Clubbing the Tom-Tom

I’ve been doing some research on the issues in Microsoft’s lawsuit against Tom-Tom. Here’s what I’ve found about the patents are at issue in the case:

Patent Issued Expires Reexamined? Title
Car Navigation Systems
6,175,789 Jan 16 2001 2018 - Vehicle Computer System with Open Platform Architecture
7,054,745 May 30 2006 2023 - Method and System For Generating Driving Directions
7,117,286 Oct 3 2006 2023 - Portable Computing Device-integrated Appliance
6,202,008 Mar 13 2001 2018 - Vehicle Computer System with Wireless Internet Connectivity
User Interface Model
6,704,032 Mar 9 2004 2021 - Methods and Arrangements for Interacting with Controllable Objects within a Graphical User Interface Environment Using Various Input Mechanisms
FAT
5,579,517 Nov 26 1996 2013 Nov 28 2006 Common Name Space for Long and Short Filenames
5,758,352 May 26 1998 2015 Oct 10 2006 Common Name Space for Long and Short Filenames
Flash Memory Management
6,256,642 Jul 30 2001 2018 - Method and System for File System Management Using a Flash-Erasable, Programmable, Read-only Memory

First, some discussion of scope…

As you read through these, the first thing that will become apparent is that the first four, the car navigation system patents, are no threat to Linux whatsoever. They’re very specifically about certain particular combinations of hardware and software features. I’m not going to discuss them much further except to note with amusement the amount of bare-faced gall anyone from Microsoft would have to muster to pretend that their technology is “open platform”.

The content of the UI-model patent (‘032, as Microsoft’s lawyers nicknamed it in the brief) is a little more troubling. Press reports have tended to lump it in with the car-navigation patents, but it could be read to apply to lots of other types of systems; note for example the references to keyboards and joysticks. The language is dense and vague, but I read it as attempting to cover any situation is used to control the way that (other) hardware input devices are connected to pieces of software and/or configurable hardware in the system. I don’t see any aim at Linux here, but I think the game-console manufacturers should consider this one a threat.

Most of the public attention has focused on the two FAT patents. Interestingly, these are not patents on FAT itself. Rather, they have to do with methods for translating between long filenames and the DOS-style 8+3 names that FAT still uses internally. They’ll read on any implementation of FAT that wants to present long names to the user, including open-source ones.

The flash-memory one could be the biggest worry in the bunch. It seems to be claiming things that any flash file system needs to do to manage its hardware. No threat to Linux on its own hardware, but it might be deployable, if upheld, to block anyone from shipping in the U.S. a Linux filesystem that manages flash devices, whether it’s FAT-compatible or not.

Defenses:

I’m sorry to say that I don’t think any of these patents can be struck on grounds of obviousness. There might be an outside chance of successfully attacking 032 that way, but the PTO’s application of the “obviousness” test is notoriously likely to be fooled by claims language that sounds more complex and arcane than the techniques it actually describes. Besides, two of the important ones have been rexamined, pre-Bilski; if the PTO were going to find obviousness in these at all it would likely have happened then.

Previously undiscovered prior art could come out of nowhere and scupper any of these, of course, but my best best judgment as an engineer in related fields is that this attack is most likely to be effective where it isn’t very helpful, in the car-navigation patents. I see a slightly better chance of attacking 032 from this direction; configuration of specialized input devices through settings in a GUI is something X programs do all the time. The problem would be convincing a court that the similarity is strong enough.

UPDATE: Harald Weite claims that the FAT patents have been invalidated in some jurisdictions by prior art. I knew they had been struck down in Germany, which is doubtless the jurisdiction Weite speaks of; he claims the prior art in question was the Rock Ridge extensions to the ISO9660 standard, supporting long names on CD-ROM filesystems. This is plausible.

In the present situation, the interesting question to ask is whether these would pass the Bilski filter. For those of you who have better things to do than follow developments in IP law, “In re Bilski” is a recent decision by United States Court of Appeals for the Federal Circuit in a lawsuit challenging a business-method patent. The Court invalidated the patent, ruling that for an idea to be patentable, it must “(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” (direct quote from the decision).

The judges in Bilski declined to rule on the patentability of software (the case was over a business-method patent, and judges generally prefer to rule narrowly rather than broadly lest they be reversed) but they did cite a decision indicating that simply running a program on a general-purpose computer is not a patentable process. These is now a vigorous debate going on over what those two tests actually mean for software parents.

