The Joel on Software Discussion Group (CLOSED)

http://afreshcup.com/2007/5/14/the-rest-of-the-story

Will this happen? It would be a shame if it did.

If you can not monetize software, then there is no money to be made and we all go home.

What was it? Microsoft claims that linux infringes on 60+ some of its patents related to GUIs.

Presumably, this is where the talking dog and paperclip in KDE came from, coz' everything else came straight from xerox.

Yeah sure it will happen. I'm scared to death and will stay up all night thinking about it.

Thanks a lot for ruining my night.

I don't care for this "free and open" source model and their general economic philosophy.

Patents are an economic tool to promote research and development.

Basically if companies cannot protect their intellectual property, other companies can use it to create equivalent products. When too many companies start competing, price is lowered to cost and no money exists for R&D.

Economics 101.. or actually ECON 201 Microeconomics.

Agreed that patents can, and are abused; but the idea is pretty basic--and fundamentally the system works.

If we just abolish copyright/patent/trademarks

then we can all be free in open source world.

"Basically if companies cannot protect their intellectual property, other companies can use it to create equivalent products. When too many companies start competing, price is lowered to cost and no money exists for R&D."

There are lots of different flavors of open source, and not all are hostile to notions of intellectual property. The GPL license in particular is entirely dependent on copyright law, much though Richard Stallman might regret it.

The real question here is whether the Microsoft patents involved here are of the quality of say, RSA public key encryption, or if they are more like Amazon's 'One click shopping' travesty. My own opinion is that copyright is the appropriate form of IP for software. I think way too many software patents have been improvidently granted. The patent office has at times admitted that they simply don't have the expertise to really evaluate software patents and they've just punted the whole issue to the courts. I'm by no means a Microsoft 'hater', but I wouldn't like  to see Microsoft use their deep pockets and a wheelbarrow full of dodgy patents to crush competition.

Surely the ideal world would be some fairly broad middle ground.  Both extremes would seem to be disincentives for independent software development.

If the Microsofts owned and enforced ownership through patents at that end and the open source community effectively prevented anything else sold from being protected... little is left but blue collar and clerical jobs installing and administering products from the two alternative ends of the spectrum.  From the point of view of the customer innovation and choice basically disappears as well except where they're willing to hire custom developers and try to use trade secret protection.  In most situations the economic case can't be made, once again favoring another class of large corporation: large users.

At some point "all restaurants are Taco Bell" and we're looking at a dystopian future.

I think one thing missing from references to "the old days" when algorithms and software were shared is the difference in hardware lease or purchase, support, and operation costs today.  Along with that you had the near non-existance compared to today of a market for software.  This was a reflection of how few machines were actually in service, and takes us back to the hardware cost argument.

"When too many companies start competing, price is lowered to cost and no money exists for R&D. "

<shrug> its called competing in a free capitalist market.  if the barrier to entry is so low that large numbers of competitors can produce essentially the same product so quickly as to eliminate the first entry advantage then you have, in fact, a _perfect_ capitalist market.

quite how anyone who claims to believe in capitalism can argue that this is a bad thing is rather beyond me.

old style patents I have no problems with - patents that are for specific implementations of hardware solutions.


software patents are an entirely different breed of skunk, and are short sighted, evil and entirely stupid.
...unless they cover a specific implementation of an idea of course, but in that case they are just covering the same ground as copyright on software and their status becomes 'pointless' instead of 'short sighted, evil and entirely stupid.'

MY CHALLENGE TO MICROSOFT is that, if you're just enforcing the law, go ahead and sue all your closest partners first. Start with Mainsoft, then find a list of all your gold partners and just work your way down. Maybe look up all the MVPs and find out who they work for, and make sure their companies get hit as well.

Also, find all the startups you've purchased over the years (e.g. Hotmail) and find the original owners and sue them retroactively. I don't know if that's possible to sue the Hotmail founder for using linux way back--but if it can be done, it SHOULD BE.

After that's all cleared up, then you can go after the rest of the industry, like IBM, Red Hat, Sun, Oracle, etc. Fair's fair, after all.

The software world would be very different today if Apple had protected their intellectual property.

Also, noone's claiming that the Linux folk decompiled Windows and stole precious intellectual property. Instead, the claim is that independant development of similar ideas (generally based off technology that's been in development for decades) is somehow immoral.

