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Microsoft's Marshall Phelps On Patents And Linux

timothy posted more than 10 years ago | from the cross-purposes dept.

Microsoft 282

An anonymous reader writes "Microsoft's Marshall Phelps says he is running 'a licensing shop, not a litigation shop.' Bill Gates's intellectual property guru talks to Brad Stone about Redmond's new emphasis on patents, why he can't license Microsoft IP to distributors of open source software -- and why he shouldn't be feared."

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failed first post attempt (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#9867393)

first post attempt, but my roommate is downloading too much p2p, so it takes 20 seconds to load the page.

at last i've found the solution to the 20 seconds timer, i don't have to wait for it!

Re:failed first post attempt (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#9867415)

oh my god!! story posted at 3:32 and i get the first post at 3:37, after 5 minutes of blank browser windows? ok roommate, I forgive you now. woohoo

oh and now that I SUCCEEDED IT with a 4500 ping handicap, I am now mooning all of you that FAILED IT. seriously, I am.

Re:failed first post attempt (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#9867454)

Damn, and there goes my opportunity to say:

YOU FAIL IT!

Let's See (5, Insightful)

ravenspear (756059) | more than 10 years ago | (#9867394)

why he can't license Microsoft IP to distributors of open source software

Maybe because he doesn't need to, or no one else feels they need it to legitimize themselves. A great deal of Microsoft's so-called IP has numerous examples of prior art in both open and closed source products.

Re:Let's See (5, Insightful)

gbjbaanb (229885) | more than 10 years ago | (#9867623)

I think it has nothing to do with Open source, but with the GPL.

MS says 'if you want to use this patent, you have to get a licence'. The GPL says 'once its in, its licenced under the GPL and you can give it away'. A little simplistic explanation there, but I hope you get the idea.

The argument against patenting doesn't make much difference though, even if the majority of MS patents are shown to be spurious, they will still have some good ones that will be effectual.
Personally, I would like to see crappy patents kicked out, then everyone would know where they stand with the real patents that are worthy the system. (and that applies to all patent-owning companies, not just Microsoft, and especially those that do nothing but patent crap.)

Slight error (0)

geminidomino (614729) | more than 10 years ago | (#9867712)

The GPL says 'once its in, its licenced under the GPL and you can give it away'. A little simplistic explanation there, but I hope you get the idea

A little simplistic, and mistaken. It should read: 'once it's in, it's licenced under the GPL and you MUST give it away'

Re:Slight error (5, Informative)

kanthoney (80093) | more than 10 years ago | (#9867740)

I've got loads of GPL'ed stuff I've not given away to anyone. You don't have to give it away even if you're a developer - you're perfectly entitled to keep it in-house. However, if you *do* give it away, you have to make the source available.

Apart from that, the GPL only addresses copyright. If there are patent issues, you have to take care of those separately before you can use the code.

Re:Slight error (1)

aichpvee (631243) | more than 10 years ago | (#9867794)

A little simplistic, and mistaken. It should read: 'once it's in, it's licenced under the GPL and you MUST give it away'

I think this is getting a bit closer: "Once it's in, it's licensed under the GPL and you MUST give it away if you distribute it."

Though obviously a lot more complicated than that and only requires free distribution of source code even if binaries are sold.

Re:Let's See (0)

Anonymous Coward | more than 10 years ago | (#9867715)

No, incorrect - the patented algorithm in a GPL work is *only* royalty-free for other GPL works. You *cannot* take the patented algorithm in a GPLd work and write it into your propriatory program. To do so you would have to get the license from the patent owner.

This argument against letting patents in to GPL code is incorrect and FUDish.

Patents are not licenses (4, Informative)

msobkow (48369) | more than 10 years ago | (#9867796)

The patent holder can license their implementation however they choose. It is perfectly legal to expressly say that your code may be used by GPL applications as a shared library, the same way that LGPL code can be used by commercial source.

Otherwise you'd best get rid of the NVidia drivers, the commercial databases, and every other non-GPL product that runs on Linux. That's not the intent of the GPL, never was, and it's nothing but Microsoft FUD bolstered by uncertain IP laws which suggests otherwise.

The GPL is about ensuring that if you use GPL code for your work then it must be licensed under the GPL, not that the GPL can't use any libaries which aren't expressly GPL'd. Contrary to any fantasies the full-bore GPL zealot might have, there is no legal way you could do that, and it would be against the very spirit of freedom that led to the creation of the GPL.

Also note they are not talking about refusing to license the IP for specific projects, but to the distributor of the source. In other words, they've decided to play their patent portfolio as a market-blocking threat the same way they yanked all the incentives from hardware manufacturers who dared ship something other than Windows.

As far as I'm concerned, Microsoft has just expressly stated their intent to maintain monopoly profits and control through IP barratry and by locking out any company which dares support or distribute GPL software.

If that's not a RICO violation, I don't know what is, and it's well past the time we stopped putting up with this crap as an industry. I greatly look forward to Sun, IBM, and every other IP holder banding together and teaching Bill that he does not rule the world, no matter how much he'd like to.

First POst? o_0 (-1, Offtopic)

MukiMuki (692124) | more than 10 years ago | (#9867397)

wtf first post?

Re:First POst? o_0 (-1, Troll)

MukiMuki (692124) | more than 10 years ago | (#9867407)

No, you moron, second post. This aside, I wonder how much longer before the bullsheet runs too deep and this software patent crap is tossed out the window.

Yes, kill software patents. Now.

Software copyright is still there. You can still sue cheating a-holes who steal your stuff. But please stop people from patenting g**damn math equations. Jesus.

oh (-1, Offtopic)

wiztillicus (798174) | more than 10 years ago | (#9867398)

All the patents ms gets all the time is really scary... fp?

