You can look at Google's growing market share in Android, its dominance in search, and elsewhere as signs that it's winning in its markets. But for me, the best indicator that Google is winning is the increasingly vitriolic attacks piled on it.
You want a piece of me?
You can always spot a winner by the bull's-eye painted on it. No one bothers to diss a loser.
Or sue them. Red Bend Software has launched what appears to be a specious patent claim against Google, alleging that Google's Chrome browser violates its patent (6,546,552) by including the Courgette algorithm, which enables Google to push compressed software updates to the browser.
As Microsoft learned years ago, success breeds patent lawsuits. Microsoft rarely sues over intellectual property infringement, but has endured hundreds of patent lawsuits, nearly all of them ultimately found worthless.
But it's not just patent trolls that are on the scent. Symbian, the one-time leader in mobile phone operating systems, has gone on the offensive, claiming Google is "evil" and fear-mongering about what Google will do with consumer data gathered with its Android software.
Is this an indication that Symbian can't compete in the market and must instead resort to FUD?
Google may ultimately be able to get out of the Red Bend lawsuit cheaply, and it's unlikely that Symbian's noise will unduly distract it. It may not end up dominating mobile, for a variety of reasons, but it's going to be a significant competitor, just as it is in search and increasingly in enterprise computing.
After all, Google is innovating in Android, as CNET reports, and generally pushing the envelope on what's possible in computing: mobile, "desktop," and cloud/server. Importantly, open source is a central strategy in each of these areas, which may be one of the things that most riles the incumbent competitors in its markets.
For Google, the increasing vehemence of the attacks on it should signal that it's doing something right. In fact, many "somethings" right.
The infamous U.S. District Court for the Eastern District of Texas has slapped Microsoft with a permanent injunction that "prohibits Microsoft from selling or importing to the United States any Microsoft Word products that have the capability of opening .XML, .DOCX or DOCM files (XML files) containing custom XML," according to CNET. This likely won't stop Microsoft Office from shipping, as CNET's Ina Fried writes, but the bigger question may be whether the lawsuit will reach beyond Redmond to also threaten the Open Document Format (ODF).
The lawsuit doesn't affect all of Microsoft Office, but only Word, and only the "Custom XML" functionality, as ZDNet's Mary Jo Foley highlights. Even so, you can almost hear the cries of jubilation from the open-source community, happy to see Microsoft get a taste of its own patent saber-rattling.
However, Gartner analyst Brian Prentice raises a troubling question: does the patent also affect the ODF standard?
The more I read through the patent claim the less confident I was with my initial reaction. In fact, I think this one might actually have some legs. Keep in mind is that this claim was filed back in 1994. The claim considers the existing state of the art at that time....
One thing seems clear to me - this is not a typical rubbish software patent that earns its filer a 20 year monopoly on the dead obvious. Fifteen years ago this would seem to me to have been an innovative idea....
But, if the validity of the patent is upheld then the immediate question is whether this will also impact ODF. If so, then this turns out to be a significantly more important issue and one which will crystallize the fury of the anti-patentistas. No longer will this be the source of some Schadenfreude at Microsoft's expense. This will be seen as yet another attack on open standards and open software.
It's an interesting question, one to which I don't know the answer, not having reviewed the patent in any detailed form. But it's at least a poignant reminder that the collateral damage in any patent infringement lawsuit could well extend beyond the initial target, in this case hitting the open-source world even as Microsoft is smacked around.
The current version of ODF doesn't include Custom XML-type code, as Redmond Magazine writes, but the next version will. Could this patent suit make momentary friends of Microsoft and the open-source community?
Anyone that can offer color commentary on the patent and ODF in particular?
Update: See Sean Michael Kerner's post, suggesting that two particulars (i4i is not a patent troll and i4i and Microsoft had a business relationship) suggest that the open-source world has little to fear from this suit.
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Apple has benefited heavily from open-source software over the years, and it has earned a warm spot in the hearts of open-source advocates, despite its heavily proprietary stance.
With BluWiki, however, Apple appears to have gone too far.
In November 2008, as CNET's Tom Krazit wrote on Monday, Apple wrote to the BluWiki administrators to have iPodHash, an open-source program that attempts to enable iPods and iPhones to sync with music software other than Apple's iTunes, removed from the Web site. Apple argues that iPodHash violates the Digital Millennium Copyright Act by actively seeking to circumvent Apple's iTunes copyrights.
The Electronic Frontier Foundation, however, begs to differ. It has launched a lawsuit against Apple, as PC World reports, and seeks a "declaratory judgment action to vindicate the free-speech interests of Internet readers and publishers," according to the EFF's complaint (PDF).
After all, this isn't really about DMCA circumvention, as the EFF's Fred von Lohmann declares. It's about a Web site's right to allow others to post information related to legal, fair use-protected actions. Frankly, it's ultimately about the right to open information, and, tangentially, about open-source software.
