I saw this post, which links to my blog, and then the comment above from Half-pint HAL claiming it's a European court that happens to be based in the Netherlands. However, Half-pint HAL is Full-scale WRONG on this one. It was a purely Dutch proceeding. A ruling issued in Breda, Netherlands, was appealed to the next higher Dutch instance in The Hague.
No European court is based in The Hague. The European courts are based in Luxembourg (Court of Justice of the EU, General Court of the EU) and Strasbourg (the European Court of Human Rights, which is not an EU institution but connected to the Council of Europe, which includes non-EU countries like Russia).
There are international courts in The Hague, such as the International Criminal Court and the Permanent Court of Arbitration. Those aren't European courts, however. Neither EU nor otherwise European.
I believe this makes a patent settlement between Apple and Nokia in the form of a cross-license easier and more likely to happen in the near term. That's the biggest IT patent war I've ever seen. Apple asserted a variety of smartphone-related patents such as touchscreen user interface patents against Nokia in response to Nokia enforcing some standards-related (GSM, UMTS etc.) patents. Now that Nokia has chosen Windows Phone for the high end, I can't imagine that Apple would enforce patents against a Microsoft operating system. Those two companies haven't had a patent fight in a long time. It would make strategic sense for Apple and Nokia to settle and to focus on competitors building Android-based devices. I commented on this in more detail on my blog.
Happy to clarify. I was talking about misuse of mod points. The purpose of mod points is to rate posts by their content (as opposed to holding an overall popularity vote on the author). Rating a reasonable contribution to a discussion as a "troll" post constitutes misuse because it means an unjustified rating, with the effect that readers are less likely to get access to useful information. It's anti-social behavior because it adversely affects the quality of the information people are likely to see here.
It's not a "creative interpretation" to refer to android.git.kernel.org as Android. I will clarify this, with some additional information that may surprise some, on my blog soon.
I believe people who try to just misuse mod points against me are real trolls and Slashdot should make sure that such people don't get mod points again too soon.
You can be sure the damage award would not be zero even if nobody ever used it. Just the act of publishing it creates damage. And can you or anyone else prove that no one ever downloaded the file, relied on an Apache license header and consequently built it into something (Android or not)?
I'll do a couple of follow-up posts on my blog these days to respond to some of the misconceptions and misinformation out there.
My blog never made a specific claim about Android devices containing certain code. From a copyright law point of view, however, putting software online for everyone to download means "to distribute", or "to ship", such code, and distributing, or shipping, infringing code makes someone liable.
Ed Burnette, whose post is referenced here, does not seem to understand even basic copyright-related terminology and concepts. He's wrong on almost everything he wrote and I'll debunk itI already left some comments below his article.
It's also wrong, as stated above, that Google "deleted" those files. They are still in the Froyo (Android 2.2) and Gingerbread (2.3) trees. At least they were when I last checked, which was yesterday. They are just not in the tree for future versions.
There is so much out there that's wrong, and I'll deal with it step by step.
I've had many discussions with politicians and participated in a number of parliamentary and governmental roundtables. There are some great economic studies that are critical of the patent system -- but there's no shortage of studies supporting it (and of companies funding such studies). So the only way that politicians would act is that businesses themselves exercise effective pressure against the patent system.
whereas most of the Nokia/GSM/Motorola patents will be hardware patents,
When I publish my PDF diagrams and analysis of the Apple-Nokia dispute, you'll see that the share of software patents among Nokia's patents is far greater than you believe at this stage.
Sure. Nobody I know ever claimed that one of the two would go away. However, those patent deals can have a significant impact on the competitive landscape. It's a matter of future market share, not a question of life or death.
symbolset, it's regrettable that after my facts-based reply you just go off-topic here with unclear and unspecified allegations. Instead of a pathetic attempt to smear, you should take a look at the patent portfolios in question. A lot of people believe Google is such a big company that it should own a lot of key patents, but it owns relatively few patents and most of them are related to search engine technologies. Also, even though you mentioned HTC, you won't seriously believe that Apple would lose sleep over HTC's patent portfolio...
I don't know which patents Apple counter-sued with, but some are probably the same as the HTC lawsuit.
Actually, that PDF document of mine makes it easy to see overlaps between Apple's disputes with HTC and Motorola:-) What I don't show in that chart is Nokia (will be a separate PDF), but for the two Android device makers it's easy to see the overlaps in the diagram.