Re:oh (0)

maxwell demon (590494) | more than 10 years ago | (#9867673)

You're lucky: You didn't violate Microsoft's First Post patent.

So can somebody explain me this? (3, Interesting)

metalac (633801) | more than 10 years ago | (#9867399)

So what exactly do they do with these software patents? what about prior art??? doesn't that apply to software patents? Also could I just like license a certain type of for loop or something and charge for it? It seems to me that this is all just bunch of corporate crap talk that will eventually not get anywhere and you'll only be able to get the patents on something trully revolutionary and quite unique.

Re:So can somebody explain me this? (4, Insightful)

rpbailey1642 (766298) | more than 10 years ago | (#9867418)

Pretty much, they sit on their patents. If someone tries to sue Microsoft, and people do, in droves, thinking MS would rather settle and lose a little money than waste more money fighting it. With all these patents, MS can just say "Why are you suing us? We have PROOF that we had this as of . I'm not saying right or wrong, just what I see going on.

Re:So can somebody explain me this? (1)

PsiPsiStar (95676) | more than 10 years ago | (#9867565)

...and, more importantly, MS can countersue.

Re:So can somebody explain me this? (1)

Halo1 (136547) | more than 10 years ago | (#9867801)

That is not true, otherwise they wouldn't so actively lobby to legalise software patents in Europe as well. They most definitely intend to make "active use" of their patents.

Re:So can somebody explain me this? (4, Insightful)

DNS-and-BIND (461968) | more than 10 years ago | (#9867420)

Giving up and paying the licensing fee to MS is cheaper than hiring lawyers and rolling the dice in court.

Many business decisions are made this way. You call it extortion, lawyers call it The System.

Do we have a new candate for: (1)

gmby (205626) | more than 10 years ago | (#9867493)

litigious bastards?

Re:Do we have a new candate for: (1)

ScouseMouse (690083) | more than 10 years ago | (#9867505)

Nah, they only become litigious bastards when they actually start litigating.

Re:Do we have a new candate for: (1)

stor (146442) | more than 10 years ago | (#9867752)

Nah, they only become litigious bastards when they actually start litigating.

*Maxwell Smart Voice*

Would you believe *potential* litigious bastards?
*silence*
An army of lawyers?
*silence*
Ten thousand monkeys on ten thousand typewriters?

Cheers
Stor

Re:So can somebody explain me this? (5, Insightful)

modme2 (630194) | more than 10 years ago | (#9867546)

It's all about cross-licensing. between them the few big companies have all the patents. they are safe with anything they develop, if one violates another's patent they just cut a deal to allow use of one of their own. trading baseball cards.

small developers will be stuck with no cards to trade, so dont try to use a for loop.

listen to some of stallmans lectures (particularly the one in england it sums this up nicely).

Re:So can somebody explain me this? (2, Informative)

bbrazil (729534) | more than 10 years ago | (#9867713)

Here's a Stallman Stallman Lecture [cs.tcd.ie] from Ireland a few months back.

It makes sense (1)

desmogod (792414) | more than 10 years ago | (#9867401)

That M$ are running a licensing shop. Their software isn't worth shit.

Yay (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#9867402)

Hello?

Why he can't distribute IP to open source dists. (0, Offtopic)

ta bu shi da yu (687699) | more than 10 years ago | (#9867403)

Because he's a dirty little IP maggot.

Litigation (2)

ruprechtjones (545762) | more than 10 years ago | (#9867405)

Well, all I can say, for good or bad, is that litigation will work things out. Unfortunately, GPL will be more defined through the courts, when the fat-cat lawyers argue it out. It will only become one of the big boys when things are sorted out in court. I hate fawking lawyers, but they seem to define business plans these days, so let's rock.

Seems on the level. (5, Insightful)

rpbailey1642 (766298) | more than 10 years ago | (#9867408)

Call me crazy, but I actually think this guy is telling the truth about not tackling open source on patent violations. Microsoft has gotten to the point that it may be wearing the crown, but no one likes the king. If Microsoft was going to pull some patent-issue on free software, it would generate a lot of poor publicity for Microsoft, which they do not want. Microsoft isn't a tech company, it is a marketing company that happens to make software. Microsoft doesn't want its main product, its image, to be injured. Just my opinionated two cents.

Re:Seems on the level. (4, Interesting)

Metallic Matty (579124) | more than 10 years ago | (#9867444)

I don't disagree. But I believe its mostly meaningless either way. Microsoft has already received quite a bit of bad PR with its anti-trust problems. Something tells me this hasn't caused the masses to run out and pick up a copy of Fedora Core.

I don't think they'll be losing much ground with standard Joe Consumer any day soon. Even if people do hear about how MS is or isn't bad, it doesn't effect their choice. People are brought up on MS, and companies like Dell and Gateway forcefeed it to their customers.

(I am aware this is only one portion of the market, I am not talking about corporate use.)

Re:Seems on the level. (1)

managementboy (223451) | more than 10 years ago | (#9867778)

Well I did! Now I am on SuSE...

Re:Seems on the level. (5, Insightful)

Armchair Dissident (557503) | more than 10 years ago | (#9867456)

I don't buy that. If Microsoft refuse to go after Open Source shops for patent licenses, then they will not be able to license their software, period. If they go to a company a and say, "you're infringing our patent, would you mind paying us $x", then company a can point to the Open Source infringer and say, "well, they're not paying anything so is your license really worth anything?".

The last thing Microsoft is going to do is make it look like it's supporting Open Source software. If they try to get closed-source companies to pay licensing fees, but don't go after open source shops, then they're seen to be supporting open source. It's not going to happen.

