"While I despise software patents just like most of slashdot, I hate seeing the solution being legislation from the bench."
Software patents were created by legislation from the bench. Probably the broadest extensions of software patent case law were done by the Federal Circuit Court of Appeals to which Red Hat is presenting their brief. So Red Hat's approach is practical in the sense that that they have the opportunity to present our case to a body that is capable of deciding the issue in our favor.
It would be better if we could get a law passed by Congress abolishing software patents because the Congressional law would take precedence over case law. The courts could no longer decide that the current laws, while not mentioning software patents, logically imply that software patents are legal.
I have lobbied Congress to abolish software patents and got nowhere. I came to the conclusion that to be successful we would have to hire a professional lobbyist and join the fight in the Judiciary Subcommittees' hearing rooms along with all the other lobbyists fighting over the patent reform issue. I think that Red Hat spending the money to jump on this opportunity to possibly abolish or curtail software patents is money well spent. It is probably cheaper and certainly faster than spending money on Congressional lobbying and the opportunity is immediate.
The terms on the proposed loan read like the fine print in a credit card agreement. The interest rate starts at LIBOR + 17%. Some of the other fine print says:
"Payments: The Reorganized Debtor shall pay accrued interest on the outstanding principal balance in arrears monthly on the first day of each month commencing on the first day of the month following the Closing Date. The entire unpaid principal balance, together with any accrued interest and other unpaid charges, shall be due on the first day of the month following the expiration of the Loan Term (which date is sometimes referred to as the "Maturity Date")."
"Late Charges Default Interest Rate: Any payment not paid within ten (10) days of its scheduled payment date shall be subject to a late charge equal to the greater of $50.00 or five per cent (5%) of the amount of the delinquent payment. Upon the occurrence of an event of default, the margin used to compute the Effective Rate will automatically increase by an additional four percent per annum from the date thereof until the delinquent payment has been fully paid, both before and after judgment."
It is unlikely that SCO will actually be able to make monthly payments so why all of the penalties and escalating interest on what is probably an uncollectable debt? One possible reason can be found in the motion (346) which SCO filed with the bankruptcy court. There SCO asks the judge to treat the money owed by SCO to SNCP as debt on an equal footing with the debts owed to other creditors. Thus if SCO goes into a Chapter 7 windup then SNCP would get the same % partial pay out as all of the other creditors. If the judge agrees to treat the SNCP money as debt then it is to SNCP's advantage to balloon the amount of the debt as high as possible through missed payment penalties and escalating penalty interest. If the judge turns down the requests to treat the money from SNCP as debt then it doesn't really matter to SNCP whether SCO is missing 1% interest payments or 26% interest payments.
Under the law important news about a stock has to be released in such a way that all investors know what is happening. There should not be some investors who know the important news when they are trading and other investors who do not know the news when they are trading. Publicly traded companies handle this by either making the announcement after the close of trading for the day or by asking for a trading halt while the news disseminates. So SCO was correct to make the announcement after the close.
Where SCO acted incorrectly was in waiting 5 days to announce the news. This set up the opportunity for the people who knew that SCO was going to be delisted to trade on insider information. The SEC should investigate trading in SCOX shares between December 21 and December 26 to see if any insider trading in SCOX occurred.
About 1995 I converted all of my.doc files to.txt and got rid of Word. I have never used.doc since. I used Bruderbond software for a while and began using Star Office when it first became available in Linux distributions. Since Open Office came out with ODF support I have used ODF.
Yes, Novell is presenting the main thrust of the Microsoft-Novell deal
as being interoperability. But another way of stating the same thing is
"embrace, extend, and extinguish". Microsoft has focused on competing
with Open Source. In typical Microsoft fashion competing with Open
Source means destroying Open Source. Part of Microsoft's attack on Open
Source is that Microsoft paid Novell to participate in a plan to
embrace, extend, and extinguish Open Source. Open Source is a producers
co-operative and Novell is a member of that co-operative. If this attack
succeeds in destroying the Open Source co-operative then Novell will end
up in the position of having no product to sell.
Open Source has no choice but to defend itself against Microsoft's
attack. In particular we have to defeat the Microsoft-Novell agreement.
If Novell insists on hugging Microsoft then Novell runs the danger of
becoming collateral damage in the war between Microsoft and Open Source.
Since Novell is being paid to help Microsoft embrace, extend, and
extinguish Open Source then all of Novell's actions become suspect.
Novell actively campaigned for OOXML in the fight between ODF and OOXML.
Novell tried to get one of their employees appointed as head of
standards at the Linux Foundation. Novell is actively introducing
Microsoft proprietary standards into Open Source code in the Mono
project and the Xen project. And there is the major problem that the
Microsoft-Novell agreement is an attempt to use Microsoft's patent
portfolio as a bludgeon to impose a Microsoft tax on all of the other
distributions starting with Red Hat as the first intended victim.
Novell has contributed a lot to Open Source. But since the
Microsoft-Novell agreement we are forced to view every Novell action
through the lens of suspicion. As an example:
Novell has recently announced that a Novell employee will be paid to
work full time on coordinating projects to write open source device
drivers for Linux. On the face of it that is a great idea and a valuable
contribution by Novell to Open Source. On the other hand the Microsoft
astroturf gang made an effort about two years ago to promote the idea of
writing Linux device drivers to Windows interface standards. That way
the same driver could be used in both Windows and Linux. We ignored the
idea.
So now we have to question Novell's motives in paying to support Open
Source device driver projects. We cannot blindly trust Novell to be
acting in Open Source's best interest instead of carrying out their
embrace, extend, and extinguish obligations under the Microsoft-Novell
agreement. Are they working on device drivers in a good faith effort to
contribute to Open Source or are they trying to introduce device drivers
written to Microsoft proprietary standards into the kernel?
