[Sussex] Some more thoughts on the Microsoft/Novel deal

[Steven Dobson]

Nico

On Sun, 2006-11-19 at 09:51 +0000, Nico Kadel-Garcia wrote:
> This is a bit long: if it's off-topic or inappropriate, I'll take it 
> offline.

There is no need to go off-line.  I would say that this chat is very
appropriate for this list.

> Steven Dobson wrote:
> > On Sat, 2006-11-18 at 19:48 +0000, Nico Kadel-Garcia wrote:
> >> Microsoft also has a long, long history of intellectual property
> >> theft, such as DOS, the Windows interface, and David Cutler and his
> >> software team at DEC, hired away to create NT and leading to some
> >> fascinating out of court settlements. An agreement not to sue about
> >> such violations is of much more benefit to Microsoft. 
> >
> > From the history I remember:
> >
> > 1). Microsoft didn't steal DOS they got a software license from the
> > author of QDOS [Quick and Dirty Operating System] for $50,000, made a
> > few simple changes and then sold it to IBM for their new PC.  The fact
> > that Gates retained the rights to sell the same OS to clone manufactures
> > is just very good business.
> >   
> It was a bit more complicated, as I understand it, but I'll grant that 
> it's hard to find basic references this much later and with all the 
> invective overlaying it.

At best history is subjective and authors (you, me and anyone else) will
always pick the facts that support the arguments we are putting
forward. 

> > 2). A GUI (Windows) interface was first developed by Xerox as R&D and
> > they were showing that research to all.  Both Gates and Jobs visited
> > Palo Alto.  Sure Jobs gave Gates a preview of the new Apple GUI
> > interface while it was still being developed.  I'm not sure the dates of
> > those visits but I'm pretty sure that Gates did not steal any code from
> > Apple.
> >   
> I didn't say anything about Apple, I referred to the Xerox PARC 
> software.

I thought that Xeros PARC was a Palo Alto - or am I getting confused?

> Mind you, the interface for early Windows was pretty obviously 
> based on Apple's current efforts, and we saw a lot of overall similarity 
> to MacOS when Win9x came out later..

It has been well documented that Gates and Jobs were buddies until Jobs
showed Gates his GUI based interface.

I also heard that when visited Xerox PARC he was shown three things: The
GUI, networking and Object Orientated Programming/Design.  At the time
it was only the GUI that really caught his attention, although now, all
three are a big part of Microsoft's computer toolbox.

> Don't get me started on the TCP stack in early Windows: my friends at 
> FTP Software had to deal with that mess, and saw their work ruined as 
> Microsoft illegally "tied" them right out of profitability.

What were you friends doing?  My understanding was that Microsoft took
the BSD TCP/IP stack and hack functionality out of it for that standard
release.  If you paid more you got more functionality.  There is noting
illegal in that - the BSD license allowed anyone to edit and modify
without publishing.  So I don't understand what you mean by Microsoft's
illegal activities - unless it was something that should have resulted
in an anti-trust case against Microsoft sooner.

> > 3). Cutler and his team were unhappy at DEC - that is way Microsoft was
> > able to hire them away.  The fact that there was some court action is
> > more to do with some draconian US labour laws than it is from anything
> > we would consider wrong here in the EU.
> >   
> No, it had to do with basic copyright (due to wholesale duplication of 
> software), patent (using patents Cutler and his peers made at DEC), and 
> trade secret (they used company technologies developed at DEC and not 
> released without a license agreement with DEC). David Cutler and his 
> peers probably did violate their employee non-compete agreements, but 
> the wholesale transfer of VMS internals to NT is quite noticeable.

<snip>

NT was not VMS.  Sure it had some "methods and concepts" that were
similar, but re-writing code (which is what I think you mean by
duplication) is NOT copyright theft.  If it were then Linux would be
duplication of Unix which it isn't - just see Graklaw for how well those
claims have done.

As for patients, trade secrets and non-compete claims DEC, as you've
already said, settled out of court.   Why?  Because the is a world of
difference between making the claim that you were wrong and proving it
in a court of law.  

> > I would agree to you that Microsoft has shown little original
> > creativity;  but I don't like the term "intellectual property theft".
> > It implies that you agree with the concept of owning an idea.  I think
> > that one should own (via copyright) a given realisation of an idea but
> > not the idea itself.
> >   
> I see your point. But both copyright and patent law are founded on the 
> idea of owning and controlling the use of an idea: you can't just use 
> such laws when it's to your benefit, and ignore them when it's not.

I do not.  The law states that it is up to the copyright/patient holder
to come after me if I infringe on their rights.  There is no requirement
on my to go looking for any existing IP before I start coding so I
don't.

> And since they pursue such uses aggressively, it's clear that they consider 
> it theft by anyone else.

I'm am positive they do too.

> I'd be delighted to see software patents go away in the US, and never be
> taken up elsewhere. But between copyright and trade secret, there are still
> plenty of cases of Microsoft stealing.

Agreed.  I recall reading somewhere (maybe on Groklaw) a claim that
Microsoft has been sued more times of IP theft than it has sued.

Simon Phipps of Sun summed it up rather well in his talk at LRL'06:
"Companies take out patients because that is what companies do."  Suing
over IP infringement is just a part of business for big companies these
days.

> Such difficulties are why I *love* the GPL. It's clear, it's 
> understandable, and it really helps grant freedom to do development and 
> improve the tools.

I agree, but part of the problem is the language that we use.  We talk
about "stealing ideas".  How can you steal an idea.  If I steal your VCR
or your PDA you can't use them any more.  But if I make use of your idea
that takes nothing away from you.  Ideas are not property - they cannot
be stolen!

> Well, yes. Software patents are evil this way, because it's very 
> difficult to assemble new tools from entirely new components. In many 
> ways, they go against the very idea of patent law encouraging creativity 
> by rewarding the creator, by making it very difficult to ensure that any 
> new software does not violate an existing software patent, or even 
> dozens of such patents. And patent law is *capricious*: some absolutely 
> ridiculous patents are granted, but they're very difficult to challenge 
> due to the court costs.

Agreed.  

Steve
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