The point that I cited is more relevant to a case where a customer buys a copy and sends it to Psystar to install on a computer the customer is purchasing from them. In that case Psystar doesn't need to own the pertinent copy, the customer does.
As for theory that Psystar doesn't own a copy they they paid good money for, without a signed agreement contemporaneous to the exchange of goods establishing that the transaction was actually a transfer of a lease to a copy instead of sale/purchase of a copy, that is a convenient legal fiction.
Not true. Book publishers were trying to do this with books about a century ago, i.e. say that books were licensed not sold. The Supreme Court ruled that was illegitimate, a ruling which was codified by Congress in Title 17 Section 109 of the U.S. Code. It is called the First Sale Doctrine.
The buyer owns the copy, and paid good money for it to a retailer which owned the copy, which paid good money to a distributor which paid good money to Apple. Nowhere did any of the buyers in that distribution chain sign some sort of contract indicating that they were purchasing a transferable lease to a copy, rather than purchasing the copy outright.
If you go to a car dealer and pay them $20,000 for a car, do you think that the auto manufacturer can claim that you don't own it, but that rather you are leasing a car from them? That is the legal fiction that Apple is perpetrating here.
No you must be kidding. Retail software most definitely is sold. The idea that retail software is licensed is a ridiculous fiction perpetrated by wishful thinking.
Distributor purchases 1000 copies of OS X from Apple. Pays them $1,000,000 or whatever for them. The distributor now owns those boxes and the legitimate right to do anything they please with them in accordance with copyright law. Then a retailer purchases some of those copies. Same deal - the retailer now owns those copies. Then the end user purchases a copy from the retailer. Same deal - the end user now owns a copy and can do anything consistent with copyright law with it.
It would take an extraordinary degree of legal legerdemain to pretend that what happened there wasn't a series of purchases and sales. And that is indeed the wishful thinking that much of the software industry would like to engage in, and perpetrate upon the public.
The most effective way for Apple to work around the unfortunate conundrums posed by centuries of common law, the Universal Commercial Code, and the First Sale Doctrine would be to hire all the parties in between as agents of Apple Computer Inc., refuse to accept any renumeration from the distributors and retailers until the copy as actually sold, by them, as Apple's agent, to the customer, while requiring the customer's signed consent to the effect that he understands that he isn't actually purchasing *anything*, but rather that he understands that he is leasing a copy that is owned by Apple, under various terms and conditions comparable to a car lease or a rental.
Apple might be able to get its money up front (as it does now) without hiring the distributors and retailers as agents by issuing transferable leases of the copies to the distributors, who then transfer the leases to the copies (copies which Apple retains full ownership of) to the retailers, who then transfer the leases to the end users.
Does this happen today? If I trash my copy of OS X will Apple sue me for damaging their property? Will they demand that I locate the media and ship it back to them? On the contrary - they don't care, because they didn't lease that copy to me, they (indirectly) sold it to me. I own the copy. They own the copyright. There is no license, no contract, no lease. Just ownership and copyright. One hardly needs a lease or a license to use a copy that they *own*.
No they don't - it is called the First Sale Doctrine, now ensconced in the U.S. Code as Title 17 Section 109.
Not only that a shrink wrap license isn't (generally speaking) a legitimate, enforceable contract between the purchaser of the software and the producer of the software. The customer paid good money to get a legitimate copy, he or she now *owns* that copy, and doesn't need any additional rights to use it in accordance with Title 17 Section 117(a).
Apple gave up the rights of ownership to that copy (not the copyright itself) when it sold the boxed copy of the operating system to a distributor in the first place. Apple can no longer prevent the new owner of the copy from doing anything permitted by law.
To do that, they would need a legitimate contract - meeting of the minds, offer, acceptance, and consideration. Here there is no meeting of the minds, and there is certainly not any consideration. The customer paid money and has a retail contract with the store, not with Apple (unless Apple owns the store and makes the customer agree to the terms before letting him walk out the door with the box of course).
Apple has no contract with the customer whatsoever. License rights are completely gratuitous here because Apple gave up any rights beyond copyright when they sold it to the distributor in the first place.