Re:Seems on the level. (2, Insightful)

rpbailey1642 (766298) | more than 10 years ago | (#9867473)

You make a really good point, especially as it would put Microsoft in a very bad position. As soon as they say something like "They are different. You have to pay 'X' and they don't", they will wind up in a whole heap of trouble. In short, I really haven't a crystal ball as to what will happen, other than I know that MS will, no matter what, put publicity first. Be it "Why should we care what those wacky Open Source people do? Longhorn does all that and more. They are imitating us" or some other bold-face lie, Microsoft will somehow put a positive spin on everything they do, else they'll do everything they can to avoid getting caught. That's really all I meant.

Re:Seems on the level. (5, Interesting)

ScouseMouse (690083) | more than 10 years ago | (#9867537)

That sort of thing only applies in trademark law. As far as patents (Software or otherwise) apply, they can be as damn selective as they feel like so the conversation would be more like:

"you're infringing our patent, would you mind paying us $x",
then if the company a can point to the Open Source infringer and say
"well, they're not paying anything so is your license really worth anything?".
the response would be along the lines of
So?

Most large patent holders dont want to rock the boat too much in case they give the anti-sw-patent lobby too much ammunition. Software patents are a goldmine for large companies. If patent battles start descending into lots of legal wars, Congress will have to take action, even if the Senetor's Corparate owners dont want it.

Besides, Microsoft have already managed to dodge anti-trust issues in the US, I suspect they will wait a few years before they judge it safe to try to kill a competitor in such an obvious manner again.

Re:Seems on the level. (5, Insightful)

Armchair Dissident (557503) | more than 10 years ago | (#9867620)

Re-reading the article, this little snippet got me thinking:

"somebody who is taking software pursuant to the GPL cannot take a license ... Section 7 [of the GPL] is its own world."

I wonder if it's actually much simpler, the conversation may well go something like:

MS: "You're infringing our patent, pay us $x"
Company A: "But they're infringing too, and they're not paying?"
MS: "I know. But we've required them to pay a redistribution fee in order to redistribute the patented code. Under section 7 of the GPL they're not permitted to do that {evil laugh}".

If Microsoft are going to start licensing their patents, then the last thing they are going to want to do is be seen to support open source. Instead they're more likely to try to stop "infringing" GPL'd software in it's tracks by requiring a licensing fee for redistribution. No lawyers necessary unless someone coughs up to challenge the patent in court.

Of course I could just be paranoid ;)

Re:Seems on the level. (1, Interesting)

Anonymous Coward | more than 10 years ago | (#9867787)

The conversation would go like this:

MS: "You're infringing our patent, pay us $x"
Company A: "But they're infringing too, and they're not paying?"
MS: "I know. But we've required them to pay a redistribution fee in order to redistribute the patented code. That fee is the release of their code under the GPL. Feel free to pay the same cost"

THAT is what patented code in GPL works means. You are free to use it as long as you obey the GPL. There are so many companies that are afraid of the GPL they would *gladly* pay money rather than *possibly* have to have their code GPL.

Re:Seems on the level. (1, Insightful)

Anonymous Coward | more than 10 years ago | (#9867465)

Yep. It's a different market place. Why chase open source? It's just a large group of highly skilled lawyers and thousands of pairs of eyes looking for prior art. Nope, monopolization has already failed.

Focus on low cost volume licencing. After all, it worked for IBM and if there's one thing Wild Willy Gates does well, it's researching other people's ideas and copying them.

And co-incidentally, Marshall Phelps has been hired by Microsoft? Stinks like a plan to me.

Re:Seems on the level. (5, Funny)

kfg (145172) | more than 10 years ago | (#9867476)

If Microsoft was going to pull some patent-issue on free software. . .

it would pay SCO to do it for them.

KFG

Re:Seems on the level. (3, Interesting)

houghi (78078) | more than 10 years ago | (#9867564)

Microsoft has gotten to the point that it may be wearing the crown, but no one likes the king.

I would not compare them to a King, I would compare them to a dictator, or at least a wannabe dictator. With King we now think about people who shake hands and nothing much else. Their only job now is to be liked, instead of protect their land (not the people) of thievery by stealing some more themselves. Otherwise it looks good:
King Microsoft against the Linux autonomous collective.
I am Bill Gates, King of the programmers
- Who are the programmers?
We all are. We are all programmers. And I am your king.
- I didn't know we had a king. I thought we were a Linux autonomous collective.

it would generate a lot of poor publicity for Microsoft [...] Microsoft doesn't want its main product, its image, to be injured.

You actualy believe they are having a GOOD product immage? Thanks to them everybody takes computercrashes for granted. BECAUSE they are a marketing company will allow them to attack the world, its users, the governement and everybody else and STILL come out a a nice and feel good company.

Say that if they went ahead and lost gullibilaty and gained 50% on Linux (or anything else Open Source) they will twist it around and say that they were just a law abiding company who showed the thiefes of Linux the righteous way.

If they loose, they will play the underdog how they were betrayed by the law.

As was said earlier, they are not especialy attacking open source, they attack everything that is not Microsoft.

Re:Seems on the level. (1)

Capitalisten (102859) | more than 10 years ago | (#9867594)

I don't know about software patents but ordinary patents have to be enforced - otherwise you lose them. Will MS take out a boatload of patents and then let them slip away without enforcing them? Don't think so.

Re:Seems on the level. (5, Informative)

bdeclerc (129522) | more than 10 years ago | (#9867622)

No they don't, that's Trademarks. Trademarks can be renewed, and have to be defended.

Patents cannot be renewed, are valid for 21 years after issuing (in the US), and can be selectively defended without any fear of losing the patent.

Copyright also is valid for a time period (but that keeps on getting extended by Disney&Co's hired congresscritters) and also does not *have* to be defended to remain valid.

