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Patents Microsoft Software Linux

Author of Linux Patent Study Contradicts Ballmer 335

Posted by michael from the that's-unpossible dept.
An anonymous reader sends us this EWeek story, following-up on the recent Linux patent scare. The author of the patent study is contacted, and says, "Open source faces no more, if not less, legal risk than proprietary software. The market needs to understand that the study Microsoft is citing actually proves the opposite of what they claim it does."
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Author of Linux Patent Study Contradicts Ballmer More

Author of Linux Patent Study Contradicts Ballmer

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  • Aww, man (Score:5, Insightful)

    by Anonymous Coward on Sunday November 21, 2004 @03:41PM (#10882445)
    Now Microsoft will have to buy a new study that says what they want.

    • Re:Aww, man (Score:5, Interesting)

      by kusanagi374 ( 776658 ) on Sunday November 21, 2004 @03:56PM (#10882546)
      They don't have to... twisting information in their favour has been enough for a good while. For the common investor, what Ballmer says is much more interesting than some guy's studies.

    • Not really (Score:5, Insightful)

      by Alcimedes ( 398213 ) on Sunday November 21, 2004 @04:02PM (#10882586)
      Seeing as they don't really care what the studies are saying, I'm not sure why you think they'd need to buy one.

      Study concludes A.

      MS decides B.
      MS distributes B across the globe, everyone repeats. End of story.

      No new study required.

      • Re:Not really (Score:5, Interesting)

        by Frymaster ( 171343 ) on Sunday November 21, 2004 @04:13PM (#10882647) Homepage Journal
        MS decides B.
        MS distributes B across the globe, everyone repeats. End of story.

        this reminds me of the whole "total cost of ownership" campaign ms ran a few months ago, whereby ms claimed that the tco of microsoft server solution was cheaper, overall, than the linux equivalent.

        well, i downloaded the pdf of the study and read the whole damn thing. the bottom line: the ms solution was cheaper... if you factored in the "retraining costs" required to move your "existing i.t. staff" to use linux.

        the devil, of course, was in the unspoken assumption that you are already running an ms shop. more correctly stated: the tco of your current system is cheaper than moving to a new system over the short or, potentially, medium term.

        now, since ms still has the lion's share of the desktop and workstation installs and a healthy chunk of the server space they maybe could be forgiven for glossing over this crucial fact. but, still, it just boils down to making a simple unstated assumption that changes the whole outcome of the data.

        • Re:Not really (Score:5, Funny)

          by jokumuu ( 831894 ) on Sunday November 21, 2004 @04:35PM (#10882804)
          but, still, it just boils down to making a simple unstated assumption that changes the whole outcome of the data.

          Unfortunately this is a trend that is increasing in our society, one takes a fact or group of facts out of context and uses that to prove something.

          • Re:Not really (Score:3, Insightful)

            by luvirini ( 753157 )
            This has allways existed, but what is a bit different perhaps, is that in the past when you were exposed to have lied, you were seen as something bad, today it is seen as business as usual. An the actual use of these types of things might have increased too.

          • Re:Not really (Score:5, Funny)

            by Heisenbug ( 122836 ) on Sunday November 21, 2004 @08:07PM (#10884162)
            but, still, it just boils down to making a simple unstated assumption that changes the whole outcome of the data.

            Unfortunately this is a trend that is increasing in our society, one takes a fact or group of facts out of context and uses that to prove something.


            My god ... you just took one isolated fact to make a sweeping generalization about the way our society makes generalizations from isolated facts. Come on, mods, where's the +5 Funny? That comment was comic genius.


        • yes. but the unspoken assuption just happens to unfortuantly be the 'concreate reality'.

        • That's why TCO does not include migration costs. (Score:5, Insightful)

          by khasim ( 1285 ) <brandioch.conner@gmail.com> on Sunday November 21, 2004 @05:07PM (#10883027)
          TCO is only one factor to consider when evaluating a system, but it is also one of the most easily abused numbers. Particularly in the "studies" funded by Microsoft.

          TCO only covers daily operation costs, upgrades, air conditioning, employees, etc.

          All of the migration costs go under the category of "migration costs".

          Otherwise, it is easy to increase the "TCO" of any other product to any amount you want by "assuming" that the company in the example will be running your product and that it will cost $X to migrate from your product.

          $X includes all data migration costs, educational expenses, etc. So, you "estimate" that it will cost $500/person/hour to "re-train" the existing staff. If that isn't enough, then "estimate" that it will cost $750/person/hour to "re-train".

          You can do the same with the data migration costs. If the company selling Product A needs Product B to be $100,000 more expensive, just "assume" that the example company will be running Product A and then "estimate" that it will cost $100,000 to migrate the data to Product B.
          now, since ms still has the lion's share of the desktop and workstation installs and a healthy chunk of the server space they maybe could be forgiven for glossing over this crucial fact. but, still, it just boils down to making a simple unstated assumption that changes the whole outcome of the data.
          I don't think so. They can add whatever costs they want to the migration cost amount, but they won't ever split it out correctly.

          Otherwise, people could easily see that other solutions are far less expensive to run ...... and that Microsoft depends upon locking up your data to keep you as a "customer".

