?
Then why'd you run from disproving my points on hostgs giving users added speed, security, reliability & more here too then:
http://tech.slashdot.org/comme...
& THEN you agreed that a system with less moving parts doing the SAME JOB as one with more parts is better too:
http://slashdot.org/comments.p...
Funniest part?
Hosts files don't *ONLY* do more than what YOU like, in "Almost ALL Ads Blocked" (crippled by default & sold out so it doesn't fully work anymore defeating its OWN purpose) Hosts do MORE with less parts than AdBlock does!
APK
P.S.=> Barb/Tom (whatever, with multiple sockpuppets too http://slashdot.org/~BarbaraHu... = http://slashdot.org/~tomhudson... = http://slashdot.org/~Barbara%2... ) you've destroyed yourself yet again...
...apk
Yeh. Hence, my .sig.
As always, all IMO. Insert "I think" everywhere grammatically possible.
The idea of this online interview was to discuss smartphone patent issues involving major players (such as the ones mentioned at the top), but I'll respond to some of these questions anyway.
As an independent software developer, how can I avoid getting dragged into a patent lawsuit?
There's too many patents out there to ever be sure that you won't ever be sued. For example, none of the little app developers sued by Lodsys over in-app purchasing appeared to even have known about Lodsys's patents, and Apple argued that it was already licensed to those patents (because they once belonged to Intellectual Ventures).
That said, there can also be cases in which independent developers infringe because they see an interesting invention in someone else's product and decide to implement it in their own product(s) without a license.
How can I leverage my rights to ensure others aren't exploiting my patents?
This depends on how much of an effort you are willing and able to make. If direct competitors infringe your patents, chances are you will find out sooner or later. Then you may (but only based on professional legal advice) consider putting them on notice of any infringements identified.
As a middle management cog in a large organization, how can I impress the importance of patents on the executive leadership?
Large organizations tend to be pretty patent-savvy, at least in innovative industries.
How can I work with our console on ensuring that our creations are correctly patented?
The first thing you can do is provide precise descriptions of your inventions and how they compare to the prior art known to you. Thereafter you can cooperatively answer their follow-up questions.
And what steps should I be taking to minimize our risk of being sued?
This is basically another version of the first question.
Do you honestly believe that software patents do not stifle innovation?
I used to campaign against software patents, so if you had asked me that question ten years ago, I would have undoubtedly agreed with you. However, I have spent so much time in courtrooms and reading court filings and decisions over these past four years that I believe this is not a binary question. It's much more complex than that, and that's why I've adjusted my position.
This year I've filed patent applications (in the U.S. and, under the Patent Cooperation Treaty, in Europe with the option to make filings in many jurisdictions later) for three inventions of my own, so I obviously do believe that patents can also benefit little app developers--but that doesn't mean that they benefit everyone in all situations, or that across the entire software industry (from the little guys to the behemoths) software patents are net positive in terms of their effect on innovation. That's a more complicated issue.
When it was clear that Judge Alsup in Oracle vs Google can program Java, how the *#*# could you still think Oracle would get its huge victory?
Based on the content of his non-copyrightability ruling, I wouldn't say it's "clear" that he knows Java very well. Almost all of the people who agreed with the outcome never cared to even read the decision, or if they did, they turned a blind eye to its factual and legal mistakes.
The United States Court of Appeals for the Federal Circuit overruled Judge Alsup. At the appellate hearing, one of the Fed. Cir. judges said that Judge Alsup had apparently gotten confused about the law. The current state of affairs is that Oracle is on the winning track re. copyrightability (I don't believe the Supreme Court will side with Google on tihs one), so I was right and people like you (and Groklaw etc.) were wrong.
Why spend 3 to 4 years studying computer science just to realise at the end, that everything patentable in software has been patented (from the truly stupid, trivial to non-trivial ideas) and big firms holding the patents have been and are doing so for decades and decades!! For innovation's sake and to tell university student that they have a future in this sector, isn't it time to shorten the life of software patents or ban them all together?
