European Court decision. Oracle and Google should note.

This case (SAS v WPL) has a lot in common with the Oracle v Google case in the US.

The very short form: WPL created a re-implementation of the SAS Language, using the original documentation of SAS and a freebie version for personal and educational use. SAS claimed they thus infringed on copyright etc.

Seems SAS lost big time.

Now you can almost directly compare this case with Oracle v Google. Simply replace SAS Language with JAVA and watch this drama unfold. Note: IANAL but it seems Oracle wouldn’t have a chance in the EU with the current set of arguments used in the US case.

I am sure some people will downplay this decision, but IMHO this is truly important for API and the freedom to use and even reimplement them.

From the court decision:

WPL perceived that there was a market demand for alternative software capable of executing application programs written in the SAS Language.

Sounds familiar? Think Android (Dalvik) and JAVA.

Its [SAS] principal claims are that WPL:

– copied the manuals for the SAS System published by SAS Institute when creating the ‘World Programming System’, thereby infringing SAS Institute’s copyright in those manuals;

– in so doing, indirectly copied the computer programs comprising the SAS components, thereby infringing its copyright in those components;

– used a version of the SAS system known as the ‘Learning Edition’, in breach of the terms of the licence relating to that version and of the commitments made under that licence, and in breach of SAS Institute’s copyright in that version; and

– infringed the copyright in the manuals for the SAS System by creating its own manual.

Agains, sounds familiar? Oracle claims almost identical things wrt Android and JAVA.

Decision:

1. Article 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs must be interpreted as meaning that neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs for the purposes of that directive.

2. Article 5(3) of Directive 91/250 must be interpreted as meaning that a person who has obtained a copy of a computer program under a licence is entitled, without the authorisation of the owner of the copyright, to observe, study or test the functioning of that program so as to determine the ideas and principles which underlie any element of the program, in the case where that person carries out acts covered by that licence and acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner of the copyright in that program.

3. Article 2(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the reproduction, in a computer program or a user manual for that program, of certain elements described in the user manual for another computer program protected by copyright is capable of constituting an infringement of the copyright in the latter manual if – this being a matter for the national court to ascertain – that reproduction constitutes the expression of the intellectual creation of the author of the user manual for the computer program protected by copyright.

Not much needs to be added here. IMHO this is a very important decision and Oracle and Google should take note.

[UPDATE]

Awesome official press release of EU court at http://curia.europa.eu/jcms/upload/docs/application/pdf/2012-05/cp120053en.pdf is awesome:

“The functionality of a computer program and the programming language cannot be protected by copyright ”

“On the basis of those considerations, the Court holds that neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression. Accordingly, they do not enjoy copyright protection.

To accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress andindustrial development.”

“In this respect, the Court takes the view that, in the present case, the keywords, syntax, commands and combinations of commands, options, defaults and iterations consist of words, figures or mathematical concepts, considered in isolation, are not, as such, an intellectual creation of the
author of that program.”

Generation @ – inspired by @smarimc

I think Smári McCarthy, a fellow transnational citizen, Uberhacker and admired activist, touched a special nerve when he recently twittered:

Ours is a world where @ is replacing ©. Attribution, not restrictions.

Spot on. Hence I propose we start calling ourselves Generation @ to indicate that we prefer decentralised attribution over monopolistic, old-school and restrictive, centralised systems like Copyright, patents.

It makes a lot of sense. But it lacks the most fundamental element at this moment – a decentralised, secure, reliable and open system of identity. How can we make sure we put attribution to the right person or entity? See the whole pinterest discussions and the realname policies at Google and Facebook.

Hence we need an open, decentralised, neutral identity layer on the net and in the real life – #freedentity. Let’s start working on that.

Closing remarks on FOSSpatents

Florian Müller (or Mueller when he is quoted in english articles), a self-acclaimed “expert” on software patents and nowadays quite a mouthpiece for FRAND licensing, has always been someone I had a love-hate relationship with. We fought together against software patents in the 2003-2005 years. And while he lost interest and left the stage with a loud announcement that he will never ever work on software patents again, decided to switch to soccer lobbying etc, I was hired by Red Hat, which was (and is) a dream come true and I continued my fight against “IP”-extremism.

