More background about the Cisco case

Submitted by brett. on 2008-12-11 12:06 PM.

This morning the FSF filed a lawsuit against Cisco, alleging that the company has infringed our copyrights by distributing programs under the GNU GPL and LGPL without respecting the licenses' terms. You've probably seen the press release; if you're especially curious, you might also want to read the complaint. Since we expect a lot of people to be interested in this case, I wanted to take a little time to explain what has happened, and why we're doing this, in plain language.

Back in 2003, we learned that the Linksys WRT54G, a popular wireless router, used a GNU/Linux system in its firmware, but customers weren't receiving all the source code they were entitled to under our licenses. You might remember that case--a lot of developers were interested in it and it was discussed in several different forums.

As we always do in violation cases, we began a process of working with Cisco to help them understand their obligations under our licenses, and how they could come into compliance. Early on it seemed likely that we could resolve the issues without any fuss.

While we were working on that case, though, new reports came in. Other Cisco products were not in full compliance either. We started talking to the company about those as well--and that's how a five-years-running game of Whack-a-Mole began. New issues were regularly discovered before we could finish addressing the old ones.

During this entire time, Cisco has never been in full compliance with our licenses. At first glance, the situation might look good. It's not difficult to find "source code" on the Linksys site. But you only have to dig a little deeper to find the problems. Those source code downloads are often incomplete or out-of-date. Cisco also provides written offers for source, but we regularly hear about requests going unfulfilled.

December 8, 2008, 9:26 am

A no-fly zone to protect Linux from patent trolls

On Tuesday a consortium of technology companies, including IBM (IBM), will launch a new initiative designed to help shield the open-source software community from threats posed by companies or individuals holding dubious software patents and seeking payment for alleged infringements by open-source software products.

The most novel feature of the new program, to be known as Linux Defenders, will be its call to independent open-source software developers all over the world to start submitting their new software inventions to Linux Defenders (Web site due to be operational Tuesday) so that the group's attorneys and engineers can, for no charge, help shape, structure, and document the invention in the form of a "defensive publication."

Linux Defenders will then also see to it that the publication, duly attributing authorship of the invention to the developer who submitted it, is filed on the IP.com Web site, a database used by the U.S. Patent and Trademark Office and other patent examiners throughout the world when they are trying to determine whether a proposed patent is truly novel, as any patentable invention is supposed to be.

In effect, the defensive-publications initiative mounts a preemptive attack upon those who would try to patent purported software inventions that are not truly novel -- i.e., innovations that are already known and in use, though no one may have ever previously bothered to document them, let alone obtain a patent on them, a process usually requiring the hiring of attorneys as well as payment of significant filing fees.

"The idea is to create a defensive patent shield or no-fly zone around Linux," says Keith Bergelt, the chief executive officer of Open Invention Network, the consortium launching the site. The core members of that group, formed in 2005, are IBM, NEC, Novell (NOVL), Philips, Red Hat (RHT) and Sony.

OIN's Linux Defender program is being co-sponsored by two of the most prominent guardians of the free- and open-source software community, the Linux Foundation in San Francisco and the Software Freedom Law Center in New York. In addition, the site is being hosted and "co-developed" by New York Law School, which has, since June 2007, been sponsoring, in coordination with the U.S. Patent and Trademark Office, its own well-received, complementary project, known as the Peer to Patent Community Patent Review site. That site solicits assistance from the open-source community to produce evidence that an invention for which a patent is currently being sought was actually already known or in use prior to the patent applicant's filing.

So-called free- and open-source software is software that, by its licensing terms, confers certain "freedoms" upon users that are usually forbidden by conventional proprietary software companies, like Microsoft. These freedoms include the right to see the software's source code, alter it, copy it, and redistribute it. The best known open-source product is Linux, or GNU/Linux, a complete open-source operating system that has become quite popular among Fortune 500 corporations for use on their data-center servers. Patents threaten the whole free-and-open-source eco-system, however, in that none of the key open-source freedoms can be practiced if an outsider can establish that a given piece of software infringes a valid patent he holds.

The Linux Defenders program is largely the brainchild of Bergelt, who took over as Open Invention Network's CEO this past February. The program also reflects a new, more proactive role Bergelt envisions for OIN than the group has played in the past.