It seems to me that 032 and 642 are highly likely to fail whatever version of the Bilski test emerges from that debate; the claims are pretty abstract, and it’s hard to see how they can be considered tied to a machine or a transformation of material objects without an interpretation of those requirements that would render Bilski meaningless. (Microsoft, of course, has already argued for such an interpretation in an amicus brief on that case.)

By contrast, the car-navigation patents seem the most likely to survive in re Bilski precisely because they’re the most closely tied to a specific hardware context. But the open-source community has no reason (other than generalized hostility to software patents) that it should care.

The FAT patents fall in between. They certainly fail the transformation test — the only things transformed are the (non-material) names of files in a filesystem. Whether they’re defensible therefore depends on what courts construe the language about being “tied to a machine” to mean. The stakes are high, because any version of the Bilski test that neuters these patents would probably render most software other than device firmware unpatentable.

UPDATE: Good analysis by Steve Vaughn-Nichols here.

62 thoughts on “Clubbing the Tom-Tom

  1. > (’032, as Microsoft’s lawyers nicknamed it in the brief)

    This is extremely common parlance in the patent world.

  2. Would perhaps another possible defence be that, as far as Linux is concerned, the FAT patents don’t actually solve any technical problem? As I understand the patents, the innovation being claimed is mostly about how to design a filesystem in such a way that it supports long filenames while remaining backwards compatible with programs written for an older API (Win16) which supported only 8.3 filenames. But when you write a Linux driver for VFAT, or when you write a Linux application which talks to a (V)FAT partition using the generic Linux file I/O API, you don’t care about that backwards compatibility, because the linux API has supported long filenames from the start.

    So, from the point of view of a Linux developer, the problem which VFAT purports to be an innovative solution to, is not actually a problem that needs solving, right? That problem is only relevant for people who want to run Win16 applications on Win32 operating systems. It’s a solution to a very Microsoft-specific problem. From a Linux programmer’s point of view, VFAT is just another filesystem which supports long filenames, which was already not very innovative even in 1995 (to put it mildly), and the weird way in which it hacks long filenames on top of the 8.3 namespace is just an interesting historical fluke.

    So when you’re making a Linux-based device which uses FAT, the reason you’re doing so is because you want to be compatible with Windows machines, and Windows only supports FAT. Isn’t there some ruling that you can’t use a patent just to prevent interoperability with your interfaces, when that interface does not itself represent a technical innovation?

  3. >Isn’t there some ruling that you can’t use a patent just to prevent interoperability with your interfaces, when that interface does not itself represent a technical innovation?

    Sadly, no. If there were such a ruling,nobody would be worried about patents on technical standards.

  4. I’ve also read the pdf with the explanation of the claims. And the problem as I understand is, is that the idea is patented. So if someone would want to implement the idea, they would have to pay the patenholder (like long/short filenames in the same filesystem (so not just on fat)) the 3d-map in navigation software. If I remember correctly IBM had a patent on the progressbar.So if Microsoft will win from TomTom, they can start new cases against Linux (and open source in general), forbidding them to make their own implementations of techniques they have patented, without paying microsoft.
    An these patents can be any trivial thing as you can see in the case of TomTom. (http://media.techflash.com/documents/tomtomitc.pdf for technical details and http://media.techflash.com/documents/tomtomComplaint.pdf for the exact complaint.

  5. Don’t you find it likely that MSFT searched and searched, and once they found a case where linux is used that they can win, they then carefully went through a process of ‘negotiation’ with TomTom, which ‘proves’ that they were willing to license the patents in-question.

    But (of course) that didn’t work out, so they have ‘sued to protect their IP’

    If (when?) they win, then they can use it to increase the FUD against linux. Especially in the phone and netbook segments, where they are losing hundreds of meters of turf every single day.

  6. I bet the vast bulk of turf that Microsoft is losing in the phone space is to Apple, not Linux. The G1 is an interesting geek toy, but it is not really a significant player in the wider smartphone space.

    As for netbooks, Windows has caught up in that space. Some netbooks have wireless chipsets which aren’t even supported by Linux.

  7. Martin: sounds like you’re splitting hairs. The technical problem the ‘517 and ‘352 patents solve is that some operating systems don’t support long filenames, so you need a way to write long filenames that don’t break OSes that don’t support them. In the case of the Linux filesystem driver for VFAT, the implementation writes 8.3 filenames for backwards compatibility with MS-DOS and Windows.

    Jeff: There was an article on Slashdot recently stating that, at least as far as Steve Ballmer is concerned, Linux is a bigger competitor than Apple. Additionally, there was another article highlighting Linux’s role in Microsoft’s decline

  8. > Linux is a bigger competitor than Apple.