"Novell's main business areas then and now are not SUSE incenses, but solutions for platform management and identity management. Both areas require a strong interoperability with Microsoft products, as most big companies have and will continue to have mixed environments. That's is the core of the deal: make possible a better integration between linux and Microsoft product. Just see the recent annoucement about a join laboratory."
Yes, Novell is presenting the main thrust of the deal as being interoperability. But another way of stating the same thing is "embrace, extend, and extinguish". Microsoft has focused on competing with Open Source. In typical Microsoft fashion competing with Open Source means destroying Open Source. Part of Microsoft's attack on Open Source is that Microsoft paid Novell to participate in a plan to embrace, extend, and extinguish Open Source. Open Source is a producers co-operative and Novell is a member of that co-operative. If this attack succeeds in destroying the Open Source co-operative then Novell will end up in the position of having no product to sell.
Open Source has no choice but to defend itself against Microsoft's attack. In particular we have to defeat the Microsoft-Novell agreement. If Novell insists on hugging Microsoft then Novell runs the danger of becoming collateral damage in the war between Microsoft and Open Source.
Since Novell is being paid to help Microsoft embrace, extend, and extinguish Open Source then all of Novell's actions become suspect. Novell actively campaigned for OOXML in the fight between ODF and OOXML. Novell tried to get one of their employees appointed as head of standards at the Linux Foundation. Novell is actively introducing Microsoft proprietary standards into Open Source code in the Mono project and the Xen project. And there is the major problem that the Microsoft-Novell agreement is an attempt to use Microsoft's patent portfolio as a bludgeon to impose a Microsoft tax on all of the other distributions starting with Red Hat as the first intended victim.
Novell has contributed a lot to Open Source. But since the Microsoft-Novell agreement we are forced to view every Novell action through the lens of scepticism. So it is with Novell's driver initiative. On the face of it that is a great idea and a valuable contribution by Novell to Open Source. Still, we can not blindly trust Novell to be acting in Open Source's best interest instead of carring out their embrace, extend, and extinguish obligations under the Microsoft-Novell agreement. So this announcement, like any Novell action, is met with a debate about whether Novell is acting for or against the best interests of Open Source.
"Let me therefore point out one last time that if the threats of
litigation and bluster about crime and malpractice--none of which has
the slightest basis in fact or law--were withdrawn, we would be able
to resume detailed communication with everyone who has a stake in the
outcome."
In international diplomacy demands that the other party publicly accept certain negotaiting points as a precondition to private talks usually bar any private talks from taking place. Sure, Theo de Raad may be heavy on the threats and rhetoric but he is not Kim Jong-il.
I suggest that Eben Moglen drop his demands for pre-conditions to meeting with the BSD people. Instead he should offer to meet with all concerned without anybody setting pre-conditions for the meeting.
In general the open source movement tries to stay out of patent fights. While open source can safely ignore the patent wars among proprietary software we have to defend open soure code from software patent attacks. NetApp's complaint against Sun seems to be a mixture of claims against both Sun's proprietary and Sun's open source programs. In NetApp's complaint they state that OpenSolaris infringes on NetApp's patent 5,819,292. I think that on that one claim the open source movement should help Sun fight against NetApp's claim.
Is there any way that NetApp can constrict their fight with Sun to proprietary code only? Would NetApp be willing to make the proper legal moves to where they are not asserting their patents against any open source code? By doing so NetApp could avoid a potential fight with the open source community.
"I believe that IBM picked four of it's patents and used them as part of their counter claims. Not entirely sure what became of that part of the case however."
IBM dropped their patent counterclaims some time ago.
Right now audio and video on desktop computers is a war of competing proprietary standards. Microsoft, Flash, and a host of other proprietary companies compete based on their own proprietary standards. The game companies are forced to invent their own unique standards because none of the other standards run fast enough to guarentee good game performance. DRM has reared its ugly head in an effort to be the antithesis of open standards.
I think that we should put a concerted effort into creating good open standards for all audio and video applications. Then we should build the infrastructure, shared libraries, programming aids, etc. necessary to support audio and video applications. Then we should write good application programs for the entire range of audio and video applications. And throughout the development cycle we should emphasize performance so that games can run using open standards instead of having to roll their own.
This amount of structured development is too much for the typical open source evolution approach. I doubt that a comprehensive system will evolve through the actions of open source developers acting independently. If somebody has the money to finance a large scale open source development effort then the audio and video areas are a good place to spend the money.
"A far better use of the volunteer effort would be in political campaigning to scrap the whole concept of patents for software."
I agree and I have been putting my efforts into lobbying to abolish software patents. However, I do not see this as an all or nothing issue. Solutions which only partially solve the software patent problem are also useful and it is not illogical to participate in more than one. One example of a person working on multiple solutions simultaneously is Richard Stallman. Richard Stallman advocates abolishing software patents. He also has worked on putting anti-software patent clauses into GPLv3 even though these clauses would not be necessary if software patents were abolished. So I see nothing inconsistant with Pamela Jones both supporting abolishing software patents and promoting the peer-to-patent project.
BSD is an operating system that was developed at the University of
California, Berkeley using government grants handed out to develop the
Internet. AT&T sued the University of California claiming that AT&T
owned the BSD operating system. Early in the trial (USL v BSDi) the
court ruled that the code written by AT&T was owned by AT&T and the code
written by University of California was owned by the University of
California. The story is complicated because both operating systems
have changed ownership. BSD is currently owned by Berkeley Software
Development and System V is currently owned by Novell.
There is a 1994 agreement between (now) BSD and (now) Novell deliniating
what code is owned by each. Also the agreement states that Novell or
its successors, never again sue over the BSD code. On November 28, 2004
this agreement was made public by a request under California's Public
Records Law.
At the time of the 1994 agreement the majority of UNIX code was owned by
BSD. A large minority of UNIX code was owned by Novell. Other
individuals and organizations with known copyrights to portions of
System V code include:
Computer Associates International, Inc.
