

The Oracle-Google Mess - stanleydrew
http://www.groklaw.net/article.php?story=20100813112425821

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Kilimanjaro
From the article:

"And was he [RMS] not right about the Java Trap? How many times must he be
right before developers listen?"

He who has ears...

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cperciva
Quoth the article: _...although I'll surely be fair to both parties in my
coverage..._

Uh-huh. Just like groklaw always is, right? You keep telling yourself that.

The blindest man in the world is the one who thinks he can see.

~~~
btilly
It is always clear what groklaw's preference is in any given case. But I've
never noticed a bad bias in the facts reported.

Admittedly the SCO reporting may have sounded one-sided, but in that case the
facts were legitimately also rather one-sided.

~~~
cperciva
_Admittedly the SCO reporting may have sounded one-sided, but in that case the
facts were legitimately also rather one-sided._

But were the facts as one-sided as groklaw suggested? The judge's opinions
were nowhere near as one-sided as groklaw's opinions; given a choice between
believing that groklaw is biased and believing that a US district court judge
is biased, I know where I stand.

~~~
btilly
_But were the facts as one-sided as groklaw suggested?_

As far as I can tell, they were. SCO made a lot of strong claims, and not one
panned out.

I personally try to go out of my way to see the other point of view. And
usually I can see things the other side says that leave me thinking, "OK, I
can understand their point of view." I might not agree with it, but I can
understand where they are coming from. But somehow I never saw Darl McBride
say anything with that result.

For instance take a look at <http://www.sco.com/copyright/> for SCO's position
that the GPL is unconstitutional. I've read that many times, and every time I
come away wondering what planet the author was on. The laws on copyright are
very clear, have been ruled constitutional, and creates a notion of property
that is the foundation of the GPL. If you don't like the license, don't use
it. If you don't want to encumber your software with that license, don't use
it. If other people wish to use that license, that is their prerogative.

Now possibly I'm missing something. Because a similar argument was advanced in
_Jacobsen v Katzer_ that you can't sue for a copyright interest which you
weren't commercializing. So obviously a trained lawyer thought that claim was
worth advancing. Yet the judge came down heavily against Katzer on that one,
which suggests that I'm not missing too much there.

 _The judge's opinions were nowhere near as one-sided as groklaw's opinions;
given a choice between believing that groklaw is biased and believing that a
US district court judge is biased, I know where I stand._

Your theory is that the judge's opinions were not one-sided because he thought
SCO had a good case. My theory is that he bent over backwards to be fair
because he expected it to wind up being appealed, and he wanted there to be as
few grounds for appeal as possible.

If you look at the decisions, the judge gave SCO every procedural
technicality, and every opportunity to present their case in full. Yet in the
end he came down against them on every single fact of consequence. And the
case went to appeal, and most of his decision stood. Which fits perfectly with
my understanding.

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jexe
Does anybody believe that software patents are not broken? It really seems
obvious that they are, but have been looking for a counter-argument. There
must be somebody out there with a good defense.

~~~
michael_dorfman
I don't think you're going to find anyone out there willing to defend the
status quo as the best of all possible worlds.

The real question is: how broken are they, and what level (and form) of
reform/repeal is necessary?

~~~
moultano
I'd actually like someone to give just one example of a software patent that
improved the world through its existence. Maybe some company that couldn't
have existed otherwise, or something like that. I'd like to at least get some
visibility into the upside of patents if there is one, because I definitely
don't have any now.

~~~
michael_dorfman
The upside of patents in general, or software patents in particular?

The standard case for patents is to compare them to business secrets. In a
world without patents, innovators may choose to keep their methods secret, and
not share them with the world, in order to protect them. A patent gives the
inventor a legally enforceable monopoly for a limited period of time, in
exchange for publication of the details of the method such that others can
reproduce it when the term expires.

The key practical difference in terms of software patents is that reverse
engineering makes it relatively impossible to actually keep an innovation
secret-- but, as I said, that's a practical issue, and doesn't effect the
philosophical justification of the patent system.