Von Lohmann explains:
This is the first time I've seen a company suggest that simply talking about reverse engineering violates the DMCA. All of the previous cases have been cases that involved actual successful reverse-engineered tools.
Apple, in its sometimes-rabid desire to control everything to do with its brand and technology, appears to have overstepped its legal authority in the BluWiki case. Apple argues that it's about much more than the right to have online discussions about reverse engineering, suggesting in a letter to the EFF (PDF) that the iPodHash software could be used to break Apple's FairPlay copy protection system.
I love Apple's technology. I love its brand. I could do without its heavy-handed attempts to protect technology that its own recent actions suggest is heading toward extinction, with DRM-free music now the norm on iTunes.
Apple is a great company because it makes compelling, beautiful products. It's not Apple because it beats up on administrators of discussion forums. At least, I hope not.
Follow me on Twitter @mjasay.
The more that Microsoft's patent lawsuit against (and subsequent settlement with) TomTom simmers in my consciousness, the more I want to boil.
I gave Microsoft the benefit of the doubt early on: I know a few of the Microsoft personnel involved in the case, and I think that they're wonderful people of integrity and intelligence.
They're also fiercely competitive, and it's becoming apparent to me that the TomTom lawsuit was designed to bludgeon one of Microsoft's biggest competitors, Linux; it was not any serious attempt to protect its intellectual property.
The Linux Foundation's Jim Zemlin captures my sentiments well:
In the last several days, Microsoft has shown that despite claims of acquiring a newly found respect for open principles and technology, developers should be cautious in believing promises made by this "new" Microsoft.
When it counts, it appears that Microsoft still actively seeks to undermine those technologies or standards that are truly open, especially when those technologies pose a significant threat to (its) business.
Microsoft can rightly complain that it's a prisoner of the same patent system that it wields as a cudgel. But I don't believe in using the legal system to give someone--anyone--the edge in a product-driven marketplace. If Microsoft has to compete with lawyers against Linux instead of with product line managers, it should simply pay out a massive dividend and close up shop.
Microsoft is a better company than this. Unfortunately, its recurring rash of legal cunning against open source is getting stale. I want to believe that Microsoft can change. As Zemlin suggests, however, perhaps this leopard really can't change its spots.
Microsoft is asking the world to judge it by its actions. That's what we're doing, and Microsoft loses that case.
Follow me on Twitter @mjasay.
Microsoft and TomTom have settled their patent dispute, including claims related to the FAT file system and Linux. But the rest of the open-source world, which could be affected, isn't ready to lie down and accept Linux's possibly besmirched reputation.
Red Hat, for its part, declares that "without a judicial decision, the settlement does not demonstrate that the claims of Microsoft were valid." And Pamela Jones of Groklaw, a highly influential open-source legal blog, deprecates Microsoft's claims ("What? You thought Microsoft's spin on things was always gospel?"), citing the Software Freedom Law Center's commitment to sticking up for Linux, even if TomTom quickly caved.
The settlement neither implies that Microsoft patents are valid nor that TomTom's products were or are infringing...The FAT file system patents on which Microsoft sued are now, and have always been, invalid patents, in our professional opinion.
SFLC remains committed to protecting the interests of our clients and the community. We will act forcefully to protect all users and developers of free software against further intimidation or interference from these patents.
SFLC, working with the Open Invention Network and the Linux Foundation, is pleased to participate in a coordinated, carefully graduated response on behalf of all the community's members to ongoing anticompetitive Microsoft conduct. We believe in strength through unity, and we think our community's unity in the face of these threats has helped to bring about Microsoft's quick settlement on all issues with TomTom.
This is good news because I admit I read the settlement as an implication that TomTom caved. As ZDNet's Larry Dignan suggests, however, "the settlement doesn't seem to answer a lot." For Microsoft, this may well be a good thing: FUD (fear, uncertainty, and doubt) is as good as a court judgment against Linux.
This was Microsoft's tactic in its Novell patent deal. Every press release about interoperability included verbiage about patents and Linux. I talked with Novell's press team repeatedly during this time and was always told, "Microsoft insisted on including that language. We wanted to focus on interoperability, which is what customers actually care about."
Microsoft may or may not have been trying to sully Linux's reputation with the TomTom lawsuit, and this settlement doesn't clarify things at all. Fortunately, the SFLC is on the case. It's a more than ample counterbalance to Microsoft's worst intentions.
Follow me on Twitter at mjasay.
There are lots of reasons to believe that Microsoft isn't going after open source with its TomTom patent infringement suit and, as Rob Enderle points out, TomTom can hardly afford to defend itself, anyway:
TomTom, which hasn't exactly been an open source poster child, has a problem....Tom Tom really doesn't have the resources to defend against an IP infringement attack during what is likely to be an ugly revenue year. It recently warned that it probably won't be able to repay creditors -- it took a 989 million euro fourth-quarter loss -- and doesn't appear to have the money to pay anyone at the moment. (How it will rigorously defend itself against Microsoft with no money will be interesting to watch).
