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Munich's Linux Migration Raises EU Patent Issues

timothy posted more than 9 years ago | from the overstated-or-simply-prudent dept.

Linux Business 164

J ROC writes "Techweb has a story about the German city of Munich's Windows-to-Linux migration. It appears the move to replace 14,000 Windows desktops with Linux has hit a bump. Green Party alderman Jens Muehlhaus, who is a supporter of open-source software, has petitioned the mayor to examine the status of software patents in the European Community. The issue involves a proposed directive on software patents that is being considered by various European governments. Muehlhaus fears that a patent owner could issue a cease-and-desist order against Munich, thus hurting the operation of various city departments."

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What's the problem here? (1)

ct.smith (80232) | more than 9 years ago | (#9855193)

The article was a little short. Anyone know if there's a particular patent that's causing the problems?

Re:What's the problem here? (1)

Lehk228 (705449) | more than 9 years ago | (#9855223)

probably not, just trying to avoid problems with anti-OSS FUD that may emerge later on.

Re:What's the problem here? (5, Insightful)

A1kmm (218902) | more than 9 years ago | (#9855339)

I don't see how this is specific to OSS. After all, the same could be true about any software, Free, free, commercial, open, closed, in-house, public domain, etc... There are so many patents, many of them vague, out there, and no company or government(not even those departments dealing with patents) knows them all. Combine this with the fact that every line of source code could violate multiple patents given the simplicity of patents, and the combination of certain lines of code could also violate patents while each line by itself doesn't. So to check a program of size n against a patent database of size m is takes at least O(2^n m) of human resources. No one can supply this much time for any realistic software. Hence, we can never be sure that software we use doesn't violate any patents.

Clearly, whatever platform they are currently using faces the same problem, so unless they have identified a specific problem, this should not affect the migration.

Re:What's the problem here? (4, Insightful)

thrillseeker (518224) | more than 9 years ago | (#9855381)

I don't see how this is specific to OSS. After all, the same could be true about any software

The difference is that OSS doesn't have the luxury that closed-source does of being able to hide its kitty litter - everything is in the open is OSS by its very nature. Closed-source may operate for years with no one being the smarter that multiple patents are being violated.

Re:What's the problem here? (4, Insightful)

B747SP (179471) | more than 9 years ago | (#9855488)

OSS doesn't have the luxury that closed-source does of being able to hide its kitty litter

That, and the bit where if you buy closed-source software, and it turns out to have some form of dodgy encumberance, then there is someone to.. ah.. how-you-Americans-say-in-your-language?..ah-yes... point the lawyers at. You generally don't get left holding the bag all on your own.

As the saying goes, if OSS software breaks, you get to keep both pieces (however in this context, the patent holder may well like to have his piece back :-(

All together now... "software patents are evil".

Re:What's the problem here? (1)

swv3752 (187722) | more than 9 years ago | (#9856047)

Ya think that MS is going to be holding the bag? Almost every proprietary software out there has disclaimers out the wazoo.

Re:What's the problem here? (2, Insightful)

ilikejam (762039) | more than 9 years ago | (#9855549)

We're talking about software *patents* here, not copyright. The lines of source code don't matter in a patent case. If your software does something which is patented, then you are infringing on the patent no matter how it's implemented. No-one can hide from the patent lawyers, because it's the end result of running the code, not the way the code is written.

Re:What's the problem here? (1)

Retep Vosnul (663388) | more than 9 years ago | (#9855240)

I think the major issue is that IF proven that any IP patents could prove harmfull to this project people should really start thinking about this stuff. There are a lot of "Brinkhorst" like people out there that are clueless about these matters AT ALL and vote in favor of anything just to get home in time for idols. It would be really interesting to see if IP has any inpact on a large important project like this. If it has it could be proven to hinder free choice. ( proving it being dumb and must be put down quickly )

Re:What's the problem here? (1)

BrokenHalo (565198) | more than 9 years ago | (#9855485)

Even so, I fail to see why software patents are any more of a danger to people operating on a Linux platform than on a Microsoft one. The reverse, in fact.

Sounds to me like this alderman is either (a) dumb enough to believe Microsoft FUD or (b) has been paid or bribed in other ways to muddy the waters.

Re:What's the problem here? (4, Insightful)

r.jimenezz (737542) | more than 9 years ago | (#9855248)

I think the way in which the article was submitted to Slashdot is good (i.e. the "department" Timothy put it in and the submitter characterizing the issue as "a bump".

Unfortunately, the article's body is a bit less objective and states the project "was placed in jeopardy". Not that I understand much about German law, but it seems to me as if the Green Party is simply making sure that eveything is being contemplated. Notice that both alderman Muehlhaus and Mueller, the Party's spokesman, are pro-open source.

I think this is in fact good for the project. This goes to show that the patents issue (worldwide, not only in Europe) is becoming a growing concern for more and more sectors. Seeing that they are being careful about this actually makes me think they remain very serious about seeing this project get finished well.

So, to address more directly your question: it is not about a particular patent causing problems, it is about being warned that the situation may eventually arise.

Mod parent up! (4, Insightful)

JohnQPublic (158027) | more than 9 years ago | (#9855291)

I think this is in fact good for the project. This goes to show that the patents issue (worldwide, not only in Europe) is becoming a growing concern for more and more sectors. Seeing that they are being careful about this actually makes me think they remain very serious about seeing this project get finished well.

That's an excellant point. This isn't necessarily a bad thing for Open Source. In fact, as things stand, it sounds like it's in Munich's best interest to press for an anti-patent answer from the EU. And as the parent notes, the two named individuals are pro-source.

Re:Mod parent up! (0)

Anonymous Coward | more than 9 years ago | (#9855445)

And as the parent notes, the two named individuals are pro-source.

And Munich coders probably don't even know how good they have it... Last year the deparment I work for got a new director who is anti-source, and now we have to do all our programing in binary :-(

Re:Mod parent up! - anti-patent clausesi in API's (1)

mikael (484) | more than 9 years ago | (#9855671)

After reading this article, I was wondering whether it would be possible for Open Source API developers to place a clause in the license agreement prohibiting patents placed on software that use their API?

