Originally posted by: kylef
I am going to say this one more time: MS patents things defensively
That has been the case in the past, but I don't think that is going to be the case in the future.
When an MS head-honcho comes out and beats the drum publically about a competitor's product infringing on MS's patents, do you think that is "defensive"? Heck no.
Originally posted by: kylef
ALL legitimate companies patent their ideas aggressively precisely because if they don't, another company will come along and sue them for infringement. It's a matter of self defense: patent, or get sued into oblivion. If a company CAN be granted a patent to add to its portfolio, why not? It's not always clear which patents will be useful 10 years down the road. But perhaps that patent will give the team a legal recourse to either defend itself in other infringement cases, or to counter-sue in an attempt to force a cross-licensing agreement.
But when that company, after obtaining that patent, starts going around and claiming that their competitors are infringing - really, how is this any different than SCO's claims against Linux? Other than it is more specific, and now MS is speaking it themselves, instead of using SCO as their mouthpiece. (The sham was over a long time ago in the industry anyways, it was pointless for MS to continue to use SCO in that manner. Not to mention that SCO is nearly a corporate dead corpse at this point, I think.)
Originally posted by: kylef
The problem is, that was traditional corporate patent warfare. Today it's much worse than that. Today, you never know when Eolas will come along from no where and, even though they don't even sell a product, claim damages from you exceeding $1 billion and receive an award of $521 million.
Which is obviously an utterly rediculous usage of the patent system.
I think it needs an (almost) total overhaul. What really needs to happen, is:
1) Punative damages for abusers, with a "bounty" paid for those that can prove prior-art
2) Restrictions on the granting of priviledges by the patent office, for those found to be "abusing".
3) Abstract logical processes and axioms should not be patentable. Software is already protected by copyright.
Now, there are two ways to look at a patent being "abused". One is via a legitimately-granted patent for an innovative idea/process/etc., but being enforced by a company that did not develop ("innovate") the item covered by the patent, but yet them find themselves the legal owner of the patent. As long as the patent was legitimately-granted in the first place, surprisingly, I have no problem with that. Think of small-time inventors and their heirs/estates. I do think that awards for damages due to infringement of patents, should be tempered by the amount of advance warning that the patent owner gives the infringer. You shouldn't be able to sit idlely by, watching a competitor build out a market using something covered by your patent, and then "sneak attack" them and steal their entire market. That's clearly unethical, and should not be allowed in this legal system either. Protection should require "due diligence", and if it can be proven that the patent owner knew of the infringement by a company or individual, and did nothing to stop it, not even a "demand letter", then I think that the courts should automatically grant an implicit free license to use that patent - basically just like a land "easement", which occurs when a landowner does nothing to prevent someone from using the land that they own, for a period of time. If they attempt to enforce their territorial restriction, and it can be proven that they implicitly, knowingly, allowed such use for a period time prior, then they can actually be legally enjoined from enforcing their rights over that land. Patents should be the same way.
Second way that patents can be abused, is by a company going for a "patent land grab", patenting as many things as they can, simply because they haven't been patented before, irrespective of the innovative nature of the item in question. Clearly, this is wrong, it is an abuse of the patent system, and it directly harms the public domain, by attempting to remove as many things from the public domain as possible, by placing them under a monopolistic patent. Since the patent system was instituted directly to *enrich* the public domain (by encouraging public disclosure of things, rather than have creators/inventors keep 'trade secrets', even to their grave - like Stradivarius), attempting to patent already-known/non-innovative things, is directly opposite to the purpose behind the patent system, and there must be enforced legal punishments to prevent this abuse. I suggest punative damages, and a "bounty" award for individuals that can present valid prior art, kind of like a whistleblower's fund.
Those are the only ways that I could see, to make things right with the system. Clearly, things like FAT would not be considered patentable, nor would the (already-common) act of using the TAB key for changing focus between UI elements.