        • Re:Not really (Score:4, Interesting)

          by pesc ( 147035 ) on Sunday November 21, 2004 @05:19PM (#10883111)
          the ms solution was cheaper... if you factored in the "retraining costs" required to move your "existing i.t. staff" to use linux

          That's an angle I haven't thought of before: The "independent" M$ studies demonstrates that once you start to use M$ tech, it becomes costly to switch. The study actually shows the cost of exercising your freedom to switch to an alternate supplier once you have been entangled in M$ lock-in tech.
        • well, i downloaded the pdf of the study and read the whole damn thing. the bottom line: the ms solution was cheaper... if you factored in the "retraining costs" required to move your "existing i.t. staff" to use linux.

          That's why it's better to skip the "retraining" entirely. Just fire the whole staff and hire some unemployed linux geeks.

      • Re:Not really (Score:5, Insightful)

        by jkabbe ( 631234 ) on Sunday November 21, 2004 @04:27PM (#10882742)
        No, really

        It's more like:

        Study concludes A
        MS decides that A is bad and tells everone about it.

        It's certainly disingenuous of them to change "potentially" to "does." But other than that they really aren't contradicting the study. This just falls under the category of "lies, damn lies, and statistics"

  • What? (Score:5, Funny)

    by Goo.cc ( 687626 ) on Sunday November 21, 2004 @03:42PM (#10882455)
    Microsoft mischaracterizes what someone says just for FUD purposes? Naaa, that would never happen.

    • Re:What? (Score:3, Interesting)

      by michaeldot ( 751590 )
      This post has been moderated all over the place. When I first looked at it, it had -1 Flamebait, no doubt from the MS supporters who troll the forums. Now it has +4 Funny.

      But it's a simple statement of fact, it's what Microsoft has indeed done for the past 20 years.

      Why not Insightful? Are moderators getting too young these days to remember?

  • Sue-ability (Score:5, Interesting)

    by fembots ( 753724 ) on Sunday November 21, 2004 @03:43PM (#10882461) Homepage
    From the article: "Consider this--not a single open-source software program has ever been sued for patent infringement, much less been found to infringe. On the contrary, proprietary software, like Windows, is sued and found guilty of patent infringement quite frequently."

    While I am glad that OSS hasn't been suded yet, I think it's a bit immature to use this as a defence. First of all, you don't need to actually do anything wrong to be sued, and usually you're sued because you're making enough money that the plantiff might take a bite of it, or you have conflict of interest with the plantiff.

    Wasn't it not long ago we read about SCO/MS Connection [slashdot.org]? It's pretty obvious now that the litigation is baseless, but this doesn't not stop corporates from taking it to the court.

    Another example is FireFox, many claimed it's flawless, but the realistic others know that no software is bugless, but its OPEN status allows things to be fixed relatively quickly. So it would be unwise to claim that FireFox has fewer bugs and more secure because it hasn't been exploited yet.

    So a better argument might be OSS, given it's open, any potential patent infringement will be digged out before it goes far.

    However, this brings another question, can we safely assume that nothing incriminating is in the source? Patent itself is illusive enough, and how easy it is to find out about a particular patent, and then relate it to a certain class in the source?

    • Re:Sue-ability (Score:2, Insightful)

      by m50d ( 797211 )
      One advantage is that there are more open source fans reading the source than litigious companies, so hopefully we will spot any infringement before they do.

      • Re:Sue-ability (Score:2, Interesting)

        by jokumuu ( 831894 )
        Unfortunately The world does not work fully in this manner. In most cases anyone actually reading the code with thought will have a very specific purpose in mind, and I have not seen many people do it in the try to find and crossrefference any possible infringement.

    • Re:Sue-ability (Score:2, Insightful)

      by Anonymous Coward
      Given a copy of the source code and relevant patents, even patent lawyers couldn't provide absolute insurance against infringement, whereas with a patent on a mechanical device you can be pretty sure .software should not be patentable period!
    • So a better argument might be OSS, given it's open, any potential patent infringement will be digged out before it goes far.

      Interesting theory; perhaps you're right. But tell me, how many patents do you know well enough to vet OSS applications for?

      Perhaps someone had better start organising this properly, if your idea is to really have merit, because otherwise, your theory is just that - a theory.

    • more secure than IE (Score:5, Insightful)

      by Admiral Burrito ( 11807 ) on Sunday November 21, 2004 @04:34PM (#10882795)
      Another example is FireFox, many claimed it's flawless, but the realistic others know that no software is bugless, but its OPEN status allows things to be fixed relatively quickly. So it would be unwise to claim that FireFox has fewer bugs and more secure because it hasn't been exploited yet.

      I take issue with this. You're (unintentionally I assume) implying that because Firefox is not flawless, it doesn't have fewer bugs than IE. This is the fallacy of the excluded middle.

      Nobody with a clue claims that Firefox is flawless. Just that it's more secure than IE. Which, when you think about it, is not a very strong assertion at all.