After all, if you create an API that is built from modular blocks with the expectation that users will use these to build more complex systems, a third party developer can't really file a patent on a particular combination of such blocks, as you could always implement a single block that performed such a task.

Re:What's the problem here? (1)

ct.smith (80232) | more than 9 years ago | (#9855321)

Should have noticed the department line.

But, given that the only concern mentioned is patents (not copyright, not QA, not security or anything else, be it FUD or legitimate concern), I thought maybe that there was something in particular that may be worth knowing about.

Of course politics being politics ...

right - I wouldn't call it a bump. (2, Interesting)

kardar (636122) | more than 9 years ago | (#9856129)

A few days ago, we had a post from the person from the Stargate website, asking for donations. Common sense would dictate that perhaps a more objective source than one of the parties involved in the litigation... oh well.

Today there was a Mozilla vulnerability thing and I clicked on the "proof of concept" and my X server almost locked up and I had to ssh in from another machine to kill it. "As if" someone wouldn't notice there was something wrong.

Now, this.

Where does one go to get an objective opinion of things. You know?

It just ain't right. People need to chill out, man... life ain't that grim!

Re:What's the problem here? (0)

Anonymous Coward | more than 9 years ago | (#9855271)

Maybe this is what you want:

http://www.heise.de/newsticker/meldung/49605

but it's german...

It works like this folks... (-1, Flamebait)

Anonymous Coward | more than 9 years ago | (#9855298)

This article is shit. Typical shit submitted by a PR firm specailizing in viral marketing. This is the new trend - create press releases for google to pick up so that when people do a search for 'Open Source' they get all sorts of negative links. It is a shame that google ranks slashdot so high, and that the editors seem to post almost anything on a weekend.

This is done all of the time - by both sides.

AS DR. DEAN SAID (-1, Offtopic)

Anonymous Coward | more than 9 years ago | (#9855219)

SIEG HEIL AND YAARRRRRRRRR!!

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Impotent Stuff: Please try to to avoid looking like a complete buffoon and ignoramous to the entire country you jackass. Try to reply to other people's comments instead of starting new threads. Read other people's messages before posting your own to avoid simply duplicating what has already been said. Use a clear subject that describes what your message is about. Offtopic, Inflammatory, Inappropriate, Illegal, or Offensive comments might be moderated. (You can read everything, even moderated posts, by adjusting your threshold on the User Preferences Page) If you want replies to your comments sent to you, consider logging in or creating an account.

Impotent Stuff: Please try to keep campaign on topic. Try to reply to other people's comments instead of starting new threads. Read other people's messages before posting your own to avoid simply duplicating what has already been said. Use a clear subject that describes what your message is about. Offtopic, Inflammatory, Inappropriate, Illegal, or Offensive comments might be moderated. (You can read everything, even moderated posts, by adjusting your threshold on the User Preferences Page) If you want replies to your comments sent to you, consider logging in or creating an account.

Impotent Stuff: Please try to keep posts on topic. Try to reply to other people's comments instead of starting new threads. Read other people's messages before posting your own to avoid simply duplicating what has already been said. Use a clear subject that describes what your message is about. Offtopic, Inflammatory, Inappropriate, Illegal, or Offensive comments might be moderated. (You can read everything, even moderated posts, by adjusting your threshold on the User Preferences Page) If you want replies to your comments sent to you, consider logging in or creating an account.

Re:AS DR. DEAN SAID (-1, Troll)

Anonymous Coward | more than 9 years ago | (#9855529)

tu madre es puta

So would MS software be immune? (4, Interesting)

PhilipPeake (711883) | more than 9 years ago | (#9855224)

I would think that given MS's past history of "borowing" ideas, they are as open to patent issues as anyone else. So what do they suggest Munich (and everyone else) do? Stop using software?

Re:So would MS software be immune? (2, Interesting)

arcanumas (646807) | more than 9 years ago | (#9855264)

I agree.
In fact, as the Eolas case has showed us, Microsoft was ready to make significant changes to IE.
If Munich (or anyone) was depending on the way IE worked with plugins would find he would have to redo everything.
All because of a stupid patent.

A worst scenario (one more probable to have an impact on Munich) is not to difficult to imagine.
I don't see how they are more protected with MS (or any corporation) against patents.

Re:So would MS software be immune? (4, Insightful)

ron_ivi (607351) | more than 9 years ago | (#9855332)

Even more that Eolas, the Timeline [winnetmag.com] patents that Microsoft infringed upon cost Cognos 1.75 million [timeline.com] just because Cognos used Microsoft's infringing components.

I hope Munich carefully audits all of Microsoft's source code before deploying it as well.

Re:So would MS software be immune? (4, Interesting)

ron_ivi (607351) | more than 9 years ago | (#9855347)

On, and once again I'd like to state the need for a third-party source-code auditing service that the large auditing company could provide to make sure that software (both open source and commercial) doesn't infringe on other people's copyrights and patents.

It's concerning to me how many people may be using illegal software from closed souorce vendors who stole source code from other projects. I would hate to build a business on a software package only to later have the vendor discontinue support because he got caught for having illegally stolen copyrighted software and incorporated it in his work.

With open source, I can feel pretty safe - based on the many eyes who see the check-in comments, someone would complain if they saw their stolen code. With proprietary software, I probably wouldn't even have a way of knowing until my vendor gets shut down.

Re:So would MS software be immune? (3, Insightful)

Jim McCoy (3961) | more than 9 years ago | (#9855386)

I hope Munich carefully audits all of Microsoft's source code before deploying it as well.

You have reached the heart of the problem, but have it backwards because you don't understand how the law works. If Microsoft infringes upon someone else's patent then _Microsoft_ is responsible for satisfying the patent holder and for providing the same or equivalent product to the customer. If some bozo check in some Linux code that is later found to violate a patent then the city of Munich is responsible (because they have no indemnification from the software provider.) Notice the difference?