    They own Apple. ($150M ‘investment’ in 1997. anyone? Anyone?) They don’t own them outright, but they probably do have an interesting amount of ‘swing’ inside Apple.

    Microsoft finds itself in a situation not unlike the US forces found themselves in Vietnam.
    Something can nuke them from behind, and it’s gone when they turn around.

    It’s impossible to win a guerrilla war against a highly distributed enemy.

    This patent attack is Microsoft’s equivalent of “Agent Orange”.

  9. What about OIN threatening to use its patent portfolio against Microsoft in retaliation?

  10. there is prior art to short names / long names problem, namely the ISO9660 Rock Ridge Extensions in 1994

    Maybe. You have convince a judge and/or a jury that they’re similar enough. RRIP stores POSIX filenames, along with POSIX file attributes (permissions) in the System Use Area as definited by ISO9660. The long filenames in VFAT are a kluge that stores the LFNs as directory entries within the existing directory table. If you ask me, they’re not the same thing. Here’s what is specified in the ‘517 patent, for instance:

    There are three items spelled out in the :Summary of the Invention” section of the ‘517 patent.

    It is therefore an object of the present invent to provide a system that supports long filenames.
    It is another object of the present invention to provide a system that supports long filenames while minimizing the compatbility impact of supporting long filenames.
    li>It is a further object of the present invention to provide a system that supports a common name space for both long filenames and short filenames.

    From this, 1 and 2 are covered by Rock Ridge, but 3 is not covered, because the filenames are actually in an entirely different namespace.

  11. >Bruce Perens has a slightly different analysis of Microsoft’s TomTom Lawsuit

    He thinks they can be struck down on obviousness grounds. In so doing, he underestimates the ignorance of PTO examiners by orders of magnitude.

  12. He thinks they can be struck down on obviousness grounds. In so doing, he underestimates the ignorance of PTO examiners by orders of magnitude.

    It’d be up to a judge to do the striking down.

    Of course that just makes things worse…

  13. > He thinks they can be struck down on obviousness grounds. In so doing, he underestimates > the ignorance of PTO examiners by orders of magnitude.

    The PTO examiners would be involved only on a re-examination.

    Jeff is right, modulo re-examination (which few patent attorneys would press) it would likely be up to a court to determine validity

    I don’t think its as bad as Jeff makes out though. During the month of January 2009, the court issued four substantive opinions that addressed validity on the merits. Of those, the court held the patent invalid every single time (three for obviousness, one for lack of patentable subject matter). KSR v. Teleflex seems to have changed things significantly.

  14. I want an obviousness standard that doesn’t rely on the patent being SO FUCKING OBVIOUS that somebody already invented it. I think that some things not invented and not yet implemented are also obvious.

  15. The problem with judging obviousness is that what’s obvious to a person knowledgeable in the field today may not have been obvious at the time of the invention. That’s one reason things that seem obvious are often judged not to be.

  16. The problem with “obvious” is that it is not obvious what “obvious” means, obviously.

    Or to put it another way, “obvious” doesn’t mean the common sense meaning (that is to say any halfwit with some training could have come up with it), it means some complex combination of factors, unlikely scenarios, and combination of contradictory court rulings that combine to some complex legal definition that bears no relation to reality. (As is the case with most of the law.) Add to that the fact that the people who make these judgment calls have never actually invented anything in their life (except exasperating legal precedents), and the fact that most patent lawyers are frustrated wannabes who are like inventor groupies, wanting to hang around the cool kids who actually invent things, even though they never could do it themselves. Herein you have a recipe for disaster.

    As I said in a previous post, the problem is not the “definition of obvious” as modified by KSR v. Teleflex. The problem is not the definition of patentable material, as modified by In re Bilski (after all, why should you be able to exclude me from making a machine that transforms stuff any more than I should be able to exclude you from writing a one click sale mechanism?) The problem is that the whole kit and caboodle is based on a deeply unjust premise: you invented something first, so you get a government granted monopoly to stop me making it.

    Here is a crazy idea — if your thing is so good and you are so inventive, make it, sell it, use your first mover advantage. If someone copies you, use your innovative skill and come up with a new idea. If you are scared on the Chinese, make it in China. To modify a famous saying — the only sustainable leadership is thought leadership, or leadership sustained with immoral legal monopolies granted by courts.

    The claim that patents encourage inventiveness has never been demonstrated even one single time. In fact the opposite is true — it has been shown many times that it is toxic to inventiveness. For example, the poster boy for patents is the drug industry, yet just a few years ago that anarchy advocating organization the GAO came out with a report to indicate that patents DECREASE innovation in the drug industry.