When Apple countersued Motorola initially (29 October -- page 9 of the PDF), the 6 patents selected were 5 new ones and 1 that was previously asserted against HTC. But by seeking declaratory judgment concerning 12 patents Apple previously used against HTC, Motorola had already started a dispute over 60% of the patents Apple asserted against HTC. The declaratory judgment move was basically Motorola suing itself over Apple patents in order to prove those patents invalid or non-infringed. It was obvious that Apple wasn't going to let that happen, so last week Apple asserted those patents against Motorola in another suit.
Your sarcasm is outstanding, but since only a limited number of people have spent more time talking to politicians (not to members of US Congress, however) about software patents, here's something to consider.
The patent system -- for better or worse -- exists the way it does. Any proposal to depart from it would be a fundamental paradigm shift in the realm of intellectual property rights, and the burden of proof is on those demanding such radical change.
If the opponents of software patentability had a strong case that software patents really do a lot of harm and cause a lot of economic suffering (companies going out of business, having to lay off large numbers of people etc.), politicians would certainly act. But since the IT industry -- I mean companies of all sizes -- with only a few exceptions doesn't take action against those patents, it's impossible for a non-programmer politician to conclude that there's a need for abolition.
You can't win a political debate over a matter of economic policy unless you have business arguments. In this case, for abolition to succeed there has to be irrefutable evidence of harm. If there were harm (other than people shaking their heads at the things that often get patented), company CEOs (from companies of all sizes) would take political action. Since that isn't the case, it looks to the average politician like there are just some people who have ideological/philosophical objections to software patents, and no one cares whether those objections are right or wrong. All that matters is what the economy wants and needs.
icebike just stated what some of the media reports appeared to suggest a month ago. Right here as part of this Slashdot thread I've posted this explanation.
I wasn't going to reply to someone who describes my hard work on this as leaving "taint", but here goes anyway;-)
You do raise an important point: cross-licensing. However, cross-license deals come in all shapes and forms. In a few cases the parties will be on an equal footing; in most cases one party will be considerably if not hugely stronger. In the latter case, a "settlement" will also be announced, but in economic and strategic terms, one party will end up losing.
For now I'm rather skeptical of the impact the patent portfolios of the Android camp can have on their competitors. I gave a quick overview of the five strongest areas of Motorola's patent portfolio in this recent blog post and I also pointed out that Google makes a weak showing against Oracle because Google still hasn't countersued. When I wrote that blog post, Google had already had three months since Oracle sued. Now there's been almost another month and Google still doesn't seem to have found any patents with which it could build a serious counterthreat against Oracle...
If I understand the PDF in the article properly, Apple only went after HTC. Motorola then jumped Apple for other reasons and Apple countered. If Apple was initiating all the lawsuits, I'd say this was true, but that does not seem to be the case.
While you are right that Motorola drew first blood against Apple in terms of actually suing, Motorola's Delaware request for declaratory judgment makes the following claim: "Apple has professed rights [...] based on Motorola Mobility's activities related to Motorola Mobility's Droid, Droid 2, Droid X, Cliq, Cliq XT, BackFlip, Devour A555, i1 and Charm products" (you can find the details of that case listed on page 22 of my PDF)
I don't know what exactly Motorola means by "Apple has professed rights" and whether that description given by Motorola is true, but it could mean that Motorola launched a pre-emptive strike. The fact that Apple's suits against Motorola were filed only 23 days later (Motorola attacked on 06 October 2010, Apple filed suits against Motorola on 23 October 2010) -- not a whole lot of time to prepare suits of that kind -- also suggests that Apple would have sued at any rate.
But let me make this clear as well: I don't mean to be judgmental about someone who sues. It would be too simplistic a view to say that the one who sues is automatically doing evil. Lawsuits happen if parties can't reach an agreement on something, and one would have to know about the nature and content of all of the previous communication between the parties to know what resulted in the filing of a suit. In many cases one would probably conclude that it's an act of aggression, but in other cases one might have a different or more differentiated perspective if only one knew all of the facts.
There was some confusion out there about the ITC staff (Office of Unfair Import Investigations, OOUI) report, and this quote from your post reflects them:
Apple lost just about their entire claim against Nokia, when half the patents they were seeking to enforce were declared invalid by the FTC, and the rest dismissed as not being infringed.