As much as it may suck, this is one of the things which you get when you actually pay for your software. Perhaps it is the only thing of value, but in the biz world it is important to have these uncertainties taken care of (especially when you are a deep-pocket target for various bottom-feeders...er, make that fine, upstanding members of the legal professsion...)

Re:So would MS software be immune? (4, Informative)

ron_ivi (607351) | more than 9 years ago | (#9855436)

Tell that to Cognos, who lost the lawsuit with Timeline eventhough it was Microsoft that had the infringing code.

What you say aobut the vendor being responsible would only be true if the infringing vendor had sublicing rights. In Microsoft's case, they didn't: for more info... [winnetmag.com]

Microsoft originally licensed the patents with the understanding that it would be able to sublicense the patents to their customers and to third party software developers who use Microsoft software and tools. Microsoft intended to provide this sublicense to its customers for free to ensure that the patent claims didn't directly affect customers. Microsoft sources told me that for this privilege, the company paid substantially more than other vendors for its license, although the exact figure isn't public. Microsoft filed suit against Timeline shortly after signing the license agreement in June 1999 because Timeline claimed that Microsoft didn't have the sublicensing rights. See the Microsoft PressPass article at http://www.microsoft.com/presspass/press/1999/jul9 9/timelinepr.asp for additional information about the suit Microsoft filed against Timeline. In December 2002, the Seattle Supreme Court ruled in favor of Timeline on this matter.

Re:So would MS software be immune? (0)

Anonymous Coward | more than 9 years ago | (#9855454)

As much as it may suck, this is one of the things which you get when you actually pay for your software.

No... it's what you get if someone indemnifies you. You can license software to people with a license that indemnifies your customers against copyright or patent risks. Or (like most vendors, I believe) you can license your software without such clauses. The Timeline/Cognos/Microsoft case mentioned earlier is a good example where Microsoft didn't even have the right to offer Timeline's patented technology to Cognos; despite Cognos paying for it.

Conversely, you can get such indemnification for Open-Source software through groups like HP, or Open Source Risk Mangaement [infoworld.com] or other open source insurancne [google.com] vendors.

Re:So would MS software be immune? (0)

Anonymous Coward | more than 9 years ago | (#9855844)

but have it backwards because you don't understand how the law works

Which law?

Re:So would MS software be immune? (1)

Noksagt (69097) | more than 9 years ago | (#9855268)

My impression is that the suggestion is to oppose software patents.

MS software wouldn't be immune, but would be safer--they do have a lot of patents out there, are likely somewhat more cautious about stepping on patents, and (most importantly!) have significant financial and legal resources at their disposal to fight patent disputes.

Re:So would MS software be immune? (2, Informative)

michael_cain (66650) | more than 9 years ago | (#9855342)

MS software wouldn't be immune, but would be safer--they do have a lot of patents out there, are likely somewhat more cautious about stepping on patents...

MS has been sued for patent infringement and lost multiple times in the past, in at least one case where they blatently appropriated technology that had been revealed under a non-disclosure agreement. However, I agree that their software would be somewhat more immune. But that would be because it is closed source, and except where an API must reveal the underlying technology (eg, the Eolas verdict currently being appealed), much more difficult to establish infringement than when the source code is available. For example, various types of analysis make it extremely likely that the Windows IP stack is based on BSD code. Nothing wrong with that, the BSD license allows them to incorporate it (so long as the source code that very few get to see includes the correct BSD copyright notices). But without the source code you can't PROVE that the BSD code is in there.

Re:So would MS software be immune? (4, Insightful)

justsomebody (525308) | more than 9 years ago | (#9855276)

No, it suggests taht Germans should reconsider their vote about patents.

Last time they voted German representatives voted for the patents (after all their talk how they are against them, they were satisfied with few minor corrections of original proposition and voted YES)

btw. If I remember correctly Eric Raymond said that those little changes would do even more damage as original proposal

Re:So would MS software be immune? (0)

Anonymous Coward | more than 9 years ago | (#9855279)

Indeed. To me it sounds more like a general problem with software patents.

Maybe it is that in the future there would be developed new software with patented features that might not be available for Linux, if the software is Windows only. And no one could make a open source program with the same functionality. I guess that someone could make a closed source payware version if they licensed the technology.

But it is a nice example of the problems to come with software patents.

Re:So would MS software be immune? (2, Insightful)

henrik (98) | more than 9 years ago | (#9855311)

Microsoft has enough money to buy off the patent holder, either by licensing, cross-licensing, buying up all stock and closing down shop, or otherwise acquring the patent.

City of Münich may not have the ability to be able to spend that much of tax payers money on licensing. Neither the open-source developer most likely.

Re:So would MS software be immune? (1)

AstroDrabb (534369) | more than 9 years ago | (#9855429)

Microsoft has enough money to buy off the patent holder, either by licensing, cross-licensing, buying up all stock and closing down shop, or otherwise acquring the patent.
Huh? Do you know how much money MS has paid out for patent violations? Just recently MS lost a patent case over IE to Eolas. If MS could or would do what you suggest, why didn't they do that with Eolas? Why didn't they do that for all the other cases instead of paying out millions upon millions?

Re:So would MS software be immune? (1)

killjoe (766577) | more than 9 years ago | (#9856178)

I am sure they tried to. The patent holders held out for a judgement gambling that they would get more money from a judgement.

On the other hand MS has "settled" with borland, sun, corel, apple, and hundreds of other companies. Some companies will take the money and let go of the case other companies hold out.

Re:So would MS software be immune? (2, Informative)

timeOday (582209) | more than 9 years ago | (#9855343)

Well, Microsoft made the gesture of idemnifying [computerweekly.com] their customers, so you could say that Windows users are safe.

