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SFLC Argues On Same Side As Microsoft 59

Posted by kdawson
from the odd-bedfellows dept.
MCRocker writes in with news that, while a few weeks old, didn't get a lot of traction before the holidays. The Software Freedom Law Center is one of the staunchest defenders of FOSS out there. The SFLC is arguing on the same side as Microsoft in a patent case before the Supreme Court. The case, "Microsoft vs. AT&T," turns on whether U.S. patents should apply to software that is copied and distributed overseas. Groklaw has more nitty-gritty details. In the Linux-Watch article, the SFLC's legal director, Daniel Ravicher, is quoted: "I expect many people will be surprised that the Software Freedom Law Center has filed a brief with the Supreme Court in support of Microsoft. In this specific case, Microsoft and SFLC are both supporting the position that U.S. software patents have no right to cover activity outside of the United States, especially in places that have specifically rejected software patents."
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SFLC Argues On Same Side As Microsoft

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  • Amazing. (Score:5, Insightful)

    by splutty (43475) on Thursday January 04, 2007 @08:38AM (#17457116)
    An F/OSS supporter that is actually honest enough to see that what their 'enemy' is doing is only beneficial for the whole. Kudos to them, I say. At least they know what they stand for (as is obvious from their name, really :) and don't blindly deny the possibilities that this case gives them.

    *cheers*
    • Well in this case it's sort of a "duh" position to take. It doesn't matter if the appellant was Lucifer, Prince of Darkness, the SFLC couldn't possibly ignore this case. It's one of the only USSC cases currently in the system that get at the concept of software patents so directly.

      Although Linux supporters sometimes see the software-patent issue as one part of the landscape affecting their favorite OS, I suspect to people working at the SFLC, the whole Linux/Windows conflict is just one very front (and at least at the moment, one on which there's not a whole lot of movement) in a much larger war.
      • by TheRaven64 (641858) on Thursday January 04, 2007 @09:06AM (#17457360) Journal
        If they win this case, it could have a serious effect on software patents in the USA. Actually, whichever way the case goes could be good for the Free Software community. As I see it, there are two choices:

        If US patents apply to activities of US corporations outside the US then this will mean that US companies are not able to compete as effectively in other markets. If it is possible for non-US software companies to undercut US-based ones in places like the EU and south-east Asia then this will have a serious effect on the US software industry. Anyone starting a software company will be likely to seriously consider starting it outside the US, even if they are from there. This will give a lot of weight to those campaigning to get software patents abolished in the USA, since they will be able to point to clear evidence that their existence is harming the economy. If this succeeds, then it will remove the 'aligning our IP laws with the US' argument that keeps being waved around by software patent proponents in the EU.

        If the case goes the other way, then it means that those of us outside the USA will be able to get software products that are either better or cheaper (because they will either include code not found in the US versions, or because they will not include patent royalties) than those available in the USA. This can, again, be used as evidence of software patents harming the US economy.

        • by msobkow (48369) on Thursday January 04, 2007 @10:07AM (#17458082) Homepage Journal
          In this specific case, Microsoft and SFLC are both supporting the position that U.S. software patents have no right to cover activity outside of the United States, especially in places that have specifically rejected software patents.

          I don't even ascribe to that narrow restriction. Any patent or IP system should be national or managed by a trade union like the EU, not shoved down the throats of foreign citizens and businesses by one country. The current approach allows patent holders to literally leverage the military and economic pressures of the United States for their own personal gain.

          Having the OSS symbol of evil (Microsoft) standing alongside the pro-OSS representatives on this issue highlights the broken nature of the current US patent system in double-height, double-width, bold, italic, flashing, underlined text.

      • Microsoft is very smart and crafty. They will come up with a Microsoft Linux if that is what it will take to win. And they will use that embrace, extend, extinguish strategy to knock the rest of the F/OSS community. We already see this happening with Novell.
      • by Adhemar (679794) on Thursday January 04, 2007 @09:36AM (#17457700)
        Well in this case it's sort of a "duh" position to take.

        Still, the SFLC takes a very different position compared to Microsoft, although technically on the same side. Microsoft argues that U.S. patents have no right to cover activity outside of the United States, especially in places that have specifically rejected software patents.