The customer does *not* need a license, just a legitimately acquired copy. It is *his* now - Apple has no rights beyond copyright to a copy that they have *sold* to someone else - that is what the First Sale Doctrine (17 USC 109) is all about.
You need to read 17 USC 117(a) again (emphasis added for clarity):
(a) Making of Additional Copy or Adaptation by Owner of Copy. - Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
Sorry, that is all wrong. Apple is making an indefensible copyright claim here. From Title 17 Section 117 of the U.S. Code (emphasis added):
(a) Making of Additional Copy or Adaptation by Owner of Copy.-- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
The law has been amended since then. Copies that are essential to use a program on a single machine are explicitly permitted. Archival copies too. Check out Title 17 Section 117 of the U.S. Code.
No one's property rights are being violated here. These are legitimately acquired copies. Of course Apple has economic reasons to try to prevent this, but economic interests do not automatically create legal rights.
I agree there is plenty that Apple can do, although preventing people from attempting to install legitimately acquired copies of a retail operating system on a computer from another manufacturer is not among them.
Apple could distribute core components of OS X on ROMs with heavily protected DRM circuitry - circuitry that was disabled without the presence of matching DRM security circuitry on the Mac motherboard perhaps. Legal intimidation is probably cheaper though. There is no shortage of lawyers who will invent and advance the most contrived legal arguments imaginable in pursuit of somebodies' economic interest. SCO v. IBM case in point.
Legal requirement for a license or legitimate copy for each virtual machine that is intended to run simultaneously with another virtual machine running the same software - absolutely.
If the virtual machines are *not* intended to run at the same time, the legal question is far more ambiguous. A copy that is not actually running, and is not intended to run can easily be seen as a 17 USC 117(1)(b) permitted "archival" or backup copy. There is no limitation on the number of backup copies you can make, as long as you get rid of them when you transfer your right to someone else.
A non-running instance or installation seems to be as legitimate an archival copy as any other - it is just a set of files sitting on (say) a hard drive instead of on (say) a CD ROM. Case law citations appreciated. Contracts may place additional restrictions, provided the contract is legitimate, of course.
Strictly speaking it doesn't depend on a "license" at all. It depends on whether you have a legitimately acquired copy and are using it in a manner consistent with copyright law, which means at a minimum that a copy made for a second running virtual machine is not legitimate.
If the second virtual machine never, ever runs nor is intended to run at the same time as the first, the whole installation could possibly be considered a backup or archival copy, of the sort described in Title 17 Section 117 (1)(b) of the U.S. Code. I don't know whether there is case law on that.
Of course if you have a legally valid contract (which "shrink wrap" licenses almost certainly are not), additional terms may apply. To enforce those terms the copyright holder could sue the user not for copyright infringement, but rather for breach of contract.
The real contract for a retail transaction is you give the store some money, and they give you a legitimately acquired copy of a copyrighted work. A shrinkwrap license is not a contract because their has been no meeting of the minds, no documented assent, and no consideration between the licensee and the licensor. The customer paid for his copy - no additional consideration exists or is required to install the operating system. Getting software updates might be another story.
Apple is a corporation, that is headed by a chief executive officer and a board of directors. Those officials hire Apple's attorneys for the express purpose of representing Apple's legal interests. The attorneys are under their direction, and make controversial legal arguments only with their assent, explicit or otherwise.
If the officers of Apple Computer Inc. don't think this is a legitimate or wise legal argument to be making, they should fire their attorneys and make a public retraction. Otherwise it is res ipsa loquitur all the way, i.e. the thing speaks for itself.
But Apple is not claiming contract infringement here - they are claiming copyright infringement. If they wanted to claim contract infringement, presumbly they would have to go after the implicit licensees of their software, which Psystar is not. Psystar appears to acting under the theory that they are the customer's agent, an agent has the right to do anything the customer can do (with appropriate permission), and indeed the customer can do this.
Apple's attorneys really ought to get out more. From the U.S. Code Title 17 Section 117:
(a) Making of Additional Copy or Adaptation by Owner of Copy. - Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
What about installing a legitimately purchased copy of an operating system on a computer, even a computer from another manufacturer, isn't an essential step in the utilization of that program on that machine, as long as it is used in no other manner (like on a second machine)?