      • While I agree that the grandparent poster's phrasing was inelegant, I don't see the implication you do. The claim is that "it would be unwise to claim that FireFox has fewer bugs and [is] more secure because it hasn't been exploited yet." This is true, and it does follow from the realistic understanding that no (substantial) software product is bug-free. The paragraph you quote doesn't actually address the issue of whether FireFox is more secure than IE.
    • Not only can some random person/company launch an completely unfounded lawsuit provided they have the money to fund it, but MS has the ability to create real-world headaches. First, they have a lot of patents on their own. Some are dubious, but once granted they are assumed in court to be valid. Invalidating any particular MS-patent would be a hellaciously expensive court fight. Second, if a dangerous patent is not already in their arsenal, it soon will be because MS possesses what amounts (for all pratical

    • Re:Sue-ability (Score:3, Informative)

      by rseuhs ( 322520 )
      Another example is FireFox, many claimed it's flawless

      Actually, no Firefox developer ever claimed such thing, no other serious OSS-person ever claimed that and even altough I find loads of crazy opinions on Slashdot and other forums, I haven't seen anybody claiming that on Slashdot or anywhere else.

  • Steven J. Vaughan-Nichols says Microsoft is bad... (Score:2, Funny)

    by Anonymous Coward
    ...more breaking news at eleven.

    So are open source vendors indemnifying end-users or not? Microsoft's legal exposure is priced into their software and the end user doesn't need to worry - can Linux users say the same or should they take out open source insurance?

  • The author needs to learn how to do math ... (Score:5, Funny)

    by Keeper ( 56691 ) on Sunday November 21, 2004 @03:52PM (#10882516)
    "In fact, the study said Linux potentially violates 283 software patents, not
    'over 228' as Ballmer said in his speech."

    Last time I checked 283 was over 228 ...
    • Well, last time I checked potentially violates and violates mean two different things...
      • "But Ravicher said Ballmer misinterpreted his study's findings. 'He misconstrues the point of the OSRM study, which found that Linux potentially, not definitely, infringes 283 untested patents, while not infringing a single court-validated patent.'"

        If the difference between potentially violates and violates means "nobody has sued anyone yet about this stuff", then I don't think the semantics make much of a difference.

        • Re:The author needs to learn how to do math ... (Score:5, Insightful)

          by tricorn ( 199664 ) <sep@shout.net> on Sunday November 21, 2004 @04:15PM (#10882663) Journal

          No, "potentially violates" means that a case could be made for infringement, but that it has never been tested in court, so it could very well NOT be an infringement as well. In addition, an untested patent has a fairly good chance of being overturned or limited. Patents that have been upheld in a court are much more dangerous.

          Where Open Source has an advantage over Closed Source is that a patent holder who hasn't sued in a timely manner has much less of an excuse - with Closed Source, they aren't able to see how a program is implemented, so don't know that it violates their patent, and that's why they didn't sue earlier. Thus, a lack of patent holders suing over an Open Source product is a better indication of future safety than it would be in Closed Source.

    • I really don't think that the numbers matter too much. If ever every software patent holder decided to sue as many violators as possible, you essentially have a situation of MAD, where entire sectors of software will be found to infringe somebody else's patent.
    • "In fact, the study said Linux potentially violates 283 software patents, not
      'over 228' as Ballmer said in his speech."

      Last time I checked 283 was over 228 ...

      It's about a misquote, not a math error. the author isn't saying that 283 is not "over 228," he is saying that his study does not state the number of potentially infringing patents in this form.

    • Indeed.

      and Ballmers point was also a about liability not the numbers anyway...

    • Yeah, true, but it certainly illustrates that Ballmer did not only not understand the study, he also couldn't read the numbers correctly.

      Probably his FUD-secretary told him to say "over 282" (because 283 is one more than 282) and he switched 2 digits.

    • Re:The author needs to learn how to do math ... (Score:5, Funny)

      by dbIII ( 701233 ) on Sunday November 21, 2004 @06:01PM (#10883393)
      "In fact, the study said Linux potentially violates 283 software patents
      I always said that using the group name "wheel" was a bad idea, and now someone's gone ahead and patented the wheel - so we're all in trouble.

      In a lot of cases software patents don't make sense.

  • Math Error in Article (Score:4, Informative)

    by Noksagt ( 69097 ) on Sunday November 21, 2004 @03:54PM (#10882528) Homepage
    In fact, the study said Linux potentially violates 283 software patents, not "over 228" as Ballmer said in his speech.
    Last time I checked, 283>228. Please also note this quote, which provides the best summary:
    "The point of the study was actually to eliminate the FUD about Linux's alleged legal problems by attaching a quantifiable measure versus the speculation," he said. "And the number we found, to anyone familiar with this issue, is so average as to be boring; almost any piece of software potentially infringes at least that many patents.

  • Liability of implementors of patented ideas (Score:5, Interesting)

    by Anonymous Coward on Sunday November 21, 2004 @03:55PM (#10882536)
    I've this question. If I implement a piece of software that is already patented and put it in the public domain, can I be sued for this?

    I mean in many CG books they describe algorithms that are patented, yet nobody sues the authors of the books. Can someone write a free implementation of a patented idea just for the sake of other people doing research on the idea (e.g timing and comparing certain patented algorithms, etc.)? This doesn't seem different from publication of said idea/algorithm.

