Forbes.com
Technology
New Blow To SCO
Daniel Lyons, 01.19.07, 10:15 AM ET
SCO Group suffered another setback in its lawsuit against IBM over the Linux operating system on Thursday. A judge tossed out SCO's motion alleging that International Business Machines destroyed crucial evidence in the case.
SCO (nasdaq: SCOX - news - people ) first mentioned the "spoliation" allegation in a filing last summer. In September, SCO made the claim official, when it filed a motion. The move looked like a kind of Hail Mary pass in a case that appears to be growing ever more desperate for SCO.
SCO, of Lindon, Utah, sued IBM (nyse: IBM - news - people ) in March 2003, claiming that IBM took code from Unix, for which SCO claims to hold some copyrights, and put it into Linux, a similar operating system that is distributed at no cost.
The case has angered fans of Linux. If SCO were to prevail, this could cause problems not only for IBM but for Linux distributors like Novell (nasdaq: NOVL - news - people ) and Red Hat (nasdaq: RHAT - news - people ), as well as Hewlett-Packard (nyse: HPQ - news - people ), which has built a booming business around Linux. The case also could cause problems for thousands of companies worldwide, including Web titans Google (nasdaq: GOOG - news - people ) and Amazon (nasdaq: AMZN - news - people ), which use Linux in their data centers.
The case has not gone well for SCO. Earlier this year, Magistrate Judge Brooke C. Wells of the U.S. District Court in Utah tossed out two-thirds of SCO's claims against IBM because SCO had refused, after repeated requests, to provide specific details about which lines of code allegedly were stolen.
Brent Hatch, an attorney who represents SCO, told Forbes last summer that one reason SCO had been unable to produce that evidence was that IBM had instructed its programmers to destroy code after SCO filed its lawsuit.
On Thursday, however, Judge Wells denied SCO's motion, claiming that any code that once existed on IBM programmers' machines should still be available in a code management database that IBM maintained.
The judge did, however, rule in favor of SCO on another issue, when she denied an IBM motion seeking to obtain financial records of one of SCO's expert witnesses.
A SCO spokesman declined to comment. IBM would not comment beyond stating, "We prefer to let the judge's ruling speak for itself."
The case is scheduled for trial in 2008. But first, a related case, SCO v. Novell, will have to be decided.
At stake in that action is whether SCO even owns the copyrights it claims IBM has infringed upon. Novell argues that it owns the copyrights to Unix, and that SCO does not.
If SCO loses its case against Novell, its case against IBM may fall apart completely.
The Novell case is scheduled for trial in September.
Link:
http://www.forbes.com/markets/2007/01/19/sco-ibm-linux-tech-cz_dl_0119sco.html
2007-01-23
2007-01-21
Richard Stallman against the concept of intellectual property
18th January 2007
I received a number of emails of Richard Stallman, related to the foundational essay on peer to peer that was published in CTheory last year.
Most of his comments focused on possible confusion, mistakes on my part, on the precise differences and commonalities between free software and open source.
He also vigorously challenged my use of intellectual property as a concept, and referred me to the following mini-essay, which summarizes why we should not use this term.
I’m reproducing part of it here, but recommend reading the whole piece.
Richard Stallman:
“It has become fashionable to toss copyright, patents, and trademarks - three separate and different entities involving three separate and different sets of laws — into one pot and call it “intellectual property”. The distorting and confusing term did not arise by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely.
According to Professor Mark Lemley, now of the Stanford Law School, the widespread
use of the term “intellectual property” is a fad that followed the 1967 founding of the World “Intellectual Property” Organization, and only became really common in recent years. (WIPO is formally a UN organization, but in fact represents the interests of the holders of copyrights, patents, and trademarks.)
The term carries a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects. (This analogy is at odds with the legal philosophies of copyright law, of patent law, and of trademark law, but only specialists know that.) These laws are in fact not much like physical property law, but use of this term leads legislators to change them to be more so. Since that is the change desired by the companies that exercise copyright, patent and trademark powers, the bias of “intellectual property” suits them.
The bias is enough reason to reject the term, and people have often asked me to propose some other name for the overall category — or have proposed their own alternatives (often humorous). Suggestions include IMPs, for Imposed Monopoly Privileges, and GOLEMs, for Government-Originated Legally Enforced Monopolies. Some speak of “exclusive rights regimes”, but referring to restrictions as “rights” is doublethink too.
Some of these alternative names would be an improvement, but it is a mistake to replace “intellectual property” with any other term. A different name will not address the term’s deeper problem: overgeneralization. There is no such unified thing as “intellectual property”–it is a mirage. The only reason people think it makes sense as a coherent category is that widespread use of the term gives that impression.