The most important defenses against patents are more patents (big companies give each other rights to use each other's patents, something Open Source cannot do) or finding some reason for a patent to be declared invalid, either by finding Prior Art or by showing that a Patent is "obvious to a person skilled in the field".

No matter what, getting a patent declared invalid is not cheap.

Re:Seems on the level. (1)

Capitalisten (102859) | more than 10 years ago | (#9867628)

Ah - yes, I think you're right, I'm probably confusing patents and trademarks. My mistake.

Re:Seems on the level. (2, Interesting)

Anonymous Coward | more than 10 years ago | (#9867745)

The thing that many people don't seem to realise is that people in WIPO are pushing to make patents renewable too. The ultimate conversion of free markets into control economy - renewable patents. ARGH!

Re:Seems on the level. (1)

joh (27088) | more than 10 years ago | (#9867595)

They don't need to actually do something. The fact that they could is enough to spread FUD.

Re:Seems on the level. (0)

Anonymous Coward | more than 10 years ago | (#9867598)

Microsoft isn't a tech company, it is a marketing company that happens to make software. Microsoft doesn't want its main product, its image, to be injured. This just means that now, they do not want to attack open source because open source is popular. But if the image of open source changes in a couple of years [they probably work on this], the situation will be different, and they will still have the patents.

Wait a minute... (0, Offtopic)

TheMadPenguin (662390) | more than 10 years ago | (#9867412)

Don't fear Microsoft? Next thing to you're going to tell us is that the the Melissa Etheridge is straight!

I'm telling!

MMMMOOOOOMMMM!!!!

Re:Wait a minute... (0)

tommeke100 (755660) | more than 10 years ago | (#9867436)

Melissa, hmmm, you're soooo hot!

Re:Wait a minute... (-1)

Anonymous Coward | more than 10 years ago | (#9867523)

Is it 1994? Nope just slashdot.

No, Don't Run! (0, Redundant)

Greyfox (87712) | more than 10 years ago | (#9867416)

We're your friends!

Re:No, Don't Run! (1, Funny)

geminidomino (614729) | more than 10 years ago | (#9867496)

No! Am friend! Skeksis mean you no harm!

licensing not a litigation ... (5, Insightful)

DrJimbo (594231) | more than 10 years ago | (#9867417)

Marshall Phelps says he is running 'a licensing shop, not a litigation shop.'

That's because they've outsourced their litigation to The SCO Group.

Re:licensing not a litigation ... (-1, Flamebait)

Anonymous Coward | more than 10 years ago | (#9867466)

Maybe its just me, but what the hell are you mods smoking? This is clearly a joke. And it gets modded up both interesting AND insightful?

For shame.

That is logical from MS' point of view (5, Insightful)

nz_mincemeat (192600) | more than 10 years ago | (#9867426)

Once the patents are sucessfully filed, the onus would be on to the challenger(s) to prove there is prior art. A patent holder with as much cash as Microsoft obviously has the fiscal endurance to survive many bouts of litigation...

As the core business of MS is slowly but surely shrinking they are just diversifying to other avenues of income.

Overall this sounds like a virtual version of a typical real estate land grab - buy all the "land" (in this case "ways to do things") then anybody who wants to "build" something with it will need to pay their "rent" or "buy" the right to use the land.

Re:That is logical from MS' point of view (4, Informative)

homb (82455) | more than 10 years ago | (#9867452)

As the core business of MS is slowly but surely shrinking they are just diversifying to other avenues of income.
Not exactly correct. The core business of MS is slowing its growth, not shrinking. It's a small difference, but quite significant.

When you have the whole market, you can only grow at the growth rate of the market. Microsoft investors and Wall Street are asking MS to look for new avenues of growth, and patent licensing is one of them (XBox is another).

It's extremely hard for MS to find any new areas that can get significant enough to impact their bottom line.

So expect a lot of litigation, or at least behind-the-scenes dealmaking.

Re:That is logical from MS' point of view (4, Insightful)

FFFish (7567) | more than 10 years ago | (#9867499)

It's extremely hard for MS to find any new areas that can get significant enough to impact their bottom line.

Which is when they will become truly sociopathic, and start to destroy stuff that benefits most of humanity, ie. open source and free software.

Microsoft's mandate as a corporation is to benefit its shareholders. Period. It does not exist to benefit humanity.

Expect it to hurt you if you stand in the way of its profits.

Re:That is logical from MS' point of view (1)

DNS-and-BIND (461968) | more than 10 years ago | (#9867530)

To the barricades, comrades! You have nothing to lose but your chains! Let the orders of The Leader seep through your brains and blood, and then you can follow his teachings in everything!

Re:That is logical from MS' point of view (1)

spiff42 (718678) | more than 10 years ago | (#9867487)

Once the patents are sucessfully filed, the onus would be on to the challenger(s) to prove there is prior art. A patent holder with as much cash as Microsoft obviously has the fiscal endurance to survive many bouts of litigation...

Hmm.. So what we are looking at is Microsoft taking a lot of patents, although they know there is prior art, mainly because the system won't notice. And once the patent is issued, it gets much more difficult to prove that there was in fact prior art. Especially in the software business it can be hard to prove at what point in time you developed some feature. Backup on tapes and print out hardcopies with dates. ;-)

/Spiff

Re:That is logical from MS' point of view (1)

tx_kanuck (667833) | more than 10 years ago | (#9867788)

Maybe someone can explain something to me. If all you have to do is prove prior art, why would a patent case last more then a few hours in front of a judge?

"Here is the patent judge. Here is the prior art. According to the patent, this was done [insert date here]. This prior art was done [insert earlier date here]."

It seems simple to me. Why is it so hard in real life?

A great way to deal with the issue. (5, Interesting)

Kickasso (210195) | more than 10 years ago | (#9867447)

FOSS afficionados should organise themselves one of these days and switch off all "infringing" software on the Internet for 48 hours. Just flip the switch and wait. I somehow suspect that the matter will suddenly become much more negotiable.