    It is my understanding that if somebody uses it for commercial purposes or if I try to sell it, then I/they 'd be liable. But can source code be considered as a publication in certain cases?
    • Whether you try to sell it or use it for comercial purposes has little to do with the matter. What matters is whether you are distributing a description of the invention, or the invention itself.

      Yes, obviously the problem is here that when it comes to software the task of drawing the line between the two is a real bitch. Maybe impossible. But to hazard a wild guess, if you distribute some code in a book, you will be fine, if you distribute a binary then you will be leaglly screwed. If you distribute code i

      • Whether you try to sell it or use it for comercial purposes has little to do with the matter. What matters is whether you are distributing a description of the invention, or the invention itself.

        Yes, obviously the problem is here that when it comes to software the task of drawing the line between the two is a real bitch. Maybe impossible.

        Indeed. Depending on the language (e.g. C vs English) the description is the invention or not. It's one of the things that illustrates very well why patents are ill-

    • If I implement a piece of software that is already patented and put it in the public domain, can I be sued for this?

      Strictly speaking, yes. Patents protect the abstract concept of something. If the code was just copyrighted, you could release a competing open source product though. That's why companies like patents.

      Can someone write a free implementation of a patented idea just for the sake of other people doing research on the idea (e.g timing and comparing certain patented algorithms, etc.)? This d

      • This is mostly wrong.

        Patents protect the abstract concept of something.

        Patents do not protect abstract ideas. Direct infringement occurs when a patented invention is implemented, not when the idea of the invention is expressed, explained, described, or anything else like that.

        IANAL, but they probably have permission. Publishing firms have armies of lawyers to prevent infringement.

        Publishing code in a book, or any other sort of description of an invention, is not patent infringement (although it can

  • except... (Score:5, Interesting)

    by Tezkah ( 771144 ) on Sunday November 21, 2004 @03:56PM (#10882547)
    Except that if Microsoft violates 100 patents, they can just license or buy the company out that owns it.

    If one patent is broken by an OSS Project, its much more of a burden.
    • ...or maybe the patent owner will decide to:

      1. Collect royalties directly from the end user
      2. Issue an injunction to the end user to cease using their IP - immediately.

      Why? Because they don't like MS, maybe or they have a goal that doesn't include MS. Why is there always an assumption that MS can or even want to buy their way out of trouble?

      The point is, the choice is not with MS or the end user on how to react to proven patent infringements. With an open source product you have much more freedom and fle

      • Re:except... (Score:3, Insightful)

        by bersl2 ( 689221 )
        Why is there always an assumption that MS can or even want to buy their way out of trouble?

        Because the potential to buy their way out of trouble is always available to them. I don't believe that most people have the ability to resist a wad of dough thrown their way (AKA, "everybody has his price").
      • 1. Collect royalties directly from the end user
        2. Issue an injunction to the end user to cease using their IP - immediately.
        I don't think the patent holder can do either. This was SCO FUD, and now it's Microsoft FUD. The end user isn't violating the patent, the manufacturer is.
        Think about it; is it your responsibility to ensure that your car doesn't violate any patents, or Ford's?
        • IANAPL, but if what you say is correct, just to whome is OSRM selling insurance and what on earth are Novell, HP et al indemnifying us against?

          Colour me confused.

      • Re:except... (Score:3, Informative)

        by jkabbe ( 631234 )
        ...or maybe the patent owner will decide to:

        1. Collect royalties directly from the end user

        Patent's don't work that way. Patents prohibit you from manufacturing or selling the patented invention. If you're just using one you got from someone else they can't come after you. They would have to go after the person who gave/sold it to you.

        2. Issue an injunction to the end user to cease using their IP - immediately.

        Courts issue injunctions, not patent-holders. What the patent-holder would do is send a
        • Well, in my defence I would point you to a comment by PJ over at Groklaw. She says that "Users are liable whether they know about a patent or not."

          Here is the link. [groklaw.net]

          As I said, IANAPL or even AL but it seems pretty clear. I have also read of cases where companies have refused to settle with MS over patent issues.

      • Re:except... (Score:3, Insightful)

        by xenocide2 ( 231786 )
        Why is there always an assumption that MS can or even want to buy their way out of trouble?

        Because they have a long history of doing just that. They settled with sun for a large sum. They settled with Burst. They settled recently with Novel for 500 million.

        These companies all have one very common concern: shareholders. Legal proceedings like taking on Microsoft are costly, and shareholders are interested in their own profits. If you take a risky long term approach (like pursuing a royalty per end user) t

    • Re:except... (Score:3, Insightful)

      by crazyphilman ( 609923 )
      Why? Let corporations play "whack a mole" until their legal resources run out, and people will STILL be downloading the infringing tool. Stop one site from distributing? Someone in a more sensibly run country will pop up a mirror. Stop them? Someone else will pick it up. Even if you started sending hit squads and Interpol after sites, it'll just go underground -- and people will STILL be using it.

      You can't stop a social movement. That's why Bill Gates hates it so much. ;)

  • Law? What law? (Score:5, Insightful)

    by superpixel2000 ( 777844 ) on Sunday November 21, 2004 @03:57PM (#10882555) Homepage Journal
    OK, am I the only one who is seeing a legal problem here? If Coca-Cola said some study proves their cola is good for teeth, but the study shows it is harmful to teeth, don't you think the gov't, media, and a flock of 3rd party lawyers would descend upon Atlanta post-haste?
    So what'll happen with this? Nothing. Your boss will still think MS is the bestest ever, the average dingaling will keep using Win98 SP1, and no major media outlet will make the tiniest peep.
    Fight the power!