The term “intellectual property” is at best a catch-all to lump together disparate laws. Non-lawyers who hear one term applied to these various laws tend to assume they are based on a common principle, and function similarly.
Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.
Copyright law was designed to promote authorship and art, and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas, at the price of giving the one who publishes an idea a temporary monopoly over it–a price that may be worth paying in some fields and not in others.
Trademark law, by contrast, was not intended to promote any particular way of acting, but simply to enable buyers to know what they are buying. Legislators under the influence of “intellectual property”, however, have turned it into a scheme that provides incentives for advertising.
Since these laws developed independently, they are different in every detail, as well as in their basic purposes and methods. Thus, if you learn some fact about copyright law, you’d be wise to assume that patent law is different. You’ll rarely go wrong!
People often say “intellectual property” when they really mean some larger or smaller category. For instance, rich countries often impose unjust laws on poor countries to squeeze money out of them. Some of these laws are “intellectual property” laws, and others are not; nonetheless, critics of the practice often grab for that label because it has become familiar to them. By using it, they misrepresent the nature of the issue. It would be better to use an accurate term, such as “legislative colonization”, that gets to the heart of the matter.”
This entry was posted on Thursday, January 18th, 2007 at 4:24 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
Links:
http://www.gnu.org/philosophy/not-ipr.html?
http://blog.p2pfoundation.net/2007/01/18/richard-stallman-against-the-concept-of-intellectual-property/
I received a number of emails of Richard Stallman, related to the foundational essay on peer to peer that was published in CTheory last year.
Most of his comments focused on possible confusion, mistakes on my part, on the precise differences and commonalities between free software and open source.
He also vigorously challenged my use of intellectual property as a concept, and referred me to the following mini-essay, which summarizes why we should not use this term.
I’m reproducing part of it here, but recommend reading the whole piece.
Richard Stallman:
“It has become fashionable to toss copyright, patents, and trademarks - three separate and different entities involving three separate and different sets of laws — into one pot and call it “intellectual property”. The distorting and confusing term did not arise by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely.
According to Professor Mark Lemley, now of the Stanford Law School, the widespread
use of the term “intellectual property” is a fad that followed the 1967 founding of the World “Intellectual Property” Organization, and only became really common in recent years. (WIPO is formally a UN organization, but in fact represents the interests of the holders of copyrights, patents, and trademarks.)
The term carries a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects. (This analogy is at odds with the legal philosophies of copyright law, of patent law, and of trademark law, but only specialists know that.) These laws are in fact not much like physical property law, but use of this term leads legislators to change them to be more so. Since that is the change desired by the companies that exercise copyright, patent and trademark powers, the bias of “intellectual property” suits them.
The bias is enough reason to reject the term, and people have often asked me to propose some other name for the overall category — or have proposed their own alternatives (often humorous). Suggestions include IMPs, for Imposed Monopoly Privileges, and GOLEMs, for Government-Originated Legally Enforced Monopolies. Some speak of “exclusive rights regimes”, but referring to restrictions as “rights” is doublethink too.
Some of these alternative names would be an improvement, but it is a mistake to replace “intellectual property” with any other term. A different name will not address the term’s deeper problem: overgeneralization. There is no such unified thing as “intellectual property”–it is a mirage. The only reason people think it makes sense as a coherent category is that widespread use of the term gives that impression.
The term “intellectual property” is at best a catch-all to lump together disparate laws. Non-lawyers who hear one term applied to these various laws tend to assume they are based on a common principle, and function similarly.
Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.
Copyright law was designed to promote authorship and art, and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas, at the price of giving the one who publishes an idea a temporary monopoly over it–a price that may be worth paying in some fields and not in others.
Trademark law, by contrast, was not intended to promote any particular way of acting, but simply to enable buyers to know what they are buying. Legislators under the influence of “intellectual property”, however, have turned it into a scheme that provides incentives for advertising.
Since these laws developed independently, they are different in every detail, as well as in their basic purposes and methods. Thus, if you learn some fact about copyright law, you’d be wise to assume that patent law is different. You’ll rarely go wrong!
People often say “intellectual property” when they really mean some larger or smaller category. For instance, rich countries often impose unjust laws on poor countries to squeeze money out of them. Some of these laws are “intellectual property” laws, and others are not; nonetheless, critics of the practice often grab for that label because it has become familiar to them. By using it, they misrepresent the nature of the issue. It would be better to use an accurate term, such as “legislative colonization”, that gets to the heart of the matter.”
