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Supreme Court Sides With Microsoft Over AT&T

ScuttleMonkey posted more than 7 years ago | from the fluent-in-loopholeanese dept.

Microsoft 122

The Supreme Court today sided with Microsoft in another important patent case filed by AT&T. The case centered around whether selling Windows overseas infringed on AT&T's patents that are in Windows. Microsoft argued [PDF] that the copies being sold in Asia were "...not technically supplied from the United States because overseas manufacturers of its computers made copies of the software from a master disk and installed those copies into the operating system. Microsoft said it could not be considered a supplier since the copies, not the original software, were in the computers built abroad." Now, while I support the weakening of software patents in general, by this logic, would that mean that MS's patents don't apply to those that use pirated copies of Windows?

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FST PST (-1, Troll)

Anonymous Coward | more than 7 years ago | (#18932855)

FSKERS

SLASHDOT IS DYING!!! (-1, Troll)

Anonymous Coward | more than 7 years ago | (#18932929)

Facts and figures

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        * Reggie McFadden "guest starred" in only 5 episodes in the 4th season became the official last cast member for the reamining 4th season unto the 5th season. Reggie was a castmember in over 30 episodes.Reggie authored his characters which include Mr Armstrong - an out of control substitute teacher with a dead arm, Tenant Patrol - fearless low income housing project security guard. Reggie starred in sketches Fire Marshall Bill, Ace and the Main Man with Jim Carrey and Jamie Foxx. He also starred in the pilot and was a cast member for the 'Chappelle Show' original pilot is episode three of the Chappelle Show
        * Originally, In the series' run, Original cast members had joined the show's cast: Keenen Ivory Wayans, his sister, Kim, Brothers, Damon, Shawn, and Marlon had starred on the show, Keenen had joined the cast from Season 1-3 (1990-1992), Kim joined for four years (1990-1993), Marlon appeared as a featured player for 13 episodes (1992-1993) in the fourth season in 1992, Shawn, for the first two seasons, was a D.J. SW-1 for Seasons 1-2 (1990-1991), then became a cast member from seasons 3-4 (1991-1993), also at the end of the end third (1991-92) season, both Damon and Keenen left the show (Keenen for other things, and Damon for his acting career), but Damon made appearances in the fourth season, and Keenen disappeared in the fourth and the fifth (and final) season, but the only recurring cast members to appear in every episode was: T'Keyah Crystal Keymah, Tommy Davidson, David Alan Grier, Jim Carrey, and Fly Girl Deirdre Lang, and the sixth cast member would have been Kelly Coffield who appeared from seasons 1-4 (1990-1993).
        * Damon Wayans' characters Blaine Edwards (from "Men on ..." sketches) and Anton Jackson (the gross, homeless man) are the only two recurring characters who have been seen on both In Living Color and Saturday Night Live.
        * If you look closely at the lateral sides of Homey D. Clown's shoes, you can see a big Nike swoosh logo and the word Nike on top. It's usually difficult to spot because the swoosh and the word are both in black.
        * At the 2006 BET Awards when the show returned from one of its commercial breaks, the show's host Damon Wayans played a character very reminiscent to "Men on ..." critic Blaine Edwards.
        * Former cast member Shawn Wayans (before he went to star in The Wayans Bros.) portrayed J.J. Evans in a unaired parody music video sketch of LL Cool J's "Mama Said Knock You Out" in 1992, later on Shawn Wayans would portray J.J. Evans one last time in 1997 on a fourth season episode of The Wayans Bros., entitled "Unspoken Token", in which he dreams that he is J.J. from hit 1970s sitcom, Good Times, in a reunion with Bern Nadette Stanis (Thelma Evans), Johnny Brown (Nathan Bookman) and Ja'net DuBois (Willona Woods), reprising the characters on the show, Shawn's brother Marlon portrays Michael Evans, Anna Maria Horsford as Florida, and John Witherspoon as James.

wtf moderation (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#18933211)

How on earth is the parent a troll? Obviously it's off-topic. Yes, the subject may be trollish, but you don't judge a book by its cover. I propose that we don't let retards moderate comments.

Re:SLASHDOT IS DYING!!! (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#18933325)

Damn, I wish all trolls posted stuff like this.

GUILTY !! Phil Spector found Guilty of Killing L (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#18933017)


GUILTY !! (Ugly-ass) Phil Spector found Guilty of Killing Lana Clarkson, of "Fast Times as Ridgemont High" fame.

The MS Crack Pipe... (1)

Farfnagel (898722) | more than 7 years ago | (#18932859)

...seems to get passed around a lot.

WTF? (2, Insightful)

Xesdeeni (308293) | more than 7 years ago | (#18932861)

That makes absolutely no sense. Surely I misunderstood this:

You can wash your hands of patent infringement by hiding behind a redistribution license!?

That sounds like a loophole big enough for a 18-wheeler to drive through!

Xesdeeni

Re:WTF? (-1, Troll)

Ep0xi (1093943) | more than 7 years ago | (#18933003)

What if you are jailed for life for a single MS Windows 95 patent infingement. That happend to dad, and he died in jail. Thanks for reading =))

Re:WTF? (4, Insightful)

Spazmania (174582) | more than 7 years ago | (#18933077)

IANAL, but I suspect the ruling has been misrepresented.

Generally, a company operating abroad is responsible for complying with local law, not US law. You can't sue a company in a US court for its behavior overseas. That's the the general rule; there are exceptions.

The law makes an exception for building devices in the US which would infringe a patent if sold in the US but are instead exported -- the patent holder can sue in the US where the device is made. Microsoft argued that the general principle (local law) applies here, not the exception, because the would-be infringing device was actually manufacturered abroad.

The Supreme Court agreed and applied the general rule: if AT&T wants to collect, they'll have to sue in the countries where the infringement occurred.

Re:WTF? (1)

nine-times (778537) | more than 7 years ago | (#18933131)

That still doesn't make sense. Windows isn't "manufactured" abroad. It's copied abroad. Unless the patents are related to pressing CDs, the "product" being manufactured isn't the disc, it's the OS.

Re:WTF? (1)

terrymr (316118) | more than 7 years ago | (#18933185)

Chances are that AT&T doesn't hold patents on this technology outside the US. They are trying to use the US courts to block international distribution.