The copyright infringement claim looks specious to me.
Under the law of agency (i.e. the one that applies to employees, contractors, and the like) there is no reason why one party cannot do virtually anything on behalf of another party, provided the agent is acting under their direction or authority. Otherwise your local computer guy couldn't install software for you. It is that ridiculous.
So, does anyone know when Redhat Enterprise Linux 6 is supposed to come out, and whether it is going to be derived from Fedora 12 or some earlier version? Redhat EL 5 is getting a little long in the tooth. The kernel is still 2.6.18 plus patches.
There doesn't appear to be anything about this patent that is Ethernet specific. The claims appear general enough to apply to a modern implementation of virtually any network technology.
A quick scan seems to indicate that virtually any network adapter that directly accesses transmit descriptors in host memory or writes packets into ring buffers in host memory (i.e. does DMA in any practical way on a packet by packet basis) violates the patent.
I believe that covers about every state of the art network adapter in existence. I am somewhat curious about whether there is prior art in the way IBM mainframes handle I/O. Anyone know enough to comment?
Windows/Mac/Linux/BSD/Be/etc are all multi-user for security reasons as much as anything else.
For all practical purposes, the multi-user aspects of Windows were never used until relatively recently, and from a security point of view were virtually a dead letter until Vista was released. A Windows XP user logged in as an administrator has no more real security than an Amiga user did. Historically, Windows is a security free operating system, all the effort that went into the NT kernel notwithstanding. Real security just wasn't user friendly enough for Microsoft's purposes.
The main reason why Amiga users rarely if ever had virus problems was because it was largely in the pre-Internet era. I used an Amiga for a long time and never actually saw a machine with so much as a network card. Sneaker net was the rule. So unless you were pirating software from nefarious sources, virus infections were rare, about as rare as on the Mac, which didn't have any protection either, apparently not any at all until Mac OS X was released.
Everything a stock Amiga did was done with careful programming and a small amount of well designed hardware assistance. In fact, most of what it did outside of the games arena is entirely due to careful programming.
The original Amiga 1000 shipped with 256KB of RAM and 256KB of (quasi) ROM. With that you got a fully preemptive multitasking OS. You could open smaller programs in dozens of windows. Multiple command line shells, a paint program. That is the kind of efficiency you get when you hand code a simple kernel in assembly language, and have much of your software written by people who are used to working in extremely constrained environments.
Virtual memory is nice, but it really slows things down. It makes programmers lazy. Most modern machines (and Linux machines in particular, no matter how much RAM they have) aren't as "snappy" as an Apple II with 64K of RAM. Virtual memory is the primary culprit. Walk away from your machine for a while, or run an I/O intensive task and everything ends up paged out to disk, and the system sputters to a start in a few seconds once you start poking at it again.
And then there is X - terminal independence is nice, but is there any real doubt that X kept the world of affordable Unix graphics about a decade behind systems (like the Amiga) that just used a simple frame buffer? Even today, native X is pretty much useless anywhere off the local LAN. It wasn't designed to succeed in its native element, i.e. as a terminal.
One reason might be that the people who can still run Mac OS 9 like the look and feel better than Mac OS X. I certainly do - the new "shiny" / hyper-animated look and feel is one of the primary reasons why I have little current interest in getting a Mac. I feel the same way about Vista, but at least there I can turn it off.
User interfaces should not be "exciting" - they should be functional, and minimize eye strain and unnecessary distractions, especially for the people that have to use them eight or more hours a day.
Of course few things are quite as bad as trying to read an online article when an animated ad is flashing away in the next column...
It doesn't matter. Such a minor extension is not the sort of thing that is subject to patents. Enforceable patents tend to be about "big ideas" and complex implementations. When has anyone ever won a patent lawsuit over an API? If anything it is the implementation of an API that may be vulnerable to patent claims.
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The point that I cited is more relevant to a case where a customer buys a copy and sends it to Psystar to install on a computer the customer is purchasing from them. In that case Psystar doesn't need to own the pertinent copy, the customer does.