In a sensible world, this would be tantamount to selling insurance against an invasion by Martians, but things being what they are who knows? The SCO suit against Autozone, last I heard, was stayed pending the outcome of SCOs case against IBM, rather than being completely thrown out as utter nonsense, so perhaps there's some legal theory under which using a product makes you liable for the actions of the product's developers. As obviously stupid as that is.

How does Closed-Source make this better? (4, Insightful)

tmasssey (546878) | more than 9 years ago | (#9855230)

If Windows is infringing on a patent, how is Munich protected? Closed Source, Open Source, whatever: if you steal a patent, you're in trouble. Either way.

Is Closed Source better just because it's harder to *know* when you steal?

Re:How does Closed-Source make this better? (1)

reallocate (142797) | more than 9 years ago | (#9855261)

Maybe the Green Party rep, who is also a MySQL AB rep, knows something.

In any case, isn't there some confict of interest here? It's rather like a U.S. mayor asking for a big Microsoft buy when his press spokesman has a day job in Redland.

Contracts and commercial law (4, Informative)

JohnQPublic (158027) | more than 9 years ago | (#9855267)

Closed source is better for patent-threatened users because there are contracts in place and because of "fitness for use" laws. I can't speak about Germany, but in the USA if you sell me something and it violates somebody else's patent, you need to make things right for me. And if "you" are some large company, making it right can involve patent cross-licensing and no cash changes hands. Outfits like Microsoft, Sun, HP, and IBM do that all the time.

Open Source is great, but as the licenses make clear, *you* wind up holding all the liabilities. There aren't any warranties, and there's no implied fitness for use. If Open Source software violates somebody's patent, it may be possible for them to sue you for infringement. They can certainly sue you to require you to "destroy" your copies of that software.

Hence all the concern about software patents.

Re:Contracts and commercial law (5, Insightful)

colinrichardday (768814) | more than 9 years ago | (#9855335)

Munich didn't get its Linux by downloading ISO's, it got that Linux from IBM and SuSE (now part of Novell). I suspect those companies can handle such problems.

Re:Contracts and commercial law (0)

Anonymous Coward | more than 9 years ago | (#9855395)

The problem is that if GPL software was covered with a patent, it was illegal to distribute in the first place, and likely illegal for someone to use.

Re:Contracts and commercial law (2, Insightful)

Alsee (515537) | more than 9 years ago | (#9855504)

The problem is that if GPL software was covered with a patent, it was illegal to distribute in the first place, and likely illegal for someone to use.

Dumb argument.

Even ignoring the absurdity of software patents, if Windows is covered with an unlicenced patent, it was illegal to distribute in the first place, and likely illegal for someone to use.

-

Re:Contracts and commercial law (1, Interesting)

Anonymous Coward | more than 9 years ago | (#9855531)

The difference is that the Windows license doesn't preclude you from coming to agreement with the patent holder. Basically if it's patented, it can't be distributed under the GPL.

Re:Contracts and commercial law (3, Informative)

Alsee (515537) | more than 9 years ago | (#9856319)

The difference is that the Windows license doesn't preclude you from coming to agreement with the patent holder.

The GPL does not preclude you from coming to an agreement with the patent holder.

Basically if it's patented, it can't be distributed under the GPL.

False. You just need the proper permississions from the patent holder.

So as I pointed out, there's no difference. Windows distributers or users are no more and no less illegal than GPL distributors or users for infringing a patent.

The whole thing should be moot anyway. The US fscked up in voiding the Mental Steps doctrine (prohibiting patents for 'mental steps' including calculations and software). There is no such thing as a 'computer implemented invention'. The only thing a computer can implement is a calculation, all software is nothing but a fancy math equation. Any sofware can be run mentally (albit quite slowly). It is absurd to suggest that a sequence of thoughts running that software could ever be a patent infringment, and there is absolutely nothing novel or non-obvious about using an ordinary computer to do it faster.

I am a programmer, a software author. I am protected by copyright. Why should software be the only thing on earth with double protection? Double protection is just broken. Issuing patents on what amounts to mental steps is just broken.

-

Re:Contracts and commercial law (0)

Anonymous Coward | more than 9 years ago | (#9855341)

But say a contractor wins the bid, lets say IBM, don't you think they'd offer indemnity to this sort of thing?

Munich isn't considering going it alone, they are going to choose an IT firm to develop/implement the systems FOR THEM.

Therefore, they should simply make sure their vendor indemnifies the software they are buying.

This is probably just more FUD infecting a bought representative.

Re:Contracts and commercial law (1)

Ogerman (136333) | more than 9 years ago | (#9855371)

Open Source is great, but as the licenses make clear, *you* wind up holding all the liabilities.
I'm no lawyer, but as far as I know, I don't believe this has ever been tested in court. So don't go spreading those kinds of statements around like they're gospel truth. There are a couple issues: One is a question of where the liability would fall in the case of a legitimate lawsuit. The other is whether software patents would even stand up to serious constitutional scrutiny.

They can certainly sue you to require you to "destroy" your copies of that software.

Probably not. It's different than if some company got caught without adequate copy licenses. At very worst, software in question could be modified to work around alleged infringement.

Re:Contracts and commercial law (2, Insightful)

jbr439 (214107) | more than 9 years ago | (#9855382)

Is it not true that Microsoft's EULA basically says that the most you are guaranteed is getting your money back with the return of the product? Is so, there is no real difference with open source software. And indeed, it can be argued that it is worse with MS's since you would then be in the position of not having the software to access data that is most likely in some proprietary format.

Re:Contracts and commercial law (2, Funny)

Anonymous Coward | more than 9 years ago | (#9855384)

If Open Source software violates somebody's patent, it may be possible for them to sue you for infringement.

Oh, like that will ever happen...I'd really like to see some rogue company try to take on the whole world...

Microsoft make no such guarantee (2, Interesting)

Anonymous Coward | more than 9 years ago | (#9855411)

Read the warranty you get from MS and find the bit where they offer you more than the GPL does.