This entry was posted on Thursday, January 18th, 2007 at 4:24 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
Links:
http://www.gnu.org/philosophy/not-ipr.html?
http://blog.p2pfoundation.net/2007/01/18/richard-stallman-against-the-concept-of-intellectual-property/
Patent Law Confuses Application with Invention
In this link
(a conservative think tank, home page: http://www.heartland.org/Index.cfm)
http://www.heartland.org/Article.cfm?artId=20531
"I" found:
Patent Law Confuses Application with Invention
Written By: Timothy B. Lee
Published In: IT&T News
Publication Date: February 1, 2007
Publisher: The Heartland Institute
--------------------------------------------------------------------------------
In November, the U.S. Supreme Court heard oral arguments in the case of KSR v. Teleflex. The case presents the High Court with an opportunity to put a damper on abuse of the patent system, reducing a serious drag on one of our nation’s most productive industries.
The poster child for patent reform is NTP Inc., a small firm headed by patent lawyer David Stout. NTP has no employees or products, but last March it was able to extort $612 million from Research in Motion, makers of the wildly popular BlackBerry.
I say “extort” because in the midst of high-stakes negotiations between the firms, the U.S. Patent and Trademark Office took the unusual step of declaring that none of the five patents NTP cited in the case should have been granted. But the wheels of bureaucracy turned too slowly to help RIM. Before the USPTO could formally invalidate the NTP patents, RIM settled to avoid a shutdown of its network.
NTP never alleged that RIM’s BlackBerry technology was derived from NTP’s designs. Rather, NTP claimed that the mere fact that BlackBerrys have the combination of features described in NTP’s patents--essentially, the ability to retrieve email via a wireless connection--was enough to trigger liability. That’s problematic because the law prohibits granting patents that are “obvious,” and the mere idea of checking one’s email via a wireless connection seems quite obvious.
Features in Combination
Unfortunately, the Court of Appeals for the Federal Circuit, which has jurisdiction over patent cases, saw things differently. It held that when a patent covers the combination of two elements, it can be declared obvious only if someone can produce another patent, an academic paper, or other formal documentation that pre-dated the patent application and had a specific “teaching, suggestion, or motivation” to combine the elements in the manner described. Often, no such documentation is available, even for inventions that are widely regarded as obvious.
The result has been a flood of lawsuits based on patents of dubious quality. The software industry has been hit particularly hard. In 2002, Microsoft was sued by a company called Burst.com, which had obtained an extremely broad patent on the concept of streaming multimedia files over the Internet. The patent was little more than a description of basic Internet functionality dressed up in legal jargon, but Microsoft still had to cough up $60 million to settle the case. Burst.com turned their legal guns on Apple in April.
In August, Microsoft was forced to pay more than $140 million for infringing a patent that covered the concept of deterring piracy by asking the user for a registration password. In October, a bond-trading firm won a $38.4 million judgment against a competitor for infringing its patent on the idea of auctioning bonds on the Internet. Apparently, the fact that eBay pre-dated the patent filing was not sufficient to prove the patent was obvious.
Which brings us to November’s oral argument before the Supreme Court. Teleflex holds a patent that covers connecting a car’s gas pedal to its engine throttle electronically, rather than mechanically. The defendant, KSR International, argued that simply connecting two well-understood components was too obvious to merit a patent. The Federal Circuit ruled for Teleflex, holding that without specific documentation describing the connection of a gas pedal to an electric throttle, it could not declare the invention obvious.
That argument was not so well received by the Supreme Court, especially its conservative members. Justice Antonin Scalia called the Federal Circuit’s rule “irrational” and “gobbledygook.” When Teleflex’s attorney noted that his position is supported by the major patent bar associations, Chief Justice John Roberts retorted, “Which way does that cut? That just indicates that this is profitable for the patent bar.” Justice Samuel Alito pointed to the Federal Circuit’s infamous 1999 decision upholding a patent on painting garbage bags to resemble jack-o-lanterns.
These justices are right to be skeptical. By effectively emasculating the obviousness rule, the Federal Circuit has given a green light to the patent law equivalent of ambulance-chasing. Patent attorneys have a strong incentive to file patents on extremely broad concepts like wireless email or Internet video streaming and then wait until another company has the misfortune of inventing a product described by one of their patents. The result is a transfer of wealth from innovative businesses to rapacious patent attorneys.
The Supreme Court should strike down the Federal Circuit’s absurdly lax obviousness rule, so that companies like Apple and Microsoft can focus on building the best products rather than hiring the best patent lawyers.