    Remember, as I said before, patent trolls are simply slightly more efficient way of implementing the patent system. The whole patent system is a big ass patent troll whose voracious appetite for destruction is slowed only by its sluggish limbs, poor eyesight and big fat belly. The monster might be slow, but it will eventually bite your head off.

  17. The claim that patents encourage inventiveness has never been demonstrated even one single time. In fact the opposite is true — it has been shown many times that it is toxic to inventiveness. For example, the poster boy for patents is the drug industry, yet just a few years ago that anarchy advocating organization the GAO came out with a report to indicate that patents DECREASE innovation in the drug industry.

    And it recently dropped on Hacker News that the chairman of Merck, of all people, is agitating for more open-source-like practices in biological research. A good idea if you can implement it, but he’s bucking the money.

  18. BTW, since I made a claim about that GAO report, here is some more information on it:

    “A report by the General Accounting Office concludes that current patent law discourages drug companies from developing new drugs by allowing them to make excessive profits through minor changes to existing pharmaceuticals…”

    “According to the report, “the ability of drug manufacturers to easily obtain patents for minor changes to products, or to receive patent exclusivity for new uses of existing products, have reduced incentives to develop new drugs.”

    [Just in case these statements mislead you as to my opinion -- I celebrate when drug companies make a profit, unless they do it using the unfair and unjust leverage of the patent system. And just to add to this, it causes me physical pain when I actually find myself agreeing with Dick Durbin or Ted Kennedy, however, even a stopped clock is right twice a day.]

  19. Oops, that croaked on WordPress’s html cleaner. Lets try it the hard way (replace capitalized with appropriate symbol):

    www DOT acsblog DOT org SLASH ip-and-tech-law-report-patent-law-stifles-drug-innovation DOT html

  20. IMHO the idea behind patents is that you publish details of your invention for the furtherance of science and engineering, in turn for short term monopoly. It was, in my opinion, meant as replacement for hiding solutions.

  21. >IMHO the idea behind patents is that you publish details of your invention for the
    > furtherance of science and engineering, in turn for short term monopoly. It was,
    > in my opinion, meant as replacement for hiding solutions.

    That is indeed the pretext (though not in the language of the constitution), however it bears little resemblance to either reality today or the true historical roots for patents. Obviously when you make something and sell it, you, to all intents and purposes describe it to the world, so publishing a turgid patent document hardly advances the cause. (Have you read any patents? They are all almost impenetrable legalese, I doubt anyone could actually learn anything from any of them.)

    Secondly, the history of patents is simply not based on this at all. In its origins patents were grants of special privilege given by the monarch to their favorites. In the UK today the French Law term “Letter Patent” is still used to describe the monarch’s publication of anything she happens to want to say under the special reserved powers she has (for example granting titles of aristocracy, designating her heir and so forth.)

    Nonetheless, regardless of the pretext, as I said earlier, there is not one scrap of evidence to back up the claim that patents in general or publication in particular “promote the progress of science and useful arts…”

  22. For the car patents, I wonder how many of them could be broken by prior art from Knight Rider.

    I’m only half-joking sadly.

  23. >IMHO the idea behind patents is that you publish details of your invention for the
    > furtherance of science and engineering, in turn for short term monopoly. It was,
    > in my opinion, meant as replacement for hiding solutions.

    For the first idea to work the duration of the patent rights should approximate the time required for a third party do independently come up with the same invention. Let’s define it as the time a business would need to replace X’s original idea with Y’s identical independently developed idea, as a fixed asset in a production line. While it is impossible to assess this duration objectively, there is another concept that tries to approximate the the time interval between the replacement of fixed assets: depreciation. Alternatively, from a non-regulatory standpoint this duration could be considered similar to the time between switching from “Product Model 1″ to “Product Model 2″. In technological innovation areas the two time periods should be very similar.

    Now, let’s compare the duration of a patent with the time a pharmaceutical has to spend from the moment it applies for a drug licence until the last piece of machinery on the production line is depreciated and/or replaced. Or, more to the point let’s count the number of new Windows “models” Microsoft has released since they have patented vFAT. Even if we accept that inventiveness is the scarcest resource available to mankind (why?), do the time differences make sense?

  24. What if there were conditions with all patents?

    You have to have a commercially available product that uses a given patent, before half(?) of the said patent’s time has expired.

    And the company has to demonstrate that the said product(s) stay(s) on the market in one form or another.

    Or the patent becomes public domain. (i.e. use it or lose it.)

  25. The U.S. Constitution reads “To promote the PROGRESS of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;”

    Can anyone make a case for any specific patent ever actually promoting progress, let alone leverage it to the more general case that patents on the whole do more good than harm?