Out of the blue Florian came back to the spotlight a few years ago, fighting appartently for David against Goliath in the Turbohercules case (which later turned out to be a company that was funded at least partly by Microsoft), fought for (former) MySQL’s Monty Widenius to stop the SUN/Oracle merger (where Monty later supposedly admitted that Florian was the wrong guy for the job), admitted that he did some “strategic” consulting for Microsoft, shouted about billions and billions at stake when Oracle sued Google, admitted he worked on a research paper for Microsoft to explain that FRAND is somehow compatible with Free Software and Open standards – or in short: He came back with a flurry of stuff that seemed unrelated but not exactly on the same side as my fights.

I accused him at various times that a lot of what he claimed is FUD, blown out of proportion etc. But who am I to criticise Europe’s biggest expert? ;-)

Now the court case in Oracle v Google has started. And after all the shouting about billions and billions at stake I was sure that Florian would either be in the court room or at least report the hell out of that case. As, after all, it was him who reported on it for a long, long time. But what did I see? Nothing.

But I give him credits for finally explaining it all himself here:

“Oracle has very recently become a consulting client of mine. We intend to work together for the long haul on mostly competition-related topics including, for one example, FRAND licensing terms.”

http://www.fosspatents.com/2012/04/oracle-v-google-trial-evidence-of.html

Where is my surpised face again? Ah, there it is!

This information puts his reporting of the past months in a new light IMHO. He clearly says that

“When Oracle and I started talking about areas in which I could provide analysis, we thought that the Google litigation was going to be over by the time we would work together.”

So it is safe to assume it wasn’t last week. I have always said that in my personal opinion Florians “analysis” is biased. Seems I wasn’t that wrong ;-) All journalists that have used his public and non-public information should take note that they are talking to someone that works (and/or has worked) for both Microsoft and Oracle and thus is not exactly an independent source or expert.

That’s all.

Patent reform ideas, braindump version

#1: “All proceedings from infringement MUST go to the original inventor.”

#2: “Ownership of a patent is bound to the inventor named in it and this is a non-transferrable right.”

#3 “Only the original inventor as named in the patent can decide on the licensing terms and royalty rates and must state these a priori as part of the filing process.”

Whereas the original inventor MUST be a natural person.

Think about that for a second. There is a whole market of selling and reselling patents between trolls and other NPE (Non Practicing Entities) based on income from supposed infringement. To stop this madness we can either hope for a reform in the patent system that leads to superior quality (has been tried for quite some years, has not worked so far) or, and this is the beter approach IMHO, we start to change the fundamentals by making patents inalienable and thus dry up the troll market completely.

The a priori licensing should be on a scale from limited, royalty bearing to royalty free at the other end. And changes to the licensing after the patent has been granted should only be in the direction of less restrictions, not the other way round. This is to make sure that a patent can be made more free over time but never more restricted.

Also by forcing an a priori licensing model that becomes part of the patent itself we could make sure that we return the patent system to its original goal – make knowledge available in exchange for a limited monopoly.

Discuss. Either here in the comments section or at Google+

The Patent System – why it fails. (loooong)

What started as a post on Googleplus turned into quite a nice braindump of my struggle with the current patent system. Hence I decided to also turn it into a blog entry. Please do read the comments on googleplus as they contain a lot of additional insight and counterarguments.

HISTORY

The fundamental concept of the patent system (similar to the fundamental concept of the copyright system as both date back to queen Anne) is sound. A limited monopoly in exchange for a full disclosure of the invention. This concept was created to give an incentive to sharing knowledge and avoid knowledge disappearing with the death of the inventor by him/her keeping hsi/her secret.

THE DILEMMA

The perversion ATM is that both sides of the equation fail. The limited monopoly of max 20 years (note many patents don’t even make it that long as the fees are quite hefty) is extremely problematic as it allows the patent holder to not license at all, especially if he/she isn’t doing anything with the patented technology, thus using the patent system in a fundamentally wrong way, and – FAR more important – the full disclosure to anyone “skilled in the art” fundamentally fails.

I have read many patents. And I have not learnt much from them. The patent language “a method comprising of a computer readable medium doing SomeWeirdLanguage” etc does not teach me anything.

CONCLUSION

So when both sides of the equation fail in society (not the market, patents are a deal between society and creators, not a deal in the market, a mistake many people make) the patent system is NOT doing what it is meant to do.