Edison Design Group, Inc.
Eric P. Allman
Hewlett-Packard Company
Hitachi, Ltd.
Intel Corporation
International Business Machines Corporation
Massachusetts Institute of Technology
Microsoft Corporation
The Regents of the University of California
Sun Microsystems, Inc.
The Open Group (formerly OSF)
Compaq Computer Corporation
Digital Equipment Corporation
Since 1994 both Novell and SCO have added code to UNIX and each owns the
copyright to the new code that they have written.
Novell would have to get the permissions of all of the copyright holders
to release their UNIX code under the any other license. BSD will not do so and I
doubt that SCO would agree. So it would be almost impossible for Novell
to change the UNIX license.
Novell is asking Judge Kimball to force SCO to give the money Sun paid to SCO to Novell. If Novell wins this point then they cannot accept the Sun money and not give Sun what they paid for. So in this case Sun should be OK.
Another option for Novell would be to repudiate the SCO-Sun agreement. In this case Novell could not collect the Sun payment, Sun would have no rights to the Novell UNIX code, and Sun would have to sue SCO to get their money back.
---------------
Steve Stites
Thom Holwerda puts forward a convincing argument that Windows needs two operating systems, a backward compatible operating system and one on which future application development can be done. He is far less convincing in his contention that the Windows NT kernel is a good design for a long range committment as the basis for future software inovations at Microsoft.
Windows development got into trouble through poor design. In order to bundle application with Windows Microsoft consistently designed applications to be non-modular. Pieces of each application were scattered throughout Microsoft code, including the kernel. This meant that the total bundled software package became more and more unwieldy as development progressed. Adding a new application entailed rewriting all Microsoft software instead of simply adding a new module containing the new functions on top of the existing stack. As Microsoft's software became more and more unwieldy the development effort slowed until in Longhorn it failed.
Now Thom Holwerda is proposing that Microsoft start over by taking the NT kernel and throw all of the entertwined legacy code out of the kernel. This will make development on NT a lot easier. But what about the current set of applications? DRM will still be intertwined through the NT kernel and probably the other current applications will be also. This lack of modular design will still hamper development on NT even though by getting rid of the legacy code the development effort now becomes doable. And what of future applications? Are they going to be intertwined into the NT kernel just like the existing applications? If so, then the new NT development tree will eventually suffer a Longhorn like crisis serveral years down the road.
Microsoft might be able to slough off a lot of legacy cruft by switching to a NT kernel with the legacy code removed but the basic design flaws remain to bedevil future development of Windows NT. Microsoft would be best off to design a new operating sytem from scratch and get rid of the lack of modularity once and for all.
"The trouble is that there's nothing now to be done about it, but to see how the dice fall."
Right, if you are uneasy about GPLv3 (as I am) then it is not necessary to take drastic action now. Just wait and see how everything works out. Don't committ to GPLv3 until it proves itself. If experience shows that GPLv3 has serious flaws then the projects which have committed to GPLv3 will probably create a later version of the GPL which corrects the flaws in GPLv3. A more drastic mesure would be for a project that finds itself in trouble because of GPLv3 to fork back to the last GPLv2 version of the project and abandon the GPLv3 version.
I think that the most likely outcome is that GPLv3 will be replaced by a better version which corrects the flaws in GPLv3. But it will take time before the consensus of opinion will come to that conclusion.
Microsoft seems to be preparing to fight GPLv3 with two defences. They plan to deny that the coupons constitute distributing GPLv3 code and they plan to deny that GPLv3 can force its own interpretation of the Microsoft-Novell agreement upon Microsoft.
I would like to suggest a third defence to Microsoft which would probably be much more effective than the first two. Microsoft could pay Novell to cancel the Microsoft-Novell agreement before Novell actually distributes any GPLv3 code. Abolishing the Microsoft-Novell agreement would forestall the possibility that the Free Software Foundation might be able to extend Microsoft's software patent protection to all open source developers, distributors, and users.
"So the grandfather clause says that deals entered into before the relevant changes to GPLv3 were penned aren't, merely by existing, a violation of the license."
So why the distinction between Novell on the one hand and Linspire and Xandros on he other?
The grandfather clause that Richard Stallman added to the latest draft of GPL3 allows Novell to distribute GPL3 code but disallows any similar deal after the Microsoft-Novell deal from distributing GPL3 code.
The grandfather clause acts as a flip-flop. Any developer who wants to allow their GPL3 code to be distributed by Novell under the Microsoft-Novell agreement will use GPL3 with the grandfather clause included. Any developer who does not want their code distributed by Novell under the Microsoft-Novell agreement will have to remove the grandfather clause (paragraphs 6 and 7 of section 11) from their version of the GPL3.
The rationale for the grandfather clause is that the coupons being distributed by Microsoft under the Microsoft-Novell agreement could be used in a court case to argue that Microsoft has extended its patent coverage to everybody. But in order for that to be effective then Microsoft must sue somebody. Since Microsoft is not going to sue anybody the coupon defense will never be used. Thus the grandfather clause gives Novell a free pass to distribute GPL3 code under the Microsoft-Novell agreement. Also Microsoft FUD will point to the grandfather clause as validating the Microsoft-Novell agreement.
I suppose if the FSF wants to release gcc, etc. under the grandfather clause and wait for the court case which never comes to prove their elegent legal theory that is OK. But it puts them in the weak position of validating the Microsoft-Novell agreement. I suggest that they remove the grandfather clause from GPL3 while leaving in the coupon defense. The coupon defense would still be usable in the unlikely case that Novell distributes GPL3 code in violation of GPL3 and that Microsoft is stupid enough to sue some open source user over a software patent.
For any developer who does not want to validate the Microsoft-Novell agreement I recommend that they release their code under a variant of GPL3 which does not contain the grandfather clause. A good name for this variant would be GPLv3ng
"Maritime researcher Timothy Akers claims to have discovered the wreck of the HMAS Sydney, along with the location of the German raider Kormoran that sank the Sydney off the coast of Western Australia in November 1941, killing all 645 men on board."