Ten years ago I took the NoSoftwarePatents position. In recent years, however, I've been watching major patent disputes play out in court, and less than 10% of the assertions I watched had merit. On the one hand, this high rate of failure suggests to me that there is a fundamental problem with the system. On the other hand, it appears that bad patents can still be defeated, though it's probably harder with jury trials in the U.S. than with professional judges.
How many times have you contacted news and commentary organisations to correct their description of you as a patent lawyer? How often have they made the correction?
While I track lawsuits in detail, I never kept a log that would enable me to provide a list of events as an answer to this question. If I had to testify to this under oath in court, I would be able to say that I have done this repeatedly, that corrections were made repeatedly, and that to the best of my recollection, I have contacted every news agency or publisher when I was inaccurately described as a patent attorney.
The fact that I'm not a patent attorney has certainly not prevented IP professionals and academics from finding me a useful source of news, facts, and commentary.
I've answered the disclosure question elsewhere in this discussion. As for "anti-open source pro-patent scaremongering" please check out this analysis of 222 smartphone patent assertions (most them against Android), less than 10% of which had merit.
Based on where the case currently stands (after this year's ruling by the United States Court of Appeals for the Federal Circuit), Oracle is on the winning track with respect to API copyrightability.
Thanks for this question. Estimates that patent trolls cost tens of billions of dollars may be a bit too aggressive, but the damage that patent trolls do is a serious issue and I am all for meaningful patent reform in the U.S. (where the best chance for reform is probably a Republican senate majority after the mid-term elections) and I continue to promote balanced rules of procedure for Europe's future Unified Patent Court so as to make trolling less profitable. As for startups, I honestly don't know an example of a startup that got "destroyed" by patent trolls. There may be examples, but if so, no one has ever given an example. There's no benefit to a troll in destroying a startup: they just want to make money. And with respect to startups it's important to consider that some startups do benefit from patent protection (including mine, which has filed U.S. and PCT patent applications for three inventions this year). It's very difficult to say whether the bottom line (startup innovation destroyed/discouraged by patents vs. startup innovation enabled/encouraged by patent protection) is positive or negative.
It's not as simple as the question suggests. Let me quickly explain the state of software patents in those three jurisdictions (Europe, US, NZ):
Europe and NZ have an explicit exclusion of patents on computer programs as such in their statutory laws, but they do allow patents on software-powered technical inventions. This is a very difficult line to draw. NZ lawmakers agreed that smartphones should remain patentable--but 99.9% of patentable smartphone-related inventions are effectively software patents (in terms of the innovative element being in the way the thing is programmed). In Europe, the technicity requirement has been met by software that merely takes into account the resource constraints of the machine, i.e., saves screen space, processing time, memory, bandwidth, etc.
In the U.S., everything under the sun made by man is patentable and there is no explicit exclusion of software, but abstract ideas are excluded by statutory law. The U.S. Supreme Court's recent Alice decision appears to have resulted (based on USPTO and lower court decisions in recent months) in a de facto technicity requirement, except that there isn't (yet) much of a body of case law on the details of what constitutes a technological advance (while there's a rich body of case law in Europe on this question). So far, the vast majority of patents invalidated or patent applications rejected in the post-Alice world have been business method patents, not the kinds of software patents that are really interesting from a line-drawing point of view, such as patents on software that optimizes the use of computing resources (screen space, processing time, memory, bandwidth, etc.). It could be that it's presently even harder to get certain kinds of software patented in the U.S. than in Europe because of the lack of clarity of the Alice decision; it will take some time for things to settle out, but when all is said and done, U.S. patent law will most likely still be more inclusive than European (and NZ) law.
As for legislative intervention, the most recent patent reform effort was blocked by the leadership of Senate Democrats. If the Republican Party took control of the Senate after next month's mid-term elections, patent reform could go forward again.
Bruce, now that the discussion here has finally subsided, I want to comment on your involvement in this and I thought it was the right thing to do it here in public.