Now can we get back to the original deal? I doubt it. Reforms will not suffice for that.

THE POSITIVES

OTOH, especially with Open Standards and Open Source/Free Software we have an alternative system that delivers on the fundamental promise that once created the patent system.

Open Standards and FOSS promote science and the useful arts by offering full disclosure (source code, specifications) to anyone. And even for free. The limited monopoly is not needed anymore. Someone skilled in the art will find a job and can promote his solutions without the need for a monopoly.

FUNDAMENTAL CHANGES

Why is that? Because in the old days the investments needed to get from an idea to a product one could offer in the market were very high. So the monopoly was needed to at least give the inventor a way to recoup these costs – thereby accepting the possible abuse as we have seen over many years. But the fact that the patented knowledge became public domain after 20 years was outweighing that risk in the eyes of the governments making the laws.

Nowadays the investments are low, close to none in the case of pure software patents and the distribution costs of software are effectively zero – so the need for a limited monopoly becomes harder to justify. See the record/movie industry for a perfect example of this fundamental change working its way through society.

FRAND fairy tales: Google, Motorola, Microsoft and numbers.

First read this:

CNN: Google Wants Huge Royalties Every Time Apple Sells An iPhone

Now let’s ignore for the moment the obvious wrongness wrt Android copying iOS etc and instead focus on the claim that 2.25% is not FRANDish enough according to the self-acclaimed expert in thsi field, Mr. Florian Mueller.

This same Mr. Mueller is working on a “research project” to find out how FRAND is the best way for the IT world etc. Hint: that research is payed by Microsoft ;-)

Hm. A simple search and replace gives me:

“Microsoft wants huge royalties every time {HTC, SAMSUNG, Motorola, Huawei, … } sells an Android Phone.”

#justsayin

MSFT wants between 5-15US$ per device according to various sources. With a unit price of, say, 200 US$ this means a range between 2.5% and 7.5%. Which AFAICS is a bit more (up to 3x) as what Motorola asks for. Now do the math with a more realistic unit price between 80-150 US$ to see who is the bully here.

That’s why I would even go as far as saying that 2.25% ratio is more fair, reasonable and non-discriminatory compared to a fix sum regardless of the unit price. ;-)

Samsung v Apple in NL: Happy selling, Samsung!

OK. So here the short form of what happened in the dutch court today. Apple has LOST all claims wrt design and copyright.

Apple has LOST all claims wrt the european patent 2098948. The court thinks that the european patent 1964022 is worthless and will be thrown out in reexamination anyway as prior art has been shown by Samsung. The only thing that remains is the european patent 2059868. And the claims of that patent can be circumvented in trivial ways.

Thus the court has decided that Samsung must fix this part (picture scrolling and showing parts of the next/previous picture) in the next 7 weeks. IF they fix it, so that the patent is not infringed upon, they are FREE TO SELL the Galaxy phones.

Secondly – the whole claims around the Galaxy Tab have been either dropped or have been deemed not relevant by the court. So the Galaxy Tab IS FREE TO SELL.

No matter what alarmists will tell you, net result is:

  • Samsung can continue to sell current Galaxy phones and must provide a trivial change to the picture gallery in the next 7 weeks.
  • Samsung can continue to sell the Galaxy Tab.
  • Apple has LOST all design and copyright related claims.
  • Apple has LOST the infringement claim on one patent and the court deemed a third patent broken anyway.

That’s all folks.

The court has used the Knight-Ridder Newspad as an example and explained that Apple failed to convince the court that the knight-Ridder Newspad was unknown in the important circles. I would say that’s a huge loss.

UPDATE Dutch Webwereld agrees with my interpretation here. They also add that the problem with the one patent is limited to Android 2.3. Android 3.0 does not infringe and hence the Galaxy Tab is free.

For those that need to be convinced in detail, here the verdict and my interpretation:

5.1.
Verbiedt gedaagden om na verloop van 7 weken en één dag na betekening van dit vonnis op enigerlei wijze, direct dan wel indirect, door het vervaardigen, in voorraad hebben, aanbieden, invoeren, in het verkeer brengen, verkopen en/of anderszins verhandelen van smartphones Galaxy S, S II en Ace, inbreuk te maken op het Nederlandse deel van EP 2.059.868;

In 7 weeks plus one day from now Samsung is denied the right to manufacture, stock, offer, import, bring into market, sell or otherwise trade the smartphones Galaxy S, S II and ace IF they infringe on the dutch translation of the claims of EP2059868

If these phone DO NOT infringe on the claims, they can be sold, manufactured etc. without restriction.