If there's Linux developers who broke into Microsoft buildings (literally or by hacking) and stole code then there's a problem. But that's not the claim, now, is it?


> Patents are an economic tool to promote research and development.

No.

Patents are a weapon used to punish anyone who attempts independant research. They wern't intended that way, but a tool designed to allow a guy in a garage to protect himself from being exploited by large companies is now being used

Even Microsoft frequently claims that many of their software patents are acquired solely for the purpose of using them as a weapon in case another company uses their arsenal of patents against Microsoft. But, strangely, noone ever seems to mind that and everyone always claims that they would never attack first.

If patents promoted research and development, then I could do whatever I wanted, provided I did the actual work myself. And that's not the case, therefore patents harm people who do research and development.

Allowing people to gain the benefit of their own work without it being used by people who didn't pay the costs of development is fine. The problem is that patents are not an effective and well targeted tool for achieving that result.


> old style patents I have no problems with - patents that are for specific implementations of hardware solutions.

Patents were designed to counteract industrial espionage and delibeate reverse engineering, and were based on the idea that truely original ideas are hard to create and easy to copy.

For the vast majority of software patents, this is not the case and thus the patent system is not effective at preventing the problem is was designed to solve. But Microsoft has nothing to gain by trying to change the system.

It's just so darned hard to think of fair patent and copyright rules (not that anyone listens to me anyhow).  The forces in favor of perpetual ownership of IP are always more organized and more well funded than the other side of the issue...and it isn't like Mickey Mouse will *ever* be public domain...not in 1000 years.

In big company land, another way that you end up down this path of snagging as many patents as possible is to provide yourself with an arsenal to protect yourself from large competitors.  It's a kind of IP MAD.  The harm that it might do to small firms and startup is just a side effect.

I have a funny feeling that the public would not be a bit worse off if patents, etc. simply didn't exist at all.  But the public interest really has very little to do with these arguments.  It would be funny as hell if the Chinese became economically dominant enough to ignore US patent law altogether.

My secret hope is that Microsoft is doing this whole thing to enact change of sorts. Like: "hey, if we win a patent case, then we win. But if we lose the case, then maybe, just maybe, they'll overhaul this whole software patent nonsense that's scaring us all to death."

That's my hope, anyway--I don't actually believe they intend anything like this. But wouldn't it be nice if we lived in a universe mostly free of software patents, EXPLICITLY, versus the unstable universe we live in (IMPLICITLY patent-free, floating in an ocean of software patents)?

"After that's all cleared up, then you can go after the rest of the industry, like IBM, Red Hat, Sun, Oracle, etc. Fair's fair, after all. "

Anyone that takes on IBM (even Microsoft) in a patent dispute is, well, I'm not certain how stupid that would be, but it would be darned stupid.

Microsoft will be suing small companies first. They ain't suing IBm any time soon.

Although at the rate IBM is destroying itself by moving all the jobs to India, they won't matter in the future.

>Microsoft claims that linux infringes on 60+ some of its patents...
Balmer has currently claiming 235 patents are being violated. He's been claiming large numbers for years. Back in 2004, it was 228 or 283 depending on the week.

Recently:
>Microsoft claims that free software like Linux, which runs a big chunk of corporate America, violates 235 of its patents.
From: http://money.cnn.com/magazines/fortune/fortune_archive/2007/05/28/100033867/

From 2004:
>When Microsoft CEO Steve Ballmer said he wasn't really saying that Linux violates more than 200 software patents, Microsoft followed up by saying Ballmer was only citing findings from a controversial study done this summer by OSRM (Open Source Risk Management), a risk-mitigation consultancy.
>The study claimed that Linux has been found to potentially violate 283 software patents. The author of that report, however, doesn't see things the way Ballmer does at all.
http://www.eweek.com/article2/0,1759,1729908,00.asp

From 2004:
>A published report claiming that Ballmer said Microsoft believes Linux violates 228 or more of software patents created a quite a stir across the Web on Thursday.
http://www.microsoft-watch.com/content/operating_systems/is_microsoft_rattling_the_linuxpatent_sabers.html

235, 228, 283. Will Ballmer please make up his mind? Since he "knew" about these violations back in 2004, and chose to do *nothing* about it, such violations, if any, would be thrown out of court as they took way too long to protect their alleged rights.