        The SFLC argues that software patent are not valid at all under U.S. laws (specifically 35 U.S.C. 101) and prior Supreme Court decisions (Gottschalk v. Benson, 409 U.S. 63 (1972)). The Federal Circuit has repeatedly decided otherwise (In re Alappat, disregarding the Supreme Court's precedent as unclear); the Amicus Brief challenges this practice. (Go ahead and read the Brief, it's pretty readable even by non-lawyer standards.)

        So although Microsoft and the SFLC are on the same side, I'm quite sure Microsoft would have preferred stating its case without this brief.

        • So although Microsoft and the SFLC are on the same side, I'm quite sure Microsoft would have preferred stating its case without this brief. I'm not quite sure. How are you convinced software patents help Microsoft? In reality, they hurt Microsoft as they worry about getting sued by some little podunk who patented the idea for some obvious algorithm that's been in use for years.

          Software patents only benefit companies who don't actually produce a lot of software and would prefer to just go around suing.

          • Software patents only benefit companies who don't actually produce a lot of software and would prefer to just go around suing. Microsoft would be better off without them.

            If software patents harm Microsoft then why does MS patent software?

            Falcon
            • by Kadin2048 (468275)
              If software patents harm Microsoft then why does MS patent software?

              Mutually Assured Destruction.

              If you want to go into the software business, you need to have some patents yourself, just in case somebody else decides to go after you. If Microsoft didn't have a patent portfolio, IBM would roll over them like a big blue Panzer division. It's basically impossible to develop non-trivial application software without violating somebody's patents, somewhere; hence every major software company has its own patent a
    • Most of the more mature free software supporters have never treated specific companies as "friends" or "foes", except in the context of a specific battle. The "I hate Microsoft" or "I love Apple" sentiments have mostly been reserved for fora dominated by a younger population, such as /..

      I blame Hollywood (or, more correctly, popular literature in general) for bringing up kids to believe in a world where people (and corporations) are "good" or "bad", rather than a world where people have interests that are
      • by sgtrock (191182)
        Umm, I don't consider myself to be a young buck. I'm pushing 50, after all. :) However, I was brought up to believe that unethical behavior by people should be treated as grounds to actively dislike them. I don't think I'm alone in that. When a company's officers exhibit that kind of behavior, I'm all for hating the company! ;)

        Seriously, I can remember hoping that IBM would finally get their long deserved punishment and go bankrupt. Now, they're a key ally defending freedom of choice. It just goes to
  • by thebackslasher (611336) <paulboivin@ y a hoo.ca> on Thursday January 04, 2007 @08:50AM (#17457200)
    I think the title of this item should have been "Microsoft agrees with the SFLC"! It is my understanding that the SFLC's position hasn't changed. It is just Microsoft's position which is surprising. What? Microsoft defending the rights of countries that do NOT support patents? I for one am surprised!
    • Re: (Score:3, Insightful)

      by ShadowFalls (991965)
      Microsoft is looking at the big picture for themselves. With this type of implementation, they can implement products overseas with risk of being sued, taking and using the ideas of others to increase their own profit margin. Remember, Microsoft doesn't do it for the consumers, they do it because they think their bank account is getting short on funds.
    • by kfg (145172)
      I think the title of this item should have been "Microsoft agrees with the SFLC"! It is my understanding that the SFLC's position hasn't changed.

      Bingo!

      It is just Microsoft's position which is surprising. What? Microsoft defending the rights of countries that do NOT support patents? I for one am surprised!

      Don't be. Microsoft's position hasn't changed either. Follow the money.

      KFG
    • in this case, these patents help protect Microsoft's competitors. Since it is unlikely patents will be abolished completely, Microsoft will have the best of both worlds if they win. That's the problem of incrementalism.
    • by ClamIAm (926466)
      It is my understanding that the SFLC's position hasn't changed.

      I don't think Microsoft's position has "changed" really, either. But the irony here is pretty sweet: the Evil Empire(tm) is for a short time allied with the Freedom Fighters(r).

      And I'll go ahead and be that guy and pull out a quote:

      If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today. --Bill Gates [wikiquote.org] (1991)

  • Well, I am automatically skeptical because of the author. The author is known somewhat for wagon hopping and even a little bit of misdirection. I have read articles wherein he crucifies Linux and another where he praises it. I am not sure exactly where his loyalties lie. Others have observed that he just wants to stir up the waters or fan the flames.
    • Re:the author (Score:4, Insightful)

      by kfg (145172) on Thursday January 04, 2007 @09:20AM (#17457484)
      I have read articles wherein he crucifies Linux and another where he praises it. I am not sure exactly where his loyalties lie.