As Enderle points out, TomTom could be using the vociferous (and often anti-Microsoft) open-source community to fight a public relations battle for it, so that it won't have to engage in costly litigation. It won't work. The open-source community is smart enough to not allow itself to be someone else's pawn.
Ultimately, Microsoft is suing because it believes TomTom violates its patents, with the primary concern being TomTom's GPS patents, not those related to Linux. It's probably time for the open-source world to acknowledge that Microsoft has other priorities that don't involve killing open source, however much that may be part of some Microsoft veterans' strategic vision.
Follow me on Twitter at mjasay.
I woke up this morning to a special deal from Amazon.com on a TomTom GPS device. While its one-day, 33 percent discount almost certainly has nothing to do with Microsoft's announcement that it is suing TomTom for eight counts of patent infringement, the appearance of Amazon trying to clear its inventory of the TomTom One-S couldn't have better comic timing:
I don't want to prey upon TomTom's misfortunes, however. I'm going to be waiting for the "75 percent off" sale next week. :-)
Follow me on Twitter at mjasay.
I'm sick of patent lawsuits.
Earlier this week Spansion filed suit against Samsung for alleged patent violations in the latter's flash chips. On Thursday, Leader Technologies actually issued a press release announcing a lawsuit before it had even bothered to serve notice on Facebook, as Techdirt points out.
Is Leader playing to the judge or to the media?
From the press release:
Leader was founded by Michael McKibben in 1997 and is a pioneer in Web-based collaboration platforms. Leader has filed several patent applications, dating back to 2002, that cover its technology. "We have spent a great amount of time and effort in procuring our intellectual property," says Michael McKibben, founder of Leader and named inventor of Patent No. 7,139,761, "and have taken the steps necessary to protect our proprietary and inventive ideas."
Indeed. You may remember Leader from...well, no, you've never heard of them. At least, I haven't. Leader bills itself as "The Intellectual Capital Company," and lists its products as "Web-based collaboration platforms that merge voice and data." Yet Techdirt parses the patent and describes it as dealing with a "rather obvious process of associating a piece of data with multiple categories." Techdirt suggests that Google would have been a more obvious target.
Regardless, patents have become the province of also-ran companies seeking to milk their "intellectual property," which often is light on both intellect and property.
If you spend more than a millisecond on Leader's Web site, it becomes plausible that Leader is suing Facebook simply to raise money to improve its Soviet-era site. Leader should go away.
WebXchange is suing Microsoft--or, rather, three of its customers--for allegedly infringing its patents in Microsoft Visual Studio, as CNET reports. Just desserts? Nah. Microsoft rarely sues anyone, preferring instead to threaten to sue.
Regardless, WebXchange's suit against Dell, FedEx, and Allstate for using Visual Studio is nuclear waste: by suing customers, WebXchange just made software licensing even uglier than it already was, making its own future business as difficult as it will become for Microsoft and every other vendor. Nice one, bozo. Suing customers--in this case--is always bad form and serves to hurt all players in the industry.
One bright spot in the litigation is that open source is not involved. Microsoft uses the open-source JQuery project in Visual Studio. Perhaps WebXchange forgot to throw in a claim against JQuery as part of its Visual Studio lawsuit.
Regardless, this is small comfort in a lawsuit that promises to muddy the waters for open-source and proprietary vendors alike.
Software vendors of the world, take note: Red Hat has just demonstrated a truly open-source friendly way to tackle patent lawsuits. In settling a patent lawsuit with DataTern and Amphion Innovations PLC, Red Hat protected its short-term interests in the JBoss software. But it also went much further.
Unlike other patent deals (Read: Every single one that Microsoft has signed), which try to create a walled garden of protection for the signing parties, Red Hat opted to go much broader:
"Typically when a company settles a patent lawsuit, it focuses on getting safety for itself," said Rob Tiller, Vice President and Assistant General Counsel, IP [Red Hat]. "But that was not enough for us, we wanted broad provisions that covered our customers, who place trust in us, and the open source community, whose considerable efforts benefit our business."
In case you missed that, Red Hat's policy protects upstream and downstream users of its software, regardless of whether they signed a patent agreement with Red Hat. Red Hat competitors like Novell benefit. Red Hat customers benefit. The open-source community at large benefits.
This is how to do a patent agreement. It's how an open-source friendly company works with patents. Consider it a primer for the rest of us.
No, Red Hat isn't completely out of the woods on patent lawsuits. It is still fighting IP Innovation's suit, but it at least has shown us how it intends to fight the patent threat to open source (and all software).