http://www.groklaw.net/article.php?story=20070513234519615

As a convicted monopoly, Microsoft will start off with a serious handicap in any suit claiming patent violations. In general, the phrase "patent misuse" will appear pretty quickly. 
http://www.tms.org/pubs/journals/JOM/matters/matters-9208.html
http://en.wikipedia.org/wiki/Patent_misuse

Some versions of Acrobat have a list of patents in their splash screen. Acrobat 8 has a link to the patents on the "about" screen. By failing to "mark" (another term of art) windows with the patents, a smart lawyer would be able to claim that it really isn't protected by patents:
>In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice. Filing of an action for infringement shall constitute such notice.
http://www.uspto.gov/web/offices/pac/mpep/documents/appxl_35_U_S_C_287.htm

Standing up in a suit and making a speech isn't "notice." Actually filing a suit with explicit lists of patents would be a notice. Actually having a dialog box of some sort that is easy to find would come close, but they'd still have to list the exact patent numbers. Which Microsoft refuses to do in the case of Linux.

If Linux actually violates some patents,
AND if Microsoft wants Linux to stop violating those patents,
THEN they would have listed the patents being violated.

Since Microsoft has repeatedly refused to identify *any* of the infringing patents, I claim that there are no infringing patents. After all, if there were any, they would have sent their lawyers after the offenders and would have to document exactly what patents are infringed.

http://www.showusthecode.com/

IBM's software patent portfolio dwarfs that of Microsoft.

Well, this strategy worked for SCO, right?  Right?  No?

Oh, darn.

The goal, with Patents and/or with Copyright, is to give producers a way to make profits on their efforts, while at the same time providing a way to EVENTUALLY allow the technology to continue to improve.  Note there's actually a third category -- Trade Secrets. 

Copyright is time-limited.  Patents (in theory) can be licensed, but are published publically, and I believe are time-limited.  Trade Secrets have NO protection, and can be reverse engineered if possible, but don't have to be published, and are not time-limited if people can't figure them out through reverse-engineering.

So, preserving Intellectual Property rights, and making a profit from them so you have an incentive to develop MORE Intellectual Property, requires a delicate balancing act -- which these heavy-handed and sometimes bogus software patents tend to violate.

"Basically if companies cannot protect their intellectual property, other companies can use it to create equivalent products. When too many companies start competing, price is lowered to cost and no money exists for R & D."

"its called competing in a free capitalist market.&nbsp; if the barrier to entry is so low that large numbers of competitors can produce essentially the same product so quickly as to eliminate the first entry advantage then you have, in fact, a _perfect_ capitalist market.

quite how anyone who claims to believe in capitalism can argue that this is a bad thing is rather beyond me."

So if Anti-HIV drugs are invented in the US and they are mass produced in Asia and Africa without respecting IP and patents it is ok, because it is capitalistic?  As soon as the copiers of IP are abroad you will start defending patents, till then you will be beating Microsoft?

About 15 years ago, I learned that IBM patented the cursor blinking 50% on, 50% off "algorithm".

When I worked at Smith Corona, I developed a sparse matrix word processing program. I asked them to patent it (just for the "glory" of it, really), but they refused, since there was no chance anybody was going to copy it and make money off of it.

Ever since, I've thought that the patent system needed to be blown up and rebuilt from the shattered pieces, though on reflection, there's nothing so bad that it can't be made worse. The US is so corrupt.

Here you go -- peruse the great innovations patented by Microsoft.

http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&u=%2Fnetahtml%2FPTO%2Fsearch-adv.htm&r=0&p=1&f=S&l=50&Query=an%2Fmicrosoft&d=PTXT

As has been said, this has nothing to do with people actually copying Microsoft -- instead Microsoft has patented thousands of trivial, obvious "inventions" (going so far as patenting things they've stolen from other companies) that would independently -- inevitably -- be the approach use by other implementors.

This is exactly the opposite of what the patent system is supposed to be for.

Ultimately I think any company that brings a patent that doesn't stand scrutiny to trial, or even so much as tries to blackmail the rest of the industry with one (aren't there laws against vapid threats like these?), should have a fine imposed equal to a percentage of their gross revenue. I'd love to see Microsoft hit with a billion dollar fine because they're trying to FUD other businesses and users with bullshit patents.