      I'm not exactly sure why he should have any.

      Let us assume, however, for the sake of argument, that he has some. Perhaps they are to ideas rather than to groups or "movements." I understand that to people not used to supporting ideas this can be confusing.

      See the very subject of the article.

      KFG
    • Re:the author (Score:5, Insightful)

      by drsmithy (35869) <drsmithy.gmail@com> on Thursday January 04, 2007 @10:05AM (#17458060)

      I have read articles wherein he crucifies Linux and another where he praises it.

      Possibly because there are some situations where Linux deserves praise and others where it deserves scathing criticism ?

  • by codepunk (167897) on Thursday January 04, 2007 @09:03AM (#17457320)
    "The brief also argues that the Federal Circuit's decisions declaring software to be patentable subject matter conflict with Supreme Court precedent, and thus should be overruled."

    They argue in the brief that software as a whole is not patentable and the patenting of software conflicts with earlier supreme court rulings.
  • I understand Microsoft and the SFLC's position. I even understand the position that software should be patentable (I just disagree with it).

    I just can't see any interpretation of any law that says that US patent law should apply to products that are produced nowhere within US jurisdiction. Or any other US law for that matter. Yet AT&T seem to be saying that this is the case.
    • by Aim Here (765712) on Thursday January 04, 2007 @09:23AM (#17457512)
      The law is 35 USC 271, section f [uspto.gov], which is designed to stop people making components of a patented invention and shipping them overseas in order to be assembled into something that would breach the patent, had the act occured in the US.

      In this case, the software is apparently developed in the US and shipped overseas.

      Yes, it's a disgusting overreach of US patent law into foreign jurisdictions. And yes, software patents are evil, and hopefully unlawful. Go Eben and Dan!
      • by 91degrees (207121)
        Thanks for the explanation.

        Yes, it's a disgusting overreach of US patent law into foreign jurisdictions.

        But unless I misunderstand it, it oddly seems to only inconvenience US companies and companies with a substantial US prescence. Strange that the US government (or any other for that matter) would pass a law like that. I'd have expected to see an exception to patent enforcement for manufacture for export.
      • by mavenguy (126559)
        I'll open with the usual disclaimer: I am not a lawyer (I hate the acronym associated with this expression). The question(s) to be answered by the SCOTUS are:

        (1) Whether digital software code--an intangible sequence of "1's" and "0's"--may be considered a "component[] of a patented invention" within the meaning of Section 271(f)(1); and, if so, (2) Whether copies of such a "component[]" made in a foreign country are "supplie [d] . . . from the United States."

        Although the very issue of the patentab

        • Re: (Score:3, Insightful)

          by Aim Here (765712)
          Yeah, but if SCOTUS rules that patents aren't valid relative to section 271(f) because they're not valid at all, then there's no reason for that reasoning not to be applicable.

          In fact, my uninformed guess is that it would be perverse for software to not be a component under 271(f) while being fully patentable under 101. The law so far has ruled diametrically opposite. The Eolas case, the one Supreme Court ruling (sortof) in favour of software patents, allowed for a computer running software to be part of a
  • It's good to see this finally being challenged. Every time I've read about this software patent bullshit I've burnt up inside, even though it doesn't affect me directly.

    Heh, I guess we wouldn't be hearing about interesting patent applications from places like Google or Microsoft anymore, but that's really nothing compared to what it could mean for the open source community and for the industry in general.
  • During the Boston Tea Party, the USA asserted its independence from Britain. It seems that some law makers have forgotten that independence works both ways.
    • During the Boston Tea Party, the USA asserted its independence from Britain. It seems that some law makers have forgotten that independence works both ways.
      Ehem, no.
      The Boston Tea party was about taxes sneaked in as tariffs. Independance came a few years (and stupid british laws) later ...
  • Microsoft... good?
    Slashdoters... confused?
    Posts... few?
    Reality... alternate?
  • by ajs318 (655362) <sd_resp2 AT earthshod DOT co DOT uk> on Thursday January 04, 2007 @10:52AM (#17458682)
    I think the earlier poster got it right in saying that it would really be truer to say that it's Microsoft who are fighting on the same side as the SFLC.