Maybe I should thank you for having discouraged people from asking questions because it saved me valuable time I got to spend on my app (I've just hired three full-time programmers and am currently interviewing others, so this project does need attention). No one paid me for this or encouraged me to this, nor do I have any reason to assume that anyone will be more likely to do business with me going forward because of this (it's actually unlikely because the people who matter to me professionally don't spend time on discussion boards of any kind). It was just that a /. guy who edited a /. op-ed of mine 10 years ago invited me to talk about Microsoft's billion-dollar Android licensing business and I didn't want to turn them down. I knew I was going to face a reasonably hostile audience and reminded /. of it.
Now, I can certainly understand that you're disappointed or, to make it sound more dramatic, feel betrayed by me. I haven't forgotten that you supported my efforts against software patents in various ways, and on my way to my computer I walked past that CNET Networks UK award for Outstanding Contribution to Software Development, which the FFII and my campaign jointly won because you, as a member of the CNET UK awards jury at the time, supported our cause and liked our work. That was in 2005, and then, in 2011, when I disclosed a then-already-ongoing working relationship with Microsoft on my blog (voluntarily; before any judge or anyone else with the authority to require me to do it asked about it), at a time when I was talking a lot about Android IP issues (patents as well as copyright) and the (limited, partial) compatibility of open sources licenses with FRAND licensing for open standards, Red Hat's dealings with patent trolls etc., you--who preferred to be dismissed by HP rather than stop criticizing Microsoft, which shows how principled you are and I admire you for it--considered me a traitor. A sellout. There's nothing difficult about it to understand. (And to make things even worse from your point of view, I'll confess to having filed for patents, PCT and immediate parallel filings in the U.S., on three inventions this year.
But this disappointment over a perceived betrayal doesn't change anything about three very important facts:
1) In reversely chronological order, let me draw your attention to the fact that I have throughout those years and especially this year done some hard and effective work on things we very likely agree on. In March, I brought to light, ahead of a key Apple v. Samsung (and Google, which paid part of Samsung's legal defense) trial, the irrationality of Apple's damages claim over 5 patents. There was no Groklaw or anyone else around to do that job. I did it. The following month I urged Apple and Microsoft not to act against software developer interests through their latest pro-patent lobby group. And this month I published an analysis of 222 smartphone patent assertions by Apple, Microsoft, Motorola, Nokia, and Samsung, less than 10% of which had merit based on final or latest preliminary results. None of all the people who criticized software patents and other issues with patents ever showed up at the countless (!) smartphone patent trials I attended. None of them ever made any effort to draw attention to what was happening there and to the political conclusions that could be drawn from the game that was being played, though the "smartphone patent wars" would have been a splendid opportunity to highlight certain issues to policy makers (for example, most of the asserted patents
So, I see this as rationalization.
The fact is, you took a leadership position, and later turned your coat for reasons that perhaps made sense to you. But they don't really make sense to anyone else. So, yes, everyone who supported you then is going to feel burned.
You also made yourself a paid voice that was often hostile to Free Software, all the way back to the SCO issue. Anyone could have told you that was bound to be a losing side and you would be forever tarred with their brush.
So nobody is going to believe you had any reason but cash, whatever rationalization you cook up after the fact. So, the bottom line is that you joined a list of people who we're never going to be able to trust or put the slightest amount of credibility in.
And ultimately it was for nothing. I've consistently tried to take the high road and it's led to a pretty good income, I would hazard a guess better than yours, not just being able to feel good about myself.
Bruce Perens.
I don't have to rationalize something that was rational, but I do appreciate your answer because it allows me to clarify a couple of things, especially one that is a fundamental factual error on your end.
You can scour the archives of the Internet and talk to everyone who listened to me at a conference, and even to everyone who had private conversations with me on industry issues, but you'd never find anyone who could tell you that I ever said anything about "the SCO issue." I was absolutely stunned to read this. I mean, I've seen this claim by no-name forum trolls before: they thought since Groklaw didn't like me (or maybe because people compared some of my copyright-related work to the SCO thing), I must have been on SCO's side. But you're the first well-known person to say this though it's absolutely, positively false. I never expressed an opinion on the SCO case publicly or even privately because I, quite frankly, never even cared to look into the details. I never read a single court filing in that case. I had and still have only a very vague idea of what it was about. There were a very few situations in which people thought they could elicit some comment from me on it, and on those two or three occasions I said that I had no opinion simply for lack of information.