No.
1. As I explained in this recent blog post, Apple's ITC assertions against Nokia were split into two parts. The staff report that the press reported on in early December related to only 4 of the 10 patents Apple originally asserted against Nokia.
2. That staff opinion is just an opinion, not a definitive dismissal. My Apple vs. Android chart does mention that some patents were dropped from the ITC cases between Apple and HTC: on pages 8 ("Move #7 - Apple drops 4 patents
from ITC complaint against HTC") and 10 ("Move #9 -- HTC drops 1 patent from ITC complaint against Apple"). But the instances I mention in my chart were definitive partial terminations of those cases. The ITC staff opinion published a month ago on one Apple v. Nokia case is not definitive. It's an opinion and the ITC's Administrative Law Judge (ALJ) can agree or disagree with it. There have been many cases already in which the ALJ judge took decisions that were very different from the staff reports. I've seen a long list of cases in which the staff then actually appealed the ALJ's decision, which is clear evidence that decisions deviate from those staff reports quite often. The staff report is an opinion, and I don't mean to downplay the importance of the staff and its reports, but that is just not a dismissal of claims (let alone the invalidation of patents).
3. Even if some patents lost before the ITC, they might (as my blog post mentioned under item 1 explains) still be enforced in a US federal district court. My chart makes that distinction in connection with the patents dropped from ITC cases. HTC's '183 patent is grayed-out from Move #9 on because it was only asserted in the ITC so far and they withdrew it. By contrast, Apple's '867, '131, '852 and RE'486 patents were only dropped from an ITC complaint but Apple does enforce them against Motorola now in a federal district court, so the patents are still alive.
4. The chart this article refers to is purely about Apple vs. Motorola and Apple v. HTC. I'm going to do the same visualization for the Apple-Nokia conflict as well but it will be a separate document because otherwise things would become too complex to fit in a single chart. In fact, I already have that one in place for the most part, so it will become available pretty soon. (Also for Microsoft vs. Motorola and Oracle vs. Google, by the way.)
I accidentally posted without being logged in, and the passage "then does a settlement" is incomplete. I meant a settlement without any financial incentive.
Seriously, this is the best opinion piece on open source and patents that I've read in a long long time. And as the founder and former director of the NoSoftwarePatents campaign and author of the FOSS Patents blog, I read (and write) a lot about that subject.
There's a precedent to this settlement in which Red Hat definitely paid royalties: when it settled the FireStar case. It published a misleading FAQ on its website trying desperately to divert attention from what really happened. The non-confidential part of that settlement was published and leaves no doubt that Red Hat entered into an obligation to pay (even Groklie arrived at that conclusion, a website that I very rarely agree with). That payment was probably not on a per-unit basis. They might have made a one-off payment, or a royalty on revenues/profits, or some combination of both.
Concerning Moglen's discouraging anti-software-patent lobbying, it's interesting that he gets away with it (other than Bruce Perens criticizing him for it now) while I get bashed all the time for calling on people to be pragmatic. The first time I met Eben Moglen (back in 2004 together with a MySQL VP), he told us not to lobby against software patents. Instead he wanted money for his patent-busting efforts, which failed miserably (Microsoft's FAT patents are still in force).
I tried very hard to fight against software patents (in the EU) at the legislative level. I said on my new blog several times that at some point (more than four years ago, in fact) I couldn't help but arrive at the conclusion that it's impossible. It won't happen simply because the collateral damage caused to other industries is huge (you either have to do away with the largest part of the patent system, or you have to live with software patents) and there simply isn't any serious, meaningful support for the anti-software-patent cause by businesses. On LWN I gave an example by quoting what a staffer of the conservative group in the European Parliament once said: unless you bring in those middle-aged closed-source entrepreneurs with beards, bellies and glasses talking about how they suffer from software patents and how they may have to lay off employees because of software patents, there's no way that a political majority will do what the FOSS community asks for.
While my focus is on how to deal with the most important threat (exclusionary strategic use of software patents), Moglen never talks about that because he's been loyal to IBM throughout his professional life and gets funded by them. Instead, he always talks about IBM's (and consequently, his) favorite bogeyman, which is the wrong focus.