As for theory that Psystar doesn't own a copy they they paid good money for, without a signed agreement contemporaneous to the exchange of goods establishing that the transaction was actually a transfer of a lease to a copy instead of sale/purchase of a copy, that is a convenient legal fiction.
No disagreement there.
Not true. Book publishers were trying to do this with books about a century ago, i.e. say that books were licensed not sold. The Supreme Court ruled that was illegitimate, a ruling which was codified by Congress in Title 17 Section 109 of the U.S. Code. It is called the First Sale Doctrine.
The buyer owns the copy, and paid good money for it to a retailer which owned the copy, which paid good money to a distributor which paid good money to Apple. Nowhere did any of the buyers in that distribution chain sign some sort of contract indicating that they were purchasing a transferable lease to a copy, rather than purchasing the copy outright.
If you go to a car dealer and pay them $20,000 for a car, do you think that the auto manufacturer can claim that you don't own it, but that rather you are leasing a car from them? That is the legal fiction that Apple is perpetrating here.
Fortunately that is not the case - the parent is just making things up, propagating a legal fiction, basically.
No you must be kidding. Retail software most definitely is sold. The idea that retail software is licensed is a ridiculous fiction perpetrated by wishful thinking.
Distributor purchases 1000 copies of OS X from Apple. Pays them $1,000,000 or whatever for them. The distributor now owns those boxes and the legitimate right to do anything they please with them in accordance with copyright law. Then a retailer purchases some of those copies. Same deal - the retailer now owns those copies. Then the end user purchases a copy from the retailer. Same deal - the end user now owns a copy and can do anything consistent with copyright law with it.
It would take an extraordinary degree of legal legerdemain to pretend that what happened there wasn't a series of purchases and sales. And that is indeed the wishful thinking that much of the software industry would like to engage in, and perpetrate upon the public.
The most effective way for Apple to work around the unfortunate conundrums posed by centuries of common law, the Universal Commercial Code, and the First Sale Doctrine would be to hire all the parties in between as agents of Apple Computer Inc., refuse to accept any renumeration from the distributors and retailers until the copy as actually sold, by them, as Apple's agent, to the customer, while requiring the customer's signed consent to the effect that he understands that he isn't actually purchasing *anything*, but rather that he understands that he is leasing a copy that is owned by Apple, under various terms and conditions comparable to a car lease or a rental.
Apple might be able to get its money up front (as it does now) without hiring the distributors and retailers as agents by issuing transferable leases of the copies to the distributors, who then transfer the leases to the copies (copies which Apple retains full ownership of) to the retailers, who then transfer the leases to the end users.
Does this happen today? If I trash my copy of OS X will Apple sue me for damaging their property? Will they demand that I locate the media and ship it back to them? On the contrary - they don't care, because they didn't lease that copy to me, they (indirectly) sold it to me. I own the copy. They own the copyright. There is no license, no contract, no lease. Just ownership and copyright. One hardly needs a lease or a license to use a copy that they *own*.
No they don't - it is called the First Sale Doctrine, now ensconced in the U.S. Code as Title 17 Section 109.
Not only that a shrink wrap license isn't (generally speaking) a legitimate, enforceable contract between the purchaser of the software and the producer of the software. The customer paid good money to get a legitimate copy, he or she now *owns* that copy, and doesn't need any additional rights to use it in accordance with Title 17 Section 117(a).
Apple gave up the rights of ownership to that copy (not the copyright itself) when it sold the boxed copy of the operating system to a distributor in the first place. Apple can no longer prevent the new owner of the copy from doing anything permitted by law.
To do that, they would need a legitimate contract - meeting of the minds, offer, acceptance, and consideration. Here there is no meeting of the minds, and there is certainly not any consideration. The customer paid money and has a retail contract with the store, not with Apple (unless Apple owns the store and makes the customer agree to the terms before letting him walk out the door with the box of course).
Apple has no contract with the customer whatsoever. License rights are completely gratuitous here because Apple gave up any rights beyond copyright when they sold it to the distributor in the first place.
The customer does *not* need a license, just a legitimately acquired copy. It is *his* now - Apple has no rights beyond copyright to a copy that they have *sold* to someone else - that is what the First Sale Doctrine (17 USC 109) is all about.