"He said the wrecks of a number of Japanese warships and submarines, also believed to have been involved in the battle, were lying on the ocean floor nearby."
In November 1941 Australia and Germany were at war. Japan and Australia were not at war at that time.
"Almost certainly, Microsoft and IBM have cross licensing agreements that give MS access to all IBM patents and vice versa."
Any cross licensing agreements are problably for IBM proprietary code. As long as IBM did not include open source software in their cross licensing agreement with Microsoft then we have no problem with the IBM-Microsoft agreement.
The same could be said for Novell. If Novell had a software patent cross licensing agreement which only applied to Novell's proprietary code then we would have no problem with the agreement. But because Novell included open source code in their agreement with Microsoft we have major problems with Novell.
"Basic operating system theory was pretty much done by the end of the 1960s. IBM probably owned thousands of really 'fundamental' patents," Torvalds said in a response to questions submitted by InformationWeek. But he doesn't like any form of patent saber rattling. "The fundamental stuff was done about half a century ago and has long, long since lost any patent protection," he wrote.
I worked for IBM developing operating systems during the 1960s. Software patents did not exist at the time and IBM patented no software. However there is a huge amount of unpatented prior art from about 1963 onward that can be used to invalidate any operating system fundamentals patents claimed by Microsoft.
"I don't think that software should be patentable. So any software patent agreement with any company (including Microsoft) is a step on to the slippery slope."
I agree with you. I wish that all companies which distribute open source code would take Red Hat's attitude and refuse to enter into software patent agreements with Microsoft. Unfortunately some companies feel the need to make software patent agreements with Microsoft which cover open source software and we have to deal with that fact. GPL3 is our effort to force the open source companies into the "all or none" approach to software patents. Everyone has the same protection, so either everbody is protected or nobody is protected.
Even if GPL3 is effective and blocks the deals that protect a single company there will be some companies which still want to negotiate an open source software patent agreement with Microsoft. So I am suggesting that the companies who want to do so negotiate in a united front to create an agreement with Microsoft which applies to every member of open source equally.
There are now three Open Source companies with Microsoft software patent deals, Fuji, Novell, and Samsung. Appearantly these companies choose to give in to Microsoft's threats rather than go to the expense of fighting a software patent war with Microsoft. Having money makes the commercial Open Source members vunerable to Microsoft's threats. In Novell's case you could also argue that Novell was bribed by Microsoft to join in the attack on Open Source.
Rather than allowing Microsoft to pick off Open Source companies one by one the companies should negotiate in a united front. I think that the Linux Foundation and the OIN should negotiate a universal software patent agreement between Open Source and Microsoft.
The united effort led by IBM to create a defensive patent portfolio in the OIN and the Linux Foundation to use in a possible software patent war appears to have worked. Microsoft has shied away from a court fight and is now trying a more indirect path to attack Open Source with software patents. By negotiating with Microsoft in a united front the commercial Open Source companies could achieve much more favorable terms than by negotiating individually. I think that the terms of this universal agreement should include three main points:
1. Microsoft will not sue any Open Source developer, distributor, or user over software patents.
2.Open Source will not sue Microsoft or any Microsoft customer over software patents.
3. No money will change hands in either direction.
GPL3 is another effort to solve the Microsoft software patent threat. In the latest draft of GPL3 there is some language about certain agreements being grandfathered. Obviously the Microsoft-Novell agreement is not grandfathered but I don't know whether the Fuji and Samsung deals would be grandfathered. I think that some thought should be put into GPL3 whereby the agreements between Fuji and Samsung with Microsoft are broken and that these agreements are not protected by the grandfather clause. I also think that some thought should be put into GPL3 to not break a potential universal Microsoft software patent agreement negotiated by the Linux Foundation.
Microsoft would not willingly enter into a universal software patent agreement with Open Source, at least not with the terms that I described. The software patent game among commercial companies is a power struggle. If all of the Open Source companies united against Microsoft in the software patent negotiations then the unified body would be powerful enough to force Microsoft into terms which they would not otherwise accept.
We can use GPL3 to break the software patent deals already signed with Microsoft and to block future deals. But that does not eliminate the power struggle. The Open Source companies involved in the Microsoft software patent agreements will still face the problem of Microsoft software patent aggression. I think that their best strategy is to unite and force Microsoft into abandoning its software patent attack on Open Source.
I think that accounting for Microsoft's software patent expenses must take more into account than the cost of court judgements against Microsoft. The accounting should include the cost of obtaining software patents, the money paid out to other companies in software patent agreements, the income of money received from other companies in software patent agreements, the income received by winning software patent lawsuits, the money lost when losing software patent lawsuits, the legal expenses of fighting lawsuits, and the expenses of negotiating software patent agreements with other companies. Taking all of these things into account I have no idea whether Microsoft is a net winner or a net loser in the software patent game.
Taking the software industry as a whole I think that software patents are a net drag on the industry. The amount of money that a company receives in patent royalties is offset by the costs to the companies paying the royalties. The amounts won by a company in a court judgement is offset by the cost to the losing company. All of the companies participating in this game have legal expenses for negotiating software patent agreements and fighting court battles. There is also the expense of obtaining the patents in the first place. The net result for the software industry as a whole is a less than zero sum game.
There may be a few companies that beat the odds enough to actually make a profit in the software patent game but overall the industry shows a net loss on software patents. The best strategy for most companies in the software patent game would be to lobby to abolish software patents.
Slashdot Mirror
"While I despise software patents just like most of slashdot, I hate seeing the solution being legislation from the bench."