Re:WTF? (3, Interesting)

Spazmania (174582) | more than 7 years ago | (#18933227)

Patents are a little different than copyright. You infringe a copyright by copying the work. You infringe a patent using the patent -- in the sense that you use a physical device which implements the patent. Accordingly, manufacture of the device occurs when the components are combined into a physical form capable of using the patent.

Re:WTF? (2, Informative)

Intron (870560) | more than 7 years ago | (#18933297)

"Windows isn't "manufactured" abroad. It's copied abroad."

That's pretty much what the Supremes decided. It's not subject to US patent law unless components of the infringing device are made in the US. They decided that making a master here and copying it abroad does not constitute infringement in the US.

The decision is also remarkable because Justice Alito compares Windows to a shrimp deveiner.

Note to editors: you can circle around or center on but you can't "center around".

Re:WTF? (0)

Anonymous Coward | more than 7 years ago | (#18933607)

around, preposition:
1. roundabout
2. at or near

You missed the right analogy. (1)

raehl (609729) | more than 7 years ago | (#18935751)

I live in the US. I design a widget. I ship the design plans for the widget to China. A factory in China manufactures the widgets.

Where did the manufacturing occur?

Even better analogy:

You design a widget. You patent the widget. I read the patent, copy it, send it to China, and have widgets manufactured. Where does the manufacturing occur?

*WRITING* software isn't manufacture, it's design.

Re:WTF? (1)

antarctican (301636) | more than 7 years ago | (#18933703)

The law makes an exception for building devices in the US which would infringe a patent if sold in the US but are instead exported -- the patent holder can sue in the US where the device is made. Microsoft argued that the general principle (local law) applies here, not the exception, because the would-be infringing device was actually manufacturered abroad.

While I agree with your post, it doesn't answer the deeper question of where Windows is "manufactured." I'd argue it's manufactured in Redmond.

I wonder how the law would apply to a physical product (ie. some widget) that is designed in the US with specifications that infringe on a patent but manufactured and sold by the company's overseas branch. Is that infringing? I'm betting a court would say yes.

So why is Microsoft pressing CDs overseas any different? The infringing occurred in the US when the code was written and compiled.

Of course the next question is... how can the OSS community take advantage of this lovely loophole Microsoft has openned? :)

Re:WTF? (1)

Dread Pirate Skippy (963698) | more than 7 years ago | (#18934129)

I wonder how the law would apply to a physical product (ie. some widget) that is designed in the US with specifications that infringe on a patent but manufactured and sold by the company's overseas branch. Is that infringing? I'm betting a court would say yes.

As I understand it, no, as long as its only manufactured overseas, you couldn't sue in the US. The company has every right to sue in the country where its being produced, but its not likely that they hold the patent there as well. If you're referring to manufacturing the widget overseas and then selling it back to the branch in a country where its already patented, Wikipedia tells me that would be infringing as well, anyone importing, selling, distributing, etc. is considered infringing.

So as long as you keep your infringement outside the country, you're set.

Re:WTF? (1)

Spazmania (174582) | more than 7 years ago | (#18934149)

While I agree with your post, it doesn't answer the deeper question of where Windows is "manufactured." I'd argue it's manufactured in Redmond.

That's an easy one: Windows ISN'T manufactured. PC's running Windows are manufactured. For patent purposes, Windows is just an unpatentable set of instructions telling those PC's how to implement a patent.

Here, this post explains it far better than I can: http://slashdot.org/comments.pl?sid=232849&cid=189 33137 [slashdot.org]

Re:WTF? (1)

cheater512 (783349) | more than 7 years ago | (#18934405)

But doesnt Microsoft export the master copies?

Re:WTF? (1)

GIL_Dude (850471) | more than 7 years ago | (#18933133)

The summary seems to indicate that, but when I read the article it seemed to be saying that they cannot consider "windows" to be a component of a computer. Not sure if that is really the decision, but the article sounded that way to me. If that's right, then they would still be left open for some other type of suit - just not one that says "windows, a component of computers sold...".

ScuttleMonkey knows not what he says. (4, Informative)

pavon (30274) | more than 7 years ago | (#18933137)

Copy and pasted from my post in the the other patent thread that mentioned this case as an aside:

You cannot enforce patents on algorithms/idea themselves, just devices/actions that implement them - this has been true since the beginning. The Supreme Court has never ruled that software is patentable, just that a device implemented using software is just as patentable as one implemented using hardware. It has long been believed that source code would not be considered a device, but just a description of a device, and is thus no more protected by patent law than a technical spec or published paper. However, programs running on a computer have been ruled to be a device, and therefore in practice sofware is patentable, even though technically it is not.

This case focused in part on the question of whether compiled code is a device - and the answer was no, it too is just a description. In practical terms this means very little for domestic software producers - since you can't run software without a computer, either you or your customer will be breaking the law if one of you does not license the patents, and knowingly selling software that needs patents licenses, without informing your customers about it will get you in bit trouble. Furthermore, even if you do inform your customers, you could have problems depending on the circumstance.

As far as international trade, it has the effect that patent export laws do not apply to software. With a physical device if you build it here and ship it abroad you have to pay patent royalties, but if you send the plans abroad and produce and sell it there, then US patent laws don't apply. Since software is simply a description, as long as the computer (or embedded device) is produced abroad, and the software is installed abroad, you don't have to pay US patent royalties. Of course you do still have to pay patent royalties in the other country if they apply.

Another area that it could have an impact in is open source drivers, especially firmware. You could argue that anyone that uses the software has paid for any required patent licenses when they bought the hardware in question. And since the court ruled that there is no difference between machine language and source code as far as patents go, they are no longer an excuse for providing binary only drivers. (Of course all the companies that are claiming "patent issues", are really probably trying to protect trade secrets).

Now, while I support the weakening of software patents in general, by this logic, would that mean that MS's patents don't apply to those that use pirated copies of Windows?
If those copies are in in the US they still apply, but in say China, they wouldn't. Note that copyright still applies.

Re:ScuttleMonkey knows not what he says. (3, Interesting)

ronanbear (924575) | more than 7 years ago | (#18933801)

Had AT&T won this would have strengthened software patents and increased damages across the board. That's because companies sued in the US for a software patent infringement could have damages set based on their worldwide sales, many (even the majority) in areas where software patents aren't valid.