Until now, OIN's purpose has been one-dimensional: to acquire a defensive portfolio of strategically crucial patents, which OIN makes available, royalty free, to any company that reciprocally agrees not to assert any of its own patents against the Linux community. (About 50 companies have already entered into such formal agreements with OIN, of which the best known are probably Google (GOOG) and Oracle (ORCL).) The implicit threat is that if any outsider -- a Microsoft, (MSFT) say, which declared publicly in May 2007 that open-source software then violated 235 of its patents -- were to ever bring a patent suit against a player in the Linux community, that outsider would, in turn, risk countersuit by OIN or its member companies asserting infringement of their own patents by the outsider.

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Apple Tells Court It Believes Someone Is Behind Psystar; Adds New Claims, Including DMCA Violation

Wednesday, December 03 2008 @ 04:29 AM EST

Apple has filed a motion to amend its complaint [PDF] to add a claim of violation of the DMCA, among other new and enlarged claims. Here's the proposed Amended Complaint [PDF]. So, not only have all of Psystar's counterclaims been thrown out, but now it faces new claims. But here's the big news. Apple alleges that it believes there are corporations and/or individuals behind Psystar, who may be added as defendants once Apple in discovery finds out who they are. Woah. Here's the new paragraph that made my eyes bug out: 18. On information and belief, persons other than Psystar are involved in Psystar's unlawful and improper activities described in this Amended Complaint. The true names or capacities, whether individual, corporate, or otherwise, of these persons are unknown to Apple. Consequently they are referred to herein as John Does 1 through 10 (collectively the "John Doe Defendants"). On information and belief, the John Doe Defendants are various individuals and/or corporations who have infringed Apple's intellectual property rights, breached or induced the breach of Apple's license agreements and violated state and common law unfair competition laws. Apple will seek leave to amend this complaint to show the unknown John Doe Defendants' true names and capacities when they are ascertained.

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My counterpart and good friend Tim Patterson has put together some persuasive arguments in the past about  the relationship which was struck two years ago between Novell/SUSE and Microsoft, specifically, the Covenant and Interoperability aspects of their accord.  I respect his points of view but submit that Novell has charted the right course in terms of their fiduciary responsibility to their shareholders and FOSS and inclusion of key openSUSE members in their governance decision making process.

The other day, I highlighted, openSUSE Sports a New License (Ding dong, the EULA's dead...), which Tim dutifully 'peppered' with his comments (I can always count on Tim to speak his mind on the most important of FOSS topics) to which I replied with my assessment of Novell's position going forward:

Tim_Patterson | 22 hours ago The FOSS community at large is understandably 'miffed' with the set of events and current relationship between MS and Novell.

I say, it is 'business as usual' at Novell and MS is just tagging along for the ride in their usual 'opportunistic' way.

So, don't fear the SUSE Lizard FOSS patriots!

Happy Thanksgiving Everyone!

--Dietrich

Bilski - What It Means, Part 5 (Conclusion) -- What About Microsoft's Patent Threats?

Monday, November 24 2008 @ 02:48 AM EST

Let's conclude our series of articles on In Re Bilski by looking at what the ruling may mean for Microsoft's threats against Linux. We can start by figuring out what kinds of patents Microsoft might think it owns. We've already seen that Microsoft acknowledged in its amicus brief that it owns "process patents", which is the category that the ruling was addressing, and by submitting the brief, clearly Microsoft thought Bilski could impact its software portfolio. When the ruling first issued, you'll recall patent lawyer Gene Quinn immediately wrote that it was bad news for Microsoft, that "much of the Microsoft patent portfolio has gone up in smoke" because, as Quinn's partner John White pointed out to him, "Microsoft doesn't make machines." Not just Microsoft. His analysis was that many software patents that had issued prior to Bilski, depending on how they were drafted, "are almost certainly now worthless." Much of Microsoft's portfolio, then, must be process patents. He was not the only attorney to think about Microsoft in writing about Bilski. A tax attorney, Linda M. Beale, in an article on the blog, A Taxing Matter, wrote about the effect of Bilski on State Street and on Microsoft: There remains much to be determined about the meaning of the Bilski decision (about which I will write more on a future posting). The court did not completely overrule State Street, leaving it unclear what the "tied to a particular machine" language may encompass. As the Nixon Peabody blog post illustrates, the decision will likely lead to a change in the way patent applications are framed (attempting to claim a requirement for computerization, for example, or emphasizing the "transformative" nature of the process described in the patent application). Suffice it to say for now that this will undoubtedly have an immediate impact on businesses, especially those that have taken out a large number of business method patents for proprietary computer programs. (It has been suggested that Microsoft has patented an entire arsenal of business methods since the State Street decision. See, e.g., this post.) It is likely that a substantial number of business method process patents that have been obtained since State Street would not qualify under the BilskiState Street process itself.  What is that saying? I read it as saying that a lot of weak patents just got weaker, if not overturned completely. Do you not read it that way? So what does that mean for the threats against Linux? Red Hat VP and Assistant General Counsel Rob Tiller writes: In its new opinion, the court declined to settle the issue of when, if ever, software based inventions should be patentable. Even so, the new test in Bilski will probably limit the patentability of software. Future cases will shed further light on this issue. In the meantime, the holder of a poor quality software patent is likely to think more carefully about bringing a lawsuit, because the patent may be ruled invalid.

