Azure Intellectual Property Advantage
azure.microsoft.com
azure.microsoft.com
What really surprises me is that so many people are willing to forget that this is the company that bankrolled SCO in their lawsuit.
For that reason alone the tech community should shun them. But just a few short years later and a couple of open source releases and we're supposed to believe it is all so much better now and the Microsoft of old should be forgotten.
Thanks, Microsoft for reminding us of your true colors.
In case you have trouble parsing this announcement: the 'between the lines' FUD here is that when using other cloud providers you could be sued by companies that have these scary things called patents in case it turns out you ar is infringing on any patents (nudge nudge, wink, wink, of course you are). But come and stay in my house and I will protect you against these nasty people.
Cue IV starting lawsuits against parties that in a pitch between Azure and say GCE or AWS decide to go with the latter?
The reality is that this is not FUD. People actually _are_ sued on a regular basis for bullshit like this. Microsoft is indemnifying Azure customers and giving them free access to their patent portfolio for defensive purposes. This should _reduce_ patent suits, which is a _good_ thing.
Google and Amazon should follow suit.
One way in which they could have done this that would be clean would be a blanket statement that would cover parties no matter where they are hosted. To make this a competitive advantage for Azure is fairly disgusting.
Another thing they could do is assure the world without any weasel words that Microsofts patents will never again be used to seek rent on innovation, or better yet, to place them all in the public domain.
I'm assuming by IV you mean Intellectual Ventures..? Are they tied to Microsoft? I thought they had _sued_ Microsoft..?
Microsoft doesn't have a stake in the company nor do they provide the company with any assistance..? Unless there's more to the story I think it's kind of a stretch to say that this is a Microsoft operation. According to Wikipedia they've actually _sued_ Microsoft.
That is not what I read there. What it says is they raised money from Microsoft, that's something else than suing Microsoft.
https://en.wikipedia.org/wiki/Intellectual_Ventures
Can you point out the exact paragraph that you feel describes IV suing Microsoft?
Whatever the case, IV is quite an enigma... founded by the creator of MS Research (which is a great group), funded by Reasonable People, but apparently sketchy as hell. I'm intrigued and will definitely be digging deeper into their story. Thanks for bringing them to my attention.
I don't know. I mean it looks better than earning that $60 and not putting towards a charity?
Who is this protection designed to protect from? Would it, coincidentally be Microsoft?
> No
> Google, Amazon and Microsoft should
> push for patent reform
https://www.cnet.com/news/inside-intellectual-ventures-the-m...
Are they? I'm quite happy to be enlightened, but I've never heard of a patent-based attack against users of widely used open-source tools (the example here is Hadoop). Except for the SCO debacle.
For the younger among us, SCO (with Microsoft funding) did try suing all sorts of people over what they considered their ownership of Unix. They got their badly flayed ass handed to them in every case, because IBM spent multi-millions on a legal dream team that totally discredited their arguments (thanks IBM!).
I know Microsoft have had a welcome change of leadership and are starting to engage in open-source, but this program suggests they haven't given up on their old tricks. Instead of indemnifying only their own customers, they should join with IBM, Google, and Facebook and use their patents and legal clout to defeat ALL patent attacks on open-source software. Then I'd start believing the leopard had changed it's spots.
Either way, the "patent pick" part is more interesting to me. It gives you some protection for stuff you write yourself. Quick story: I was working at a BigCo about 10 years ago and was told I couldn't embed some HTML in a javascript string and dynamically inject it into the DOM because "that was patented" and "we've been sued for doing that before." Patent pick could help defend against bullshit like that (assuming the litigant is not an NPE).
Right, but they also managed to successfully push back against much wider scale adoption of Linux. Not that it worked out to their advantage in the longer run but at the time they could not have known that, they were clearly trying to bury Linux.
If I recall correctly they largely used this in the case against IBM. Before that victory it was unclear to many what would happen and more than a few people thought that it would kill Linux or that everyone using computers would owe SCO money or some other dystopian ending was possible.