You need to read 17 USC 117(a) again (emphasis added for clarity):
Sorry, that is all wrong. Apple is making an indefensible copyright claim here. From Title 17 Section 117 of the U.S. Code (emphasis added):
The law has been amended since then. Copies that are essential to use a program on a single machine are explicitly permitted. Archival copies too. Check out Title 17 Section 117 of the U.S. Code.
Not even close, fortunately. Go read Title 17 of the U.S. Code some time, in particular sections 101-103,107-109, and 117.
Note especially fair use rights, archival rights, the first sale doctrine, and the right to copy as necessary to use a program on a (single) machine.
Fair use: 17 USC 107
First Sale: 17 USC 109
Copy permitted if necessary to use program: 17 USC 117(1)(a)
Archival rights: 17 USC 117(1)(b)
No one's property rights are being violated here. These are legitimately acquired copies. Of course Apple has economic reasons to try to prevent this, but economic interests do not automatically create legal rights.
I agree there is plenty that Apple can do, although preventing people from attempting to install legitimately acquired copies of a retail operating system on a computer from another manufacturer is not among them.
Apple could distribute core components of OS X on ROMs with heavily protected DRM circuitry - circuitry that was disabled without the presence of matching DRM security circuitry on the Mac motherboard perhaps. Legal intimidation is probably cheaper though. There is no shortage of lawyers who will invent and advance the most contrived legal arguments imaginable in pursuit of somebodies' economic interest. SCO v. IBM case in point.
Legal requirement for a license or legitimate copy for each virtual machine that is intended to run simultaneously with another virtual machine running the same software - absolutely.
If the virtual machines are *not* intended to run at the same time, the legal question is far more ambiguous. A copy that is not actually running, and is not intended to run can easily be seen as a 17 USC 117(1)(b) permitted "archival" or backup copy. There is no limitation on the number of backup copies you can make, as long as you get rid of them when you transfer your right to someone else.
A non-running instance or installation seems to be as legitimate an archival copy as any other - it is just a set of files sitting on (say) a hard drive instead of on (say) a CD ROM. Case law citations appreciated. Contracts may place additional restrictions, provided the contract is legitimate, of course.
Strictly speaking it doesn't depend on a "license" at all. It depends on whether you have a legitimately acquired copy and are using it in a manner consistent with copyright law, which means at a minimum that a copy made for a second running virtual machine is not legitimate.
If the second virtual machine never, ever runs nor is intended to run at the same time as the first, the whole installation could possibly be considered a backup or archival copy, of the sort described in Title 17 Section 117 (1)(b) of the U.S. Code. I don't know whether there is case law on that.
Of course if you have a legally valid contract (which "shrink wrap" licenses almost certainly are not), additional terms may apply. To enforce those terms the copyright holder could sue the user not for copyright infringement, but rather for breach of contract.
The real contract for a retail transaction is you give the store some money, and they give you a legitimately acquired copy of a copyrighted work. A shrinkwrap license is not a contract because their has been no meeting of the minds, no documented assent, and no consideration between the licensee and the licensor. The customer paid for his copy - no additional consideration exists or is required to install the operating system. Getting software updates might be another story.
Apple is a corporation, that is headed by a chief executive officer and a board of directors. Those officials hire Apple's attorneys for the express purpose of representing Apple's legal interests. The attorneys are under their direction, and make controversial legal arguments only with their assent, explicit or otherwise.
If the officers of Apple Computer Inc. don't think this is a legitimate or wise legal argument to be making, they should fire their attorneys and make a public retraction. Otherwise it is res ipsa loquitur all the way, i.e. the thing speaks for itself.
But Apple is not claiming contract infringement here - they are claiming copyright infringement. If they wanted to claim contract infringement, presumbly they would have to go after the implicit licensees of their software, which Psystar is not. Psystar appears to acting under the theory that they are the customer's agent, an agent has the right to do anything the customer can do (with appropriate permission), and indeed the customer can do this.
Apple's attorneys really ought to get out more. From the U.S. Code Title 17 Section 117:
What about installing a legitimately purchased copy of an operating system on a computer, even a computer from another manufacturer, isn't an essential step in the utilization of that program on that machine, as long as it is used in no other manner (like on a second machine)?