I think you're wrong JohnQPublic (2, Insightful)

walterbyrd (182728) | more than 9 years ago | (#9855498)

Don't know where you got that legal theory, but it doesn't seem to supported by evidence. Certain end users of msft sql server were sued because of mfst's patent violation. I've never of heard of that happening with FOSS.

IANAL, JMHO, etc.

Re:Contracts and commercial law (1)

Vicegrip (82853) | more than 9 years ago | (#9855512)

There isn't any implied fitness for use or any kind of warranty in ALL the commercial software I have EVER used. In fact every EULA I have ever read removes as _much_ as possible any legal recourse somebody could take against the manufacturer of said commercial software.

One great example is the lawsuit that happened between Timeline and Microsoft over an alleged patent violation. Timeline claimed all SQL Server customers were on the hook for their patent:
according to Timeline's summary of the decision [timeline.com] :
"SQL Server developers who create a new product by adding code in an "Infringing Combination" (as defined below) must obtain their own patent license."

Anyways, the point is that the purchase of commercial software in of itself does not protect you from patent claims. EULAs are only about protecting the IP of people who make commercial software.

I think there is an advantage with open source in this respect: using open source could eliminate any claim about an infrigement being underhanded.

The real solution is to clean up software patents.

Wait... (4, Informative)

WebCowboy (196209) | more than 9 years ago | (#9855543)

Open Source is great, but as the licenses make clear, *you* wind up holding all the liabilities. There aren't any warranties, and there's no implied fitness for use.

And this is different in what way from Microsoft Windows? This is an exerpt from the Windows XP EULA:

Except for the Limited

Warranty and to the maximum extent permitted by applicable

law, Microsoft and its suppliers provide the Product and

support services (if any) AS IS AND WITH ALL FAULTS, and

hereby disclaim all other warranties and conditions, either

express, implied or statutory, including, but not limited

to, any (if any) implied warranties, duties or conditions

of merchantability, of fitness for a particular purpose,

of reliability or availability, of accuracy or completeness

of responses, of results, of workmanlike effort, of lack

of viruses, and of lack of negligence, all with regard to

the Product, and the provision of or failure to provide

support or other services, information, software, and

related content through the Product or otherwise arising

out of the use of the Product. ALSO, THERE IS NO WARRANTY

OR CONDITION OF TITLE, QUIET ENJOYMENT,

QUIET POSSESSION, CORRESPONDENCE TO

DESCRIPTION OR NON-INFRINGEMENT WITH

REGARD TO THE PRODUCT.

Basically what MS warrants is that if the media is scratched or it or the packaging are otherwise defective, or through defect Windows is not able to boot to a state in which your machine is able to perform its basic functions, then you are entitles for a replacement or refund within 90 days.

Beyond that any other warranty depends on how much warranty coverage your juristiction can force Microsoft to provide by law, or in the case of corporate customers on what is covered in a supplimental contract. In the case of legally minimum warranty I am now aware of ANYWHERE in the world that legally forces a vendor to indemnidy its customers from legal action involving patents. However, end users generally are not the target of patent violation cases--patent holders go after the manufacturer/vendor instead (even SCOs cases against Autozone and DaimlerChrysler don't involve patents--and they even skirt around copyright. They are basically contract disputes based on shaky ground).

In any case, Microsoft provides NO MORE WARRANTY than any Linux distributor might for a retail box or ISO download of their product. That being said, a major corporate or government enterprise would negotiate a special contract with the vendor.

In the case of the Munich Linux project, I cannot see how the city of Munich could be stuck with an order to suddenly stop using their software. The worst case scenario would be that the firms contracted to do the project (IBM and Novell) could be told to cease-and-desist Linux operations, which would delay the project or disrupt future expansion or support. I imagine that this would be handled by the contract between the city and IBM/Novell. A big enterprise customer generally is VERY through when it comes to risk management.

They can certainly sue you to require you to "destroy" your copies of that software.

Whatever the details, I've NEVER heard of a case where end users were ordered to destroy ANYTHING because it violates a patent. Could you give an example where, say, not only Red Hat would be ordered to stop distributing a software product due to patent violations--all its customers would be ordered to stop using the product too?

That would be like General Motors suing an aftermarket parts supplier for producing illegal replacement parts for Chevrolet Malibus and be granted the authority to send all registered owners of Malibus court orders to take their cars into dealers for examination and possible replacement of the parts. Such a remedy would be considered ridiculous.

Sorry, proprietary tech end-users can get sued (4, Interesting)

kjj (32549) | more than 9 years ago | (#9855612)

Click here [law.com] to read about a patent case involving Rockwell and a lawsuit generating company called Solaia. They decided to go after Rockwell's costomers and not just Rockwell. The customers sued Rockwell and Rockewell is now going after the Solaia's lawfirm for making the suit. This thing makes the SCO case look like a picnic, but in this case only proprietary software and technology and licensing is involved. Now of course these end-users are actually big corporations like Clorox and Shell which is probably one reason the suits were filed. I have not heard of patent suits where customers at a department store or mall get sued for their purchase, but do not rule out that possibility. It could happen. The point is using proprietary systems and licenses with big corporations does not put you in the clear of liabilities.

Re:Contracts and commercial law (1)

grmoc (57943) | more than 9 years ago | (#9855702)

However, there is another factor to consider--

Closed source being closed, it is more difficult to make a case that the software is infringing (you'd have to subpoena the source, which requires an extra step)

Re:Contracts and commercial law (4, Insightful)

nathanh (1214) | more than 9 years ago | (#9855940)

Open Source is great, but as the licenses make clear, *you* wind up holding all the liabilities.

Says who? Darl said this 1000 times and now we have people like yourself parroting it, but I've yet to see anybody with legal knowledge state the same thing.

Re:Contracts and commercial law (1)

Duhavid (677874) | more than 9 years ago | (#9856262)

On "implied fitness",

Perhaps this is a bit out of date, I have not read any EULA's recently, but the ones I recall all had "no fitness for any particular usage, even the one we claim it is fit for" or somesuch in the "terms".