    I have seen plenty of graphs depicting the measurable quantities of different types of engineered systems over time which display large jumps for the better at the point where key patents have expired. (E.G. http://www.fee.org/pdf/the-freeman/122008freeman-boldrin.pdf) But I have never seen a graph that showed the rate of progress (first derivative) decreasing upon the expiration of a key patent or increasing after the initial jump provided by the invention.

    It is clear that once a patent is in place, innovation in that field is stifled, not promoted.

    Now, there is certainly an argument that the initial jump provided by the invention of such key patents comes sooner, because many more people will compete to be awarded a lucrative monopoly. But I have never seen any measurable data to suggest that this rush to the prize compensates for the chilling effect afterward. And if the quicker invention value is to exceed the after-chill effect, then this must be an issue of length of the term for which the monopoly is granted. But while longer monopoly terms will produce greater effort to secure a key patent, they will also create a longer chilling effect. Additionally, it is worth noting that innovators pulled into this rush for the prize are being pulled away from other (possibly equally beneficial) pursuits – and during the chilling period, alternative ways of doing the same thing are pursued, so there is some loss to the “reinventing the wheel” issue.

    To make the case that patents (or any form of pattern monopoly) do more good than harm, one has to demonstrate that the sum of the following factors has positive value:

    Increased Value of early invention (positive)

    Chilling effect after granting of monopoly (negative)

    Other useful things invented later due to diversion of intellect both in the initial rush and in trying to find ways around the monopoly (negative) – and with credit due to Bastiat’s “What is seen and what is not seen”

    Cost of monopoly enforcement (negative) – without which there is no incentive. This cost can be very very large, and includes not only direct law enforcement, but also such issues as lobbying and lawyering costs.

    So, I submit that no one can successfully demonstrate that this equation will be positive, on average, or for any specific proposed future invention, for any given length of time over which it is proposed that monopoly rights should be granted – let alone for a single time period applicable to all inventions. And I further submit that this is true even before we consider the last (enforcement) term which we know to be a cost rather than an economic benefit of the granted monopoly.

    This being the case, it is completely irrational to pass laws that distort free market solutions to the value equations concerning invention by granting limited term monopolies.

  26. TheSwordOfDamocles,

    Indeed, and copyright originated as a means for the Crown to grant exclusive printing privileges to favored printers. Fiddle dee dee, what has today’s copyright regime achieved but the protection of the interests of favored publishers, not writers or artists?

    It’s pretty much like Richard Stallman keeps saying: institutions of government in the United States exist mainly as tools or puppets of the large corporations. Changing this order of things would be tantamount to meddling with the primal forces of nature.

  27. Sean Hasting said:
    >…. So, I submit that no one can successfully demonstrate that this
    > equation will be positive, on average, or for any specific proposed
    > future invention, for any given length of time over which it is proposed
    > that monopoly rights should be granted – …

    I suspect Sean agrees with me on this, but the calculation Sean lays out echos from the halls of the Kremlin. The very idea that government bureaucrats can make these economic calculations, somehow measuring the first, second, third and fourth order effects of such policy is insane. Governments can’t even balance their own checkbook. It is all part of the usual Big State BS, of trying to shape the society via manipulation of the laws and economic system. The best result would be if they simply protected our rights, protected our property and provided a stable, enforceable legal system and left the rest of us to work out the rest. Unfortunately, the policy seems to be to undermine our rights (to protect us from the bad guys), steal our property (for the public good), and constantly change the law (to provide a “level playing field”.) Patents are all part of the same bad mess.

  28. Jeff Read says:
    > It’s pretty much like Richard Stallman keeps saying: institutions of government
    > in the United States exist mainly as tools or puppets of the large corporations.

    That is a messy, misleading representation of what is going on. The simple fact is that it is the primary, perhaps sole responsibility of all company’s both small and large to maximize the return for their shareholders within the limits of the law. (FWIW, there are a couple of exceptions to this, but it is a good generalization.) If the whores in Washington will sell their favors then it is pretty close to the fiduciary responsibility of the corporate management to buy. The problem isn’t the corporations, it is the whores. If I can support a politician for one million dollars, and in doing so have a fair chance to save my company one hundred million in taxes, or save my company from a regulation that will double my costs, that seems like not just a good choice but a moral obligation to my shareholders.

    I am not saying the corporations don’t cross the line sometimes, the certainly do, badly and illegally often. However, it is a smokescreen to blame them for the abuse of power that the politicians engage in. The problem isn’t the buying of favors, the problem is that the favors are for sale.