It would be punishing companies for infringements that don't exist. If I use software in Ireland and the maker gets sued in the US they shouldn't be charged for patent violations that aren't violations here. If the software was legally sold here and didn't violate locally recognised patents then the maker didn't do anything wrong (except for directly exporting).

In the long run this will be good for Linux. It also has implications for other judgements such as the EOLAS case, I think.

Re:ScuttleMonkey knows not what he says. (1)

ASBands (1087159) | more than 7 years ago | (#18934267)

What you're saying makes a lot of sense, but I'm a little confused as to how algorithms work. I've always thought that since algorithms were just a description of math, that they could not be patented. The problem becomes how one describes an algorithm. Starting with plain English, we might say "Iterate the list, comparing the current position to the next one. If the current is larger than the next, swap the data. Go through the same amount of times as you have data." It could be described in pseudo-code, Java, C++, FORTRAN, etc. At what point can I patent the ASBands Bubble Sort (if I wanted to)? What is the difference between description and implementation?

Re:ScuttleMonkey knows not what he says. (1)

pavon (30274) | more than 7 years ago | (#18934895)

At what point can I patent the ASBands Bubble Sort (if I wanted to)?
You could get a patent for "a device that sorts by repeatedly swapping elements to bring the greatest to the beginning of the list", assuming there wasn't prior art and it met the requirements of originality.

Here's another way of looking at it that is perhaps clearer. When you file a patent you genuinely are getting a patent on an idea (for a new device or process), but that patent doesn't give you complete control over the idea. In particular, you can not restrict the dissemination of the idea, but you can restrict the use of that idea (with some exemptions for educational and research purposes).

What is the difference between description and implementation?
So the point at which something becomes an implementation, would be the point at which it can be (or is) used. Software (in any form) cannot be used without a computer, and therefore it is not a device until combined with a machine capable of interpreting it. Alternately, if the algorithm is not being carried out by a machine but by people - as is the case of patents on business methods or manufacturing processes - then you start infringing upon the patent at the time you use those methods.

Re:WTF? (3, Insightful)

TeraBill (746791) | more than 7 years ago | (#18933143)

Right, but wasn't this reported a while back and the statement was made that MS had earlier argued in court that they should be allowed to count all of the individual copies sold overseas for deductions on their taxes. And now they are arguing the other side for the purposes of the AT&T patent infringement case. I just think that they should have to choose a side for the argument. If they claim for the purposes of US tax accounting that all of the copies sold originate here, then that holds for the AT&T case. If they are willing to give up the additional deductions and pay the back taxes and penalties, then they can have this ruling. They just shouldn't be able to have both.

But then I'm not a lawyer, nor do I play one on television.

Legal piracy in China? (1)

atividia (858312) | more than 7 years ago | (#18933149)

Does this mean that if we buy one of those pirated disks from China, it's perfectly legal?

Did Microsoft just shoot itself in the foot? Well I guess it doesn't matter when they actually prefer that you pirate from them [theregister.co.uk] .

Re:Legal piracy in China? (1)

ClosedSource (238333) | more than 7 years ago | (#18933729)

"Does this mean that if we buy one of those pirated disks from China, it's perfectly legal?"

No. It means, for example, if you wrote code for Linux that violated a MS patent and that code was installed on computers only in countries where MS patents were not honored, MS couldn't sue you. As others have pointed out, this ruling has nothing to do with piracy since that's a copyright issue.

Re:WTF? (1)

Romancer (19668) | more than 7 years ago | (#18933593)

So what part of this argument doesn't negate all of the patants that Microsoft has on their software? If you can't be sued because your software isn't a component that was included in a computer, and claim that because the software was copied onto the system and therefore was not included with it, it doesn't constitute a component of the patentable item.

Where does software stand then with so many battles over 1-click, table/database, tab and software download patents? All still not defining software as a patentable area so that this case was decided as such?

Copyright and patent laws need so much reform it's just getting rediculous!
People should look back on this age as we do to when they thought the earth was flat.
"Those bumbasses just needed to look around and get a clue"

Re:WTF? (1)

king-manic (409855) | more than 7 years ago | (#18933887)

So what part of this argument doesn't negate all of the patants that Microsoft has on their software? If you can't be sued because your software isn't a component that was included in a computer, and claim that because the software was copied onto the system and therefore was not included with it, it doesn't constitute a component of the patentable item.
simple.. if MS has a patent in that country they are okay. AT&T doesn't hold a patent for that bit in many of the countries MS sells to. So MS can sell there royalty free and At&T must apply to patent what ever it is MS has used.

Uh, in the digital world, if MS gets paid (1)

Burz (138833) | more than 7 years ago | (#18932881)

...for the copy then they are the supplier.

Re:Uh, in the digital world, if MS gets paid (1)

Bill, Shooter of Bul (629286) | more than 7 years ago | (#18933163)

Right, but not in the legal world.

Issue was "who's the manufacturer" (3, Insightful)

Ungrounded Lightning (62228) | more than 7 years ago | (#18933223)

Uh, in the digital world, if MS gets paid ...for the copy then they are the supplier.

The issue is "who is the manufacturer" - Microsoft, or the guys who built the box and loaded the software onto it.

The patents cover the final system. (That's because you can't patent the software itself, only the total system using the software.) The software is a component of the system, like a chip full of AND gates, a capacitor, or even a complex integrated circuit that was designed specifically to perform the patented functionality.

If you look at the documentation that comes with your typical chip, you'll see a manufacturers disclaimer of patent liability. Essentially "If you use this chip to do something patented, getting a license from the patent holder, fighting his suit, or paying the judgement is your problem."

Microsoft just wants to be in the same position as a chip manufacturer with respect to the computerized-device manufacturer who builds a final product that incorporates their software and somebody else's chips.

The supreme court just said that Microsoft gets the same deal as Intel, AMD, Broadcom, etc.

Does this mean..... (1, Insightful)

stox (131684) | more than 7 years ago | (#18932883)

that if I steal one copy of Windows, and make 1,000,000 copies of it, that I am only liable for the one copy? After all, since Microsoft only produced one copy. I am only depriving them of the use of one copy. The lawyers are going to have a field day with this decision.

Re:Does this mean..... (0)

Anonymous Coward | more than 7 years ago | (#18933011)

Does this mean that if I steal one copy of Windows, and make 1,000,000 copies of it, that I am only liable for the one copy? After all, since Microsoft only produced one copy. I am only depriving them of the use of one copy. The lawyers are going to have a field day with this decision.