Please, check on Google. Try to find anything linking me to SCO. You won't find anything because there was nothing like that. Now that this has been clarified, which of the things I really did/said made you arrive at this negative opinion? If it's Oracle v. Google, I took a pro-API-copyright position more than 10 years ago, I took it during the fight against Oracle's acquisition of MySQL, and early in the Oracle v. Google case and throughout the case--and the Federal Circuit agrees, which shows I had a reason other than cash to believe so.
It does sound more than a bit self-righteous that you claim to have consistently taken the high road, but I can't contradict you on this because the things I know about your work are indeed consistent, just like I believe, however, that I've also been pretty consistent over a long period of time. As for a wager on who's been economically more successful in recent years, it would be a risky bet for you. I'm not a public company and I have NDAs with corporate clients, but I can share here what was reported about me in the German edition of the Financial Times: an hourly rate of $800 at the time, paid by many dozens of clients (most of them investment banks and hedge funds), most of whom had to pay an agency fee on top of that. When I stopped making myself available to financial services folks because it was too much of a distraction from my app development project, I actually did a call through one firm at a rate of $1,000 for one hour (plus the client paid an agency fee) and I could have done more calls at that rate but declined to, because I want to focus on real, creative work again. At least for your work as an expert witness I'm sure you charge about half of either of those rates. This has nothing to do with who's right or wrong, or who stands on higher moral ground, but it does show that my knowledge was valued by a great diversity of clients. With my app I'm sure I'll do a lot better. I won't open-source it, though. I've always been a big believer in closed-source business models, though I was involved with MySQL AB (as you might imagine, even a very small piece of the big billion-dollar payout from Sun was a nice chunk of money at the time).
While not nearly as bad as the totally inaccurate claim about SCO, I also disagree with your claim that I "took a leadership position, and later turned [my] coat." I ran a one-man show with the NoSoftwarePatents campaign. I had corporate backers, a majority of which (in terms of the number of companies as well as the percentage of financial contributions) were *not* open-source companies. I had no community backing--it was just a political alliance, an issue coalition of the kind you see in politics all the time. An issue-coalition partner does not be
My consulting business had served numerous clients, not just Microsoft and Oracle. There were dozens of investment banks and funds who paid me to answer questions or participate in conference calls.
Which only damns you more.
If you want news from today, you have to come back tomorrow.
We knew what was going on when you ran your anti-IBM campaign, sometimes even positioning yourself as arguing on behalf of our community. It was a way to lend credence to IBM and MS arguments during the SCO issue. To state otherwise is deceptive, perhaps even self-deceptive.
Florian, you would not be devoting all of this text to explaining yourself if you didn't feel the need to paint your actions in a positive light. That comes from guilt, whether you admit it to yourself or not.
Go write your app, and if you actually get to make any money with it you can give thanks, because it will happen despite what you worked for previously. Keep a low profile otherwise because your credibility is well and truly blown and you can only make things worse. And maybe someday you can really move past this part of your life. But I am not holding out much hope.
Bruce Perens.
That should be "SCO and MS arguments".
Bruce Perens.
Your emotions lead you to speculate and this results in absurd claims and theories. The problem is you're digging yourself, not in the eyes of unreasonable people but in the eyes of rational people, a hole that gets deeper and deeper.
This thing about the IBM mainframe issue having had any connection with the SCO case is a wild conspiracy theory and a non sequitur. Even though I didn't follow the SCO case in detail, I believed, with the very limited information I had, it was already pretty much over when I ran my campaign against software patents (which was, at the time, mentioned by Groklaw). I certainly believed so in 2010, when the IBM story came up.
So I have a hard time seeing why SCO (at a time when it had apparently already lost) and Microsoft (?) could have achieved any particular SCO-related objective in connection with a mainframe antitrust issue. There was an issue in the mainframe context--otherwise the European Commission wouldn't have opened formal investigations (which isn't the same as a prohibition decision, but there is a considerable hurdle because the Commission gets so many complaints all the time and investigates only a limited number of them).