That posting asserts all sorts of things without any basis. To give just one example (this is too unreasonable to comment on every aspect of it), I've never advocated OOXML in any way and as far as FRAND is concerned, I've always made it clear that it's not my first choice.
The "open standards" lobby in the EU purposely confuses people when it talks about "royalty-free" ("RF") access to patents on standards. What they really mean by "RF" is "restriction-free": that's what some of the honest advocates of that position (such as Glyn Moody) make clear whenever they talk about RF.
They try to focus everything on the question of royalties when there are actually other ways in which patent holders can restrict the use of a standard. For example, the Java patent license (part of the Java specifications) is royalty-free but very restrictive (no supersetting, no subsetting, etc.).
Those who now talk only about "royalty-free" hope that they can get some language into the document which they would later interpret as "restriction-free".
I fought against the BSA when I opposed a proposal for an EU software patent directive. I don't mean to support all aspects of their letter, but I would like to draw some more attention to the fact that the EU "open standards" lobby isn't perfectly credible.
Three months ago I wrote about the open hypocrisy of companies such as IBM, Google, Oracle and Red Hat. Since I wrote that blog post, lots of new things have happened and become known: the European Commission felt forced to launch two parallel antitrust investigations, one of which relates to IBM's refusal to provide interoperability; Oracle sued Google over seven Java patents; later Google and Oracle accused each other of hypocrisy; now Oracle has thrown out the founders of LibreOffice from its OpenOffice mailing list; and Red Hat doesn't appear to comply with LSB 4.0. So much for "open standards" when those companies -- the primary backers of the EU open standards lobby -- are concerned...
What's worse is that the proponents of "open standards" don't tell the truth as far as the compatibility of FOSS licenses with patent licenses is concerned. Such licenses as the Apache license, BSD licenses or the EUPL (European Union Public License) don't contain any language that could be understood to prevent a software publisher/distributor/user from doing a license deal with a patent holder. The only family of licenses where that scenario is addressed is the GPL. GPLv3 isn't relevant, and GPLv2 contains some language that's clearly unable to prevent such arrangements as the Novell-Microsoft partnership (announced four years ago and still not challenged formally by anyone). Even the early drafts of GPLv3 wouldn't have blocked the Novell-Microsoft kind of patent deal, as Richard Stallman admitted at the time. Also, there are plenty of examples of companies distributing GPLv2-based software and paying patent royalties, including Red Hat, TomTom, HTC, LG, Samsung...
So even though one may very well believe (and I'm known for that position) that software should preferably not be patentable, it's disingenous to claim that FOSS licenses prohibit inbound patent licensing. It happens all the time, and there's increasing awareness for that fact in the EU, which makes those who spread lies or grossly misleading statements look pretty bad.
One of the organizations lobbying alongside the likes of IBM for open standards, the FFII, has a board member who admitted six months ago that they received significant funding to do their work against OOXML and that he was initially skeptical but, apparently, money overcame his doubts. The FFII of 2010 and recent years isn't anymore the kind of pan-European network that fought against software patents until 2005. It's only a very small group of activists, and some of them appear to act as corporate stooges now.
There are two different approaches. Oracle looks at Google as the "root cause" of all those patent infringements. So they go directly after them. Apple (which sued HTC months ago; litigation still ongoing) and Microsoft instead approached particular vendors. If you want to deal with vendors, you need to do many deals and theoretically may have to go through multiple lawsuits (although after you win against the first major vendor, the others will probably give up). The logic about going after vendors is that they're responsible for obtaining all the necessary patent licenses for their products. Patent holders can choose which avenue to go down. Theoretically they could even decide to sue commercial users.
Oracle sued Google over Dalvik (the virtual machine for Android), so in that case Google doesn't even have any choice. Oracle appears to hold Google responsible for every Android phone out there.
I'm always hesitant to respond to anonymous comments but let me just say that I indeed encourage everyone to read my comments and blog postings. I just look for ways forward, under the circumstances.
The Linux cancer quote isn't relevant in my view because it's old and especially because it only related to the copyleft principle (didn't disparage the software in question). Since Linux doesn't affect applications running on top of it in terms of copyleft, the statement might have been based on a misunderstanding of the license terms in question. We'll never know.
Finally, in terms of the objectives of my work, I don't deny that I take a strong interest in FOSS as a whole doing well and in particular projects, more recently especially Hercules (and previously also MySQL, in connection with its acquisition by Oracle). I believe those are causes deserving of broadbased community support. As far as other topics go, there aren't specific causes for which I ask support -- I just want to contribute additional information and perspective to certain debates.