I can understand how this type of indemnification could appeal to businesses, especially ones that have had to spend money on lawyers and tie up critical resources dealing with law suits.
If it does turn out that Microsoft is only doing this so that they can go and sue people who are using AWS or GCP then I'll change my tune. Until then I'll give them the benefit of the doubt.
Furthermore, if Google/Amazon _did_ follow suit it would be mutually assured destruction for Microsoft to sue AWS / GCP users.
Apple is no better on IP issues. Being a fan of theirs does not bolster the credibility of one's opinion on Microsoft, pro or con.
How's this: I've been a student of patent law since the late 90s. I've read "The Economic Structure of Intellectual Property Law" cover to cover. The patent system is a huge fucking mess and we need reform. I used to have pretty idealistic opinions about how to handle patent trolls until I started dealing with the ugly and expensive process of defending a suit. Until reform happens, businesses need to do what they can to survive. This helps.
Not easy for an individual to accomplish, granted.
I do not see how this, in itself, is bullying on Microsoft's part at all. The Apache 2.0 license has a similar mutually assured destruction proviso w.r.t. patent suits. It's one of the reasons that the Free Software Foundation recommends using that license. Is that bullying / FUD?
We don't have to speculate. They pulled over a billion dollars from Android through patent suit threats despite not trying to contribute to Android and trying to get rid of it with their own product. They haven't changed. They should be boycotted wherever possible.
https://www.forbes.com/sites/ewanspence/2015/11/01/microsoft...
"In early 2003, Microsoft started paying SCO what eventually grew to $16.6 million for a Unix license, according to regulatory filings. Only longtime Unix fan Sun Microsystems previously paid close to that, with a $9.3 million license deal."
http://www.zdnet.com/article/fact-and-fiction-in-the-microso...
Microsoft statement: "Microsoft does have a deal with SCO that has been widely reported. We paid SCO for licensing rights to ensure IT interoperability for UNIX migration technology, currently in use in Microsoft Utilities for UNIX-based Applications."
http://blog.seattlepi.com/microsoft/2006/10/09/a-new-microso...
Microsoft SCO conspiracy theory quashed (again) http://www.theregister.co.uk/2006/10/11/sco_microsoft_black_...
SCO was attacking Linux. Microsoft was attacking Linux. SCO asked for money. Microsoft gave the enemy of their enemy money. Other companies SCO asked for money didn't give SCO money
Trying to assert that a whole company was another's puppet is a bit extreme, but if SCO had been the results wouldn't really have been much different.
> What really surprises me is that so many people are immediately willing to forget that this is the company that bankrolled SCO in their lawsuit.
> But just a few short years later...
as far as i can tell, that happened 14 years ago. that's a little longer than a few years.
It started 14 years ago. With a lot of MS money to prop up zombie SCO, some lawsuits are still ongoing.
[1]http://www.groklaw.net/staticpages/index.php?page=2003101616...
PJ was Pamela Jones the blogger, who gave an incredibly informed commentary of the cases. I wonder where she is now - I'd love to send her a bottle of Otago Pinot Noir.
Microsoft wants tech professionals to pay attention to one and not the other. Both exist and if someone does something good it does not make up for the bad. Only stopping the bad stops Microsoft from being bad.
"Microsoft Blocks Windows 7/8 Updates on AMD Ryzen and Intel Kaby Lake Systems":
https://support.microsoft.com/en-us/help/4012982/discusses-a...
was on HN yesterday, but Microsoft plays with the HN ranking algorithms, it vanished rather quickly due to more comments than voting points ratio:
https://news.ycombinator.com/item?id=13883064
Ad headline news, the "protection schema" idea is directly inspired from the Mafia.
Of course this doesn't work against patent trolls, because they have no products to sue over. As long as Microsoft doesn't start threatening to sue companies that use aws or something, I have to applaud this move.