  29. >The problem isn’t the buying of favors, the problem is that the favors are for sale.

    Indeed. I am perpetually amused at people who scream “Government is a tool of corporate malefactors!” but whose every political prescription is to make government more powerful. Textbook case of Not Getting It.

  30. Somehow, trusting other corporations or enterprises to hold the corporate malefactors in check when the government has been made much less powerful doesn’t appeal to me. Both when the defending corporations aren’t there, and when they are. Am I oversimplifying much?

    What I’d like is a better system of checks and balances, to limit the effect of the whores, but really…

  31. > Somehow, trusting other corporations or enterprises to hold the corporate malefactors
    > in check when the government has been made much less powerful doesn’t appeal to
    > me. Both when the defending corporations aren’t there, and when they are. Am I
    > oversimplifying much?

    The basis for one corporation holding another is check is “greed”. If I can screw over my competitor by reporting their malfeasance, it is to my advantage. If I am a newspaper and I can scoop the story on Enron, I get a Pulitzer Prize. If I am NASDAQ and I can ensure that the 10Qs from the companies listed on my exchange are trustworthy, I am more likely to attract investors for those companies. If I am a lawyer, and I can sue the crap out of a corporation with a shareholder class action lawsuit, I can pay for my $300 haircuts. If I am a consumer magazine, I can make good money selling reviews of products, and I won’t take kickbacks, because if I do, and someone finds out, my magazine will be out of business, and so on in hundreds of different ways.

    The fact is that government regulations actually hamper most of these natural mechanisms for correcting corporate mismanagement and deception. For example, rules controlling the sale of shares mean that there are very few trade exchanges for financial instruments. Because there is only limited choice (and deep government involvement) there is little opportunity for innovation or competition to allow truly competing for investor money. Hence, right now, as the market crashes through the floor due in part to dishonest business practices, we can’t really hold the exchanges to account for their poor reporting because our only alternative is stuffing the mattress with cash (which is my current plan…) Why the hell can’t I buy and sell shares on eBay?

    Will the little guy get protected by these mechanisms? Probably not, or not much, but ask Grandma what her Enron shares or ETFs are worth if you think the current system is working.

    > What I’d like is a better system of checks and balances, to limit the effect of the whores, but really…

    A chastity belt would seem the most appropriate approach.

  32. “If I am a consumer magazine, I can make good money selling reviews of products, and I won’t take kickbacks, because if I do, and someone finds out, my magazine will be out of business” Ahem. Everybody* knows that many consumer magazines take kickbacks. Especially IT mags. And they’re yet in business. Other examples you mentioned also fail reality checks: many times, it is much more convenient to take a kickback from Enron than to win a Pulitzer. Some brave souls go ahead and uncover Watergate et al. but to trust that they’ll be always there at the right moment…

    It’s nice to see the likes of Erin Brockovich**, but I prefer that some rules are already there to _prevent_ people dying of leukemia, instead of suing the pants off some corp afterwards.

    Not _all_ government regulations are bad. And if some of them were badly applied or controlled, I don’t think the solution is to take them away entirely.
    I distrust a completely free market for the same reason that I distrust a government where the Executive|Legislative|Judiciary are not in check.

    *FSVO
    **Random movie example. Substitute for any dramatic class action suit of your choice.

  33. > Ahem. Everybody* knows that many consumer magazines take kickbacks.

    Incorrect, I am part of everyone, and I don’t know that. Cynicism is no substitute for evidence.

    > Many times, it is much more convenient to take a kickback from Enron than to win a Pulitzer.

    I imagine it happens sometimes, but I doubt it happens much. Again, cynicism is not substitute for evidence.

    > It’s nice to see the likes of Erin Brockovich

    FWIW, the facts in the Brockovich case don’t add up. Despite the cute movie the whole thing was little more than a shakedown. But that is another story. Fact is that trial lawyers have too much power against big corps today.

    >I distrust a completely free market for the same reason that I distrust a government

    The comparison is not fair. You can go to Costco if Walmart pisses you off, Big government… not so much. Big government’s checks and balances are other parts of big government. Free market checks and balances are in the pockets of your billfold or purse.

  34. @TheSwordOfDamocles ( http://esr.ibiblio.org/?p=826#comment-233420 )
    > Incorrect[...]
    That’s what For Some Values Of means.

    > I imagine[...]
    Well, I doubt your scenery happens much. I’d say we’re even. Yes, cynicism. I am cynic and want government regs, you believe (or you don’t, please excuse me) that market without regulations (again, please excuse me if I misinterpret) would be just peachy although such a thing has never actually existed under these circumstances, and although bringing down megacorps would be extremely difficult, in my opinion, seeing how apathetic everyone* is.