Slashdot Mirror
I saw this post, which links to my blog, and then the comment above from Half-pint HAL claiming it's a European court that happens to be based in the Netherlands. However, Half-pint HAL is Full-scale WRONG on this one. It was a purely Dutch proceeding. A ruling issued in Breda, Netherlands, was appealed to the next higher Dutch instance in The Hague.
No European court is based in The Hague. The European courts are based in Luxembourg (Court of Justice of the EU, General Court of the EU) and Strasbourg (the European Court of Human Rights, which is not an EU institution but connected to the Council of Europe, which includes non-EU countries like Russia).
There are international courts in The Hague, such as the International Criminal Court and the Permanent Court of Arbitration. Those aren't European courts, however. Neither EU nor otherwise European.
I believe this makes a patent settlement between Apple and Nokia in the form of a cross-license easier and more likely to happen in the near term. That's the biggest IT patent war I've ever seen. Apple asserted a variety of smartphone-related patents such as touchscreen user interface patents against Nokia in response to Nokia enforcing some standards-related (GSM, UMTS etc.) patents. Now that Nokia has chosen Windows Phone for the high end, I can't imagine that Apple would enforce patents against a Microsoft operating system. Those two companies haven't had a patent fight in a long time. It would make strategic sense for Apple and Nokia to settle and to focus on competitors building Android-based devices. I commented on this in more detail on my blog.
Happy to clarify. I was talking about misuse of mod points. The purpose of mod points is to rate posts by their content (as opposed to holding an overall popularity vote on the author). Rating a reasonable contribution to a discussion as a "troll" post constitutes misuse because it means an unjustified rating, with the effect that readers are less likely to get access to useful information. It's anti-social behavior because it adversely affects the quality of the information people are likely to see here.
It's not a "creative interpretation" to refer to android.git.kernel.org as Android. I will clarify this, with some additional information that may surprise some, on my blog soon.
I believe people who try to just misuse mod points against me are real trolls and Slashdot should make sure that such people don't get mod points again too soon.
You can be sure the damage award would not be zero even if nobody ever used it. Just the act of publishing it creates damage. And can you or anyone else prove that no one ever downloaded the file, relied on an Apache license header and consequently built it into something (Android or not)?
I'll do a couple of follow-up posts on my blog these days to respond to some of the misconceptions and misinformation out there.
My blog never made a specific claim about Android devices containing certain code. From a copyright law point of view, however, putting software online for everyone to download means "to distribute", or "to ship", such code, and distributing, or shipping, infringing code makes someone liable.
Ed Burnette, whose post is referenced here, does not seem to understand even basic copyright-related terminology and concepts. He's wrong on almost everything he wrote and I'll debunk itI already left some comments below his article.
It's also wrong, as stated above, that Google "deleted" those files. They are still in the Froyo (Android 2.2) and Gingerbread (2.3) trees. At least they were when I last checked, which was yesterday. They are just not in the tree for future versions.
There is so much out there that's wrong, and I'll deal with it step by step.
I've had many discussions with politicians and participated in a number of parliamentary and governmental roundtables. There are some great economic studies that are critical of the patent system -- but there's no shortage of studies supporting it (and of companies funding such studies). So the only way that politicians would act is that businesses themselves exercise effective pressure against the patent system.
That's a misconception. Just look at these examples (including some of the patents Apple asserts against Android). Also, consider that Apple sued Nokia in the UK as well (a couple of months ago) over 9 European software patents.
When I publish my PDF diagrams and analysis of the Apple-Nokia dispute, you'll see that the share of software patents among Nokia's patents is far greater than you believe at this stage.
Sure. Nobody I know ever claimed that one of the two would go away. However, those patent deals can have a significant impact on the competitive landscape. It's a matter of future market share, not a question of life or death.
symbolset, it's regrettable that after my facts-based reply you just go off-topic here with unclear and unspecified allegations. Instead of a pathetic attempt to smear, you should take a look at the patent portfolios in question. A lot of people believe Google is such a big company that it should own a lot of key patents, but it owns relatively few patents and most of them are related to search engine technologies. Also, even though you mentioned HTC, you won't seriously believe that Apple would lose sleep over HTC's patent portfolio...