And they can also continue to be sold in this “infringing” way for the next seven weeks plus one day.

So anyone that claims they cannot be sold is WRONG.

5.2.
Verbiedt gedaagden sub 2-4 om na verloop van 7 weken en één dag na betekening van het te wijzen vonnis op enigerlei wijze, direct dan wel indirect, door het vervaardigen, in voorraad hebben, aanbieden, invoeren, in het verkeer brengen, verkopen en/of anderszins verhandelen van smartphones Galaxy S, S II en Ace, inbreuk te maken op de buitenlandse
delen van EP 2.059.868;

Same for the non-dutch parts of the patent.

5.3.
Gebiedt gedaagden aan eiseres een onmiddellijk opeisbare dwangsom te betalen van EUR 100.000 voor elke dag of gedeelte daarvan of, zulks ter keuze van eiseres, van EUR 10.000 per inbreukmakend product, waarop het aan gedaagden kan worden toegerekend dat de verboden zoals opgenomen onder 5.1 en 5.2 niet geheel of niet deugdelijk worden nageleefd;

Should Samsung fail to fulfill the requirements set forth in 5.1 and 5.2, Apple will get 100.000 EUR per day or alternatively 10.000 EUR per device that remains in violation of 5.1 and 5.2 until Samsung has fixed it.

5.4.
verklaart dit vonnis tot zover uitvoerbaar bij voorraad;
5.5.
compenseert de kosten van de procedures tussen partijen in die zin dat iedere partij
de eigen kosten draagt,
5.6.
bepaalt de in artikel 1019i Rv bedoelde termijn op zes maanden, te rekenen vanaf
de dag van deze uitspraak;
5.7.
wijst het meer of anders gevorderde af.

Typical closing stuff.

Did Apple “photoshop” a picture to make its point in Samsung case?

DISCLAIMER: This post contains my personal opinion only.

UPDATE: You can now read en english version of the original dutch article here

My good friends over at webwereld have news for you. And it is close to sensational IMHO.

The article is in dutch, which happens to be my native language. So first the TL;DR version:

  • Apple’s german lawyer seems to have altered pictures of Samsungs Galaxy Tab 10.1 in its filing that lead to the injunction taking the Galaxy Tab from the market.
  • Dutch court will not decide before October 13th and Samsung is free to sell the Galaxy Tab in the Netherlands. Apple has agreed to not interfere.

Now that’s quiet something. Let’s delve in a little more detailed.

The Altered Picture Thingy

This is quite an accusation. On page 28 of the complaint that Apple filed in germany you can find a picture of the iPad2 next to a Galaxy Tab. They look almost identical, underpinning Apple’s point that the Galaxy Tab is a simple copy of Apple’s “revolutionary” design.

From the complaint

However – it isn’t. The aspect ratio has been altered. As the article explains, in the filing, both pictures indicate devices with an aspect ration of 1,36. In reality however the Galaxy Tab is 256,7 x 175,3 mm which leads to an aspect ration of 1,46.

So the correct picture is closer to this, as webwereld claims:

The real proportions

Quite a difference. Some people claim this might be based on the fact that Apple’s lawyer might have used pictures from a different, earlier prototype model. Even if that is true, it would make the whole thing worse. How can Apple ask for injunction based on a device that will never be available in the market?

No matter how Apple and its friends will try to spin this one, the injunction is at least fro this part based on flawed information.

Samsung would be well advised to point the german court to this obvious problem.

Also note that the (quite big) Samsung logo that is on the front of the Galaxy Tab has seemingly disappeared. Not even mentioning the fact that the Galaxy Tab does not have Apple’s iconic home button.

I went to Amazon and took product pictures for both products, used gimp to set them in the correct relation and voila, this is how it looks in reality:

And suddenly it isn’t that convincing anymore.

Happy Selling in the Netherlands!