    Nevertheless, there is such a thing as "National Sovereignty"; which basically means that a nation's laws stop at that nation's borders. If Person A does something which is legal in Nation X but not in Nation Y, and does it in Nation X, then Nation Y has no redress against Person A. The consumption of alcohol and extra-marital sex are both illegal in Saudi Arabia; however, any Saudi resident who drinks several litres of Guinness while visiting Ireland is not committing any crime for which they can be punished under Saudi law. That's because the Republic of Ireland is a sovereign nation. Only Irish Law applies to acts performed in the Republic of Ireland, whether or not they be done by Irish citizens. If the Arab in question then visited certain parts of the Continent, he might even be permitted to engage in lawful (subject to payment of the appropriate taxes) sex with a prostitute, and possibly even (again legally) to consume certain other substances less harmful than alcohol. Again, local (not Saudi) law would be applicable.

    So it seems to me that if a US-owned company were to create software in some non-US territory which might violate US patents if it were imported into the USA but (by dint of the scope of patentability) would not violate any patents in the territory where it were created, the laws of the territory where the software were created would be applicable. And for the USA to seek to prevent a perfectly legal act within the borders of another sovereign nation could be construed as an Act of War.
    • Indeed.

      Though the article implies the angle where SFLC deserves attention for siding with MSFT, the real story is how MSFT is even considering the same side as SFLC. (especially since this exchange [slashdot.org].)

      So, in thinking about where this all leads, don't think about what SFLC will do next. Rather, think what the next move of MSFT will be.

      So far...

      • by ajs318 (655362)
        The only force that can stop Microsoft is Open Source. And it's got to reach a certain critical mass first; a big user -- an entire country, a multinational company or The Entire Pr0n Industry -- has got to be bold, make the decision to switch from MSFT to OSS, and stick with it for better or worse. Which means there must be absolutely no possibility of Microsoft buying them off before the benefits have set in (let's not kid ourselves: this will take awhile, however well the project is managed). It must
    • by tehcyder (746570)
      Nevertheless, there is such a thing as "National Sovereignty"; which basically means that a nation's laws stop at that nation's borders.
      But don't some countries prosecute their own citizens who are paedophiles but offend in another country?
      • by ajs318 (655362)
        Only if what they did abroad was also a criminal offence there. If you have sex with a 12-year-old in a country where the age of consent is 12 then you can't be prosecuted on your return home, because you haven't broken any country's laws. If you have sex with a 12-year-old in a country where the age of consent is 16 then yes, you can be prosecuted on your return home.
  • In point of fact Bill Gates didn't used to be (publically at least) a fan of software patents. His position in 1991 was that patents exclude competitors and lead industry to stagnation.

    Aside from the possibility that Gates just thinks (or thought at any rate) software patents are a bad idea, this is not a suprising position. Microsoft has deep pockets and distributes enough software to fill the Mediterranean Basin. It's a good bet that they would be willing to sacrifice their own patent pool for in or

    • Microsoft has deep pockets and distributes enough software to fill the Mediterranean Basin. It's a good bet that they would be willing to sacrifice their own patent pool for in order to be free of the constant threat of successful multi-million dollar (or more) lawsuits from some clown who has managed to patent binary arithmetic or the use ampersands in code.

      Microsoft doesn't get software patents to protect themself, the only reason to get patents to use it to make money. If the idea is to protect yours

      • That's like unilateral disarmament. When others have the patent weapon, it makes sense to maintain your own stockpile.
  • As we all know, if someone you despise thinks that 2+2=4, you are morally obliged to think it is 3 or 5.

    Anything else is a betrayal of justice!
  • So this was a great idea by SFLC to remind the Supreme Court that the larger issue of whether software should be allowed to be patented at all, but it is a very long shot. Chief Justice Roberts is on record as saying that he prefers to keep rulings as narrow as possible:

    "If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more."

    See more of his philosophy at http://www.economist.com/PrinterFriendly.cfm?story _id=8413080 [economist.com]

    So, while it would be nice to see

  • I expected someone to have posted something humorous by now.
  • Can we request that story submittors (and failing that, Editors) properly dereference all TLAs, FLAs, and other nLAs?

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