Actually, that PDF document of mine makes it easy to see overlaps between Apple's disputes with HTC and Motorola :-) What I don't show in that chart is Nokia (will be a separate PDF), but for the two Android device makers it's easy to see the overlaps in the diagram.
When Apple countersued Motorola initially (29 October -- page 9 of the PDF), the 6 patents selected were 5 new ones and 1 that was previously asserted against HTC. But by seeking declaratory judgment concerning 12 patents Apple previously used against HTC, Motorola had already started a dispute over 60% of the patents Apple asserted against HTC. The declaratory judgment move was basically Motorola suing itself over Apple patents in order to prove those patents invalid or non-infringed. It was obvious that Apple wasn't going to let that happen, so last week Apple asserted those patents against Motorola in another suit.
Your sarcasm is outstanding, but since only a limited number of people have spent more time talking to politicians (not to members of US Congress, however) about software patents, here's something to consider.
The patent system -- for better or worse -- exists the way it does. Any proposal to depart from it would be a fundamental paradigm shift in the realm of intellectual property rights, and the burden of proof is on those demanding such radical change.
If the opponents of software patentability had a strong case that software patents really do a lot of harm and cause a lot of economic suffering (companies going out of business, having to lay off large numbers of people etc.), politicians would certainly act. But since the IT industry -- I mean companies of all sizes -- with only a few exceptions doesn't take action against those patents, it's impossible for a non-programmer politician to conclude that there's a need for abolition.
You can't win a political debate over a matter of economic policy unless you have business arguments. In this case, for abolition to succeed there has to be irrefutable evidence of harm. If there were harm (other than people shaking their heads at the things that often get patented), company CEOs (from companies of all sizes) would take political action. Since that isn't the case, it looks to the average politician like there are just some people who have ideological/philosophical objections to software patents, and no one cares whether those objections are right or wrong. All that matters is what the economy wants and needs.
icebike just stated what some of the media reports appeared to suggest a month ago. Right here as part of this Slashdot thread I've posted this explanation.
I wasn't going to reply to someone who describes my hard work on this as leaving "taint", but here goes anyway ;-)
You do raise an important point: cross-licensing. However, cross-license deals come in all shapes and forms. In a few cases the parties will be on an equal footing; in most cases one party will be considerably if not hugely stronger. In the latter case, a "settlement" will also be announced, but in economic and strategic terms, one party will end up losing.
For now I'm rather skeptical of the impact the patent portfolios of the Android camp can have on their competitors. I gave a quick overview of the five strongest areas of Motorola's patent portfolio in this recent blog post and I also pointed out that Google makes a weak showing against Oracle because Google still hasn't countersued. When I wrote that blog post, Google had already had three months since Oracle sued. Now there's been almost another month and Google still doesn't seem to have found any patents with which it could build a serious counterthreat against Oracle...
While you are right that Motorola drew first blood against Apple in terms of actually suing, Motorola's Delaware request for declaratory judgment makes the following claim: "Apple has professed rights [...] based on Motorola Mobility's activities related to Motorola Mobility's Droid, Droid 2, Droid X, Cliq, Cliq XT, BackFlip, Devour A555, i1 and Charm products" (you can find the details of that case listed on page 22 of my PDF)
I don't know what exactly Motorola means by "Apple has professed rights" and whether that description given by Motorola is true, but it could mean that Motorola launched a pre-emptive strike. The fact that Apple's suits against Motorola were filed only 23 days later (Motorola attacked on 06 October 2010, Apple filed suits against Motorola on 23 October 2010) -- not a whole lot of time to prepare suits of that kind -- also suggests that Apple would have sued at any rate.
But let me make this clear as well: I don't mean to be judgmental about someone who sues. It would be too simplistic a view to say that the one who sues is automatically doing evil. Lawsuits happen if parties can't reach an agreement on something, and one would have to know about the nature and content of all of the previous communication between the parties to know what resulted in the filing of a suit. In many cases one would probably conclude that it's an act of aggression, but in other cases one might have a different or more differentiated perspective if only one knew all of the facts.
There was some confusion out there about the ITC staff (Office of Unfair Import Investigations, OOUI) report, and this quote from your post reflects them:
No.