Software patents were created by legislation from the bench. Probably the broadest extensions of software patent case law were done by the Federal Circuit Court of Appeals to which Red Hat is presenting their brief. So Red Hat's approach is practical in the sense that that they have the opportunity to present our case to a body that is capable of deciding the issue in our favor.
It would be better if we could get a law passed by Congress abolishing software patents because the Congressional law would take precedence over case law. The courts could no longer decide that the current laws, while not mentioning software patents, logically imply that software patents are legal.
I have lobbied Congress to abolish software patents and got nowhere. I came to the conclusion that to be successful we would have to hire a professional lobbyist and join the fight in the Judiciary Subcommittees' hearing rooms along with all the other lobbyists fighting over the patent reform issue. I think that Red Hat spending the money to jump on this opportunity to possibly abolish or curtail software patents is money well spent. It is probably cheaper and certainly faster than spending money on Congressional lobbying and the opportunity is immediate.
-----------
Steve Stites
The terms on the proposed loan read like the fine print in a credit card agreement. The interest rate starts at LIBOR + 17%. Some of the other fine print says:
"Payments: The Reorganized Debtor shall pay accrued interest on the outstanding principal balance in arrears monthly on the first day of each month commencing on the first day of the month following the Closing Date. The entire unpaid principal balance, together with any accrued interest and other unpaid charges, shall be due on the first day of the month following the expiration of the Loan Term (which date is sometimes referred to as the "Maturity Date")."
"Late Charges Default Interest Rate: Any payment not paid within ten (10) days of its scheduled payment date shall be subject to a late charge equal to the greater of $50.00 or five per cent (5%) of the amount of the delinquent payment. Upon the occurrence of an event of default, the margin used to compute the Effective Rate will automatically increase by an additional four percent per annum from the date thereof until the delinquent payment has been fully paid, both before and after judgment."
It is unlikely that SCO will actually be able to make monthly payments so why all of the penalties and escalating interest on what is probably an uncollectable debt? One possible reason can be found in the motion (346) which SCO filed with the bankruptcy court. There SCO asks the judge to treat the money owed by SCO to SNCP as debt on an equal footing with the debts owed to other creditors. Thus if SCO goes into a Chapter 7 windup then SNCP would get the same % partial pay out as all of the other creditors. If the judge agrees to treat the SNCP money as debt then it is to SNCP's advantage to balloon the amount of the debt as high as possible through missed payment penalties and escalating penalty interest. If the judge turns down the requests to treat the money from SNCP as debt then it doesn't really matter to SNCP whether SCO is missing 1% interest payments or 26% interest payments.
----------------------
Steve Stites
Under the law important news about a stock has to be released in such a way that all investors know what is happening. There should not be some investors who know the important news when they are trading and other investors who do not know the news when they are trading. Publicly traded companies handle this by either making the announcement after the close of trading for the day or by asking for a trading halt while the news disseminates. So SCO was correct to make the announcement after the close.
Where SCO acted incorrectly was in waiting 5 days to announce the news. This set up the opportunity for the people who knew that SCO was going to be delisted to trade on insider information. The SEC should investigate trading in SCOX shares between December 21 and December 26 to see if any insider trading in SCOX occurred.
-----------------------
Steve Stites
About 1995 I converted all of my .doc files to .txt and got rid of Word. I have never used .doc since. I used Bruderbond software for a while and began using Star Office when it first became available in Linux distributions. Since Open Office came out with ODF support I have used ODF.
The idea that .doc is a necessity is a myth.
-----------------
Steve Stites
Yes, Novell is presenting the main thrust of the Microsoft-Novell deal as being interoperability. But another way of stating the same thing is "embrace, extend, and extinguish". Microsoft has focused on competing with Open Source. In typical Microsoft fashion competing with Open Source means destroying Open Source. Part of Microsoft's attack on Open Source is that Microsoft paid Novell to participate in a plan to embrace, extend, and extinguish Open Source. Open Source is a producers co-operative and Novell is a member of that co-operative. If this attack succeeds in destroying the Open Source co-operative then Novell will end up in the position of having no product to sell.
Open Source has no choice but to defend itself against Microsoft's attack. In particular we have to defeat the Microsoft-Novell agreement. If Novell insists on hugging Microsoft then Novell runs the danger of becoming collateral damage in the war between Microsoft and Open Source.
Since Novell is being paid to help Microsoft embrace, extend, and extinguish Open Source then all of Novell's actions become suspect. Novell actively campaigned for OOXML in the fight between ODF and OOXML. Novell tried to get one of their employees appointed as head of standards at the Linux Foundation. Novell is actively introducing Microsoft proprietary standards into Open Source code in the Mono project and the Xen project. And there is the major problem that the Microsoft-Novell agreement is an attempt to use Microsoft's patent portfolio as a bludgeon to impose a Microsoft tax on all of the other distributions starting with Red Hat as the first intended victim.
Novell has contributed a lot to Open Source. But since the Microsoft-Novell agreement we are forced to view every Novell action through the lens of suspicion. As an example:
Novell has recently announced that a Novell employee will be paid to work full time on coordinating projects to write open source device drivers for Linux. On the face of it that is a great idea and a valuable contribution by Novell to Open Source. On the other hand the Microsoft astroturf gang made an effort about two years ago to promote the idea of writing Linux device drivers to Windows interface standards. That way the same driver could be used in both Windows and Linux. We ignored the idea.
So now we have to question Novell's motives in paying to support Open Source device driver projects. We cannot blindly trust Novell to be acting in Open Source's best interest instead of carrying out their embrace, extend, and extinguish obligations under the Microsoft-Novell agreement. Are they working on device drivers in a good faith effort to contribute to Open Source or are they trying to introduce device drivers written to Microsoft proprietary standards into the kernel?
----------------
Steve Stites
"Novell's main business areas then and now are not SUSE incenses, but solutions for platform management and identity management. Both areas require a strong interoperability with Microsoft products, as most big companies have and will continue to have mixed environments. That's is the core of the deal: make possible a better integration between linux and Microsoft product. Just see the recent annoucement about a join laboratory."