Think of Intellectual Ventures as an example. IV licenses patents for litigation but pretend to be inventors. I say pretend because most of their revenue comes from litigation, while publicly promote their inventions. If anyone is interested, there is an old, but relevant, NPR podcast about them and the use of shell companies to hide their identity.
I believe reading that MS has a stake on IV, but I can't find anything on that. IV founder was MS' CTO. It can also be done covertly.
Oh...and just found this:
https://www.google.com.mx/url?sa=t&rct=j&q=&esrc=s&source=we...
Why it was terrifying is because it costs trolls very little to file a suit and would cost me hundreds of thousands to defend, even if their patent was crap. Unfortunately, I don't think Microsoft is offering legal assistance, which would make it really amazing.
I still look back to the Dyson lawsuit with Hoover as example of why we need patents and IP protection:
http://www.telegraph.co.uk/news/uknews/1368860/Dyson-cleans-...
I think at some point the archaic IP laws in USA would mean that deployment of cutting edge technology ends up happening in China. This is already happening in Shenzen.
Microsoft is a very different company than they were in the days when they supported SCO's lawsuits as an attack against Linux. Except for some Windows 10 privacy issues, I personally give the 'new' Microsoft fairly high grades for their current business models.
" On June 19, 2014 the United States Supreme Court ruled in Alice Corp. v. CLS Bank International that "merely requiring generic computer implementation fails to transform [an] abstract idea into a patent-eligible invention." [5][6][7]
The ruling continued:
[...] the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention. Stating an abstract idea “while adding the words ‘apply it’” is not enough for patent eligibility.[] Nor is limiting the use of an abstract idea “‘to a particular technological environment.’”[]. Stating an abstract idea while adding the words “apply it with a computer” simply combines those two steps, with the same deficient result. Thus, if a patent’s recitation of a computer amounts to a mere instruction to“implemen[t]” an abstract idea “on . . . a computer,” [] that addition cannot impart patent eligibility. "
So just how broken and captured are lower US courts that, despite a supreme court decision invalidating software patents, this kind of extortion continues? Are software patents only invalid for those who can afford to litigate all the way to the supreme court, and the lower courts are ignoring this ruling?
How about remembering, that MS are themselves one of the major patent aggressors and proponents of patent arms race?
Every large tech company has a patent portfolio. Hell, Google bought Motorola to get their patent portfolio to use defensively in suits against Android.
In my opinion companies should not be punished for using patents defensively. It's really the only viable option outside of a major legal change. So, I think Microsoft giving other people access to their portfolio for defensive purposes is a good thing. It should _reduce_ the amount of patent litigation.
They also like standards poisoning with their patents, and then collecting money from everyone who is forced to use that. Example - exFAT widely used on SD cards. Why didn't everyone use some free filesystem? Because MS.
When you look on Wikipedia, there are like a dozen goofy file systems that a developer could use for flash storage. They could sort through all that or, you know, they could just use FAT, like everyone has done forever.
I wonder if the open source world's perpetual inability to get behind one standard hurt them there.
If you used any other fs, like f2fs, the ordinary user would insert the card into their computer - and nothing would happen. No, Microsoft is not going to ship alternate filesystems with Windows, when they can use theirs as racket.
So instead of being a tool that trades off a limited monopoly for a technique in exchange for making public something that would have been a trade secret, it's a way of protecting a particular implementation while at the same time being able to force your way to see all of your competitor's implementations.
Software is much more akin to math or music. You can not patent math or music, and fundamentally it's for the same reason. We must do away with all software patents.
Also, this sort of leverage isn't something a non established large business could provide, stiffling competition in the cloud space. If the other Google/AWS follow suit, the "cloud" and hence the future internet will not be a better place.
disclaimer:I work for a competitor but this is strictly my opinion on the matter, not that of my employer.
Now please forget all the terrible things they did for 20 years. They don't matter.
This is totally not PR.
They are good now.
1. They promise that if you get sued for using something open source that Azure is built on, they will indemnify you. Eg, with AWS, in theory someone could say to you: "We have a patent on DB replication, you use MySQL with RDS, that has replication, you owe us money." Unsure if that's a valid risk, but maybe.