Originally posted by: kylef
But we're getting way off topic here debating software patents themselves! Ballmer did NOT threaten litigation. To get a threat out of his words, you have to read so far between the lines that you might start seeing secret subliminal messages too.
Not directly, but is there really a major difference between two threats? If someone said: "I'm going to beat you up", is that substantially different than "You will get beaten up soon! Watch out!"? In either case, there is a threat of violence against one's person. Likewise, Balmer claimed that a threat existed against Linux, and due to the nature of patent infringement, that also applied to the users/adoptors of Linux.
I can't see how any rational-thinking person could not clearly see that the statement was in fact a threat.
Originally posted by: kylef
Ballmer's point is that some things require licenses. Take, for example, MPEG2 decoders for DVD software.
Yes, the Linux kernel has a built-in MPEG-2 decoder.
That must be have been what Balmer was talking about, surely.
Originally posted by: kylef
Or the MPEG4 audio codec (AAC) made by Dolby Laboratories. Such decoders are patented software, requiring per-decoder licensing fees overseen by the Motion Picture Experts Group.
Or the inbuilt kernel-mode MPEG-4 decoder, even. Why would MS threaten patent-infringement on behalf of MPEG-LA or Dolby though? MS wouldn't even have standing in that sort of case.
Originally posted by: kylef
If you are running a free version of Linux that somehow includes these components, then you have not paid your license. It is reasonable to expect that some companies will not be as nice as Microsoft has traditionally been on this issue, and will actually ENFORCE their patent portfolios offensively (and not just defensively). Ballmer basically is just saying, "There is no precedent here, and the future is not clear about the legality of such situations." I don't see what's so controversial about that statement!
Linux is a kernel. Balmer isn't stupid. He's not talking about 3rd-party user-mode applications.
Originally posted by: kylef
Originally posted by: VirtualLarry
IMHO, they're not going to hold back any more, because the only way to "kill" Linux, if that's even possible, is via patent infringement lawsuits - whether real, or imagined, due to MS FUD.
I'm amused that people here in this thread are claiming that Microsoft is responsible for the FUD here. That's hilarious! The original Slashdot post on this was classic FUD. "Guess what, Microsoft's CEO just threatened to sue Asian companies if they adopted Linux! Yep! He said that Linux violates 200+ patents! This is just what we feared: Microsoft is going to start suing everyone running Linux now!"
Perhaps you missed the whole SCO-IBM-Linux episode just prior to this one? Who was funding the lawsuits? Baystar Capital - with an MS connection.
MS already has started suing high-profile corporate Linux adopters of Linux - alibeit indirectly.
Do you deny, that the only possible legal way that MS might suceed in destroying Linux, is via a series of patent lawsuits? Do you deny that MS seeks to destroy Linux? Unfortunately, MS has bit off more than they can chew, in this case, IMHO. Almost like a classic Greek tragedy, what MS did to Netscape to kill them off, Linux will now do to MS's pride and joy. Cut off MS's own OS air-supply. How can you compete with "free", and still make money, in a free-market economy? You can't!
Originally posted by: VirtualLarry
Fear, Uncertainty, and Doubt are exactly what fanned the flames to make this article newsworthy in the first place. And frankly, it's getting to the point where the Slashdot crowd is starting to look like the Boy who Cried Wolf.
Drag, your citation of Bill Gates proves my point EXACTLY. Let me quote:
"The solution to this is patent exchanges with large companies and patenting as much as we can."
Exactly! Can you say, "cross-licensing agreements" and "defensive patent portfolio"??
One doesn't need to publically claim that other competitor's products are infringing on your patents, to pursue that strategy.
If you had any knowledge of MS's prior use of FUD to manipulate the marketplace, or at least were willing to admit such, then this recent "Balmer outbreak", is just more of the same. Pure, classic, MS-style FUD.
Remember the encrypted, obfuscated code in Win 3.1, that spit out "FUD errors" when run atop DR-DOS? Yet another good software company destroyed by MS's unethical anti-competitive tactics.
Edit: Fixed italics, fixed quote