1. As I explained in this recent blog post, Apple's ITC assertions against Nokia were split into two parts. The staff report that the press reported on in early December related to only 4 of the 10 patents Apple originally asserted against Nokia.
2. That staff opinion is just an opinion, not a definitive dismissal. My Apple vs. Android chart does mention that some patents were dropped from the ITC cases between Apple and HTC: on pages 8 ("Move #7 - Apple drops 4 patents from ITC complaint against HTC") and 10 ("Move #9 -- HTC drops 1 patent from ITC complaint against Apple"). But the instances I mention in my chart were definitive partial terminations of those cases. The ITC staff opinion published a month ago on one Apple v. Nokia case is not definitive. It's an opinion and the ITC's Administrative Law Judge (ALJ) can agree or disagree with it. There have been many cases already in which the ALJ judge took decisions that were very different from the staff reports. I've seen a long list of cases in which the staff then actually appealed the ALJ's decision, which is clear evidence that decisions deviate from those staff reports quite often. The staff report is an opinion, and I don't mean to downplay the importance of the staff and its reports, but that is just not a dismissal of claims (let alone the invalidation of patents).
3. Even if some patents lost before the ITC, they might (as my blog post mentioned under item 1 explains) still be enforced in a US federal district court. My chart makes that distinction in connection with the patents dropped from ITC cases. HTC's '183 patent is grayed-out from Move #9 on because it was only asserted in the ITC so far and they withdrew it. By contrast, Apple's '867, '131, '852 and RE'486 patents were only dropped from an ITC complaint but Apple does enforce them against Motorola now in a federal district court, so the patents are still alive.
4. The chart this article refers to is purely about Apple vs. Motorola and Apple v. HTC. I'm going to do the same visualization for the Apple-Nokia conflict as well but it will be a separate document because otherwise things would become too complex to fit in a single chart. In fact, I already have that one in place for the most part, so it will become available pretty soon. (Also for Microsoft vs. Motorola and Oracle vs. Google, by the way.)
I accidentally posted without being logged in, and the passage "then does a settlement" is incomplete. I meant a settlement without any financial incentive.
Seriously, this is the best opinion piece on open source and patents that I've read in a long long time. And as the founder and former director of the NoSoftwarePatents campaign and author of the FOSS Patents blog, I read (and write) a lot about that subject.
There's a precedent to this settlement in which Red Hat definitely paid royalties: when it settled the FireStar case. It published a misleading FAQ on its website trying desperately to divert attention from what really happened. The non-confidential part of that settlement was published and leaves no doubt that Red Hat entered into an obligation to pay (even Groklie arrived at that conclusion, a website that I very rarely agree with). That payment was probably not on a per-unit basis. They might have made a one-off payment, or a royalty on revenues/profits, or some combination of both.
Concerning Moglen's discouraging anti-software-patent lobbying, it's interesting that he gets away with it (other than Bruce Perens criticizing him for it now) while I get bashed all the time for calling on people to be pragmatic. The first time I met Eben Moglen (back in 2004 together with a MySQL VP), he told us not to lobby against software patents. Instead he wanted money for his patent-busting efforts, which failed miserably (Microsoft's FAT patents are still in force).
I tried very hard to fight against software patents (in the EU) at the legislative level. I said on my new blog several times that at some point (more than four years ago, in fact) I couldn't help but arrive at the conclusion that it's impossible. It won't happen simply because the collateral damage caused to other industries is huge (you either have to do away with the largest part of the patent system, or you have to live with software patents) and there simply isn't any serious, meaningful support for the anti-software-patent cause by businesses. On LWN I gave an example by quoting what a staffer of the conservative group in the European Parliament once said: unless you bring in those middle-aged closed-source entrepreneurs with beards, bellies and glasses talking about how they suffer from software patents and how they may have to lay off employees because of software patents, there's no way that a political majority will do what the FOSS community asks for.
While my focus is on how to deal with the most important threat (exclusionary strategic use of software patents), Moglen never talks about that because he's been loyal to IBM throughout his professional life and gets funded by them. Instead, he always talks about IBM's (and consequently, his) favorite bogeyman, which is the wrong focus.
That posting asserts all sorts of things without any basis. To give just one example (this is too unreasonable to comment on every aspect of it), I've never advocated OOXML in any way and as far as FRAND is concerned, I've always made it clear that it's not my first choice.