"<shrug> its called competing in a free capitalist market.  if the barrier to entry is so low that large numbers of competitors can produce essentially the same product so quickly as to eliminate the first entry advantage then you have, in fact, a _perfect_ capitalist market.

quite how anyone who claims to believe in capitalism can argue that this is a bad thing is rather beyond me."

That’s easy to argue; it’s econ 101. You get more innovation in oligopoly than in perfect competition.

Yet oligopolies and monopolies produce horrid resource allocation, so you shunt research out to those people not in the profit market, and focus on making your product. That's just about what everyone currently abusing the patent system does anyways. Good computer research comes from the education system. New drugs come from medical research institutions, not drug companies.

I say abolish the patent system. For drugs, it's rediculous. License medicine from a university and shelf it. Kill people for a little extra profit.

"The GPL license in particular is entirely dependent on copyright law, much though Richard Stallman might regret it."

Oh, Richard Stallman fully understands that GPL depends on copyright law. He fundalmentally disagrees with the purpose of copyright (but limited copyright say in 4 years is acceptable), so he wins either case.

"so he wins either case."

So you can hva e your cake and eat it too?

WOW

" Good computer research comes from the education system. New drugs come from medical research institutions, not drug companies."

This is simply not true. Plenty of good computer research has come from IBM, AT&T, and Intel for example. Most of the life sciences research at universities is focused on basic research and won't immediately translate into a safe and effective drug. Consider the history of statins. The first statins were isolated by academic research groups in the late 70's. The early statins couldn't be used as human drugs though because of terrible side effects. It took Merck 11 years of further work to find a variant that had tolerable side effects and to get it approved by the FDA for human use.

There certainly are problems in the US patent system, but making up black and white fairy stories about "universities good, drug companies bad" isn't helpful.

He is using the copyright law to lessen the restrictions of copyright. If there is no copyright law, nothing needs to be done.

Yes, he can have his cake and eat it too :)

When a customer cancells their volume license with Microsoft, then they want to be able to say "that's your call, fair enough, hope it works out for you guys - and don't pay any attention to all the patents being violated by Linux, we're sure your lawyers have checked everything out fine. See ya at the golf course next week?" And, of course, that wouldn't possibly be a threat now, would it? It was so friendly!

If the patent violations are real, then someone needs to actually list all the violators so they can stop violating the patents. Or, perhaps, sue.

Merely wandering around saying "oh my, don't those patents look scary, whatever would happen if 'someone' decided to sue?" is not good enough.

"So if Anti-HIV drugs are invented in the US and they are mass produced in Asia and Africa without respecting IP and patents it is ok, because it is capitalistic?  As soon as the copiers of IP are abroad you will start defending patents, till then you will be beating Microsoft?"

<shrug> drug related patents != software related patents.  Despite that I am perfectly willing to discuss them with you...would you perhaps like to start a separate thread?

"That’s easy to argue; it’s econ 101. You get more innovation in oligopoly than in perfect competition."

odd, I dont recall being taught that at all.


do you have a link discussing the phenomenen?  its certainly counter-intuitive..

"do you have a link discussing the phenomenen?  its certainly counter-intuitive.."

Back in the AT&T phone company monopoly days, they did a TON of research because the government limits they to cost + margin.

Therefore, the greater their cost, the greter their profit. (If you are lost here reread the last paragraph)

Since they are not allowed to branch out, they spent tons on research, adding to their cost.

Microsoft of today is very similar. As a monopoly, they are able to spend top dollar hiring researchers and developers. Which is why they are number one in the world in research spending.

Compare this to the perfect capitalism of open source, where research spending is 0.

(Outside funding is outside of open source so it's counted seperately, unless you want taxpayer funding I suppose..)

And finnally, Google, as a monopoly is also able to pay top dollars for research and development.

When monopoly fall from grace, that is when we see massive layoff, and shrinking of an entire industry, and collapse of wages.

See, Lucent, the baby bell of mother AT&T.

> The software world would be very different today
> if Apple had protected their intellectual property.

Apple DID try to protect Xerox's intellectual property.  Their attempts led to lots of jokes about Look and Feel.

The Windows X11 consortium got a licence directly from Xerox since Xerox's intellectual property was Xerox's not Apple's.