Yes, Novell is presenting the main thrust of the deal as being interoperability. But another way of stating the same thing is "embrace, extend, and extinguish". Microsoft has focused on competing with Open Source. In typical Microsoft fashion competing with Open Source means destroying Open Source. Part of Microsoft's attack on Open Source is that Microsoft paid Novell to participate in a plan to embrace, extend, and extinguish Open Source. Open Source is a producers co-operative and Novell is a member of that co-operative. If this attack succeeds in destroying the Open Source co-operative then Novell will end up in the position of having no product to sell.
Open Source has no choice but to defend itself against Microsoft's attack. In particular we have to defeat the Microsoft-Novell agreement. If Novell insists on hugging Microsoft then Novell runs the danger of becoming collateral damage in the war between Microsoft and Open Source.
Since Novell is being paid to help Microsoft embrace, extend, and extinguish Open Source then all of Novell's actions become suspect. Novell actively campaigned for OOXML in the fight between ODF and OOXML. Novell tried to get one of their employees appointed as head of standards at the Linux Foundation. Novell is actively introducing Microsoft proprietary standards into Open Source code in the Mono project and the Xen project. And there is the major problem that the Microsoft-Novell agreement is an attempt to use Microsoft's patent portfolio as a bludgeon to impose a Microsoft tax on all of the other distributions starting with Red Hat as the first intended victim.
Novell has contributed a lot to Open Source. But since the Microsoft-Novell agreement we are forced to view every Novell action through the lens of scepticism. So it is with Novell's driver initiative. On the face of it that is a great idea and a valuable contribution by Novell to Open Source. Still, we can not blindly trust Novell to be acting in Open Source's best interest instead of carring out their embrace, extend, and extinguish obligations under the Microsoft-Novell agreement. So this announcement, like any Novell action, is met with a debate about whether Novell is acting for or against the best interests of Open Source.
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Steve Stites
"Let me therefore point out one last time that if the threats of litigation and bluster about crime and malpractice--none of which has the slightest basis in fact or law--were withdrawn, we would be able to resume detailed communication with everyone who has a stake in the outcome."
In international diplomacy demands that the other party publicly accept certain negotaiting points as a precondition to private talks usually bar any private talks from taking place. Sure, Theo de Raad may be heavy on the threats and rhetoric but he is not Kim Jong-il.
I suggest that Eben Moglen drop his demands for pre-conditions to meeting with the BSD people. Instead he should offer to meet with all concerned without anybody setting pre-conditions for the meeting.
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Steve Stites
The guy is only suing for $180 but think of the potential if he turned it into a class action lawsuit.
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Steve Stites
In general the open source movement tries to stay out of patent fights. While open source can safely ignore the patent wars among proprietary software we have to defend open soure code from software patent attacks. NetApp's complaint against Sun seems to be a mixture of claims against both Sun's proprietary and Sun's open source programs. In NetApp's complaint they state that OpenSolaris infringes on NetApp's patent 5,819,292. I think that on that one claim the open source movement should help Sun fight against NetApp's claim.
Is there any way that NetApp can constrict their fight with Sun to proprietary code only? Would NetApp be willing to make the proper legal moves to where they are not asserting their patents against any open source code? By doing so NetApp could avoid a potential fight with the open source community.
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Steve Stites
"I believe that IBM picked four of it's patents and used them as part of their counter claims. Not entirely sure what became of that part of the case however."
IBM dropped their patent counterclaims some time ago.
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Steve Stites
Right now audio and video on desktop computers is a war of competing proprietary standards. Microsoft, Flash, and a host of other proprietary companies compete based on their own proprietary standards. The game companies are forced to invent their own unique standards because none of the other standards run fast enough to guarentee good game performance. DRM has reared its ugly head in an effort to be the antithesis of open standards.
I think that we should put a concerted effort into creating good open standards for all audio and video applications. Then we should build the infrastructure, shared libraries, programming aids, etc. necessary to support audio and video applications. Then we should write good application programs for the entire range of audio and video applications. And throughout the development cycle we should emphasize performance so that games can run using open standards instead of having to roll their own.
This amount of structured development is too much for the typical open source evolution approach. I doubt that a comprehensive system will evolve through the actions of open source developers acting independently. If somebody has the money to finance a large scale open source development effort then the audio and video areas are a good place to spend the money.
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Steve Stites
"A far better use of the volunteer effort would be in political campaigning to scrap the whole concept of patents for software."
I agree and I have been putting my efforts into lobbying to abolish software patents. However, I do not see this as an all or nothing issue. Solutions which only partially solve the software patent problem are also useful and it is not illogical to participate in more than one. One example of a person working on multiple solutions simultaneously is Richard Stallman. Richard Stallman advocates abolishing software patents. He also has worked on putting anti-software patent clauses into GPLv3 even though these clauses would not be necessary if software patents were abolished. So I see nothing inconsistant with Pamela Jones both supporting abolishing software patents and promoting the peer-to-patent project.
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Steve Stites
BSD is an operating system that was developed at the University of California, Berkeley using government grants handed out to develop the Internet. AT&T sued the University of California claiming that AT&T owned the BSD operating system. Early in the trial (USL v BSDi) the court ruled that the code written by AT&T was owned by AT&T and the code written by University of California was owned by the University of California. The story is complicated because both operating systems have changed ownership. BSD is currently owned by Berkeley Software Development and System V is currently owned by Novell.
There is a 1994 agreement between (now) BSD and (now) Novell deliniating what code is owned by each. Also the agreement states that Novell or its successors, never again sue over the BSD code. On November 28, 2004 this agreement was made public by a request under California's Public Records Law.