Re:A great way to deal with the issue. (5, Insightful)

NeuralAbyss (12335) | more than 10 years ago | (#9867467)

And herein lies the problem with dealing with business - they'll look at the cost of living without FOSS, and compare it with the cost of purchasing software produced by licensees of the patent holders. It's nothing personal, "just business". FOSS is harmed by software patents - that cannot be denied. But the same argument cannot be held to business - they'll just treat it as a cost of operating, and subsequently pay, (illegally) avoid paying, or go out of business. Welcome to The System.

Disclaimer: I am not a proponent of software patents, just a realist.

Re:A great way to deal with the issue. (1)

Neo-Rio-101 (700494) | more than 10 years ago | (#9867556)

Supposing if over my cold dead hands that actually happened, you'd assume MS would cop some bad publicity. Wrong.

They'd just reframe the situation as a business opportunity for the IT folk. Now they could make lots of money doing the work of installing "some other operating system". It would be just like the malarky the Y2K panic was....

Re:A great way to deal with the issue. (2, Insightful)

black mariah (654971) | more than 10 years ago | (#9867718)

I doubt it. Businesses everywhere would say "Fuck you, you goddamned smelly hippy bitches. Fuck you and your stupid fucking crybaby pussy-ass games. Fuck your stupid software, fuck your lameass social retard ideals, and fuck your mom. Someone get MS on the phone. Last I checked they didn't pull the plug on their customers to prove a lame fucking point. Fuck OSS and the stupid fucking Commies that run it. In the ear. With some corn."

Or something like that. I dunno.

a hidden assumption (5, Insightful)

latroM (652152) | more than 10 years ago | (#9867463)

from http://www.gnu.org/philosophy/words-to-avoid.html# IntellectualProperty

Publishers and lawyers like to describe copyright as ``intellectual property''---a term that also includes patents, trademarks, and other more obscure areas of law. These laws have so little in common, and differ so much, that it is ill-advised to generalize about them. It is best to talk specifically about ``copyright,'' or about ``patents,'' or about ``trademarks.''

The term ``intellectual property'' carries a hidden assumption---that the way to think about all these disparate issues is based on an analogy with physical objects, and our ideas of physical property.

When it comes to copying, this analogy disregards the crucial difference between material objects and information: information can be copied and shared almost effortlessly, while material objects can't be. Basing your thinking on this analogy is tantamount to ignoring that difference. (Even the US legal system does not entirely accept the analogy, since it does not treat copyrights or patents like physical object property rights.)

If you don't want to limit yourself to this way of thinking, it is best to avoid using the term ``intellectual property'' in your words and thoughts.

``Intellectual property'' is also an unwise generalization. The term is a catch-all that lumps together several disparate legal systems, including copyright, patents, trademarks, and others, which have very little in common. These systems of law originated separately, cover different activities, operate in different ways, and raise different public policy issues. If you learn a fact about copyright law, you would do well to assume it does not apply to patent law, since that is almost always so.

Since these laws are so different, the term ``intellectual property'' is an invitation to simplistic thinking. It leads people to focus on the meager common aspect of these disparate laws, which is that they establish monopolies that can be bought and sold, and ignore their substance--the different restrictions they place on the public and the different consequences that result. At that broad level, you can't even see the specific public policy issues raised by copyright law, or the different issues raised by patent law, or any of the others. Thus, any opinion about ``intellectual property'' is almost surely foolish.

If you want to think clearly about the issues raised by patents, copyrights and trademarks, or even learn what these laws require, the first step is to forget that you ever heard the term ``intellectual property'' and treat them as unrelated subjects. To give clear information and encourage clear thinking, never speak or write about ``intellectual property''; instead, present the topic as copyright, patents, or whichever specific law you are discussing.

According to Professor Mark Lemley of the University of Texas Law School, the widespread use of term "intellectual property" is a recent fad, arising from the 1967 founding of the World Intellectual Property Organization. (See footnote 123 in his March 1997 book review, in the Texas Law Review, of Romantic Authorship and the Rhetoric of Property by James Boyle.) WIPO represents the interests of the holders of copyrights, patents and trademarks, and lobbies governments to increase their power. One WIPO treaty follows the lines of the Digital Millennium Copyright Act, which has been used to censor useful free software packages in the US.

Re:a hidden assumption (1)

mark99 (459508) | more than 10 years ago | (#9867571)

You make a valid point, but I think it is over-the-top to not use the term IP. As you say, IP is characterized by the fact it can be copied for free, and material objects can't be (nanotechnological miracles set aside).

While the law treats patents, copyrights and trademarks differently, they are all forms of IP, and it is not clear (to me at least) that they should be treated differently at all. So it is okay to use the term IP, as long as you do not make the mistake of assuminig that it is a legally well-defined term.

The underlying question is how should society allocate resources to developing IP, as the abiltiy to copy it for free invalidates the usual price/cost (marginal ROI) mechanism for resource allocation.

The current laws are just history, and while they might offer guidence, they are clearly non-optimal.

Parent is a copy of a GNU webpage (0, Redundant)

mr_tenor (310787) | more than 10 years ago | (#9867573)

Here [gnu.org] . I totally agree with it, but you really should acknowledge the source.

My bad - you gave a link :) Sorry dude. (0)

Anonymous Coward | more than 10 years ago | (#9867582)

blah blah foo?

Re:Parent is a copy of a GNU webpage (0)

Anonymous Coward | more than 10 years ago | (#9867665)

It looks to me like he acknowledged his source. Did I miss something?