I forgot where Microsoft got their licence from.  Someone please remind me.

the judge decided that 179 of these elements had been licensed to Microsoft in the Windows 1.0 agreement, and most of the remaining 10 elements were not copyrightable—either they were unoriginal to Apple, or they were the only possible way of expressing a particular idea.

Xerox's lawsuit appeared to be a defensive move to ensure that if Apple v. Microsoft established that "look and feel" was copyrightable, then Xerox would be the primary beneficiary, rather than Apple. The Xerox case was dismissed because the three year statute of limitations had passed (i.e. Xerox waited too long to file suit.)


And as always, Microsoft wins.

"Back in the AT&T phone company monopoly days, they did a TON of research because the government limits they to cost + margin."

right, so that was true back then because of a specific set of circumstances that are no longer true today, yes?


"Compare this to the perfect capitalism of open source, where research spending is 0."

huh?  I really dont understand that.  what on earth has given you the impression that open source funding is 0? 

"(Outside funding is outside of open source so it's counted seperately, unless you want taxpayer funding I suppose..)"

sorry, I dont understand this either.  you are saying we must discount any funding from companies who are paying for open source development?

"Google, as a monopoly is also able to pay top dollars for research and development."

google is a monopoly?  Im sorry, I guess I dont understand your reasoning here?


seriously, I am entirely unable to follow your logic.  could you maybe expand on it a little?

Please note that when I made the original post I had not heard of the Fortune article. I was only thinking about the original articles lament that any software written might have to be vetted for patents before it could be sold.

"Basically if companies cannot protect their intellectual property, other companies can use it to create equivalent products."

The most appropriate IP protection for software is copyright and this seems to be more than sufficient. Perhaps there could be a case for allowing patents of completely non-obvious inventions in computing (e.g. RSA encryption) but IMHO there are very few of these.

In my own view you monetize intellectual property by using it to build products that people want to use and therefore buy. Not by writing a patent and then sending your lawyers out to extort money from people.

Given that it is effectively impossible for us to all agree on what is "non-obvious" about a software design I would, on balance, abolish software patents as being fundamentally silly and really only of benefit to lawyers. And I say that as someone who has a couple of software patents to my name.

Copyright is enough protection - let us leave it at that.

And anyway, isn't this a US only problem?

>As a monopoly, they are able to spend top dollar hiring researchers and developers

And what has this yielded?

Microsoft has not been a font of innovation by any measure of the imagination, and their R&D department is an *incredibly* overblown divisions.

Regarding Google being a monopoly - since when is 53% of search a monopoly?

We might also want to keep in mind that "free enterprise" and "capitalism" do not result in a dynamic system of balanced competition and good value for the customer...in any really open competition, some one "wins".  Then the non-winners go away (invest in more profitable pursuits).  Then the remaining "winner" becomes a monopoly.

Microsoft is a good case in point.  No one can now afford to enter the marker against them.  They own the playing field.  They make all the rules.  The ONLY "innovation" is their own.  And judging by .NET and Vista, this is NOT so good for all us customers!

If Google is not a monopoly, then why is all those people compaining about their price gauging and yet is seemly unable to switch to an alternative?

HINT: Google has a monopoly in that area.

"free enterprise" and "capitalism" tends to monopoly. How hard is it to not see it?

Free trade simply exuberate the trend.

"why is all those people compaining about their price gauging and yet is seemly unable to switch to an alternative?"

Ive always assumed its because they're idiots?  whats your take on it?

If they switch from Google into say Live, they loose sales and market share. While the competitor continues to use Google to eat them alive.

sorry?  how does that make google a monopoly? 

it makes them an effective tool in your marketing campaign, but thats a good thing, not a bad thing, right?


I mean, television is (considered to be) a way more effective marketing tool than radio, but that doesn't mean that television has a monopoly, does it?


no, I think my 'because they're idiots' theory is a better answer to your question.

maybe Im not understand your point, would you care to expand on it a little more?

Run a business, and you'll see.

a business?  hey, good idea.  wish Id thought of it.


I am currently selling 3 separate shareware applications (2 of which were released within the last 3 weeks, one that has been out for a couple of years) with varied success.

I dont use adwords at all for any of them, I brilliantly chose niches where the competition is insanely high and the adwords are priced entirely beyond what I consider reasonable.


adwords are, surprisingly enough, not the only way to get your name out there.