In other words, young grad students Sergey and Larry are able to slave away on
their super-secret algorithm, secure in the knowledge that no better-funded
evil empire can steal it and implement it and compete with them.

~~~
moultano
I know how it is supposed to work in theory, but I want to see a case study
where it actually worked in practice.

------
16s
Software patents in general are bad, but far worse when the software is a
development tool (e.g. Java/JVM/some core dev tool).

A patent issue on an app I write can be easily resolved (pay the fine,
royalties, etc.) and re-write that code. But when the underlying bits that
I've built on are in question, I'm screwed.

I think that sums it up for Google. They picked the wrong platform for the
right reason (lot's of Java devs) and they hoped Sun would continue to be nice
about it. Sun is gone now and all bets are off.

As developers, if we want our apps to have futures or to at least have some
control over our own future, then we must use entirely free foundational tools
(ISO standard programming languages with public domain/GPL/BSD/ licensed
compilers and libraries) or be willing to face the consequences.

Nothing compares to the rug being jerked out from under you. Except for when
they jerk the foundation that the rug sits on out from under you. Google will
learn this lesson the hard way. I hope they have a serious plan B.

------
halo
I've always thought that it's a shame that between Groklaw's interesting and
insightful paralegal analysis, there's a lot of unnecessary ideologically-
driven "free software" evangelism that helps to undermine the credibility of
their arguments.

~~~
jberryman
I don't know how preaching to the choir can be considered "evangelism", and
Certainly Free Software is an ideology, but I'm not sure why you are using
that term pejoratively.

The blog is written for and from within the FOSS community; what kind of
disinterested lawyer do you imagine blogging about legal matters related to
free software, and what kind of programmer would want to read a bunch of dry
legal analysis?

------
tmsh
Software patents are a spur to innovation by being an antispur to greed-
touching systems. The best thing that happened to Linux was the BSD fight. The
best thing that happened to the web was the Microsoft antitrust fight. Just
sayin'.

~~~
tbrownaw
_Software patents are a spur to innovation by being an antispur to greed-
touching systems._

I have no idea what this is supposed to mean.

 _The best thing that happened to Linux was the BSD fight._

It's not exactly clear that we're overall better off than we would be if
everyone used BSD instead.

 _The best thing that happened to the web was the Microsoft antitrust fight._

Because it undid part of the damage that Microsoft had spent the last 15 years
causing.

~~~
tmsh
I'm just saying: it's questionable whether web application would've succeeded
this quickly if Microsoft application/desktop development hadn't been impeded.
Perhaps it would've. But it's also questionable whether Linux would've
supplanted BSD in popularity, if BSD hadn't been locked in a legal fight.

Whether or not these are good for everyone or bad for everyone is hard to
judge. But as stated, software patents are a spur to innovation (Linux isn't
necessarily better than BSD, but it is its own innovative phenomenon -- the
same with the web) by being an antispur (causing stagnation) to greed-touching
systems (Oracle, Google, Microsoft, etc., all have parts of their business
that are motivated by capitalistic desires or what Gordon Gecko, etc., called
greed).

I probably shouldn't have said these were the 'best' things to happen to those
respective technologies. But who knows how important they are? Certainly it's
easy to overlook them -- as the larger frame of reference in which technology
develops is often overlooked.

So that was my point in responding to the last sentence in the article proper:

 _If you still think software patents are a spur to innovation, you're not
paying attention._

But, I understand the signal/noise ratio is a big concern, so somewhat
argumentative claims are usually discounted. But whatever -- I think it's
important not to forget the larger contexts if we can...

~~~
prodigal_erik
USL vs. BSDi was settled after about one year. BSD's problem is that most
progress gets entombed in proprietary forks. It was inevitable that a GPL'd
kernel, being immune to that problem, would catch up and displace it.

Your overall thesis relies on innovative work being immune from patent holder
attacks. I think that might be true in a system that functioned correctly, but
not in ours. Patents work if you're forced to claim a specific high-effort
solution rather than the entire problem space.

~~~
carbocation
> Patents work if you're forced to claim a specific high-effort solution
> rather than the entire problem space.

This is a beautiful, concise encapsulation of the concerns that some have with
how software patents have worked in practice.