2. If you get sued and you've been paying $1k a month or more to Azure, MS will give you one of a their 10k patents on a list if it'll help mount a defense. Could be helpful, I suppose, but hard to figure out the value. If I'm sued, AND MS has a relevant patent on the list, how useful would it be?
3. MS promises that IF they transfer some of their patents to a patent troll in the future, the terms of the transfer will prevent the troll going after you. Again, hard to quantify the value, especially since it depends on MS's actions. "We have a big hammer, but we promise not to hit you" is only partially reassuring. But still better than no promise at all!
On balance these all seem like unmitigated goods, although it's hard for me to evaluate if they have any value. It never occurred to me to be concerned that I might be sued for using open source tools on AWS. :)
I'd estimate it to be about 80% marketing, and 20% a good faith attempt at defusing the disaster that is modern IP laws.
(Edit: And contrary to some other commenters, I don't see anything malicious or harmful going on here.)
Countersuing is probably the #2 most common response to a patent suit (after settling). It's so common that there's a name for it: "defensive patent strategy." Basically, you file a bunch of patents, but you don't proactively go out and look for infringers. You're just hanging on to them in case you get sued. If you get sued you go and look at the person who's suing you and try to find one of your patents they're violating. This actually works fairly well because the patent system is so broken, and patents are so easy to get, that you can almost definitely find a violation given a reasonably large portfolio (and 10,000 patents is reasonably large).
Unfortunately, countersuing doesn't work against NPEs... and NPEs are usually the ones doing the suing.
You are part of the problem. NEVER settle with a patent troll. I've had plenty of these assholes come after me and nothing ever stuck, on top of that I've helped others defend against the trolls with a 100% success rate when and if they stuck to the end.
Yes, it can cost you money, but this real life prisoners dilemma can only be won if we stick together. And MS is playing both ends against the middle here, to their own advantage of course.
The first two times the decision was made above my head.
The third time I was in the C-suite and it was a joint decision. I had a heart-to-heart with our lawyers because I _did not_ want to settle. Our head IP lawyer said he felt me -- he thought the suit was bullshit, would love to fight, etc -- and if we decided to defend he'd be 100% with us. However, his firm was currently engaged in defending another suit with the litigant and it had been appealed through the circuit court in Texas. At that time it was pending hearing by the Supreme Court. That client had already accumulated more than $250,000 in legal fees and there was no guarantee that they'd win. Even if they did win, it was unlikely that they'd be able to recover any of those fees. He estimated total cost of fighting would be between $250,000 and $500,000.
I reached out to friends at large tech companies to see if they had experience dealing with the litigant. I heard back from two of them that they did have experience, and that they settled. Since there was an ongoing case involving the litigant that was already heading to the Supreme Court (and one that had at least as good a chance of winning) we opted _not_ to spend a significant amount of our venture capital fighting an expensive battle that, at best, would cost us hundreds of thousands of dollars and, at worst, we would lose in Texas.
In the end we spent significantly more money on investigating a defense then we actually paid in settlement.
If you're interested in covering the financial costs associated with fighting these suits please let me know. I would definitely take you up on that and fight all day every day.
> If you're interested in covering the financial costs associated with fighting these suits please let me know.
I'm well aware of that, there were years when I paid more to the lawyers than to the tech department. Still, overall it was worth it. Big factor in our survival was that we had an EU parent company rather than one on the far side of the Atlantic.
Even so, I refuse to be extorted.
The world isn't fair.
I don't think that should be vilified.
100% success rate when and if they stuck to the end
Except your "success rate" doesn't include things you can't get back, like time and effort which is crucial for a startup - even in the unlikely case that you get your attorney's fees back.
That I'll readily agree with. Still, I absolutely believe that settling with these jerks is making the problem much worse.
> It never occurred to me to be concerned that I might be sued for using open source tools on AWS.