Re:Parent is a copy of a GNU webpage (1)

PedanticSpellingTrol (746300) | more than 10 years ago | (#9867667)

First line of the grandparent post:

from http://www.gnu.org/philosophy/words-to-avoid.html# IntellectualProperty

Noticed that just after i posted (1)

mr_tenor (310787) | more than 10 years ago | (#9867783)

Hence the "my bad" post, for which i didn't bother logging in. People who read the post more carefully than I did modded him up anyway, so it's cool. It's just that my brain recognised the pattern of the text immediately (I've referenced that page a lot ;) and so I posted without actually reading it. Sorry.

Re:a hidden assumption (1)

Enucite (10192) | more than 10 years ago | (#9867617)

Maybe it'd be better to refer to IP as "Intellectual Patterns" rather than Property?

OT: GNU's words to avoid (-1)

Anonymous Coward | more than 10 years ago | (#9867802)

I always found that page [gnu.org] ironic: they list all these words that they think are misleading, but they miss out the mother of them all: "free".

Every damn person on the planet needs the phrase "free software", as used by the FSF, explained to them or they misunderstand it. The FSF stick to their guns, but then suggest that people avoid using, for example, the word "Creator" saying: "The term 'creator' as applied to authors implicitly compares them to a deity ('the creator')."

I generally support the FSF's actions - particularly their insistance on using "GNU/Linux" which helps to clarify what the OS is. But their insistance on using "Free" just clouds the issues that they are trying to address.

MSNBC slammiing Microsoft (4, Interesting)

acidrain (35064) | more than 10 years ago | (#9867474)

From the article: The overtaxed U.S. Patent and Trademark Office often grants absurdly broad patents that reflect little actual innovation. (For example, Microsoft owns a patent for activating a program on a handheld device by holding a button down for several seconds).

Is it just me, or is someone at MSNBC got a hate on for Microsoft? First the reccomend Mozilla and now they slam them for patents. I am guessing there is some behind the scene tension there.

Re:MSNBC slammiing Microsoft (2, Insightful)

bvdbos (724595) | more than 10 years ago | (#9867501)

Perhaps you're right. On the other hand it could just mean that MSNBC is really an independent business-unit of the MS-corporation. If I'd be a journalist, I would like to be able to write whatever I thought was the thruth, without being influenced by my corporate employer.

Re:MSNBC slammiing Microsoft (1)

Commander Trollco (791924) | more than 10 years ago | (#9867516)

Well, that's hardly slamming them. I don't think anyone, even the most ardent supporter of Microsoft, would disagree with the above sentences. The USPTO really does seem to be rubber-stamping.

Re:MSNBC slammiing Microsoft (4, Insightful)

acidrain (35064) | more than 10 years ago | (#9867552)

True. But when you are owned by the company, there is an expectation to not make these kinds of statements. This would be similar to Slashdot agreeing with a mainstream opinion that Newsforge made up news. Even if your average Slashdotter thought Newsforge was phony, I doubt Slashdot would link to an artcile to that effect. It is just basic corperate politics, caused by a common bottom line.

Re:MSNBC slammiing Microsoft (1, Insightful)

black mariah (654971) | more than 10 years ago | (#9867732)

So Slashdot has to stand up for OSS even when OSS may be in the wrong? So if RMS went out and killed a bunch of babies and drank their blood, then went and pissed said blood all over the babies parent's then you'd have some funny story on te front page about RMS's crazy nutty ways, isn't he such a scamp?

The reporters are not 'owned' by the fucking company, they are employed by them. MSNBC as an organization may be owned my MS, but journalistic integrity, despite what the Slashdot editors might think, is important in the real world. If MSNBC wants to be taken seriously as a news organization, they have to maintain that integrity. They are not a raa-raa MS site that exists soleley to give textual blowjobs to software leaders. Basically, it's the exact opposit of Slashdot.

Re:MSNBC slammiing Microsoft (1)

Punboy (737239) | more than 10 years ago | (#9867524)

It appears as if M$ is losing control over its subsidiaries. First Slate recommends FireFox over IE, now MSNBC is slamming them for the patents. The company is turning against itself in a way.

Re:MSNBC slammiing Microsoft (1)

BigWhale (152820) | more than 10 years ago | (#9867541)

Maybe they want to be sold. Like the Slate Magazine... ;)

http://www.wired.com/news/business/0,1367,64334, 00 .html?tw=wn_tophead_3

Re:MSNBC slammiing Microsoft (1)

ScouseMouse (690083) | more than 10 years ago | (#9867555)

I suspect its more of a corperate objective to appear impartial than to boost MS.

patent industry (-1, Troll)

Anonymous Coward | more than 10 years ago | (#9867479)

Cloth industry gave jobs for tailors and strippers.

So, just licencing IP then, no lawsuits? (5, Interesting)

akaiONE (467100) | more than 10 years ago | (#9867481)

The article says:
"Marshall Phelps tries to dispel the notion that Microsoft is preparing a patent assault on open-source software. He notes that at IBM he never initiated a single lawsuit"

Will this mean that the 27 seven unidentified patents that Open Source Risk Management [osriskmanagement.com] have found can just remain then? Maybe not. If those 27 patents are identified under a contract of no disclosure to key kernel developers, will the community be able to implement workarounds before the suits starts to rain?

I would be very interested in knowing who else owns a patent that yet have not been tested in court that covers code in the Linux 2.4 and 2.6 kernel-series. Without knowing if they have been tested in court or not we will just have to stick with the numbers made public then: IBM has 60 patents, Microsoft has the 27, 20 has HP and 11 goes to Intel. That leaves us with just above 160 other unidentified patents to deal with.

Microsofts 27 patents are most likely the worst here, but have they been tested in court? Things like their silly patent for "activating a program on a handheld device by holding a button down for several seconds" will most likely not pass any court, or I for sure hope not.

