I wasn't even first to pick it up: Reuters reported on it before I did.
My reporting was nonjudgmental. I just informed everyone of what Google's filing said.
581 karma · joined January 21, 2011
I wasn't even first to pick it up: Reuters reported on it before I did.
My reporting was nonjudgmental. I just informed everyone of what Google's filing said.
I know from at least one of them that he is NOT covered by Apple. If that continues to be the situation, the advice may unfortunately have to be at some point to sign Lodsys's license agreement if that results in dismissal from the lawsuit or helps avoid one.
For Android developers, the question is what Google will do. So far they say nothing and do nothing. If Apple's motion is granted, the question must be asked why Google doesn't intervene. One of the accused apps is an Android app ("Labyrinth for Android"). If Google doesn't protect Android app developers, they will also have to consider very seriously a license deal with Lodsys.
I have seen Lodsys's license agreement. I would recommend that many app developers share the cost of having it reviewed by a lawyer (rather than get into Patrick Igoe's claim chart stuff, which is neither convincing nor useful to those who can't afford a multi-million-dollar lawsuit over that question). If a lawyer agrees that the license agreement is reasonable, which in my personal opinion it is, then that's definitely better than going to court.
Patrick Igoe also came up with a "divided infringement" theory, which I rebutted on my blog. Apple apparently doesn't believe in his theory either, so why should you?
I have repeatedly pointed out, especially on my blog, the problem of encouraging other trolls to go after app developers. But in the example, $100 is a much better deal than paying thousands of dollars to lawyers. The thing that should happen is for Apple and Google to take care of their app developers.
Should app developers with, for an example, revenues of $5,000 to $10,000 a year pay a patent attorney their entire annual income from their app for just a cursory (!) look at the issue (far from the cost of searching for prior art etc., which is way higher)? How practical is that?
Why doesn't the article talk about the cost of such legal defense and the risk of an East Texas jury handing a multi-million dollar damage award to Lodsys?
Why doesn't he compare the low cost of Lodsys's license for the average app developer to the cost of legal advice (let alone legal defense or damages ordered by a court)?
How can app developers without the resources in place to defend themselves ever even get to the point where they can seriously challenge Lodsys's claim chart?
How can one be not profoundly concerned when Lodsys sends a letter, given that Lodsys has already sued 27 entities and is embroiled in seven lawsuits in three different states?
And why does a self-proclaimed open source site like Groklaw promote a patent attorney who vigorously argues in favor of software patents on Twitter?
By the way, the same Patrick Igoe doubted in an email to me a few months ago that Nokia was in a position to turn Apple into the net payer. I predicted it in March, I reaffirmed that prediction in May, and I was proven right yesterday.
In terms of what the other companies would do, the question you have to answer is why there isn't similar litigation in connection with Apple's iOS.
The new stories that surfaced today sounded similar, but James Thomson told me on Twitter that it's about a different company and patent this time around.
Your second paragraph doesn't make sense to me given that the patents asserted by IBM in that correspondence were related to the Hercules open source emulator, not specific to any commercial offering. The maintainer of the Hercules project explained on his blog why this was an attack on the Hercules project as a whole: http://ibmvshercules.com/
You previously just phrased my 3rd option differently to artifically create a 4th option.
Now you don't take into account that I explained 3 different approaches: grant a free license, grant a FRAND license, and prohibit any implementation of the patented invention only to foreclose competition, which is exactly what IBM (a monopolist in the context we're discussing) tried. Fortunately, the European Commission is investigating IBM for suspected violations of EU competition law.
This is yet another clear indication that "PJ" was just an avatar.
Similarly, your distinction between a "community open-source project" and someone bundling it with hardware makes no sense. Companies bundling open source software with hardware or commercializing it in other ways are simply part of the community as long as they comply with open source terms.
1) making someone aware but saying right away that it's fine (that's what IBM as a self-declared friend and protector of open source should have done in this context)
2) making someone aware and offering a license deal on fair, reasonable and non-discriminatory (FRAND) terms; that would have made sense in this case, too, since TurboHercules stated in its first letter that it wanted to reach an agreement with IBM on such terms
3) making someone aware while simultaneously pursuing exclusionary, anticompetitive objectives
I like the first possibility, I can accept the second one if the offered terms are truly FRAND, but I despise the third option.
Worse than that, you don't even seem to understand that antitrust regulators aren't courts of law.