  • So we just get to take MS's word for it. (Score:5, Insightful)

    by Maul ( 83993 ) on Sunday November 21, 2004 @04:00PM (#10882575) Journal
    Microsoft has been taken to court over patent violations before. Regardless of the outcome, it shows quite clearly that nobody is safe from the looming threat of software patents.

    I'm sure Linux and Windows both violate some rediculous patents out there that have not been upheld in court.

    But Ballmer is saying here, "Windows is 100% free from patent violations, Linux is one big huge patent violation. Yes, I know there is really no proof I can show you to back up what I'm saying, but you should take my word for it. After all, MS is run by businessmen and Linux is run by dirty pot smoking communist hippies."
    • ``MS is run by businessmen and Linux is run by dirty pot smoking communist hippies.''

      You know, the rest is all fine and well, but here's where he really crosses the line, you know. I mean yeah, of course Linux is developed by pot smoking communist hippies. Free love, free pot, free Linux, baby! But where was I? Oh yeah. Obviously we're not violating any patents. Come on man, nobody believes dirty pot smoking communist hippies are even smart enough for that!

      Peace.
    • Linux is run by dirty pot smoking communist hippies.
      I thought we were gay pot smoking communist hippies...no one said anything about being dirty.

      I'm a geek, not a nerd...the difference? Geek's bathe.

    • Both Windows and Linux are certainly not 100% free from patent violations, but to a customer there's still a big difference. If Windows is found to violate a patent, Microsoft gets sued. The customer can remain completely oblivious to who's suing who. If Linux is found to violate a patent, the customer gets sued. I know there's insurance out there, but who wants to have to buy insurance so that they don't get sued for using the software they legally bought? For that matter, how many people outside the

  • This has been a common theme lately (Score:5, Insightful)

    by RAMMS+EIN ( 578166 ) on Sunday November 21, 2004 @04:02PM (#10882587) Homepage Journal
    ``The market needs to understand that the study Microsoft is citing actually proves the opposite of what they claim it does.''

    This has been a common theme lately. Microsoft did the same thing with various other studies. The Bush administration used reports that claimed the non-existence of WMD in Iraq to support its claims that Iraq was dangerous. Recently, I read a column where someone claimed that increased Firefox use would harm security (the larger target theory), with a reference to a report that showed IE gets more exploits per user than does Firefox.

    People get away with spreading all this FUD, because readers don't verify the information that's being cited. When Microsoft says the report found Windows cheaper than Linux, people assume the report indeed said so. Unless, of course, they are inquiring minds and want to know how the report arrived at its conclusion. Then they suddenly find the report concluded the opposite!

    What I don't understand is why the authorities get away with it. THESE PEOPLE ARE LYING TO US. Have you seen Ballmer in court over his allegations? Or Bush?
    • People get away with spreading all this FUD, because readers don't verify the information that's being cited...

      What I don't understand is why the authorities get away with it.

      Simple enough, isn't it? People don't RTFA. What's hard to understand about that?
    • Dude, you need to wake up. It's called marketing. The average person is exposed to marketing messages hundreds if not thousands of times a day. Get a grip.

      • Re:M-A-R-K-E-T-I-N-G (Score:2, Insightful)

        by NetNifty ( 796376 )
        A quick google for "false advertising" turns up this [poznaklaw.com], and mentions:

        "[False Advertising] also includes advertisements that make representations that the advertiser has no reasonable basis to believe, even if the representations turn out to be true. An example would be an advertisement for a photocopier machine which stated that the machine used less toner than any comparable machine. The advertiser would have committed false advertising if it had no reasonable basis to believe the truth of this claim (such
    • Where are the journalists?

      Aren't journalistst the ones who NEVER accept a story at face value, but instead dig deeper and expose the truth? This has been perverted to mean 'finding the angle', which means they sensationalize that which should not be sensationalizeed.

      Now, I *could* do the reasearch and find the facts on things, but there's no way that i could personally do that for every 'fact' that is asserted. So i rely an another party to do it for me. That being the journalists and reporters that pr
    • In our last election here in Ontario, Canada, the now-elected McGuinty promised he wouldn't raise taxes. He has. He's being sued by a consumer group here. I'm loving it. Maybe we can actually make people stand by their word?

    • Re:This has been a common theme lately (Score:5, Insightful)

      by ZorbaTHut ( 126196 ) on Sunday November 21, 2004 @05:05PM (#10883012) Homepage
      I've never understood why blatant corporate or political lying isn't a finable offense. It seems so simple - if someone in a public office says something obviously wrong, or displays a study that clearly contradicts their claim, slap 'em with a fine. If someone in a corporate structure does the same, hit the corporation with a fine.

      Why is this so difficult?

      Oh yeah, because the people who make laws got there by lying.
    • Matt Groenig had a cartoon one that basically said.

      "School prepares you for file by teaching you to sit quietly at your desk and do what you are told".