I think that the SCO-case will set a precedence so that other stupid claims are thrown out without years of countersuits and motions in all directions. Lets atleast pray it does. I will.

Re:So, just licencing IP then, no lawsuits? (1)

atlasheavy (169115) | more than 10 years ago | (#9867539)

Uh-oh, I bet you guys are going to have some serious rethinking to do in that critical launch-an-app-by-holding-down-some-silly-button kernel module, then. Seriously, though. This patent was dragged out as an example of something incredibly broad from the Microsoft portfolio, not as a decent cross-section of the 27 possible patents that affeect the kernel.

I don't fear Microsoft! (1)

shanen (462549) | more than 10 years ago | (#9867535)

Okay, all you'se guys that ain't afeered of Microsoft hold up yer hands!

You? In the back? That's it?

Okay, the hit's off! Time to open a lemonade stand in Philly.

new trend in IP (5, Insightful)

Anonymous Coward | more than 10 years ago | (#9867560)

Submarine patents are a nasty and relatively recent development in the intangible property arena. With the sloppiness of the USPTO, it benefits corporations to spend the relatively small amount of money to maintain a technology in the application process until favorable market trends develop (by filing continuations, etc.). Then, when the application is finally approved, the "inventor" receives priority status because our system, for better or for worse, favors the first to file.

Once this occurs, said corporations can then leverage their patent portfolio (often referred to as offensive patent prosecution) to obtain compliance from those unwillingly infringing. Unlike trade secret law, or copyright, there is no innocent infringer or independent creation defense, so an infringer is faced with a situation where they are forced to pay lost profits and/or treble damages in addition to having their inventory siezed.

Because a patent litigation suit averages about $3 million, only the hardiest of defendants can afford to challenge a patent's validity. Economically, it is often a better option to simply succumb to licensing fees. Herein lies the danger of our system. We hand out patents way too easily. Yet those with the only incentive to challenge the patents (and those with the only standing in court to attack the patent) often cannot afford to do so.

Therefore, it is a situation where he who has the biggest patent portfolio generally wins. Although patent portfolios can play a very positive role in enhancing the overall value of a company, providing leverage for venture capital, etc., their core purpose is clear - dominance. The patent system no longer works to achieve its original goal - that of fostering innovation and dissemination of information to the public. Like copyright, it has been perverted by our capitalist nature, and needs to be reformed, or perhaps eliminated entirely.

sigh. (5, Interesting)

philovivero (321158) | more than 10 years ago | (#9867566)

When SCO was Caldera (or whatever the convoluted line of ownership) they were more or less non-evil. Then new owners came in and made it all evil.

Microsoft, even granting the somewhat tenuous proposition that they're doing this for good, will soon be a different set of people. You know. Darl McBride junior and his buddies.

So okay, Marshall, I'm sure you're a good guy and all, but I'm not giving you kudos for playing along with an evil, broken system "for good." I'd Microsoft spent its seven hundred godzillion dollars helping bring about reform in the patent system and changing its abuse-of-monopoly behaviours.

No offense.

Phelping .. (1)

RedLaggedTeut (216304) | more than 10 years ago | (#9867578)

I think he says the truth, but the system still sucks and MS might turn SCO one day - maybe OSS should pray that MS does well and never feels the need to behave like SCO. I haven't seen evidence that MS financed SCO by the way, it seems clear where SCO got their money from and it wasn't MS, at least not openly.

I read the headline: So MS has its own US marshall now, and he phelps ? How do you do phelping ? Don't know that verb .. .

Re:Phelping .. (-1)

Anonymous Coward | more than 10 years ago | (#9867613)

You really don't know what "phelping" means? :)

Patent Suit Defense Fund? (5, Interesting)

Hank Reardon (534417) | more than 10 years ago | (#9867581)

While reading the article, two phrases struck me: a research group is prepared to list 283 patents violated by Linux; and half of all patents are defeated in courts. (I believe the latter is half of all challenged patents.)

Would it be difficult for an organization, say the EFF or the GNU foundation, to set up a specific fund for collecting donations to be used only to defend patent law suits?

Imagine the war chest available if half of the Linux users donated $10 to this fund... And it'd be tax deductable in the States, too!

Re:Patent Suit Defense Fund? (1, Insightful)

black mariah (654971) | more than 10 years ago | (#9867741)

You can't get half the Linux users to buy CD's of their favorite distro. What the fuck makes you think they're going to throw money towards the EFF?

Re:Patent Suit Defense Fund? (1)

ykardia (645087) | more than 10 years ago | (#9867758)

What, like these guys? [pubpat.org]

And I quote: "Many aspects of the patent system put small businesses and individuals at a distinct disadvantage. For instance, the cost of defending oneself in a patent lawsuit is, on average, $ 2 - 4M. PUBPAT offers pro bono and reduced fee patent legal services to assist economically disadvantaged businesses and individuals in mitigating the harm caused by wrongly issued patents and unsound patent policy."

Grab the money and run. (4, Interesting)

BrynM (217883) | more than 10 years ago | (#9867600)

After all this complaining (that I do too) about the patent office, it struck me that some companies involved in the current patent frenzy know the bottom is going to drop right out of it eventually. They're seeing a way to parlay quick cash and partnerships. The more ridiculous patents kind of remind me of the empty promises of many .com companies - but now many of these "innovators" have ridden that wave...

Obligatory quote (-1, Offtopic)

simgod (563459) | more than 10 years ago | (#9867661)

In soviet Berlin the Marshall plan liberates you. Wait a sec...?

typo (1)

bertboerland (31938) | more than 10 years ago | (#9867662)

Common. I wasnt the only one who read the headline
Microsoft's Marshall Phelps On Patents And Linux
as
Microsoft's Marshall helps On Patents And Linux
What a difference a typo can make.