Why yes it does =)
Which makes me curious how it's still okay to copyright metaphors [cryptonomicon.com]

Re:Does this mean..... (4, Insightful)

jfengel (409917) | more than 7 years ago | (#18933091)

I don't think so. There are a couple of things going on here:

1. This only applies to other countries.

2. It only applies to the AT&T patents inside the software.

It seems that the OEMs are nominally responsible for securing AT&T's patents in those countries before distributing the software. So if you're in Asia pirating copies of Windows, both Microsoft and AT&T will be suing you.

If you're in the US, only Microsoft will sue you, and part of the money they take out of your hide should go to AT&T.

So AT&T should, theoretically, be going after these OEMs; Microsoft isn't on the hook to pay them. But it's a lot easier for AT&T to pursue Microsoft than a bunch of Microsoft's OEMs. /IANAL

Re:Does this mean..... (1)

tricorn (199664) | more than 7 years ago | (#18934459)

Umm, no. The AT&T patent isn't valid in the other country, so no, they couldn't go after you there for patent infringement. Try R-ing TFA next time.

The issue was whether producing the software in this country was violating the patent in this country even though it was only used in a country where it wasn't patented; the court ruled that since what was shipped from this country was never combined into a product that violated the patent, only copies made from what was shipped from this country, that it did not violate the patent in this country. If there was a patent in the other country that applied, it would still be infringing that (though, presumably, it would be whoever did the final "combining" of the software and hardware into a single product that was doing the infringing).

Re:Does this mean..... (1)

tricorn (199664) | more than 7 years ago | (#18934393)

Umm, no. Copyright law and patent law are completely different. This is about patent law, and has nothing to do with making unauthorized copies of software.

First Dup! (-1, Flamebait)

I kan Spl (614759) | more than 7 years ago | (#18932889)

Come on editors, the original is still on the mainpage!

http://yro.slashdot.org/article.pl?sid=07/04/30/15 21201 [slashdot.org]

Re:First Dup! (3, Informative)

Anonymous Coward | more than 7 years ago | (#18932985)

There have been two separate significant rulings by the Supreme Court. One is Microsoft Corp. v. AT&T (the subject of this article) and the other is KSR Int'l Co. v. Teleflex Inc. (the subject of the article you linked to).

HTH

Re:First Dup! (2, Insightful)

shystershep (643874) | more than 7 years ago | (#18933005)

I know it's not fashionable to RTFA, but come on. Just because the summaries contain the words "patent" and "Supreme Court," that does not automatically mean they are the same. These are completely different stories.

Re:First Dup! (1)

Adhemar (679794) | more than 7 years ago | (#18933437)

The Microsoft v. AT&T ruling got mentioned in the fifth paragraph of the article of the previous story [bloomberg.com] and quite a bit of the Slashdot discussion was either about the Microsoft case or both patent cases, although they did get mixed up a few times.

Re:First Dup! (2, Informative)

Adhemar (679794) | more than 7 years ago | (#18933833)

Just in case anyone is interested in the actual opinions:

The Supreme Court opinion of Microsoft v. AT&T [supremecourtus.gov] .

For completeness: The previous story was (mainly) about KSR v. Teleflex [supremecourtus.gov] , although it did mention Microsoft v. AT&T as well, in the fifth paragraph.

Of course it doesn't apply. (1)

garcia (6573) | more than 7 years ago | (#18932891)

Now, while I support the weakening of software patents in general, by this logic, would that mean that MS's patents don't apply to those that use pirated copies of Windows?

A lawsuit from AT&T hurts Microsoft's bottom line and thus this ruling is ok. Pirating overseas in Asia also hurts Microsoft's bottom line and thus this ruling wouldn't be applied.

Glad we have that cleared up.

Re:Of course it doesn't apply. (1)

ponzio (889432) | more than 7 years ago | (#18936151)

Yeah; and the day I see Gates, Ballmer, etc. standing in a breadline I may feel a twinge of guilt. But I doubt it.

Dupe (-1, Flamebait)

Des Groines (1091703) | more than 7 years ago | (#18932901)

Supreme Court Weakens Patents http://yro.slashdot.org/article.pl?sid=07/04/30/15 21201 [slashdot.org]

Re:Dupe (1)

terrymr (316118) | more than 7 years ago | (#18933047)

Different story

Re:Dupe (1)

enharmonix (988983) | more than 7 years ago | (#18933725)

Different story
Same court case, though. A lot of the details were missing from the last story, but technically it is the same. I knew about this already but realized it was the comments from slashdotters who bothered to dig a little deeper and not the actual article summary or even the linked story. So I suppose you could say it's a different /. story about the same case. Either way, this is excellent news - can't hurt to post it twice.

I think Microsoft needs to prove (1)

Marxist Hacker 42 (638312) | more than 7 years ago | (#18932907)

That the Asian OEM code is substantially different than what is sold in the US.

Re:I think Microsoft needs to prove (0)

Anonymous Coward | more than 7 years ago | (#18934435)

That's irrelevant. This isn't about source code, it's about where the product was sourced. Versions of Windows shipped in Asia are not shipped from the US. They're manufactured and shipped in and from Asia.

Re:I think Microsoft needs to prove (1)

Marxist Hacker 42 (638312) | more than 7 years ago | (#18934787)

If the original coding was in the US- or even that particular DLL- then that shouldn't be an issue. Unless of course they want to get into the philosophical difference between software and hardware, and even then, they've got to prove that the disks manufactured and shipped in are not substantially different than say, a music CD, or Sony's and Phillip's patents might come into play.

Re:I think Microsoft needs to prove (1)

Marxist Hacker 42 (638312) | more than 7 years ago | (#18934799)

2nd reply- now I think I understand what you're saying. Does this mean I can break a patent merely by having the product manufactured in China and marketed here?

Piracy has nothing to do with patents (4, Insightful)

CodeShark (17400) | more than 7 years ago | (#18932915)

What it simply means is that the Supreme Court is being consistent with existing law regarding patents, i.e. the method that M$ uses to export Windows to foreign companies means that certain types of patents don't apply therefore MS can't be sued for using patented code oversees if it obeys certain export rules.


But this has nothing to do with "pirated copies", because software piracy is a matter of copyright law, not patent law, and there are numerous treaties governing the protection of copyrights internationally that still apply.