The "open standards" lobby in the EU purposely confuses people when it talks about "royalty-free" ("RF") access to patents on standards. What they really mean by "RF" is "restriction-free": that's what some of the honest advocates of that position (such as Glyn Moody) make clear whenever they talk about RF.
They try to focus everything on the question of royalties when there are actually other ways in which patent holders can restrict the use of a standard. For example, the Java patent license (part of the Java specifications) is royalty-free but very restrictive (no supersetting, no subsetting, etc.).
Those who now talk only about "royalty-free" hope that they can get some language into the document which they would later interpret as "restriction-free".
I fought against the BSA when I opposed a proposal for an EU software patent directive. I don't mean to support all aspects of their letter, but I would like to draw some more attention to the fact that the EU "open standards" lobby isn't perfectly credible.
Three months ago I wrote about the open hypocrisy of companies such as IBM, Google, Oracle and Red Hat. Since I wrote that blog post, lots of new things have happened and become known: the European Commission felt forced to launch two parallel antitrust investigations, one of which relates to IBM's refusal to provide interoperability; Oracle sued Google over seven Java patents; later Google and Oracle accused each other of hypocrisy; now Oracle has thrown out the founders of LibreOffice from its OpenOffice mailing list; and Red Hat doesn't appear to comply with LSB 4.0. So much for "open standards" when those companies -- the primary backers of the EU open standards lobby -- are concerned...
What's worse is that the proponents of "open standards" don't tell the truth as far as the compatibility of FOSS licenses with patent licenses is concerned. Such licenses as the Apache license, BSD licenses or the EUPL (European Union Public License) don't contain any language that could be understood to prevent a software publisher/distributor/user from doing a license deal with a patent holder. The only family of licenses where that scenario is addressed is the GPL. GPLv3 isn't relevant, and GPLv2 contains some language that's clearly unable to prevent such arrangements as the Novell-Microsoft partnership (announced four years ago and still not challenged formally by anyone). Even the early drafts of GPLv3 wouldn't have blocked the Novell-Microsoft kind of patent deal, as Richard Stallman admitted at the time. Also, there are plenty of examples of companies distributing GPLv2-based software and paying patent royalties, including Red Hat, TomTom, HTC, LG, Samsung...
So even though one may very well believe (and I'm known for that position) that software should preferably not be patentable, it's disingenous to claim that FOSS licenses prohibit inbound patent licensing. It happens all the time, and there's increasing awareness for that fact in the EU, which makes those who spread lies or grossly misleading statements look pretty bad.
One of the organizations lobbying alongside the likes of IBM for open standards, the FFII, has a board member who admitted six months ago that they received significant funding to do their work against OOXML and that he was initially skeptical but, apparently, money overcame his doubts. The FFII of 2010 and recent years isn't anymore the kind of pan-European network that fought against software patents until 2005. It's only a very small group of activists, and some of them appear to act as corporate stooges now.
There are two different approaches. Oracle looks at Google as the "root cause" of all those patent infringements. So they go directly after them. Apple (which sued HTC months ago; litigation still ongoing) and Microsoft instead approached particular vendors. If you want to deal with vendors, you need to do many deals and theoretically may have to go through multiple lawsuits (although after you win against the first major vendor, the others will probably give up). The logic about going after vendors is that they're responsible for obtaining all the necessary patent licenses for their products. Patent holders can choose which avenue to go down. Theoretically they could even decide to sue commercial users.
Oracle sued Google over Dalvik (the virtual machine for Android), so in that case Google doesn't even have any choice. Oracle appears to hold Google responsible for every Android phone out there.
I'm always hesitant to respond to anonymous comments but let me just say that I indeed encourage everyone to read my comments and blog postings. I just look for ways forward, under the circumstances.
The Linux cancer quote isn't relevant in my view because it's old and especially because it only related to the copyleft principle (didn't disparage the software in question). Since Linux doesn't affect applications running on top of it in terms of copyleft, the statement might have been based on a misunderstanding of the license terms in question. We'll never know.
Finally, in terms of the objectives of my work, I don't deny that I take a strong interest in FOSS as a whole doing well and in particular projects, more recently especially Hercules (and previously also MySQL, in connection with its acquisition by Oracle). I believe those are causes deserving of broadbased community support. As far as other topics go, there aren't specific causes for which I ask support -- I just want to contribute additional information and perspective to certain debates.