At the time of the 1994 agreement the majority of UNIX code was owned by BSD. A large minority of UNIX code was owned by Novell. Other individuals and organizations with known copyrights to portions of System V code include:
Computer Associates International, Inc. Edison Design Group, Inc. Eric P. Allman Hewlett-Packard Company Hitachi, Ltd. Intel Corporation International Business Machines Corporation Massachusetts Institute of Technology Microsoft Corporation The Regents of the University of California Sun Microsystems, Inc. The Open Group (formerly OSF) Compaq Computer Corporation Digital Equipment Corporation
Since 1994 both Novell and SCO have added code to UNIX and each owns the copyright to the new code that they have written.
Novell would have to get the permissions of all of the copyright holders to release their UNIX code under the any other license. BSD will not do so and I doubt that SCO would agree. So it would be almost impossible for Novell to change the UNIX license.
-------------- Steve Stites
Novell is asking Judge Kimball to force SCO to give the money Sun paid to SCO to Novell. If Novell wins this point then they cannot accept the Sun money and not give Sun what they paid for. So in this case Sun should be OK. Another option for Novell would be to repudiate the SCO-Sun agreement. In this case Novell could not collect the Sun payment, Sun would have no rights to the Novell UNIX code, and Sun would have to sue SCO to get their money back. --------------- Steve Stites
Thom Holwerda puts forward a convincing argument that Windows needs two operating systems, a backward compatible operating system and one on which future application development can be done. He is far less convincing in his contention that the Windows NT kernel is a good design for a long range committment as the basis for future software inovations at Microsoft.
Windows development got into trouble through poor design. In order to bundle application with Windows Microsoft consistently designed applications to be non-modular. Pieces of each application were scattered throughout Microsoft code, including the kernel. This meant that the total bundled software package became more and more unwieldy as development progressed. Adding a new application entailed rewriting all Microsoft software instead of simply adding a new module containing the new functions on top of the existing stack. As Microsoft's software became more and more unwieldy the development effort slowed until in Longhorn it failed.
Now Thom Holwerda is proposing that Microsoft start over by taking the NT kernel and throw all of the entertwined legacy code out of the kernel. This will make development on NT a lot easier. But what about the current set of applications? DRM will still be intertwined through the NT kernel and probably the other current applications will be also. This lack of modular design will still hamper development on NT even though by getting rid of the legacy code the development effort now becomes doable. And what of future applications? Are they going to be intertwined into the NT kernel just like the existing applications? If so, then the new NT development tree will eventually suffer a Longhorn like crisis serveral years down the road.
Microsoft might be able to slough off a lot of legacy cruft by switching to a NT kernel with the legacy code removed but the basic design flaws remain to bedevil future development of Windows NT. Microsoft would be best off to design a new operating sytem from scratch and get rid of the lack of modularity once and for all.
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Steve Stites
"The trouble is that there's nothing now to be done about it, but to see how the dice fall."
Right, if you are uneasy about GPLv3 (as I am) then it is not necessary to take drastic action now. Just wait and see how everything works out. Don't committ to GPLv3 until it proves itself. If experience shows that GPLv3 has serious flaws then the projects which have committed to GPLv3 will probably create a later version of the GPL which corrects the flaws in GPLv3. A more drastic mesure would be for a project that finds itself in trouble because of GPLv3 to fork back to the last GPLv2 version of the project and abandon the GPLv3 version.
I think that the most likely outcome is that GPLv3 will be replaced by a better version which corrects the flaws in GPLv3. But it will take time before the consensus of opinion will come to that conclusion.
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Steve Stites
Microsoft seems to be preparing to fight GPLv3 with two defences. They plan to deny that the coupons constitute distributing GPLv3 code and they plan to deny that GPLv3 can force its own interpretation of the Microsoft-Novell agreement upon Microsoft.
I would like to suggest a third defence to Microsoft which would probably be much more effective than the first two. Microsoft could pay Novell to cancel the Microsoft-Novell agreement before Novell actually distributes any GPLv3 code. Abolishing the Microsoft-Novell agreement would forestall the possibility that the Free Software Foundation might be able to extend Microsoft's software patent protection to all open source developers, distributors, and users.
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Steve Stites
"So the grandfather clause says that deals entered into before the relevant changes to GPLv3 were penned aren't, merely by existing, a violation of the license."
So why the distinction between Novell on the one hand and Linspire and Xandros on he other?
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Steve Stites
The grandfather clause that Richard Stallman added to the latest draft of GPL3 allows Novell to distribute GPL3 code but disallows any similar deal after the Microsoft-Novell deal from distributing GPL3 code.
The grandfather clause acts as a flip-flop. Any developer who wants to allow their GPL3 code to be distributed by Novell under the Microsoft-Novell agreement will use GPL3 with the grandfather clause included. Any developer who does not want their code distributed by Novell under the Microsoft-Novell agreement will have to remove the grandfather clause (paragraphs 6 and 7 of section 11) from their version of the GPL3.
The rationale for the grandfather clause is that the coupons being distributed by Microsoft under the Microsoft-Novell agreement could be used in a court case to argue that Microsoft has extended its patent coverage to everybody. But in order for that to be effective then Microsoft must sue somebody. Since Microsoft is not going to sue anybody the coupon defense will never be used. Thus the grandfather clause gives Novell a free pass to distribute GPL3 code under the Microsoft-Novell agreement. Also Microsoft FUD will point to the grandfather clause as validating the Microsoft-Novell agreement.
I suppose if the FSF wants to release gcc, etc. under the grandfather clause and wait for the court case which never comes to prove their elegent legal theory that is OK. But it puts them in the weak position of validating the Microsoft-Novell agreement. I suggest that they remove the grandfather clause from GPL3 while leaving in the coupon defense. The coupon defense would still be usable in the unlikely case that Novell distributes GPL3 code in violation of GPL3 and that Microsoft is stupid enough to sue some open source user over a software patent.