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RIAA win: Tennessee to police campus networks

Tennessee has agreed to filter computer networks for unauthorized music downloads at the state's colleges and universities.

Tennessee Gov. Phil Bredesen signed into law a bill designed to thwart music piracy at the state's campuses, the Recording Industry Association of America said on its Web site.

The bill requires Tennessee public and private schools exercise "appropriate means" to ensure that campus computer networks aren't being used to download copyright material via peer-to-peer file-sharing programs, the RIAA said.

"Upon a proper analysis of the network," the RIAA continued, "those institutions are required to implement technological support and develop and enforce a computer network usage policy to effectively limit the number of unauthorized transmissions of copyrighted works."

The Electronic Frontier Foundation, an Internet-user advocacy group, called the law "ridiculous," and said the costs of enforcing it would top $9 million.

"The entertainment industry lobby seems to be succeeding, bit-by-bit in persuading legislators to coerce universities into buying 'infringement suppression' technologies," the EFF said in a blog post, adding that these technologies are expensive and "won't stop file sharing on campus networks."

The RIAA said that a 2007 Student Monitor survey found that more than half of college students download music and movies illegally.

A friend of mine, Patricia Montesinos, a senior at the University of Tennessee, said Tuesday she's seen no notifications yet from the school about filtering.

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Antitrust case against Apple still on, says Mac clone maker

Mediation ordered by judge a 'nonstory,' attorney says

October 21, 2008 (Computerworld) Contrary to media and blogger reports, Apple Inc. and Mac clone maker Psystar Corp. have not suspended their legal wrestling, a lawyer for Psystar said today.

The fact that the two parties have filed documents with a federal court promising that they would take their dispute to Alternative Dispute Resolution (ADR), a legal process that can include mediation, is "a nonstory," said Colby Springer, an attorney at Palo Alto, Calif.-based Carr & Ferrell LLP, who is on the team representing Psystar.

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More Patent Threats From Microsoft
Saturday, October 18 2008 @ 05:21 PM EDT

Ina Fried has an interview with "Microsoft's top intellectual property lawyer", Horacio Gutierrez, and Gutierrez directly threatens to sue any company, like Red Hat, that refuses to sell out and do a patent deal like the one Novell signed up for:

"If every effort to license proves not to be fruitful, ultimately we have a responsibility to customers that have licenses and to our shareholders to ensure our intellectual property is respected," he said.

So, more threats to try to force Red Hat to sign a deal that violates the GPL and that the GPLv3 makes very interesting in effects for Microsoft. I almost hope they mean it this time. Talk about anticompetitive use of patents, though. Nothing but the destruction of the FOSS development model and chosen license structure will do. No one I know, including FOSS lawyers, is losing any sleep over these threats.

Oh, by the way, Gutierrez tells us something else you probably assumed:

In an effort to help head off patent disputes, Microsoft is an investor in Nathan Myrhvold's patent-buying Intellectual Ventures effort and has also made deals with several other such patent companies. "We've done deals with a number of others," Gutierrez said.

OOOOh. Scary. The giant eats babies. Quick, do whatever he tells you!! Puh lease. The last straw sinking companies clutch at is patent lawsuits and other "IP" litigation to bring up the bottom line, when they see they can't win fair and square with products people actually want.

But what is clearer to me now is that Microsoft is apparently determined to control or destroy FOSS as we know it. And they think patents give them the power to do it. What I think will really happen is a whole mess of litigation, including some antitrust claims. I don't rule out Red Hat's ability to be legally creative, of course, but no one can do a Novell-style deal again, with respect to GPLv3 code, without triggering results [PDF] I am sure Microsoft would not wish for.

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