The second point is also quite interesting. As we all know, the injunction covers the european union except the Netherlands. This is due to the fact that there is a separate case going on in the Netherlands and the german injunction cannot override the proceedings of thi separate case.

Now in this case in the Netherlands the court has decided that Samsung is free to offer, distribute and sell the Galaxy Tab in the Netherlands at least until October 13th.

Apple (I guess with grinding teeth) has agreed to let this happen and refrain from any interfering actions like new cases etc.

So there you have it. Despite all the alarmist posts and articles, there is more to find out. I am really astonished that Apple’s lawyer made such a blatant and obvious mistake with the pictures and I would not be surprised if the german court will not be very amused about this.

Google not respecting my privacy? Games and data

So Google announced and introduced the games tab in Google Plus.

We can now all play angry birds and be really unproductive all day :-)

BUT

Nothing is for free. Google claimed to repsect the privacy of its users – also to differentiate itself from Facebook.

So I was suprised to read this:

Below are a few examples of how games may use the information that they request:

[...]

Ordered list of your people in your circles
Google gives the developer an ordered list of people from your circles. This tells the game developer the people you are most likely to want to engage with in the game. The order is based on your interactions across Google. This information could be used by the game to present you with people to play the game with, including to invite to the game, and to send gifts and messages.

This means that when a friend of mine plays a game and grants the permissions (which he has to or else he cannot play) MY data gets shared with the game publisher – and I am not even asked nor can I opt-out

This is exactly the opposite of respecting my privacy.

Google, this is #fail on a very high level.

I hereby urge Google to:

  • Make the data sharing an opt-in thing
  • Alternatively AT LEAST allow me to opt-out
  • And do make available to me a list of all game publishers that have access to my data without my explicit consent

I am also a bit unhappy that the text says “Below are a few examples [...]” – where can I get a complete list of data that gets shared?

Update this page has a link that could shed some light on exactly which data gets shared, but alas, it’s a 404. Please fix this, google. It says:

Within Games
When you play a game, you’re consenting to share information such as your name and profile picture with the game developer. This lets developers design better social games. Learn more about what information developers can access.

But the link goes to http://www.google.com/support/+/bin/answer.py?answer= which seems to be a broken link.

Apple v Samsung in EU – some thoughts, but IANAL

So the text of Apples complaint filed at a german court is available (I won’t link to it as I do not wish to promote the person that posted it) and after reading it, I noticed a few oddities worth checking. Note that the text of the injunction itself is not available ATM.

If you can read german, you should read this post from a german lawyer, it contains some good stuff.

Now AFAICS the main point of Apples complaint centers around the uniqueness of its design, which they registered in the US, europe and a few other places too (and trust me, if they could they would do it for the whole galaxy and all possible parallel universes).

The european registered design, which can be found here, however is surprising to me.

First, an obvious point. The iconic home button of all iPods, iPhones, iPads is missing! How can that be? It is one of the novel things you would definitely want to protect if you are Apple, wouldn’t you think? Fun part is that Samsungs Galaxy Tab 10.1 – you guessed it – does NOT have a home button. That’s odd.

But that is not the real problem IMHO. We need to dig a bit deeper. What are the laws, regulations saying about the quality needed for a design to be protected under these rules?

In this case you have to look at the Council Regulation (EC) nº 6/2002 of 12 December 2001 on Community Designs, which you can get here.

Besides all the legal yadayada you will find at least Article 8, para 1 very significant:

Article 8
Designs dictated by their technical function and designs of interconnections

1. A Community design shall not subsist in features of appearance of a product which are solely dictated by its technical function.
[...]

Now unless I am completely overseeing something very significant, if your plan is to create a device in a tablet form factor, there really isn’t much you can design differently from a rectangular shaped thin case with a display.

Exactly that however is what Apple claims to “own” with this community design.

So IMHO, which is my personal, layman opinion, this community design should have not been granted as it looks impossible to me come up with a substantially different design.

If I would be Samsung, this would be one of the points I would focus on. #justsayin though.

Also worth noting is how the regulation uses the word “informed user” to set the barrier for when a design can be considered infringing. Does Apple really think that an “informed user” will mistake a tablet that does NOT have the Apple symbol and that does NOT have the iconic home button is an iPad? Do they really think we are all THAT stupid? ;-)