For any developer who does not want to validate the Microsoft-Novell agreement I recommend that they release their code under a variant of GPL3 which does not contain the grandfather clause. A good name for this variant would be GPLv3ng
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Steve Stites
[
"Maritime researcher Timothy Akers claims to have discovered the wreck of the HMAS Sydney, along with the location of the German raider Kormoran that sank the Sydney off the coast of Western Australia in November 1941, killing all 645 men on board."
"He said the wrecks of a number of Japanese warships and submarines, also believed to have been involved in the battle, were lying on the ocean floor nearby."
In November 1941 Australia and Germany were at war. Japan and Australia were not at war at that time.
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Steve Stites
"Almost certainly, Microsoft and IBM have cross licensing agreements that give MS access to all IBM patents and vice versa."
Any cross licensing agreements are problably for IBM proprietary code. As long as IBM did not include open source software in their cross licensing agreement with Microsoft then we have no problem with the IBM-Microsoft agreement.
The same could be said for Novell. If Novell had a software patent cross licensing agreement which only applied to Novell's proprietary code then we would have no problem with the agreement. But because Novell included open source code in their agreement with Microsoft we have major problems with Novell.
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Steve Stites
"Basic operating system theory was pretty much done by the end of the 1960s. IBM probably owned thousands of really 'fundamental' patents," Torvalds said in a response to questions submitted by InformationWeek. But he doesn't like any form of patent saber rattling. "The fundamental stuff was done about half a century ago and has long, long since lost any patent protection," he wrote.
I worked for IBM developing operating systems during the 1960s. Software patents did not exist at the time and IBM patented no software. However there is a huge amount of unpatented prior art from about 1963 onward that can be used to invalidate any operating system fundamentals patents claimed by Microsoft.
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Steve Stites
"I don't think that software should be patentable. So any software patent agreement with any company (including Microsoft) is a step on to the slippery slope."
I agree with you. I wish that all companies which distribute open source code would take Red Hat's attitude and refuse to enter into software patent agreements with Microsoft. Unfortunately some companies feel the need to make software patent agreements with Microsoft which cover open source software and we have to deal with that fact. GPL3 is our effort to force the open source companies into the "all or none" approach to software patents. Everyone has the same protection, so either everbody is protected or nobody is protected.
Even if GPL3 is effective and blocks the deals that protect a single company there will be some companies which still want to negotiate an open source software patent agreement with Microsoft. So I am suggesting that the companies who want to do so negotiate in a united front to create an agreement with Microsoft which applies to every member of open source equally.
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Steve Stites
There are now three Open Source companies with Microsoft software patent deals, Fuji, Novell, and Samsung. Appearantly these companies choose to give in to Microsoft's threats rather than go to the expense of fighting a software patent war with Microsoft. Having money makes the commercial Open Source members vunerable to Microsoft's threats. In Novell's case you could also argue that Novell was bribed by Microsoft to join in the attack on Open Source.
Rather than allowing Microsoft to pick off Open Source companies one by one the companies should negotiate in a united front. I think that the Linux Foundation and the OIN should negotiate a universal software patent agreement between Open Source and Microsoft.
The united effort led by IBM to create a defensive patent portfolio in the OIN and the Linux Foundation to use in a possible software patent war appears to have worked. Microsoft has shied away from a court fight and is now trying a more indirect path to attack Open Source with software patents. By negotiating with Microsoft in a united front the commercial Open Source companies could achieve much more favorable terms than by negotiating individually. I think that the terms of this universal agreement should include three main points:
1. Microsoft will not sue any Open Source developer, distributor, or user over software patents.
2.Open Source will not sue Microsoft or any Microsoft customer over software patents.
3. No money will change hands in either direction.
GPL3 is another effort to solve the Microsoft software patent threat. In the latest draft of GPL3 there is some language about certain agreements being grandfathered. Obviously the Microsoft-Novell agreement is not grandfathered but I don't know whether the Fuji and Samsung deals would be grandfathered. I think that some thought should be put into GPL3 whereby the agreements between Fuji and Samsung with Microsoft are broken and that these agreements are not protected by the grandfather clause. I also think that some thought should be put into GPL3 to not break a potential universal Microsoft software patent agreement negotiated by the Linux Foundation.
Microsoft would not willingly enter into a universal software patent agreement with Open Source, at least not with the terms that I described. The software patent game among commercial companies is a power struggle. If all of the Open Source companies united against Microsoft in the software patent negotiations then the unified body would be powerful enough to force Microsoft into terms which they would not otherwise accept.
We can use GPL3 to break the software patent deals already signed with Microsoft and to block future deals. But that does not eliminate the power struggle. The Open Source companies involved in the Microsoft software patent agreements will still face the problem of Microsoft software patent aggression. I think that their best strategy is to unite and force Microsoft into abandoning its software patent attack on Open Source.
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Steve Stites
I think that accounting for Microsoft's software patent expenses must take more into account than the cost of court judgements against Microsoft. The accounting should include the cost of obtaining software patents, the money paid out to other companies in software patent agreements, the income of money received from other companies in software patent agreements, the income received by winning software patent lawsuits, the money lost when losing software patent lawsuits, the legal expenses of fighting lawsuits, and the expenses of negotiating software patent agreements with other companies. Taking all of these things into account I have no idea whether Microsoft is a net winner or a net loser in the software patent game.
Taking the software industry as a whole I think that software patents are a net drag on the industry. The amount of money that a company receives in patent royalties is offset by the costs to the companies paying the royalties. The amounts won by a company in a court judgement is offset by the cost to the losing company. All of the companies participating in this game have legal expenses for negotiating software patent agreements and fighting court battles. There is also the expense of obtaining the patents in the first place. The net result for the software industry as a whole is a less than zero sum game.
There may be a few companies that beat the odds enough to actually make a profit in the software patent game but overall the industry shows a net loss on software patents. The best strategy for most companies in the software patent game would be to lobby to abolish software patents.
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Steve Stites