    > Big government[...]
    You can always move, you know. Except when you can’t, but then again, we’d hardly be having this discussion in that case, would we?

    * again, FSVO.

  35. Government regs have proven themselves in several domains (like environmental protection) where the free market has failed to come up with a solution. The world is a much better place for having had the global CFC ban, and the same will be true of carbon taxes.

  36. Adriano: who is going to do a better job of keeping a corporation in check? A government regulator (who isn’t paid very much and who is subject to being bought … one way or the other), or the corporation’s competition?

    Free markets are the best form of regulation ever not invented, not patented, not copyrighted, but you’d think they’re a trade secret for all that people know about them.

  37. >Government regs have proven themselves in several domains (like environmental protection) where the free market has failed to come up with a solution.

    Such naivete. The worst environmental disasters on the planet happened where government was strongest, in the former Soviet Union. Similar atrocities like the Three Gorges dam are still occurring in China.

  38. Jeff: environmental protection is a REALLY REALLY bad example. Why? It’s because the only place you find rampant pollution is on the property owned by the government: air, water, military reservations, public roads, parks, forests. Private property doesn’t get polluted, because the polluters find themselves at the pointy end of a lawsuit. So, then, you expect the GOVERNMENT to stop the pollution, when it was the government that allowed it in the first place??

    Adriano: “Not _all_ government regulations are bad. And if some of them were badly applied or controlled, I don’t think the solution is to take them away entirely.” I agree with you. Now, devise a solution which eliminates the bad regulations and keeps only the good ones. There’s a name for that solution: Maxwell’s Daemon and the problem is that it can’t exist.

  39. > Such naivete. The worst environmental disasters on the planet happened where government was strongest, in the former Soviet Union. Similar atrocities like the Three Gorges dam are still occurring in China.

    The argument against total-free-market using environmental regs isn’t calling for strong government, it’s just calling for some government–enough to make and enforce environmental regs. AFAIK, the govts of USSR and China weren’t/aren’t particularly interested in protecting the environment. The size/power of the govt is irrelevent here. It doesn’t take China to enforce common-sense environmental regs.

    Note that I am not necessarily agreeing with the environmental-regs argument, but just pointing out what I see as a fallacy.

  40. > Adriano: who is going to do a better job of keeping a corporation in check? A government regulator (who isn’t paid very much and who is subject to being bought … one way or the other), or the corporation’s competition?

    So far? Both of them together. That’s what I’m arguing for. And one obvious suggestion would be to pay the guy a bit more.

    > The worst environmental disasters on the planet happened where government was strongest,

    Wrong. They happen where government didn’t lift a finger to prevent them, because they were corrupt or apathetic. What about Bhopal? Did anyone from the competition do anything then, either?

    @Tom http://esr.ibiblio.org/?p=826#comment-233429 : exactly what I mean.

  41. > Now, devise a solution which eliminates the bad regulations and keeps only the good ones. There’s a name for that solution: Maxwell’s Daemon and the problem is that it can’t exist.

    Why? Does it require infinite energy?

    Why are you going to the extreme of ‘take all bad, put all good’ when what I say is ‘Hey, maybe the solution is a bit of compromise here, and raising the bar there? I don’t follow.

    I’m fairly certain, though, that this subthread is going away right now. Offtopic, aren’t we?

  42. >I’m fairly certain, though, that this subthread is going away right now. Offtopic, aren’t we?

    Yes, we are. This is enough, everyone.

  43. A suggestion:
    If an off-topic thread is interesting enough to you, can you spin it off to a new blogpost, perhaps with a comment linking to it, such as ‘comment thread on topic X was moved to Y? I mean only in the cases you actually feel like it.

  44. >If an off-topic thread is interesting enough to you, can you spin it off to a new blogpost, perhaps with a comment linking to it, such as ‘comment thread on topic X was moved to Y? I mean only in the cases you actually feel like it.

    I’d do it, but WordPress doesn’t have the ability to transplant comments. I’ve often wished for it.

  45. On the topic of prior art for the VFAT patents, how do well do you think the case of UMSDOS will hold up? It’s an implementation of POSIX features (long filenames, symbolic links, hard links, character/block devices, UIDs/GIDs and permissions (although somewhat negated by the fact it’s on FAT…), the works) on FAT filesystems while maintaining backwards compatibility with MS-DOS and other implementations that have no idea what that –linux-.— file contains, they just see the normal files with 8.3 name limits.