      America is pretty much like that. People don't question authority. They simply accept whatever they are being told.

      In the last election for example an incredible number of Americans were shown to believe in things that were demonstrably false. For example saddam Hussein was responsible for 9/11 and that Iraq had nuclear weapons. The odd thing is that even

      • Re:This has been a common theme lately (Score:4, Insightful)

        by JAFSlashdotter ( 791771 ) on Sunday November 21, 2004 @06:09PM (#10883459)
        In the last election for example an incredible number of Americans were shown to believe in things that were demonstrably false. For example saddam Hussein was responsible for 9/11 and that Iraq had nuclear weapons. The odd thing is that even if you were to go to one of these people and argue that Saddam had nothing to do with 9/11 they would dismiss you as being a communist/liberal and stop listening to you.

        My personal experience is that people form an initial impression about an issue on an emotional basis, so whoever reaches their emotional buttons better (or maybe even just faster) sways that initial impression. Once they have that initial impression formed, they seek out support for that conclusion (hooray for me for making a smart decision!) and they discount evidence to the contrary (because that would only make them feel stupid for being wrong).

        OK, that's not everybody all the time, but I think I see it enough to say it happens frequently. Of course I could just have formed that opinion and been ignoring evidence to the contrary...

    • They are allowed to Lie to us (Score:5, Interesting)

      by PetoskeyGuy ( 648788 ) on Sunday November 21, 2004 @05:24PM (#10883148)
      Technically unrelated to this article, but Fox News did go to court for making a story appear the oppisite of the facts. They lost at first, but won on appeal. Now they are suing journalists who refused to publish the false version of the report for court costs.

      Fox News was able to get a court to rule that they have no responsibility to tell the truth because there is no specific law that say they have too. So if a news station can not be required to report on things honestly, then I don't think there is much change of getting a company (especially MS) to do so.

      On of Many Links to this story [projectcensored.org]

  • It's all about perception (Score:5, Insightful)

    by bogaboga ( 793279 ) on Sunday November 21, 2004 @04:06PM (#10882614)
    Another "expert" will come out and claim the opposite of what the author meant. Guys, it's all about perception. The real truth rarely matters.

    Perception keeps the "Linux is hard" mantra in people's mind, even when useability and ease continue to improve. I hope Slashdotters understand this.

    So do not expect *cough*, *cough*, Monkey boy to stop his gospel soon, because I know that he knows that; you guessed it...It's all about Perception."

    Cb..

    • "Another "expert" will come out and claim the opposite of what the author meant."

      That would make for hugely entertaining reading...

      Expert A: "My study concludes X."

      Balmer: "It's confirmed, a study released by Expert A shows not-X!"

      Expert A: "Uhh, no, my study concludes not not-X, but X."

      MS funded Expert B: "I'm sorry expert A, you really mean not-X. Incidentally, will the be the full argument or just the half?"

      ..and then straight into the Dead Parrot sketch.

      • In the Linux world, we have seen this kind of argument, isn't it? "Linux is safer...", No, it isn't..." But you will agree that perception matters a lot don't you?

        Example: I still have some European ancestors in Africa! They never left, and will never live anywhere else...yet I still have relatives who think there is nothing good in Africa, and would not see any reason to even visit!

        What a world.

        Cb..

  • Curious (Score:5, Insightful)

    by edbarbar ( 234498 ) on Sunday November 21, 2004 @04:09PM (#10882628)

    Microsoft is willing to patent things, and to assume there are no patent infringments in the open source seems short sighted. And if they don't have the patents yet, eventually they will, as they push their technology forward. It isn't as if Microsoft consists of a bunch of incapable people, so eventually they will have, if they don't already, a lot of important patents open source will infringe upon.

    When I was working at one large software company, we wrote a number of patents. One of the reason was that companies like IBM might sue you, and if you don't have patents you can exchange with them, the cost is higher during the settlement.

    Honestly, it seems without "open source" patents, the open source community is fighting without an important tool, and like all wars of attrition with a determined foe, will eventually lose.

    • Yes but the Patents are dubious (Score:4, Insightful)

      by Skiron ( 735617 ) on Sunday November 21, 2004 @04:20PM (#10882700)
      Microsoft have teams of lawyers working to patent everything and anything and it gets granted (et al the 'to-do list').

      OK, supposedly the system only works when a patent is contested in Court. But due to the $$$$ Microsoft have in reserves, anybody that legally owns (or doesn't infringe) CANNOT afford to mount a defence against the diatribe of ligation, and has to recede.

      Microsoft win everytime, whether legal or not (and if it dubious, they buy them out anyway).

      Monopoly rules... do NOT pass go.
      • That's a nice theory, and I can believe that attack has been used against proprietary competitors, but I don't know of any cases where MS has forced an open source project to drop something or pay royalties because of a dubious patent claim.

        Do you?

        • Re:Yes but the Patents are dubious (Score:4, Insightful)

          by Skiron ( 735617 ) on Sunday November 21, 2004 @04:50PM (#10882898)
          That is what FUD is... scaring. I think the SCO case woke MS up [funding it] when it didn't go all their way. Now we have the threat of them doing it with their cash reserves.