Re:Piracy has nothing to do with patents (1)

TheRaven64 (641858) | more than 7 years ago | (#18933119)

Please, somebody, mod the parent up. With the number of IP-related stories posted here, you'd have thought that ScuttleMonkey would understand the difference. Mind you, his commend didn't really seem to make any sense, since (very limited) patent licenses are part of the software license, and so are obviously not granted to users of pirate versions before or after the ruling.

The good thing about this is that it gives the anti-patent lobby in the US a powerful weapon to use when talking to their elected representatives. Now they can say 'even when made by a US company, exactly the same product costs less to sell outside the USA where they don't have software patents, won't somebody think of the cheap consumer goods?'

Re:Piracy has nothing to do with patents (1)

ghoti (60903) | more than 7 years ago | (#18933671)

trianglman's point was not about copyright or piracy per se, but about its implications. If Microsoft is not the supplier of Windows if the DVDs are pressed or the harddisks installed by other companies in Asia, then you can argue that Microsoft is not the supplier of the software for people who pirate it, either. Of course, this does not make any sense either, because AT&T wasn't suing Microsoft's customers or people who had pirated Windows. But at least argue against the right argument ;)

Re:Piracy has nothing to do with patents (1)

ghoti (60903) | more than 7 years ago | (#18933903)

Of course it was ScuttleMonkey's point. Sorry for mixing up the editor with the submitter.

Re:Piracy has nothing to do with patents (1)

PPH (736903) | more than 7 years ago | (#18935525)

Right.

The 'master disk' that Microsoft provided foreign manufacturers wasn't pirated, so copyright laws don't apply. This means that once your IP leaves the borders of the USA, there's nothing protecting it in the way of patent law. So long as they aquire the media legitimately, there is no patent protection.

Sensors Detect Bullshit, Captain (1)

ewhac (5844) | more than 7 years ago | (#18932917)

Could someone read the decision and tell us what it really says? Because the posted summary makes absolutely no sense at all. I can't believe an argument that fatuous would fly in the SCOTUS.

Schwab

Re:Sensors Detect Bullshit, Captain (2, Informative)

terrymr (316118) | more than 7 years ago | (#18933013)

Other stories I've seen about the case said that the court ruled that US patents do not apply outside the US. Therefore microsoft can't be infringing AT&T patents outside the US. I'm sure AT&T's argument was on the theory that all copies of windows came from the US therefore they could stretch US patent laws to cover windows sold outside the US.

Re:Sensors Detect Bullshit, Captain (4, Informative)

Adhemar (679794) | more than 7 years ago | (#18933661)

You might remember that this was the Supreme Court case where the Freedom Software Law Center (Eben Moglen's organisation) did write an Amicus Curiæ Brief [slashdot.org] technically in support of Microsoft. The SFLC wanted the Court to decide that software isn't a (patentable) component altogether. Sadly, the Court did not follow that logic. (It was a long shot, and worth the try.)

Instead, it held that software in the abstract isn't a component. It's not the method but the apparatus capable of executing the method that can be patented.

Such an apparatus is, in pratice, a computer on which said software is installed.

The contended software was a speech encoding and compression algorithm included in a version of Windows sold to foreign manufacturers.

The Court held that since the actual copying of the Windows software on the computer was done outside the United States (Düsseldorf or Tokyo, if I recall), the United States patent law does not apply. The fact that the software (on the master disk) was created inside the United States, and copied from the United States to Düsseldorf or Tokyo, is considered irrelevant.

So basically, the Court held that software patents are unenforceable under US patent law as long as you don't load the software on any device inside the US.

Re:Sensors Detect Bullshit, Captain (4, Informative)

vux984 (928602) | more than 7 years ago | (#18934227)

To make a more layman analagy:

Suppose I design a chair that infringes AT&Ts patent in the US (and the patent only applies in the US). If I make the chair in the US, I have to pay the license. If I make the chair in china and import it to the US I have to pay to license.

If I have a chair factory in the US that makes chairs for US use, and another factory in china that makes chairs for Chinese use. Then I don't have pay licensing on the Chinese chairs, because the patent doesn't apply where they are produced or sold. This isn't controversial, and is how patent laws work. You only have to license patents in the countries you make/sell the products affected by them.

Now, of course for me to set up a chair factory in china I have to send them blueprints and a prototype for the chair. This is of course, perfectly legal. Again, no controversy. At most I might pay a royalty on the single unit.

Now in this case, AT&T asserted that distributing windows elsewhere, by having sent a copy of the CD sent there constituted making the product in the US and then distributing it, entitling AT&T to patent royaltys for each copy sold abroad.

MS, asserted it was really more like sending a single blueprint and prototype to the chair factory, for them to produce copies locally, and that AT&T was not entitled to royaltees for each copy of the product made and distributed abroad.

I personally agree with SCOTUS, and side with MS on this. Its consistent with how patent law is normally applied.

Re:Sensors Detect Bullshit, Captain (1)

bockelboy (824282) | more than 7 years ago | (#18934775)

So basically, the Court held that software patents are unenforceable under US patent law as long as you don't load the software on any device inside the US.
That sets of big flashing lights in my head. If I violate Company X's patents by writing some open-source software package, can I be held liable for patent infringement? After all, I'm just distributing the "blueprints", the end-users are the ones who are violating the patent by loading it on a computer.

Of course, you can't license such a piece of software under the GPL because it would restrict redistribution. It still makes it an interesting argument that might weaken the reach of patents.

Re:Sensors Detect Bullshit, Captain (1)

Keeper (56691) | more than 7 years ago | (#18935263)

If I violate Company X's patents by writing some open-source software package, can I be held liable for patent infringement? After all, I'm just distributing the "blueprints", the end-users are the ones who are violating the patent by loading it on a computer.

Theoretically, as part of writing that software package, you "installed" it to verify that it worked. However, you're only liable for a single instance of infiringement. Anyone who downloads the package and installs it on a single computer would also be liable for a single instance of infringement -- this isn't a new revelation -- in fact it is one of the bits of fud being spread to slow the adoption of FOSS.

fastest....dupe....ever..... (-1)

Anonymous Coward | more than 7 years ago | (#18932923)

I mean, the original story isnt even off the front page yet: http://yro.slashdot.org/yro/07/04/30/1521201.shtml [slashdot.org]

Re:fastest....dupe....ever..... (0, Redundant)

terrymr (316118) | more than 7 years ago | (#18933097)

ITS A DIFFERENT STORY

Moot point (1)

jshriverWVU (810740) | more than 7 years ago | (#18932951)

Are they claiming that IP in Windows doesnt matter when the software is being pirated, and that the Asian versions of Windows aren't really made by them, but a copy? Thought Windows made/supported a full Asian version.