    Wikipedia says that Linux 1.1.36 was the first to incorporate it, although the earliest on kernel.org’s archive is 1.1.45… at any rate, that archive is older than Microsoft’s own VFAT, much less the patent.

  46. >I’d do it, but WordPress doesn’t have the ability to transplant comments. I’ve often wished for it.

    UPDATE wp_comments SET comment_post_ID = [???] WHERE comment_post_ID = 826 AND comment_ID >= 233368 AND comment_ID <= 233439;

    or some SQL similar to that, depending on the version you are running and/or having potentially chosen a different prefix than “wp_” for the tables at install time.

  47. Adriano: because you can’t compromise with government. The Constitution was supposed to be a compromise: you get to govern this, and everything else is left to the states. That compromise wasn’t good enough for the people who want power.

    My point about government being in control is not that government is corrupt. It isn’t. Government does its best, BUT its best is inherently (as part of its nature) not as good as what private ownership can do to protect the environment. Yes, some private property owners will pollute their own property. Most won’t. Contrast that with the current situation, which is that anybody can pollute the air up to a certain point. Just by being born, you have the right to pollute my air, my water, my parks, and my roads — and I have no legal right to sue to stop you.

    You’re simply wishing for a better government than the one you have, but you have no theory for how to get there from here, other than more wishes and better slogans like “Yes, We Can”. I *have* a theory for how to get a better government: give it less to do, and it can’t help but do less bad.

    Looking forward to seeing these comments move to a “Private property is less polluted than public property” posting….

  48. Looking forward to seeing these comments move to a “Private property is less polluted than public property” posting….

    Me too. To steer the conversation back on topic…

    If the FAT patents are properly worded (i.e., they cover a mousetrap and not the idea of catching mice), UMSDOS will be of little use as prior art, as the patents specifically cover the case of allocating additional directory entries to handle LFN information and associate it with a short file name. This is not done with the –linux-.— file in umsdos, nor with its OS/2 predecessor, “EA DATA. SF” (this method is also patented, by IBM).

  49. >Still think we don’t “need the GPL anymore”, Eric?

    Yes, actually. Trying to fix the patent problem with the GPL is an unreliable kluge, as those secret patent deals demonstrate. And probably an unnecessary one given the Bilski ruling.

  50. Or not.

    Eric, I don’t see why a software author can’t choose to (attempt to) protect his program(s) from encumbrances of patented matter via GPLv3.
    I think, as the link above suggests, that the ‘secret’ deals may not be secret much longer.

  51. I agree with Eric. The GPL puts open source developers in as bad a position as the RIAA: having to sue their users. Not participating in an open source community is its own punishment.

  52. Moglen said he never had to sue when he was FSF’s lawyer. He just had to explain the issue, and offer to drop all claim in exchange for compliance. Of course. SFLC is a different story.

  53. According to:

    tinyurl.com SLASH dbghq7

    TomTom has counter sued MS on one of their patents. This is exactly the way the modern patent system works. “Good” companies build an inventory of patents for this precise purpose — not to sue for infringement, but to counter-sue should they be sued for infringement. Lawyers get rich, everyone backs off, and the big guys move on. However, if you happen to be a small guy, or if you don’t dance at this particular party of corruption, then you get squashed like a bug.

    In essence the whole thing is a big lovefest for lawyers. Decent companies who seek to innovate and create value, small companies who’s legal budget is less than nine figures, and small time inventors coming up with the latest thing, are exposed and vulnerable to the Machiavellian machinations of big, fat, lazy companies who would rather put out a new subpoena than a new product.

    As I said before, the whole system is a big ass patent troll that is only prevented from destroying our economy by the breathtaking incompetence with which it is implemented.

  54. @TheSwordOfDamocles

    This is one of the few concepts that drive people to obtain a patent portfolio. Red Hat thinks, “Lets get a bunch of patents so we can launch a counter strike”, while they assume that the premise of mutual destruction will deter annoying lawsuits.

    The problem with this is, corporations (by law) must look out for their share holders first. So, if the share holders demand an offensive, the corporation is legally obliged to launch one.

    I’m not picking on RH, in fact they negotiated the first patent deal that fully complied with the GPL3. I doubt sincerely that RH would ever use their patent portfolio as an antagonistic tool.

    However, someone else citing their practice, i.e. “We collect a portfolio for the same purposes as RH” may very well join the ranks of patent trolls, if their limited number of share holders demand such an action. The difference is in the legalese, which few can adequately read.

    Until some company that has EXTREMELY fluid funds is challenged and goes to court without a similar counter suit, this problem will persist. Its cheap to test the post Bilski waters on the offensive, but not on the defensive.

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