But the fact that you apparently have no qualms about IBM having threatened patent assertions against an open-source mainframe emulator is now the first indication I've seen that your "high road" is self-deception.
Your theory about "guilt" is similarly wild and baseless. It has nothing to do with guilty feelings if one doesn't want untruths and misconceptions to be spread. My connection with SCO is an untruth. My taking an open source leadership position is a misconception at best and an untruth at worst.
While I criticized IBM's patent threats against an open source project because I previously criticized their open source patent pledges, I'm not generally against them and actually had a very friendly meeting with an IBM executive earlier this year in Munich.
As for credibility, I know where I have plenty of it, and I've mentioned some of it here. Based on how you argued in this discussion here, I consider it much less desirable than before to have credibility in your eyes--in the eyes of a self-righteous guy who is (unlike what I ever was or tried to be) an open source leader and apparently thinks it's wrong to draw attention to patent threats against an open source project (when those threats even had an antitrust regulator concerned), which is inconsistent to put it mildly.
Needless to say you weren't going to be part of the core target audience for my app. Nor is my core target audience going to be influenced by you and the likes of you to any significant extent.
I'm really not interested in hearing from you any longer. It's very clear that we'll never agree on anything, and the fact is I don't consider you someone whose opinion I value or who is worthy of any of my time.
Bruce Perens.
It's your fault, not mine, that you've been exposed here in this discussion as someone who is not just emotional but also very unreasonable. And it's easy for the world to see that you said something that was baseless and then tried to justify it with a totally baseless theory.
1) In response to my first mesage to you here, you wrote: "You also made yourself a paid voice that was often hostile to Free Software, all the way back to the SCO issue." I repeat the last part: "all the way back to the SCO issue".
2) I then pointed out that I never ever, not even privately, expressed an opinion on any of the issues in the SCO case because I never cared enough about it to take a close look.
3) You then mentioned the IBM patent threats against an open-source mainframe emulator, which I first blogged about on April 6, 2010 and claimed the following: "It was a way to lend credence to IBM [which you then corrected to mean SCO] and MS arguments during the SCO issue. To state otherwise is deceptive, perhaps even self-deceptive." However, according to Wikipedia, "[t]he SCO Group allege[d] that its license agreements with IBM means that source code that IBM wrote and donated to be incorporated into Linux was added in violation of SCO's contractual rights." This has nothing at all to do with IBM theatening an open-source project with patents. On that Wikipedia page the only kinds of rights that are mentioned are copyrights and contractual rights, and it says: "SCO has not claimed patent infringement"
So Instead of just admitting that you accused me of a connection (SCO) that never existed because I never said anything about that case, you're now actually saying that someone drawing attention to an open source PATENT issue in April 2010 was trying to lend credence to DIFFERENT parties' arguments in a COPYRIGHT and CONTRACT case in which no patent was ever at issue. That's already bizarre, but it's even worse in chronological terms. According to Wikipedia, summary judgment had issued against SCO in 2007 (which suggests the judge didn't believe SCO had any reasonable point), the appeals court (in 2009) had reversed in part and remanded for a trial, and "[o]n March 30, 2010, following a jury trial, Novell, and not The SCO Group, was unanimously found to be the owner of the UNIX and UnixWare copyrights." That was exactly a week before I first blogged about the IBM mainframe patent issue. So apart from a patent issue being factually unrelated to a copyright/contract issue, it would also have been to late.
Why don't you just admit now that you were wrong about me and SCO? Everyone who reads this exchange of arguments here can say that I'm right. If you at least conceded that you made a mistake, you could minimize the damage to your credibility.
Anyway, I have better uses of my time than to waste another minute with you.
Bruce Perens.
Bruce, you say you were anything but wrong about me, after you claimed further above that I was hostile to open source "all the way back to the SCO issue", a dispute that began in 2003 and ended in March 2010, only to claim that a totally unrelated issue (mainframe patents) I commented on in April 2010 was a way to lend credence to SCO's arguments. "All the way back to the SCO case" is not "a week after the final nail in the coffin of SCO's case, on a matter involving patents, though patents were never at issue in any SCO case." And now you still can't just apologize for a false allegation. I'm sorry for you, really.