If you sue someone over patent infringement allegations, and as long as you satisfy some basic criteria (such as "Rule 11"), there will be a lawsuit. It's a given that the court will hear your case. Period. And it's only because you as the patent holder want to assert your rights, regardless of whether that particular case is good or bad for the economy at large, and for society.
By contrast, an antitrust complaint like the one TurboHercules brought against IBM (many months after the initial - even if then not yet totally specific - patent infringement threat) is lodged with a regulatory agency that doesn't have an obligation to follow up. They can always say there's no public interest in what you complain about. In that case, you could try to bring an antitrust lawsuit, and then you just satisfy some basic criteria and a court will hear the case. But if you ask an antitrust regulator to act, the regulatory agency will look at your complaint and its merits, and will compare it to other complaints and their merits, and will then decide to pursue only the most important issues, i.e., the ones that the economy at large, and society, have the greatest benefit from.
Depending on the jurisdiction, the antitrust regulator will either have to go to court at some point (unless a case is settled before) or, such as in the EU's case, the regulator may be in a position to impose remedies and fines, but all of that will be subject to review by a court of law if the affected company appeals.
Concerning the article you linked to, here's an additional link: http://fosspatents.blogspot.com/2010/04/id-rather-discuss-pa...
TurboHercules didn't make a "request" to IBM as a "bluff". Instead, IBM threatened TurboHercules with a previous letter.
Also, TurboHercules never attacked IBM with patents (I guess TurboHercules doesn't even own any patents). All that TurboHercules did later was to lodge an antitrust complaint with the European Commission. However, lodging a complaint with a regulator is not an act of aggression. Regulatory agencies will only take action if a company's conduct is suspected of being anticompetitive and unlawful. The European Commission launched an investigation in July: http://fosspatents.blogspot.com/2010/07/european-commission-...
That would not have happened if there weren't serious concerns over what IBM is doing. The outcome of the in-depth investigation remains to be seen, but the European Commission doesn't launch such investigations unless there's at least a strong indication of possible wrongdoing.
A few days ago, I was quoted on Google's $900M bid for Nortel's patents by the Financial Times, Los Angeles Times, BBC News, law.com, and on Android's patent problems by Bloomberg. I started my FOSS Patents blog only a year ago. Did Groklaw ever get quoted by media like that? I can't remember having seen that ever. That doesn't mean that it hasn't happened, but I'm not aware of any example.
I never intended for my FOSS Patents blog to be a discussion community like Groklaw, but I do cover those issues and try to help a broader audience understand the strategic battlelines, such as with the visualizations available in the above folder.
1 of them was previously also asserted against Motorola. 4 of them weren't.
Since Microsoft already has 23 patents in suit against Motorola, Barnes & Noble will know that the 5 patents asserted today are but a small selection of Microsoft patents allegedly infringed by Android.
I've been in the software industry for more than two decades, and I've worked with such companies as Blizzard Entertainment (I actually edited a small part of the C source code of Warcraft II - Tides of Darkness, for an example). I know and I'm sure pretty much every reader here knows that it's never just a quick and simple thing to change something in such a large and interwoven codebase as Android.
Any change can result in unforeseeable run-time issues even in parts of the codebase where it seems counterintuitive.
I don't deny that it's doable -- in my own blog post on this I advocate replacing Bionic with glibc. I don't claim it will take five years. But the idea that this can be done in no time and without any risk of incompatibilities and other issues flies in the face of everything any technical decision-maker at any significant software company would say.
It may work in a "release early, release often" world. I doubt that the likes of Samsung and Motorola plan to "release early, release often" their Android-based devices.
Such an absurd downplaying of the issue calls into question that Brad Kuhn seriously wants a solution. It seems he just wants to be an apologist.
This is pointless and may mislead some readers.
Without a doubt it's possible to do a non-GPL library. In fact, my blog post on this subject advocated glibc all the way, which is LGPL'd, not GPL'd.
But the fact that it's possible (if done right) doesn't mean that Google's reprocessing and repurposing of the material in question is in line with copyright law and the GPL.
I already pointed to that from my blog post on the Bionic story (http://fosspatents.blogspot.com/2011/03/googles-android-face...) but just wanted to show this example of a definitive error in Kuhn's generally very unconvincing blog post.
You can build libraries if you like, but you can't just put header code under a different license unless you're the original right holder or have the original right holder's consent.