          Could an open source project code team afford the legal costs to protect what is theirs against dubious patents awarded to MS in court? I doubt it.
  • (..ok you're reading this now - bear with me...but if you've not seen Lilo and Stitch then move on now!)

    RE: "Author of Linux Patent Study Contradicts Ballmer"

    Remember the scene where Nani quits her job at the restaurant and tells Lilo that "The manager's a vampire and he wanted me to join his legion of the undead.", to which Lilo mumbles a confirmation under her breath "I knew it!".

    Well, I had a 'Lilo moment' when I saw this headline!

  • That's the nice thing about modern justice. If you are a pattentholder and you want to sue microsoft in the best case you get the case settled and it will cost them a small fortune. Like they care.

    OTOH if they sue any small developer he won't even have the money to defend his case and will be bankrupted even if he is guilty or not.

    For a company that is so phenomenally rich you'd think they'd settle down and go enjoy the rest of their lives and do something usefull, like sitting in the garden. At least t

    • For a company that is so phenomenally rich you'd think they'd settle down and go enjoy the rest of their lives and do something usefull, like sitting in the garden.
      Microsoft has to keep growing to please its stockholders - it's a "growth stock", which is why they don't do dividends.

  • Accuracy is really not the point (Score:3, Insightful)

    by DukeLinux ( 644551 ) on Sunday November 21, 2004 @04:30PM (#10882764)
    Steve is not stupid by any means. He knew full well that he was lying. As we all know in business, the liars typically get away with their lies. Steve is scaring his audience into sticking with the devil they know. In the 1980's you could not get fired for sticking with IBM regardless of whether the product worked or not. That is how things are now. Just stick with Micro$oft and you keep your job. Whether your products work or not is not relevant. Essentially, Balmer is stating that the United States will eventually go after them. Given our recent escapades invading Countries with no pretense, I am sure places like Singapore are plenty scared. Sure he lied, but his audience will accept it hook, line and sinker.

  • Open source is more vulnerable to patents (Score:5, Interesting)

    by debrain ( 29228 ) * on Sunday November 21, 2004 @04:45PM (#10882865) Journal
    Of this I am fairly certain. Per my blog [blogspot.com], regarding this article [zdnet.co.uk].

    There is no lack of buzz around patents. This article garnered opinions from some big names in the patent world, like Free Software Foundation counsel Dan Ravicher, law firms Phillips Fox and Baker & McKenzie.

    Dan Ravicher of the FSF made this point: "patents pose less of a threat to open-source software than they do to proprietary software". He also states: "There are no patents that choose only to be infringed by open source. Any patent that imposes a threat to open-source software is going to impose a threat to proprietary software."

    Well, the first point doesn't flow logically from the second point. Open source and proprietary software are in two different categories, from an evidientiary and a monetary point of view.

    Access to source code
    As a matter of evidence, violating patents in open source software is evident on its face: you can read the source code. Legible code makes a patent infringement case trivial. Proprietary software may require expensive reverse engineering, to devise how it operates and whether that operation violates the patent. There may be some legal questions regarding your capacity to reverse engineer legally, particularly with oppressive legislation such as the DMCA.

    Access to software
    Also, in this vein, to determine a violation of proprietary software, you must also have access to it. Proprietary software, particularly custom or enterprise software, may not be readily available to examine. Even if the software is available, it may require an onerous license that prohibits reverse engineering. Open source software is, almost by definition, accessible to anyone for examinition. Having a clause to prevent reverse engineering would be contrary to its object.

    Licensing capacity
    The lucid nature of open source software means that to obtain a mandatory license for a patent would be prohibitively expensive for two reasons. First, open source software does not have deep pockets or the capacity for a cross licensing agreement. Second, even if either were available, the nature of open source software would wholly undermine the purpose of the patent: an open source implementation of the patent would be available for free, unrestricted use.

    A proprietary software company, on the other hand, has the economic means and an economic incentive to obtain a license or cross license, and would presumably do so only for the benefit of the company, and would not threaten the other economic interests of the patent.

    Compulsory Licensing
    Patent legislation provides for compulsory licensing, I understand, if it is in the public interest. However, even though a proprietary company could enforce this licensing by challenging it at the patent office, currently the cost would be prohibitively expensive to many, if not most, open source software developers. As well, compulsory licensing that undermines the patent, by creating an open source unrestricted implementation, would create contentious arguments about the real public interest. Patents protect the patentor, and as a secondary consideration they may have licensing imposed against the will of the patentor, if it is in the public interest. Their rights would likely trump.

    For at least these reasons open source software is in a different situation than proprietary software, and as a result I am not entirely convinced of Mr. Ravichers's assertion, as they are quoted in the linked article.