Re:Moot point (1)

bockelboy (824282) | more than 7 years ago | (#18933589)

No. They claim nothing about piracy or IP in general. This has to do with patent lawsuits, not pirates or copyright.

They are claiming that they are not exporting patented parts outside of the US for foreign assembly.

The software doesn't violate the patent until the foreign manufacturers load it on a computer. Hence, MS is not exporting a patented part, so they don't violate that particular law.

It's as if I patented a widget made of steel. Can I sue the steel manufacturer for exporting the metal to China where you make the widget in violation of the patent? No. Could I sue a US widget maker for violating my patent, even if they only sell it in China? Yes.

It's a good example of "laws written for one context, used for another context". Doesn't change the piracy picture a bit.

A rule to live by. (1)

Howitzer86 (964585) | more than 7 years ago | (#18932999)

The first rule of pirating software is... don't talk about pirating software.

What does this mean for end users of ... (2, Interesting)

sabre86 (730704) | more than 7 years ago | (#18933019)

"patented software?"

So if I make a copy of, say, Linux that has a "patent-infringing" software in it, am I liable for violating the patent, or is the author of the software? Or are both of us, if we're in the US?

--sabre86

Re:What does this mean for end users of ... (1)

sabre86 (730704) | more than 7 years ago | (#18933095)

Late thought: It just occured to me that I may have to export the copy to be liable, perhaps by allowing it to be downloaded internationally from my server. I'm not familiar with the patent law in question, but the article seems to imply that this applies to exporting components. That confuses me. Is the patent for "using the software with a computer" or for the software -- or some algorithm in the software -- itself? As somebody said earlier, if anyone can actually explain what this means, please do. --sabre86

Re:What does this mean for end users of ... (1)

yellowalienbaby (897469) | more than 7 years ago | (#18934961)

I'm interested in this view. I'm hoping someone who knows stops by..

Article summary is wrong (1)

Marxist Hacker 42 (638312) | more than 7 years ago | (#18933035)

It's even WORSE- Microsoft is arguing that software isn't patentable because software and hardware are different. Well, maybe that's better- but basically, they're arguing no patent infringement because the source code wasn't on the disk.

I'll take a shot.... (2, Interesting)

Otter (3800) | more than 7 years ago | (#18933079)

Decision here [supremecourtus.gov] . I'm not sure I follow it, but since my understanding could hardly be worth less than the submitter's, here's a shot at summarizing it:

The issue is whether the US patent held by AT&T applies to copies of Windows that are installed on foreign-built computers. The ruling is that OS installs from a master disk made in the US don't qualify as US-made export goods themselves, and therefore aren't subject to US patents.

Re:I'll take a shot.... (1)

omeomi (675045) | more than 7 years ago | (#18933159)

The ruling is that OS installs from a master disk made in the US don't qualify as US-made export goods themselves, and therefore aren't subject to US patents.

But doesn't Microsoft still get paid for each OEM copy of Windows that is sold, regardless of whether an actual CD was sent for each computer or not? Also, don't computers oversees come with an official copy of the Windows CD? Last I checked, they do here...although, it has been awhile since I've purchased a computer rather than building it myself...

Re:I'll take a shot.... (1)

Otter (3800) | more than 7 years ago | (#18933235)

But doesn't Microsoft still get paid for each OEM copy of Windows that is sold, regardless of whether an actual CD was sent for each computer or not?

They do, but that's not (again, as I understand this) enough to make US patent law applicable to those sales. The product has to be "made" in the US.

Re:I'll take a shot.... (1)

omeomi (675045) | more than 7 years ago | (#18933293)

They do, but that's not (again, as I understand this) enough to make US patent law applicable to those sales. The product has to be "made" in the US.

Doesn't this seem like a fundamental misunderstanding of software? I mean, the software isn't the CD, it's the stuff on the CD...every copy of it is identical to the original...the transmission medium should be completely irrelevant.

Re:I'll take a shot.... (1)

ps_inkling (525251) | more than 7 years ago | (#18933869)

The judges took this into consideration. Short answer: it's the computer running the software that's infringing, not the software itself. Congress can choose to close this loophole. From the (thanks to another poster) fine PDF [supremecourtus.gov] ):

AT&T holds a patent on an apparatus for digitally encoding and compressing recorded speech. Microsoft's Windows operating system, it is conceded, has the potential to infringe AT&T's patent, because Windows incorporates software code that, when installed, enables a computer to process speech in the manner claimed by that patent. It bears emphasis, however, that uninstalled Windows software does not infringe AT&T's patent any more than a computer standing alone does; instead, the patent is infringed only when a computer is loaded with Windows and is thereby rendered capable of performing as the patented speech processor. The question before us: Does Microsoft's liability extend to computers made in another country when loaded with Windows software copied abroad from a master disk or electronic transmission dispatched by Microsoft from the United States? Our answer is "No." The master disk or electronic transmission Microsoft sends from the United States is never installed on any of the foreign-made computers in question. Instead, copies made abroad are used for installation. Because Microsoft does not export from the United States the copies actually installed, it does not "suppl[y] . . . from the United States" "components" of the relevant computers, and therefore is not liable under 271(f) as currently written. Plausible arguments can be made for and against extending 271(f) to the conduct charged in this case as infringing AT&T's patent. Recognizing that 271(f) is an exception to the general rule that our patent law does not apply extraterritorially, we resist giving the language in which Congress cast 271(f) an expansive interpretation. Our decision leaves to Congress' informed judgment any adjustment of 271(f) it deems necessary or proper.

Re:I'll take a shot.... (1)

jonbryce (703250) | more than 7 years ago | (#18933909)

But the patent isn't on the software. You can't patent software. The patent is on "a device or apparatus that [in this case recognises speech]", ie some speech recognition software running on a computer. The "running on a computer" bit is the important thing here.

The CD containing the software is not a patentable device or apparatus. It becomes patentable when it is loaded on a computer. That didn't happen in the US, so it falls outside US juristiction.