Well there you go -- you've answered your own question: Yes, it has value, if for no other reason than it got you thinking that using AWS might just be risky.
I'm not saying that is incorrect, or even that this new Azure "feature" is nesicerily a bad thing -- just pointing out the PR aspect.
I'm also refraining from labelling it as FUD, even though it does indeed sow fear, uncertainty, and doubt, since I think FUD should be reserved for false or misleading fear, uncertainty, and doubt.
If you are sued by a troll or some other sort of non-practicing entity, that is worth zip. You can't defensively assert against them since they don't do anything.
If you are sued by a real company, it could help bring down settlement costs. Hard to value that, but it's worth something.
Say you build a product, maybe VR goggles, and you legitimately infringe someone else's VR patent, because that's pretty much unavoidable these days. The owner of that patent is in the same VR space, and decides that you're a threat to their business, so they decide to file suit on this patent you've infringed and make your life difficult.
But! You've been developing your own defensive patent portfolio around VR, because that's the business you're in. In this case, it's common to find that your competitors are also infringing some of your patents, because you're all working on the same thing. When this happens, it's easy to cross-license -- I'll let you use some of my patents if you let me use some of your patents. Patent problem avoided.
This is Microsoft allowing you to use part of their patent portfolio for defense in this way.
Am i correct?
[1] ttp://www.iam-media.com/blog/Detail.aspx?g=b1c57b03-5b9c-4cbf-b8dd-e209daf3f686
And all this subject to interpretation by a competent judge.
The hypocrisy lies of course in Amazon patenting just about every dumb 'innovation' that they came up with in the early days of the web (recall the 1-click shopping patent). So for Amazon to want to be protected pre-emptively against customer lawsuits over patents is silly.
I also highly doubt a judge would honor their survival clause, but it's up to Amazon to put in their contracts whatever they want, it's up to a judge to decide if it holds water or not. So until this has been litigated it doesn't mean a whole lot.
Probably consistent with what you said, but just to clarify, I think the AWS license also applies to suits against AWS customers. The license states "...you will not assert... against us or any of our ... customers... any patent infringement or other intellectual property infringement claim regarding any Service Offerings you have used."
It's difficult to imagine how one AWS customer would be able to use this to defend a patent suit from another AWS customer though, since they are not a party to the contract between Amazon and the patent holder that conveys the license. You'd probably have to get Amazon to intervene in your suit.
1. Uncapped indemnification: this one is pretty simple. If you're sued for using some tech that powers Azure, Microsoft will cover any losses (indemnify you).
2. Patent pick: if you're sued for patent infringement _at all_, Microsoft will let you "pick" one out of a selection of 10,000 available patents to use in a countersuit. This is an extremely common tactic in IP lawsuits, but one that is only available to folks with large patent portfolios (this is what people mean when they say they have a "defensive patent strategy"). For example, Oracle sues Google for infringing patent X, Google countersues for infringing patent Y, eventually everyone settles (or not, heh). Presumably, the patent will actually be transferred to you (you become the legal owner of the patent) for the duration of the suit (I'm sure there are lots of conditions here).
3. Springing license: "non-practicing entities" (NPEs) are a _huge_ problem for tech companies. They're also known as "patent trolls." The reason they're so hard to deal with is that they don't actually do anything (other than sue people) so it's hard to use the countersuit tactic mentioned above (if you don't do anything, you're probably not violating any patents). Microsoft is saying that, while they do not generally transfer patents to NPEs, if they ever did so there will be a "springing license" to that patent granted to eligible customers. Therefore, those customers could not be sued by the NPE.
Now, some editorial. I actually think this is a good thing. They're trying to create a "patent free zone." They can't get rid of patents, so the only way to do that is with "legal hacks" like this. Right now small companies without patent portfolios are at a huge disadvantage when it comes to defending against frivolous patent suits. This would absolutely help. Moreover, one of the eligibility requirements states that you must have remained "patent peaceful" against Azure workloads for the past two years. The only way they could have made this better is if they had made the program more broadly available (btw, you're only eligible if you spend > $1,000/mo on Azure).