ALCOHOL SHARPENS YOUR BRAIN (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#9867690)

YET ANOTHER QUALITY STORY [telegraph.co.uk] fuckdot rejected!

Alcohol sharpens your brain, say researchers
By Robert Matthews, Science Correspondent
(Filed: 01/08/2004)

It is news guaranteed to raise a cheer among those who enjoy a glass or two: drinking half a bottle of wine a day can make your brain work better, especially if you are a woman.

Research to be published tomorrow by academics at University College London has found that those who even drink only one glass of wine a week have significantly sharper thought processes than teetotallers.

Sir Michael Marmot of UCL led the study

The benefits of alcohol, which are thought to be linked to its effect on the flow of blood to the brain, can be detected when a person drinks up to 30 units of alcohol - about four to five bottles of wine - per week.

The researchers were unable to test the effect of higher levels of alcohol consumption, although drunkenness probably negates any positive effects on the brain.

The findings have surprised health officials, who issued yet another warning last week about the dangers of overdrinking.

According to figures released by the Office for National Statistics, one in six women now drinks more than the Government's recommended limit of 14 units of alcohol a week - an increase of 70 per cent since the late 1980s. The recommended maximum weekly intake for men is 21 units.

The latest findings on the benefits of alcohol are drawn from a study of the long-term health of 10,000 British civil servants. Known as the Whitehall Study, it was originally set up in 1967 to identify links between health and factors ranging from smoking and obesity to age and social status.

In the latest research, a team led by Sir Michael Marmot, a professor of epidemiology and public health at University College London, gave psychometric tests to more than 6,000 civil servants.

The questions ranged from verbal and mathematical reasoning problems to tests of short-term memory. The civil servants' performance was then matched against their drinking habits.

The study took into account all alcohol consumption and was not specific to wine. However, the results showed that those having even a single glass of wine a week scored significantly higher in the tests than more abstemious drinkers. Teetotallers were twice as likely as occasional drinkers to achieve the lowest scores.

The benefits were most marked among women drinkers and, to the researchers' surprise, showed no sign of flattening out with increasing consumption.

Those who downed the equivalent of half a bottle of wine or two pints of beer a day scored best of all. The effects were apparent even after the results had been adjusted to take into account factors such as physical and mental health.

"Our results appear to suggest some specificity in the association between alcohol consumption and cognitive ability," said the team. "Frequent drinking may be more beneficial than drinking only on special occasions."

The team, whose findings are being reported in the American Journal of Epidemiology, suggests that the results may reflect the fact that alcohol can reduce the risk of cardiovascular disease and increase blood flow to the brain - factors linked to improved mental function.

The researchers also speculate that women might benefit more because of the different way in which they metabolise alcohol. However, they acknowledge that the benefits of alcohol can be outweighed by the increased risks of getting diseases such as cancer and cirrhosis, and that the findings should not be used as an excuse for heavier drinking.

Dr Guy Ratcliffe, the medical director of the Medical Council on Alcohol, said that the study would add to earlier evidence that moderate drinking could be beneficial - offering advantages such as a reduced risk of heart disease and strokes.

"This is a well-researched study, and it's important that information such as this is available so that people can make informed decisions about alcohol consumption," he said.

Kate Winstanley, the policy director of the Portman Group, set up by the industry to promote responsible drinking, welcomed the findings.

"There is a lot of concern about trends in women's drinking, especially young women, but the concern is chiefly about women who drink to get drunk. This study does seem to support the view that moderate drinking is better than none at all," she said.

The University College team is now hoping to continue the study to investigate whether alcohol can help slow the decline of mental function as people grow older. A recent American study suggested that drinkers suffered significantly less cognitive decline with age than teetotallers, with women again showing the greatest benefit.

Google! (-1)

Anonymous Coward | more than 10 years ago | (#9867700)

"GPL (for general public license)"

Good work!

Prior art database (5, Insightful)

dreez (609508) | more than 10 years ago | (#9867710)

Wouldn't it be a good idea to create a 'open source prior art database' ? If you have a good idea for a program or a method of solving a problem you could enter it in the 'open source prior art database' so that it is registered and can't be used in a patent anymore. Also a list of existing prior art could be stored there. . . Grtz Drz

Re:Prior art database (4, Informative)

niks42 (768188) | more than 10 years ago | (#9867757)

Many companies (IBM for instance) have technical bulletin libraries for exactly this purpose; if they can't justify the cost of the patent process for a particular idea, then they publish the idea to record a date for prior art 'discussions'. Several of the ideas I had in development (in long past days) were published and not filed. I think its a good idea - but to be honest, it doesn't need to be a centralised database. Anything somewhere on the web that google can find would do for anyone searching for prior art. I think the real question is why the USPTO doesn't seem to think out of the box when determining if an invention passes the tests of being novel, or non-obvious for someone practiced in the field.

Microsoft's Marshall Phelps On Patents And Linux (1)

Ge0rge (640562) | more than 10 years ago | (#9867722)

So, when do OSRM start the same investigation in FreeBSD, Darwin, or maybe Windows?
It was ALL IN VAIN! How to SURVIVE in POST 'nix MS-only environment?!

a licensing shop, not a litigation shop. (0)

stor (146442) | more than 10 years ago | (#9867780)

as in "I didn't punch you in the face. I was punching the air and your face got in the way"

Cheers
Stor

Likely stone-age... (5, Insightful)

letalis (570718) | more than 10 years ago | (#9867792)

In the article it states that: There have always been patent lawsuits, stretching back to the undocumented but likely stone-age fracas over the wheel. I feel this is some attempt to hammer into the conciousness of people that the patent system and the copyright is 'natural'. It isn't, the idea of it has not existed for more than at most a couple of hundred years, it is entirely a construction of the industrialization.
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