Re:How does Closed-Source make this better? (3, Informative)

vchoy (134429) | more than 9 years ago | (#9855324)

* Closed source company get sued.
* Company increases software prices and support and maintainence charges.
* End user pays.
* Company retains profit.

Re:How does Closed-Source make this better? (4, Insightful)

Ogerman (136333) | more than 9 years ago | (#9855475)

Is Closed Source better just because it's harder to *know* when you steal?

First of all, patent infringement is not stealing, so refrain from using that silly, emotionally-loaded misnomer. Secondly, it's hard to *know* about patents regardless, whether the software is open of closed. Most patent infringement occurs accidentally. It's not like copying somebody's elses code -- where you know you didn't write it yourself. If you try to analyze any given piece of open or closed software, it will take you years of professional research to determine whether it bumps into any patents. Having the code doesn't even usually matter because most patents cover tiny aspects or nuances of functionality. This is why software patents themselves are so bogus -- they are all, by definition, trivial. In fact, they're so trivial that it's usually hard to even find them! (hence the term "patent minefield") The state of the art in software is advanced by millions of trivial, evolutionary steps forward. None of those steps deserve monopoly rights.

Extention of Microsoft's SQL server does infringe (1)

NZheretic (23872) | more than 9 years ago | (#9855906)

Microsoft licensed patented technology for only itself without granting the right for end users and developers to use the same patented technology. Microsoft licensed Database/Datawarehouse technology from Timeline Inc, but unlike Oracle and other database vendors, Microsoft chose a license that did not grant Microsoft's customers the right to fully use that technology [theregister.co.uk] . Timeline has extended it's patent claims to cover many featured widely used by developers [winnetmag.com] , both ISV and in house.

Timeline Inc has won a US Washington Court of Appeal judgment against Microsoft [archive.org] for the right to sue Microsoft's customers, and subsequently sued Cognos. On February 13, 2004, Cognos settled at cost to Cognos totaling $1.75 million [timeline.com]

In a lot of ways you are better with GPL licensed techology [newsforge.com] , which effectively grants all downstream users the right to use the patents from upstream developers under the terms of the GPL [gnu.org] .

Software Patent are inherently bad but are also pushing an interesting trend [newsforge.com] . Pushing vendors towards adopting the GPL-like licensing as a form of simpler form of cross licensing arrangement.

Re:How does Closed-Source make this better? (1)

ScrewMaster (602015) | more than 9 years ago | (#9856137)

Is Closed Source better just because it's harder to *know* when you steal?

In principle ... no. In practice however ... that's a definite Yes.

This idea is GENIUS!!! (5, Interesting)

erroneus (253617) | more than 9 years ago | (#9855243)

I wish I had thought of it! The only way to make the government see that software patents are bad is to show them that they've got something to lose!! GENIUS!

Re:This idea is GENIUS!!! (0)

Anonymous Coward | more than 9 years ago | (#9855383)

MOD Parent UP!

This is exactly the kind of visibility needed to show the benefits that Free Software (and even the Open Source stuff) brings - and to show what kind of cheap shots companies use to spread FUD. I only with SCO had sued Munich too, so they could see first-hand how weak the anti-free-software camp's arguemnts really are.

Re:This idea is GENIUS!!! (2, Insightful)

0racle (667029) | more than 9 years ago | (#9855508)

Except if there is a problem, the response would more likely be to stop the adoption of the problem software as opposed to changing laws.

And it might help stop submarining (3, Interesting)

Morgaine (4316) | more than 9 years ago | (#9855552)

Anything that makes politicians sit up and think about the horrors of patents in today's world is good.

The danger of course is that they'll think for 3 seconds only, and conclude that they need proprietary software instead of free, since its manufacturer then picks up any liability for royalties.

In contrast, if they could be made to think for just a little bit longer, they might realize that patents would only a problem in this case if they remained hidden underwater and surfaced later when profits were smelled. That would be easy for a government agency to counteract in advance, since politicians are singularly well placed to force patent holders to register claims by a specific date to assist in government planning. This would flush submarines up very nicely.

Submarining is truly the main evil with patents, since it prevents people from planning ahead to avoid liabilities, as well as feeding the parasitic squatter instead of the inventors. If patent holders lost the ability to claim royalties when they remained hidden, much of the problem could be averted.

Re:This idea is GENIUS!!! (1)

hbar (7950) | more than 9 years ago | (#9856043)

Heh :) Yes, this could be a good thing. The situation is helping to highlight some of the consequences of honoring patents for software.

I guess the city government, after carefully considering everything, decided that a change of platform is worthwhile. If patents on software are recognized, it would lessen or remove that worth - perhaps without giving Munich much in return.

And so it begins (4, Insightful)

nurb432 (527695) | more than 9 years ago | (#9855265)

And you all thought Microsoft was just collecting patents for defensive reasons..

Just wait.. this is only the beginning of IP concerns that may derail the freedom to compute..

Should have been obvious from the EU directive (5, Interesting)

retrosteve (77918) | more than 9 years ago | (#9855288)

They've stated the headline backwards! It should be:

EU software patent directive makes Munich's Unix migration difficult.

The moment Germany caved on Software Patents [ffii.org] they ensured that free software would require licenses simply to continue to exist and be compatible with any commercial software.

Hence, any government (e.g. Munich) hoping to use open source or free software will eventually be unable to do so and still retain compatibility with common commercial software. It's a foregone conclusion.

Case in point: Samba. It's only a matter of months before Microsoft uses patents to kill Samba and all similar communications compatibility with Open Source software. How will this affect Munich?

I really do hope this brings the German delegation to the EU back to their senses, but I fear it's too late. By the way, the ffii site seems to be down. Anyone know why?

Re:Should have been obvious from the EU directive (0)

Anonymous Coward | more than 9 years ago | (#9855300)

By the way, the ffii site seems to be down. Anyone know why?

They've been closed down for infringing on a software patent?