    • Re:Open source is more vulnerable to patents (Score:4, Informative)

      by Halo1 ( 136547 ) on Sunday November 21, 2004 @05:08PM (#10883033)
      Access to source code

      Access to software

      Most software patents do not require access to the source to determine whether or not they are infringed, and often not even to the application to determine whether or not they infringe. Most software patents monopolise very high level features. You'll almost never find "low level" software patents. The ones that you can find and which are enforced, are generally those that cover standards (e.g. on mp3, gif, jpeg).
      Licensing capacity
      I don't think IBM would have any problems getting a proper license for some patents infringed by e.g. Eclipse. So this is generally more a big vs small than open vs closed issue (though definitely not always, e.g. the shareware GraphicConverter [lemkesoft.com] was able to keep offering GIF encoding, because the author paid patent license fees to Compuserv).
    • Licensing capacity
      The lucid nature of open source software means that to obtain a mandatory license for a patent would be prohibitively expensive for two reasons. First, open source software does not have deep pockets or the capacity for a cross licensing agreement. Second, even if either were available, the nature of open source software would wholly undermine the purpose of the patent: an open source implementation of the patent would be available for free, unrestricted use.

      A proprietary software company
  • I don't know how anyone can be sued for using patented technology when it's the ones profiting on the sale of said patented technology that would be the target of such a suit.

    Since Linux is free, and is essentially a "home grown" solution (that is one that the user himself builds) no one has profited from the sale of unlicensed technology. In the cases where someone like RedHat are profiting, aren't they actually giving the software away and profiting from the sale of service contracts? So again, they sh

  • Someone should call MS out on this patent issue (Score:3, Interesting)

    by theMightyE ( 579317 ) on Sunday November 21, 2004 @05:13PM (#10883068)
    Regardless of whether MS or Linux violates more patents, it should be easy to put Balmer in a corner with his own bullshit by asking the following question:

    "Your assertion is that Linux violates a set of patents, and therefore as an end user I might be found liable and forced to pay dammages at some future date.* Does using Windows remove this problem for me? Are you willing to either guarantee that Windows does not have any IP property issues or to indemnify me if someone decides that they want $699 for every copy of XP that I use because they think one of their patents is being violated?"

    cricket... cricket... Mr. Balmer - are you still there?

    * For the sake of argument, I'm going along with Blamers FUD that end users are responsible for paying for IP violations, not the producers of the software.

    • "Your assertion is that Linux violates a set of patents, and therefore as an end user I might be found liable and forced to pay dammages at some future date.* Does using Windows remove this problem for me? Are you willing to either guarantee that Windows does not have any IP property issues or to indemnify me if someone decides that they want $699 for every copy of XP that I use because they think one of their patents is being violated?"

      It looks like the answer to those questions is yes. See here [microsoft.com] and her [microsoft.com]
  • If these MS allegations that Linux and Open Source software may violate certain patents turns out to be true (highly unlikely) - MS itself may be in trouble considering what they use to use their own products [yahoo.com] ;)

    See the caption below
    This photo provided by Microsoft shows Their search tool and the prefenece rankings that can be defined by the user. (AP Photo/HO/Microsoft)

  • Based on the wrong premise . . . (Score:4, Insightful)

    by Eric Damron ( 553630 ) on Sunday November 21, 2004 @05:47PM (#10883318)
    "Open source faces no more, if not less, legal risk than proprietary software."

    This statement is based on the premise that legal action will actually be based on perceived patent violations in open source software and that open source software contains either no legitimate violations or at least no more violations than most proprietary software. That is, all of the patents that it does violate are bogus being issued on prior art or trivial methods by a broken patent system.

    Although it may well be the case that most of Microsoft's patent portfolio is unenforceable if contested by an entity with sufficiently deep pockets, I doubt that actual violations will be the deciding factor if litigations are pursued. I believe that Microsoft will weigh many factors before pursuing litigation and the legitimacy of their claim will weigh far less than any tactical or strategical advantage that perusing even a bogus law suit will offer.

    Microsoft has repeatedly shown that it does not care about a fair and open market and is unconcerned of going afoul of antitrust laws. Indeed the weak response by the US justice system to Microsoft's past transgressions has had the same effect on this corporate bully as passive behavior has on the playground bully or the bully in the work place. A bully won't changed until forced to do so and some can never change.

    To Microsoft, software patents are just another weapon to be wielded against anyone who would dare attempt to take a slice of the market. It is just another anticompetitive tool that they will use directly though litigation or indirectly though a FUD campaign.

    It's time that the DOJ got their act together and removed this bully from the corporate playground. Microsoft needs to be broken into at least two and probably three separate entities before their blatant disregard for the antitrust laws permanently destroy any chance of an open and fair market in the software sector.

  • Culture of negativity (Score:5, Informative)

    by HangingChad ( 677530 ) on Sunday November 21, 2004 @07:24PM (#10883885) Homepage
    MSFT is taking a page from Karl Rove's playbook. Between the paid-for TCO studies and the patent scare tactics they've turned relentlessly negative.

    I think it makes an interesting statement about MSFT products to hear them bashing the competition instead of selling the competitive strengths of their products.

    To me it's almost an admission that their product line is not cost competitve with OSS. That's not strictly a price comparison, it's a value comparison. MSFT products do not give you the same value for the $$$ that LInux and OSS. Something most of us here have known for a long time.

    MSFT has been sticking it to their customers for years with higher and higher license fees, back-stabbing EULA's and Naziesque business practices. I think they're really underestimating how bad people dislike being dicked and how long their memories can be.

    I know it sounds a little Pollyanna but it's unfortunate that going negative can be so effective. It's kind of like spam. Everyone complains about it but as long as it's effective we're going to keep getting buried buy it.

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