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Re: GPLv3 comedy unfolding -- "Microsoft Patents FUD Report: Who is Act

From: rjack
Subject: Re: GPLv3 comedy unfolding -- "Microsoft Patents FUD Report: Who is Actually Slinging it?"
Date: Fri, 25 May 2007 10:14:44 -0500
User-agent: Mozilla/5.0 (Windows; U; Windows NT 5.0; en-US; rv:1.7.2) Gecko/20040804 Netscape/7.2 (ax)

Alexander Terekhov wrote:

> ------ Microsoft Patents FUD Report: Who is Actually Slinging it?
> My morning news review had me chuckling this morning. Following Matt
> Asay's post on the InfoWorld Open Sources blog, I watched Eben
> Moglen's passionate attack on the Microsoft/Novell deal and his
> analysis of Microsoft's supposed FUD strategy.
> In it, Moglen accuses Microsoft of going on a "Be Very Afraid" tour
> around the world designed to spread FUD about their patents and how
> they may affect Free Software. I nearly spit out my coffee I was
> laughing so hard.
> Moglen is being COMPLETELY DISINGENUOUS and he knows it. The reality
> is that Stallman, the Free Software Community, and anti-software
> patent advocates have been complicit in this supposed FUD campaign
> about Microsoft's Patents, and could it could be argued are actually
> I readily admit that Microsoft has made cryptic and/or blunt comments
> in the past about its patents and how Linux and/or Free Software may
> be infringing on them. I'll also admit that I don't know how solid
> Microsoft's case may be. Many of the patents could be bogus, the
> infringement cases could be weak, etc., (I still think, however, that
> the chances are pretty good they have a case on more than one of
> their patents). But, that isn't the point.
> Moglen, Stallman, and the Free Software community despise the entire
> idea of software patents and have been campaigning against them all
> around the world. In their efforts, they trot out the boogeyman of
> big, bad Microsoft using its mountains of patents to cripple Linux
> and Free Software at every opportunity. I don't really have time to
> look up all the examples of this, but here are just a few in addition
> to my references from earlier this week:
> Stallman raises the Microsoft patent boogeyman in his article "Saving
> Europe from Software Patents":
> Later in 1998, Microsoft menaced the World Wide Web, by obtaining a
> patent affecting style sheets--after encouraging the WWW Consortium
> to incorporate the feature in the standard. It's not the first time
> that a standards group has been lured into a patent's maw. Public
> reaction convinced Microsoft to back down from enforcing this patent;
> but we can't count on mercy every time.
> The site plays up the threat from Microsoft's
> patents to Linux and Free Software throughout the site including:
> "It would be naive to think that Microsoft and other large companies
> would not resort to patent litigation if open source continues to
> have such a dramatic impact on their business."
> "It is conspicuous that Microsoft frequently mentions patents in a
> very close connection with the competitive challenge from open
> source. In 2004 alone, Microsoft projected to apply for approximately
> 3,000 patents worldwide, many of those in Europe. In July of 2004,
> published a memorandum by a senior manager of Hewlett-
> Packard, one of the world's largest computer manufacturers. The
> respective E-mail predicted that Microsoft would "use the legal
> system to shut down open source" but would firstly await the outcome
> of the legislative process concerning software patents in the
> European Union. Those conjectures were based on a patent
> cross-licensing negotiation that the HP executive had with Microsoft,
> and on some clauses in that agreement."
> So, when it fits their strategic goal of killing software patents,
> Stallman et al talked as if the threat from Microsoft's patents was
> deadly real. Now that Microsoft is finally admitting they think
> Linux distributions ARE infringing their patents, they change their
> story.
> If they always assumed Microsoft's patents were bogus, why didn't
> they calm the fears of their developers rather than fan the flames in
> all their anti-patent rhetoric?? ------
> regards, alexander.

    What is utterly laughable is the fact that a purported copyright license like the GPL3 *cannot*  effect matters concerning patents.  If source code implements a patentable idea then the source code in quenstion cannot be copyrighted:

    “In addition to spurring the creation and publication of new _expression_, copyright law contains built-in First Amendment accommodations. See id., at 560. First, it distinguishes between ideas and _expression_ and makes only the latter eligible for copyright protection. Specifically, 17 U. S. C. §102(b) provides: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” As we said in Harper & Row, this “idea/_expression_ dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s _expression_.” 471 U. S., at 556 (internal quotation marks omitted). DUE TO THIS DISTINCTION, EVERY IDEA, THEORY, AND FACT IN A COPYRIGHTED WORK BECOMES INSTANTLY AVAILABLE FOR PUBLIC EXPLOITATION AT THE MOMENT OF PUBLICATION. See Feist, 499 U. S., at 349–350.
    Second, the “fair use” defense allows the public to use NOT ONLY FACTS AND IDEAS contained in a copyrighted work, but also _expression_ itself in certain circumstances. Codified at 17 U. S. C. §107, the defense provides: . . .”, Eldred V. Ashcroft, 537 U.S. 186 (2003).

The GPL3's "patent-busting" abilities are a figment of Moglen's  fertile imagination.


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