FFII website (1)

FlorianMueller (801981) | more than 9 years ago | (#9856242)

I noticed the same but there's no reason to be worried. I do know that they're working on some new website design and maybe they're switching to a new website this weekend. Even if not, they'll be back soon anyway.

I didn't know that proprietary software was imune (2, Insightful)

Anonymous Coward | more than 9 years ago | (#9855361)

This is absurd on the face of it. Open Source software is no more susceptible to patent infringement than proprietary software. This is pure FUD.

Re:I didn't know that proprietary software was imu (2, Interesting)

unoengborg (209251) | more than 9 years ago | (#9855456)

It's not more vulnerable with respect to legal matters. It might be financially more vulnerable though as opensource projects can't afford to fend themselves even against bogus patent claims. Open sorce projects often have less patens to use for cross licencing.

In many European countries the situation is somewhat better than in the US as the loosing part in a trial pays the legal fees for both parties. That might make it less tempting to make bogus patent claims.

Re:I didn't know that proprietary software was imu (0)

Anonymous Coward | more than 9 years ago | (#9855492)

The fact that Open Source developers have "shallow pockets" makes them even less of a target that (successful) commercial developers. Q: why did SCO sue IBM first? A: Deepest pockets.

Re:I didn't know that proprietary software was imu (2, Insightful)

Wolfbone (668810) | more than 9 years ago | (#9855536)

Not so - they are less of a target for patent parasite companies but sitting ducks for monopolisitically inclined companies seeking to exclude competition.

The real headline should have been (1, Funny)

Anonymous Coward | more than 9 years ago | (#9855379)

"_______ Organisation uses Linux to make Microsoft lower prices", since that's all these cities and such threatening to switch to Linux really accomplish.

"These MS Office Licenses are too much"

"Let's tell MS we're switching to Linux!"

"Hey look, Office licenses for $29!"

"Mission Accomplished!"

OSS patent violations get fixed quickly (4, Insightful)

Entropius (188861) | more than 9 years ago | (#9855380)

As everyone has pointed out, patent violations can be found in all sorts of code.

However, the OSS community has historically been quick to write certifiably clean replacements for any code that has even a slight chance of being tainted.

Re:OSS patent violations get fixed quickly (1)

GbrDead (702506) | more than 9 years ago | (#9855562)

...being tainted by copyrights. Insane patents are something completely different.

Re:OSS patent violations get fixed quickly (0)

Anonymous Coward | more than 9 years ago | (#9855662)

No they're not. Free Software projects pretty quickly had PNG to replace GIF. Free Software projects quickly had .gz (gzip) top replace .Z (unix compress). Those had nothing to do with copyrights, and everything to do with patents.

Re:OSS patent violations get fixed quickly (1)

GbrDead (702506) | more than 9 years ago | (#9855767)

The first of your examples is about a... thing which had a world-wide monopoly. PNG did not replace GIF although it is better. The second example is not about a monopoly. Yes, gzip replaced compress because it is better.
What would you say about Samba?

Re:OSS patent violations get fixed quickly (0)

Anonymous Coward | more than 9 years ago | (#9855834)

NFSv4 with kerberos authentication.

Re:OSS patent violations get fixed quickly (2, Insightful)

rmohr02 (208447) | more than 9 years ago | (#9855723)

Patents refer to the algorithm by which something is done. I believe you are referring to copyright, which is the letter of how something is done. For copyright violations, a developer can simply look at a spec and re-implement it without looking at the original. For patent infringements, a different algorithm must be found.

What the article really says (-1, Offtopic)

Anonymous Coward | more than 9 years ago | (#9855448)

bla bla
dosent say crap
bla bla

I thank you for your tiAme (-1, Offtopic)

Anonymous Coward | more than 9 years ago | (#9855474)

States tHat there Encountered while

Why do they think patent only affect FOSS? (4, Insightful)

walterbyrd (182728) | more than 9 years ago | (#9855481)

The only time that I know of end users being sued for a patent violation, was in the case of msft's sql server.

Why do they think that FOSS is more suseptable than proprietary?

Unless, they are afraid of a particular propriety software company, which has been filing about 10 patents a week lately (almost all for stuff they didn't invent).

i own many of those 'patents' (0)

Anonymous Coward | more than 9 years ago | (#9855505)

if being the first person to use any sort of programming techniques means that i have some sort of ownership, then i claim a lot of ownership since i've been an active programmer since 1961 and there were no employment contracts back then. should my claim be legitiment, i hereby relinquish my claim to any and all of my coding techniques and constructs - and donate them to the world to use as they see fit. anyone or any company that claims to have ownership of programming assets prior to mine, is just plain silly. billy gates copied dos from an ibm 1130, and his fraud continues today.

the concept that going thru a coding exercise somehow is a creation of 'intellectual property' is pure non-sense. it's just learning an environment and making it do something else. magic disappeared when the binary numbering system was understood by the masses....

Re:i own many of those 'patents' (0)

Anonymous Coward | more than 9 years ago | (#9856169)

...i claim a lot of ownership since i've been an active programmer since 1961... i hereby relinquish my claim to any and all of my coding techniques and constructs - and donate them to the world to use as they see fit.

Thanks for your generosity, but nobody uses arithmetic GOTOs anymore.

Obligigory SImposon's Quote Spoken By Bill Gates (-1, Troll)

Anonymous Coward | more than 9 years ago | (#9855513)

"Oooh, the Germans are mad at me... I'm so scared! Oooooh, the Germans...Uh oh...The Germans are coming after me... Oh, don't let the Germans come after me... Oh, the Germans are coming after me... No, they're so big and strong... Protect me from the Germans!"

Re:Obligigory SImposon's Quote Spoken By Bill Gate (0)

Anonymous Coward | more than 9 years ago | (#9855585)

actually it was said by Mr Burns, not billy gates

DOOM 3 IS OUT FUCKTARDS! (-1, Offtopic)

Anonymous Coward | more than 9 years ago | (#9855526)

http://www.photodump.com/direct/aranyx/Doom3.jpg
OWNED

The Gov't is Afraid of the Laws (0)

Anonymous Coward | more than 9 years ago | (#9855541)

Can't they change them?