--------------------------------------------------------------------------------
Timothy B. Lee (tlee@showmeinstitute.org) is a policy analyst at the Show-Me Institute. This article originally appeared in The American, the online magazine of the American Enterprise Institute.
(a conservative think tank, home page: http://www.heartland.org/Index.cfm)
http://www.heartland.org/Article.cfm?artId=20531
"I" found:
Patent Law Confuses Application with Invention
Written By: Timothy B. Lee
Published In: IT&T News
Publication Date: February 1, 2007
Publisher: The Heartland Institute
--------------------------------------------------------------------------------
In November, the U.S. Supreme Court heard oral arguments in the case of KSR v. Teleflex. The case presents the High Court with an opportunity to put a damper on abuse of the patent system, reducing a serious drag on one of our nation’s most productive industries.
The poster child for patent reform is NTP Inc., a small firm headed by patent lawyer David Stout. NTP has no employees or products, but last March it was able to extort $612 million from Research in Motion, makers of the wildly popular BlackBerry.
I say “extort” because in the midst of high-stakes negotiations between the firms, the U.S. Patent and Trademark Office took the unusual step of declaring that none of the five patents NTP cited in the case should have been granted. But the wheels of bureaucracy turned too slowly to help RIM. Before the USPTO could formally invalidate the NTP patents, RIM settled to avoid a shutdown of its network.
NTP never alleged that RIM’s BlackBerry technology was derived from NTP’s designs. Rather, NTP claimed that the mere fact that BlackBerrys have the combination of features described in NTP’s patents--essentially, the ability to retrieve email via a wireless connection--was enough to trigger liability. That’s problematic because the law prohibits granting patents that are “obvious,” and the mere idea of checking one’s email via a wireless connection seems quite obvious.
Features in Combination
Unfortunately, the Court of Appeals for the Federal Circuit, which has jurisdiction over patent cases, saw things differently. It held that when a patent covers the combination of two elements, it can be declared obvious only if someone can produce another patent, an academic paper, or other formal documentation that pre-dated the patent application and had a specific “teaching, suggestion, or motivation” to combine the elements in the manner described. Often, no such documentation is available, even for inventions that are widely regarded as obvious.
The result has been a flood of lawsuits based on patents of dubious quality. The software industry has been hit particularly hard. In 2002, Microsoft was sued by a company called Burst.com, which had obtained an extremely broad patent on the concept of streaming multimedia files over the Internet. The patent was little more than a description of basic Internet functionality dressed up in legal jargon, but Microsoft still had to cough up $60 million to settle the case. Burst.com turned their legal guns on Apple in April.
In August, Microsoft was forced to pay more than $140 million for infringing a patent that covered the concept of deterring piracy by asking the user for a registration password. In October, a bond-trading firm won a $38.4 million judgment against a competitor for infringing its patent on the idea of auctioning bonds on the Internet. Apparently, the fact that eBay pre-dated the patent filing was not sufficient to prove the patent was obvious.
Which brings us to November’s oral argument before the Supreme Court. Teleflex holds a patent that covers connecting a car’s gas pedal to its engine throttle electronically, rather than mechanically. The defendant, KSR International, argued that simply connecting two well-understood components was too obvious to merit a patent. The Federal Circuit ruled for Teleflex, holding that without specific documentation describing the connection of a gas pedal to an electric throttle, it could not declare the invention obvious.
That argument was not so well received by the Supreme Court, especially its conservative members. Justice Antonin Scalia called the Federal Circuit’s rule “irrational” and “gobbledygook.” When Teleflex’s attorney noted that his position is supported by the major patent bar associations, Chief Justice John Roberts retorted, “Which way does that cut? That just indicates that this is profitable for the patent bar.” Justice Samuel Alito pointed to the Federal Circuit’s infamous 1999 decision upholding a patent on painting garbage bags to resemble jack-o-lanterns.
These justices are right to be skeptical. By effectively emasculating the obviousness rule, the Federal Circuit has given a green light to the patent law equivalent of ambulance-chasing. Patent attorneys have a strong incentive to file patents on extremely broad concepts like wireless email or Internet video streaming and then wait until another company has the misfortune of inventing a product described by one of their patents. The result is a transfer of wealth from innovative businesses to rapacious patent attorneys.
The Supreme Court should strike down the Federal Circuit’s absurdly lax obviousness rule, so that companies like Apple and Microsoft can focus on building the best products rather than hiring the best patent lawyers.
--------------------------------------------------------------------------------
Timothy B. Lee (tlee@showmeinstitute.org) is a policy analyst at the Show-Me Institute. This article originally appeared in The American, the online magazine of the American Enterprise Institute.
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