In all other respects, it doesn't make software any less patentable, as there is mostly no point in having it if you can't run it on a computer.

The Real Question (1)

Jah-Wren Ryel (80510) | more than 7 years ago | (#18933135)

Now, while I support the weakening of software patents in general, by this logic, would that mean that MS's patents don't apply to those that use pirated copies of Windows?
That's a stupid question. If you are a pirate, why would you even care about the patents?

The real question this brings up is if someone pirates this same overseas master disk and distributes those copies, doesn't it follow that MS has no recourse, that the only ones being infringed are the overseas distrbutors and not MS?

And the answer is OF COURSE NOT, do not expect the law to follow common sense or have any sort of internal consistency. If it did, who would employ all the lawyers?

Re:The Real Question (1)

king-manic (409855) | more than 7 years ago | (#18933865)

The real question this brings up is if someone pirates this same overseas master disk and distributes those copies, doesn't it follow that MS has no recourse, that the only ones being infringed are the overseas distrbutors and not MS?
They have no recourse to persue patent compensation but they could persue copy-right violations. Violating a patent is not violating a copyright law. They are no equivalent. Although both are used in similiar ways: temparary monopoly on some ideas.

Stupid summary (1)

cdrguru (88047) | more than 7 years ago | (#18933355)

OK, so Microsoft gets the court to agree that the infringment is not against US patents from a US manufacturer, but (for example) a Chinese manufacturer against (???) a Chinese patent. Thus requiring AT&T to file against the Chinese manufacturer in a Chinese court.

Somewhat makes sense, but I would think it would be common sense that the "manufacturer" of a software product was the developer, not the facility where discs are copied. If it was this easy, we could get our product certified as being manufactured in Europe and avoid all those nasty import duties.

One for the diplomats (1)

rbanffy (584143) | more than 7 years ago | (#18933391)

If I got it correctly, AT&T may still try to enforce their patents under local law by suing the manufacturers. They also can sue them in the US because they are selling devices that infringe AT&T patents to the US.

Again, if I got it correctly, local manufacturers can sue Microsoft for selling them goods without disclosing potential liabilities.

This is one for the diplomats to untangle. Hope they enjoy it.

Applicable to Purported Microsoft Patents in Linux (1)

MITEgghead (570541) | more than 7 years ago | (#18933409)

It seems like this ruling directly applies (against Microsoft's favor) in the case of Microsoft's innuendos of patent infringement by Linux. From Microsoft's arguments in the case, object code and source code cannot be patented because it is not on a physical machine that performs the patented operations nor can it be directly installed on such a machine without going through an intermediate step (linking) in the foreign country. Thus, any open source project that provides the object or source code over the Internet but not the binary installer is completely shielded from any patent infringement claims by Microsoft because they are distributing non-installable data that doesn't constitute a patentable invention. I can't wait for Groklaw et al. to jump all over this fumble by Microsoft (as some are already discussing http://www.groklaw.net/article.php?story=200704301 21005424/ [groklaw.net] ). Seriously, besides saving some pocket change, can anyone understand what Microsoft was thinking here?

The SC is interpreting a very specific statute (4, Informative)

Nosajjason (613456) | more than 7 years ago | (#18933461)

Let's clarify something. Section 271 of the Patent Act defines many different types of infringing acts. Section 271(a) defines infringement as the making, using, selling, or importing (the most common types of infringement). Section 271(f)(1) defines another type of infringing act, namely, exporting "components" of a patented invention.

Section 271(f)(1) states:

Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.

Section 271(f)(1) was created to close a loophole in patent laws that allowed companies to manufacture the "patented invention" by manufacturing the components of the invention and then shipping the components overseas to be assembled and sold. Because the individual components did not infringe to the "patented invention," these companies were not infringers.

Section 271(f)(1) was an attempt to close that loophole, and provides that infringement does occur when one "suppl[ies] ... from the United States," for "combination" abroad, a patented invention's "components."

In Microsoft, the SC addressed Section 271(f)(1), and specifically the term "component." The Supreme Court held that "component" means "component," or a part of the whole which is combined to form the final product. The master disks exported by Microsoft were not "components" because the disks themselves where not combined with the "whole." Instead, the disks where used to make software, which then became part of the whole. The Supreme Court analogized the master disks to tools. Tools are used to make a "component" but they are not "components." Section 271(f)(1) only applies to "components" and not to tools for making components. Thus, Microsoft did not infringe (as defined by 271(f)(1)). The opinion is limited to section 271(f)(1), and likely will not affect "normal" infringing activities.

Re:The SC is interpreting a very specific statute (1)

sabre86 (730704) | more than 7 years ago | (#18935303)

Ah! Thanks, that was extremely informative. It now makes perfect sense. Sincerely, --sabre86

Total miss by poster (1)

bockelboy (824282) | more than 7 years ago | (#18933473)

Swing and a miss! The summary isn't even close to accurate.

The case was this: AT&T and Microsoft had a patent dispute. Microsoft accepted the fact that it violated the patent in the US. Question: Does Microsoft owe AT&T damages for patent violations in the US *and* for products shipped outside the US? Or, must AT&T sue MS in those countries also? According to a 1984 law, if you manufacture patented parts for assembly outside the US, you violate the patents in the US.

The court found: Shipping the master copy of Windows source code outside the US to be mastered abroad doesn't count as patent infringement.

Why? You can't patent an algorithm! Notice that in software patents, you must reference a combination of a "method and a device", or some such language. You have to include something physical in the patent. You can't patent "voice recognition software", you must patent "voice recognition software running on a computer". From the AP article:

"Ginsburg said that neither Windows software nor a computer standing alone without Windows installed infringes AT&T's patent."

Only if MS was shipping both a computer *and* the software, were they shipping a patented part. So, AT&T's damages must be limited to domestic damages. In order to recover damages occurred in, say, France, AT&T must sue MS in France. US law doesn't cover MS's non-US activity, in this case. Kind of makes sense to me.

As others have pointed out, the submitter stupidly mixed up copyrights and patents; pirates are usually sued for violating copyrights. I suppose if I'm a software pirate, and I get sued for patent infringement (for some really stupid reason), the damages awarded to the company would be limited to domestic damages I've done. Of course, they would get more money out of me more quickly if they limited themselves to the copyrights.