Seriously.

When has the German Green party given a flying fuck what the rest of the world thinks?

How? (1)

shubert1966 (739403) | more than 9 years ago | (#9855571)

They're worried about being sued because someone on their network could inadvertantly install and run software that is patented by someone, somewhere in the world? Talk about a barrier to linux. Fear has grip. But what is the true mechanism, that breaks what is arguably weak patent protection in the first place? Same answer as last time: THE END USER FROM FREAKING HELLLLLLL

Why don't they make duplicate ghost installs and user profiles for each categorization of employee (in state offices) and update the ghosts when legislation and job function changes - what state employee users can and cannot do. They could do automatic updates on a schedule - that'd motivate consumers to /platforms.

Or, don't enforce patents on software . . . Article 52 - Patentable inventions [european-p...office.org]

I'm kinda fond of the dot-communism myself.

Practicality? (2, Insightful)

Tellalian (451548) | more than 9 years ago | (#9855638)

I've never really understood the practicality of software patents. With closed source, a patent holder usually can't check the code to see if the software is infringing. With open source, it might be easier to tell, but there's less likely to be revenue to collect "damages" from. Is there a point to software patents?

Re:Practicality? (1)

Wolfbone (668810) | more than 9 years ago | (#9855763)

"I've never really understood the practicality of software patents...Is there a point to software patents?"

Yes - they extend the enervating, tentacular reach of Lawyerdom yet further into the lives of ordinary people going about there ordinary business. Law and lawyers were established to protect the freedoms and rights of men from the ill effects of overweening military and financial might, to serve the public interest and maintain some semblance of justice in the World. The purpose of law has long since been forgotten though, and nowadays lawyers and legislators serve only themselves and those who offer to enrich them the most.

Its all in understanding the purpose of patents .. (2, Insightful)

3seas (184403) | more than 9 years ago | (#9855648)

...and then understanding when and where this purpose is being abused, contridicted or even out of date with the changing world economy.

Here are some patent information clips from the USPTO [threeseas.net]

Note the last paragraph: "Protection of industrial property is not an end in itself: it is a means to encourage creative activity, industrialization, investment and honest trade. All this is designed to contribute to more safety and comfort, less poverty and more beauty, in the lives of men."

And consider how FOSS supports that better then what MS has been proven to contridict that, in courts around the world.

The other "Green" party. (0)

Anonymous Coward | more than 9 years ago | (#9855651)

I guess he's a member of the green-back party after all.

No Milo of Kroton trolling? (0)

Anonymous Coward | more than 9 years ago | (#9855859)

Huh - what gives? A German-related Linux story for once, and we're missing comments from the "I'll pretend I'm German with really bad English to get sympathy mods" troll that is Milo of Kroton?

Must be past his bed-time.

He manages to suck people in everytime* but just in case he posts later, here's proof that he's not German and is just trolling. [slashdot.org]

*The German Yahoo email address is a good touch I must admit.

(Trolling the trolls since 2001...)

I think it's intentional (1)

nusratt (751548) | more than 9 years ago | (#9855984)

I agree with what erroneus(253617) implied, even if it wasn't serious.
I think that the Green's intent was precisely to stimulate the reconsideration of the patent issue, in the hope of weakening or reversing the patent decision.

Microsoft intends to kill Linux this way (0)

Anonymous Coward | more than 9 years ago | (#9856224)

After meeting with Scott McNealy of Sun, MS intends to assault the OSS world with lawsuits out the wazoo.

As part of the MS/Sun settlement MS cannot litigate with Sun over patent infringement. So MS is setting up Sun to be the number two software vendor. RedHat, Novell, GNU, Apache orgs should be put on notice that their day in court is coming soon!

text of original press release (2, Insightful)

FlorianMueller (801981) | more than 9 years ago | (#9856270)

The TechWeb article is basically correct except that I'm independent and not a general spokesperson for the Green Party other than working with them (and others) on software patent issues.

Here's the text of the original announcement:

EU Software Patents Jeopardise Munich's Linux Migration

MUNICH, Germany, July 30 /PRNewswire/ -- When the city administration of Munich decided to migrate its IT infrastructure to the Linux operating system, it made headline news around the world. That project is now being threatened by a proposed European Union directive on software patents. The directive is pushed for by the governments of Germany, the UK, France, and other countries on the EU Council.

Software patents are considered the greatest danger to the usage and development of Linux and other Free Software. A cursory search revealed that the Linux "base client", which the city of Munich plans to install on the desktop computers of approximately 14,000 employees, is in conflict with more than 50 European software patents.

Today Jens Muehlhaus, an alderman from the Green Party, filed two motions in which he calls on the mayor of Munich, the Social Democrat Christian Ude, to contact the federal government of Germany on this matter and to analyse how the EU software patent directive affects Munich's Linux project. The politician, a supporter of open source, warns that patent infringement assertions could take entire departments of the city administration out of operation. Mr. Muehlhaus expresses concern over the future ability of open source software to meet the needs of the city administration if software patents massively hinder its development. Related caveats have been voiced by the SME association CEA-PME and by Deutsche Bank Research.

A week earlier, the chief information officer of Munich, Wilhelm Hoegner, said it is "indispensable" to check on the consequences of the software patent directive to open source software. Any such oversight would be a "catastrophe for Munich's Linux migration project, and for open source in general".

Florian Mueller, an active participant in the software patent debate, sees the EU Council on the wrong track: "Open source is a historic opportunity for Europe to save costs and create jobs. Schroeder, Blair and Chirac should demonstrate leadership and stop their civil servants from sacrificing the open source opportunity to the insatiable patent bureaucracy, lest some large corporations will shut down open source and many SMEs." Mr. Mueller is a software entrepreneur, and an adviser to Europe's largest open source software company MySQL.

fuck niggers (-1, Offtopic)

Anonymous Coward | more than 9 years ago | (#9856301)

yeah
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