The copyright infringement claim looks specious to me.
Under the law of agency (i.e. the one that applies to employees, contractors, and the like) there is no reason why one party cannot do virtually anything on behalf of another party, provided the agent is acting under their direction or authority. Otherwise your local computer guy couldn't install software for you. It is that ridiculous.
So, does anyone know when Redhat Enterprise Linux 6 is supposed to come out, and whether it is going to be derived from Fedora 12 or some earlier version? Redhat EL 5 is getting a little long in the tooth. The kernel is still 2.6.18 plus patches.
There doesn't appear to be anything about this patent that is Ethernet specific. The claims appear general enough to apply to a modern implementation of virtually any network technology.
A quick scan seems to indicate that virtually any network adapter that directly accesses transmit descriptors in host memory or writes packets into ring buffers in host memory (i.e. does DMA in any practical way on a packet by packet basis) violates the patent.
I believe that covers about every state of the art network adapter in existence. I am somewhat curious about whether there is prior art in the way IBM mainframes handle I/O. Anyone know enough to comment?
Windows/Mac/Linux/BSD/Be/etc are all multi-user for security reasons as much as anything else.
For all practical purposes, the multi-user aspects of Windows were never used until relatively recently, and from a security point of view were virtually a dead letter until Vista was released. A Windows XP user logged in as an administrator has no more real security than an Amiga user did. Historically, Windows is a security free operating system, all the effort that went into the NT kernel notwithstanding. Real security just wasn't user friendly enough for Microsoft's purposes.
The main reason why Amiga users rarely if ever had virus problems was because it was largely in the pre-Internet era. I used an Amiga for a long time and never actually saw a machine with so much as a network card. Sneaker net was the rule. So unless you were pirating software from nefarious sources, virus infections were rare, about as rare as on the Mac, which didn't have any protection either, apparently not any at all until Mac OS X was released.
Yes. The original IBM PC monochrome cards had more circuitry than most other computers. And that was text mode only.
Everything a stock Amiga did was done with careful programming and a small amount of well designed hardware assistance. In fact, most of what it did outside of the games arena is entirely due to careful programming.
The original Amiga 1000 shipped with 256KB of RAM and 256KB of (quasi) ROM. With that you got a fully preemptive multitasking OS. You could open smaller programs in dozens of windows. Multiple command line shells, a paint program. That is the kind of efficiency you get when you hand code a simple kernel in assembly language, and have much of your software written by people who are used to working in extremely constrained environments.
Virtual memory is nice, but it really slows things down. It makes programmers lazy. Most modern machines (and Linux machines in particular, no matter how much RAM they have) aren't as "snappy" as an Apple II with 64K of RAM. Virtual memory is the primary culprit. Walk away from your machine for a while, or run an I/O intensive task and everything ends up paged out to disk, and the system sputters to a start in a few seconds once you start poking at it again.
And then there is X - terminal independence is nice, but is there any real doubt that X kept the world of affordable Unix graphics about a decade behind systems (like the Amiga) that just used a simple frame buffer? Even today, native X is pretty much useless anywhere off the local LAN. It wasn't designed to succeed in its native element, i.e. as a terminal.
Principals run elementary schools. The word you want is "principles".
At the moment, it looks *much* better in IE8 than it does in Firefox 3.5 on Windows XP.
One reason might be that the people who can still run Mac OS 9 like the look and feel better than Mac OS X. I certainly do - the new "shiny" / hyper-animated look and feel is one of the primary reasons why I have little current interest in getting a Mac. I feel the same way about Vista, but at least there I can turn it off.
User interfaces should not be "exciting" - they should be functional, and minimize eye strain and unnecessary distractions, especially for the people that have to use them eight or more hours a day.
Of course few things are quite as bad as trying to read an online article when an animated ad is flashing away in the next column...
It doesn't matter. Such a minor extension is not the sort of thing that is subject to patents. Enforceable patents tend to be about "big ideas" and complex implementations. When has anyone ever won a patent lawsuit over an API? If anything it is the implementation of an API that may be vulnerable to patent claims.