So, take home message: If you sell software worldwide, any patent violations you get sued for in the US will most likely have their damages limited to the actions inside the US. For damages from selling abroad, the company which is suing you must file their lawsuit abroad.

Ok, i can see how that worked...BUT... (1)

hurfy (735314) | more than 7 years ago | (#18934131)

"Notice that in software patents, you must reference a combination of a "method and a device", or some such language"

Then how were they found to be violating in the US?
I didn't buy my computer from MS.

Re:Ok, i can see how that worked...BUT... (1)

bockelboy (824282) | more than 7 years ago | (#18934801)

My thoughts exactly - turns out that the section of the law governing what you do inside the United States is different from the one considered in this ruling.

Note that MS still is liable for damages done within the US. They think this ruling would allow them to appeal the Eolas case and have to pay less money.

You just don't get it, do you? (0)

Anonymous Coward | more than 7 years ago | (#18933479)

"by this logic, would that mean that MS's patents don't apply to those that use pirated copies of Windows?"

The ruling is that US patents don't apply, because the software on a particular machine is not exported from the US, But is a copy made in Asia. Therefore, one would assume local patent laws would apply, instead of US patent laws.

Now that you understand this, the logic of the statement about piracy is absurd

It's tough to know (1)

necro81 (917438) | more than 7 years ago | (#18933667)

It's tough to know who to root for or against in this case: Microsoft vs. AT&T? Man, that's a hard choice! It's like a choice between Goliath and Goliath.

Re:It's tough to know (0)

Anonymous Coward | more than 7 years ago | (#18934079)

It's strange when you're forced to root for the lawyers...

Umm.... (0)

Anonymous Coward | more than 7 years ago | (#18933827)

*** would that mean that MS's patents don't apply to those that use pirated copies of Windows? ***

Umm, this wouldn't be patent infringement you tard, it would be piracy, a criminal offense. Patent infringement is a civil matter.

Copies IN the US... (1)

Raistlin77 (754120) | more than 7 years ago | (#18933951)

From the summary... Microsoft said it could not be considered a supplier since the copies, not the original software, were in the computers built abroad."

Now, while I support the weakening of software patents in general, by this logic, would that mean that MS's patents don't apply to those that use pirated copies of Windows?


By your interpretation of that logic, wouldn't it also mean that MS's patents don't apply to any copy of Windows on a PC in the US that was not installed from the "original software", which would basically mean EVERY copy of Windows, since it is highly unlikely that the master disk has been placed in EVERY PC ever sold in the US with Windows installed. And of course there are also system restorations to consider that were done with copies made from master disks as well (shipped with PCs or available by request/purchase).

Microsoft doesn't actually sell the software (1)

Fujisawa Sensei (207127) | more than 7 years ago | (#18934033)

Remember Microsoft doesn't actually sell any software. All they sell is a license to use a give piece of software. I haven't read the EULA recently, but you probably don't even have to have a copy of the software in question to buy a license.

Fix DMCA (1)

Zork the Almighty (599344) | more than 7 years ago | (#18934147)

Now we just need the Supreme Court to fix the DMCA and we're all set. On a related note, check out my new tagline.

Read what laywers are saying about these decisions (4, Informative)

Infonaut (96956) | more than 7 years ago | (#18934163)

It might be more instructional than reading dozens of comments that start with, "I don't know a thing about law, but... ." It's like marketers talking about programming: "I don't know C# from sharp cheddar, but... ." Here are a few views from lawyers who know patent law:

KSR v. Teleflex:

Microsoft v. AT&T:

Thulsa Doom calls for you, heretic! (0)

Anonymous Coward | more than 7 years ago | (#18934219)

"My child, you have come to me my son. For who now is your father if it is not me? I am the well spring, from which you flow. When I am gone, you will have never been. What would your world be, without me? My son."
                                                                                                                  -Thulsa Doom
 
Get on your fucking faggot knees and pray for forgiveness from Thulsa Doom the Great! You deserve nothing but destruction but still you remain only by the mercy of Thulsa Doom.
 
Repent for your fucking foolishness now, motherfucker, or Thulsa Doom will beat your faggot ass!
 
THULSA DOOM!

Preceidents? (1)

mixonic (186166) | more than 7 years ago | (#18934423)

Check it:

AT&T holds a patent on an apparatus for digitally encoding and compressing recorded speech. ... It bears emphisis, however, that uninstalled Windows software does not infringe AT&T's patent any more than a computer standing alone does; instead, the patent is infringed only when a computer is loaded with Windows and is thereby rendered capable of performing as the patented speech processor.

Hot, that means I can write white-room version of an MP3 encoder and distribute it lawfully, I simply cannot install it and use it. (It's an example, ignore the foreign patent implications of MP3 and the DMCA reverse-eng possibilities.)

On page 3 the court reiterates a precedent from Deepsouth Packing Co. v. Laitram Corp that states it is "not an infringement to make or use a patented product outside of the United States". Nice. Amazon can't go after peeps outside the US over patents (well, duh, but still, good to say it again). On page 5 the court goes over a law Congress made in response to that stopping exports of multiple pieces with no other use than to create an infringing whole. Still nice for US extraterritorials.

Seems the decision and Stevens's dissent focus on whether software is analogous to blueprints or components, hinging on the language of Deepsouth.

-mix

sounds about right (1)

pbjones (315127) | more than 7 years ago | (#18934667)

Unlike copyright, patents are only valid in the country that they are registered in. This would apply to MS patents also. They have copyright over the software which is almost global, but any patent would only apply is the countries in which the patent is registered. There may be agreements between countries, but if I patent something in Australia only, it could be built and used in the USA without asking me, but it could not be sold back into Australia.

Would Hardware be Considered Also? (1)

LifesABeach (234436) | more than 7 years ago | (#18935137)

I cannot help but if the same argument used by Microsoft against AT&T, could also be applied to the "Microsoft Tax"?

-1 Troll (1)

r_jensen11 (598210) | more than 7 years ago | (#18935255)

Let's see, we have here a company who the US Government broke up some few decades ago because it was a monopoly, which has hence re-merged to form the same monopoly in the Red Corner. In the Blue Corner, we have a company who the US Government has been calling a monopoly for over 10 years and has (with albeit pathetic means) attempted to break up said monopoly into several other companies. It's like Terminator 1 vs Terminator 2, but only Terminator 2 won this time....
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