For what it's worth, the ideas here are not completely novel. Patent exchanges are fairly common (although you usually need a patent portfolio to join one). There are also some similarities with the Apache 2.0 "mutually assured destruction" clause which (again, in ELI5 terms) tries to prevent patent suits for use of Apache licensed software by saying that if you sue someone for using Apache licensed software then other people can sue you for your use of Apache licensed software (without giving up their right to not be sued).
I was at an insurance analytics conference (kind of) recently, and everyone was all hyped up on this notion of trying to write policies for cybersecurity protection. The problem was the underwriting and how to price the policies. I think another thing we could see in this space is how to insure IP that's in the cloud. Cybersecurity insurance meets IP.
https://www.microsoft.com/en-us/servicesagreement/default.as...
It contradicts the promises on the homepage. I would not sign up unless I get the signature of Nadella on a contract stating that Microsoft won't sue me
B. get sued for a patent you aren't being indemnified about (which are the open source ones)
C. be able to use an MS patent for defensive purposes in a counter-suit.
Note that only exclusive licensees of patents could do C, so it must be some kind of transfer.
Without seeing the instrument, it's hard to see what the loop holes are, but at the very least, it seems like you could very cheaply tie up these 10000 patents forever.
1. Build 20000 shell companies 2. pay azure 1000/month through 10000 of them. 3. Acquire 10000 worthless patents not in the area of open source, distribute to half the ones not paying. 4. Sue the 10000 that are for patent infringement. 5. Pick 10000 microsoft patents to counter-assert 6. Sit in legal limbo forever 7. Repeat as necessary
Cost: 10 mil.
Seriously though, hopefully there's some mechanism covering this sort of abuse. Even if there's not, if I were MS I would simply not comply. It's civil law, and your behavior is completely unreasonable and does not reflect the any reasonable interpretation of our agreement -- come at me. Besides, what are your damages?
such a pity you asked so far down the thread. I really enjoyed having a crack at a reply. So much so...
I found there were several ways to consider your question, not all of which were immediately obvious.
To capture my thought, well I put up a repo, same handle as here, at github, https://github.com/amygdyl , under HN_REPLY, where the context and flow of my thought really needed to bypass the "comment is too long" objection I encountered.
(Having done this, I realized just how much I've been discarding in frustration, when editing simply did not bring my reply within the limit, so this may begin a hopefully worthwhile habit.)
My partial conclusion went as follows:
"[...] the outcomes are ternary: the indemnity is worthless; the indemnity by putative assignment of a defensive patent has some limited use, but you are defending not Microsoft directly, but MS + 3rd party; or "highly dependent on strategic evaluation".
I do not think that this contracts provides any straightforward indemnity against adverse action initiated by Microsoft, however. Simply nothing in the context or wording leans towards supporting that interpretation.
However, in the event that Microsoft initiated suit claiming infringement of one of the portfolio of 10,000 patents covered by the clauses within this contract, clearly the siutuation created by the contract would become a nullity.
So, in dealing with 3rd party risks, the result could be quite open to interpretation, at least in early stage litigation.
However, as to your question on face value (and making a number of assumptions) then the answer is - if these assumptions became fact, in particular the tort for infringement cited a patent among the 10,000 portfolio, then, yes, this would constitute effective, but implied, mitigation and defense, which if the relevant clauses were enacted, and defense argued, would create a nullity.
How this benefit for customers of Azure actually plays out, if it in fact is ever played out, might never encompass as risky and interesting a scenario as that which I in passing posit. But I believe that in potential, Microsoft might have done a extremely positive, open minded and market generative, act, in offering this standard term.
It gets more interesting, if you consider the possibility of two Azure customers, suing for infringement, where Microsoft IP might come "in between" their claims. [...]*
I hope that makes some sense to you, but I genuinely felt the complete flow of my argument was worth putting down, would absolutely appreciate your thoughts - john