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Re: Tom Tom and Microsofts Linux patent lock-down ..


From: Rex Ballard
Subject: Re: Tom Tom and Microsofts Linux patent lock-down ..
Date: Mon, 16 Mar 2009 16:09:18 -0700 (PDT)
User-agent: G2/1.0

On Mar 16, 5:20 pm, Rjack <address@hidden> wrote:
> Doctor Smith wrote:
> > On Mon, 16 Mar 2009 13:22:44 -0400, amicus_curious wrote:

> > The problem with the GPL fanatics is that choice is only good when you make
> > the same choices that *they* make.
> > Have a conflicting or differing opinion and they will come after you like
> > rabid dogs on the attack.

> Yeh... A rabid dog attack *and* an automatic voluntary dismissal to
> any federal suit they file.

FSF and OSS authors and contributors have the same rights an Microsoft
and it's employees, the right to set the terms of the copyright
license and to enforce that copyright license through the courts if
necessary.

If you don't want to pay $400/employee for Microsoft Office
professional, then don't, but don't STEAL their software buy trying to
buy OEM personal licenses or educational licenses then using them for
BUSINESS purposes.  You've violated the license, Microsoft SHOULD be
allowed to sue you.  If you're smart, you'll accept almost any
settlement they offer, including promises to commit crimes against
other companies, such as agreeing to exclude competitors.  The
alternative is $150,000 PER OFFENSE, which could be every single copy
of Office used illegally.

The same goes for those who illegally use MSDN promotional code for
consulting.

If you want to use Microsoft's software, then you are obligated to
accept Microsoft's license terms.  The only exception is that
Microsoft can't ask you to do anything illegal.  For example, if they
asked you to murder Larry Ellison as part of your copyright license,
that would be illegal and you wouldn't be required to honor that.  The
same is true of any other illegal act, including exclusion of
competitors.

Note, however, that this does NOT exclude crimes against YOU.  If you
agree to give up your right to privacy in exchange for the right to
use Windows, then you can't file charges when Microsoft puts pictures
of your naked wife on the MSN blog site, or on the "Hooker's hot-line
board".  You gave up control of your photo album the minute you logged
into the computer the first time and hit the "I accept" button.

> > It boils down to either being 100 percent with them or you being the enemy
> > in their eyes.

One could argue that BOTH sides want the court to ONLY rule THEIR way.

Microsoft wants the courts to rule in favor of their patent,
trademark, and copyright licenses, and to rule against all OSS
licenses, especially the GPL.

Conversely, Richard Stallman would probably like it if the court would
rule that ALL Microsoft software was GPL because some amount of GPL
code was knowingly used by Microsoft in their Windows and Office
products.

The courts are reluctant to go to either extreme with either party.
This is one of the reasons why FSF lawyers get lots of settlements (to
avoid setting legal precedent), and why so many companies settle with
Microsoft.  It's also why Microsoft prefers to commit the crimes, then
pay $2 billion/year in settlements, rather than either stop committing
the crimes, or press their defense through to a final verdict and
final judgment.

Very often, if, after reviewing the evidence and testimony, the Judge
knows that the opinion will possibly create a precedent, he or she
will telegraph their intent and likely ruling and then declare a 2
hour recess.  This is primarily to warn the potential loser to "settle
now" or risk becoming the loser in a case that could be lost in the
supreme court.

Judges are very reluctant to "legislate from the bench", and are very
reluctant to issue a ruling that would establish a new precedent that
would upset the status quo.  Judges don't like to have their rulings
and sentencing overturned, and they really have to believe that a new
ruling is absolutely necessary, such as ending segregation, before
they are willing to stick their neck out that far.  Taking the wrong
side of an issue, especially over a legal technicality, is a career-
ending opportunity for a judge.  They might be able to continue to
preside over their current courtroom, but they won't be nominated for
higher courts.

Bottom line, I don't think Microsoft or FSF are likely to win decisive
victories that either extend or revoke copyright laws or
trademarklaws, or even patent laws.  Even jury awards usually get
overturned because the higher court doesn't want the jury's precedent
to stand.



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