Sunday, February 25, 2007

I've been a little heavy on the Microsoft train the past several posts, but, here we go again with yet another post about everybody's favorite federally convicted monopoly.

I do not believe it is considered a secret that new SCO was a sock puppet of Microsoft's bidding. I am fairly confident that the money trail of license purchases, Baystar executives, and memo's paints the picture that Microsoft saw to new SCO's funding earlier in the campaign which claimed that Linux was using Pure Unix code given by IBM, which belonged to Old SCO at one point in time.

Almost immediately after the lawsuits were filed the Linux developing communities rose up and challenged new SCO. Their challenge was to show the quoted millions of lines of code that had been copied in whole into the Linux/GNU operating system. new SCO was initially cagey on showing violations of code, which was of course understandable from an investors viewpoint. Had new SCO shown the code that it believed was copied from Pure Unix into Linux/GNU by IBM, then the Open Source development communities would remove the offending code and re-write it. By not showing the code until the trial, new SCO guaranteed that the offending code would still be in place, thus also guaranteeing that there would be a large settlement or punishment in new SCO's favor. From an outsiders viewpoint, this is along the lines of Blackmail. Open Source Developers were willing to talk about removing the offending code, while new SCO was holding the offending code hostage until new SCO got paid. From an investors viewpoint, it was simply business as usual.

However, as time went on, it became clear that new SCO did not have any lines of code. The smoking gun was never shown in the courtroom, and the few examples of code that new SCO demonstrated outside of the courtroom where quickly proven to be shams. One example is listed here : : new SCO tried to pass off code originally distributed in 1979 and explicitly released under a BSD license in 2002 as an example of copied code. Investors found themselves on the wrong side of a fraudulent case with a sock puppet. There was no smoking gun. There was no code. All new SCO had was a lot of talk.

It is now taken for granted that new SCO has failed in their mission, but the puppeteer still speaks loudly. It is no secret that along with, and behind, new SCO Microsoft was also banging the drum of stolen code, Intellectual Property Theft, and Intellectual Property Misuse. With the Advent of the Novell-Microsoft deal, the drum began to beat louder. Microsoft held the deal up as proof that Linux/GNU was infringing on Microsoft patents and technology.

I. Don't. Think. So. Microsoft.

Now the Open Source Community is leveling the same challenge against Microsoft that was leveled against new SCO back in 2003.

Show Us The Code!

The fact is, if a company does not aggressively protect it's property, be it Intellectual or physical, they stand to lose that property. It is possible for Copyrights and Trademarks to be lost, and for patents to be declared invalid. Microsoft has for years claimed that Linux/GNU infringes on Microsoft's technology. Yet, like new SCO, Microsoft has never shown the code examples where the infringing technology is used. Microsoft has filed no lawsuits, taken nobody to court, filed no warrants for search, no warrants for arrest, and no cases are filed with Law enforcing agencies such as the FBI, US Postal Service, or any state level Investigative units.

Now, how would the US Postal Service fit into the this? Two words:

Mail Fraud.

Let me put it this way. Mark Shuttleworths Canonical ships multiple Ubuntu CD's every week through the US Postal System. Warren Woodford's Mepis distribution is also shipped and sold through the US Postal Service. Let me ask this then: If Linux/GNU is/was using Microsoft property, then would not both Canonical and Mepis be guilty of Mail Fraud? I'm no lawyer, but a cursory glance of the Federal Trade Commissions page on Mail or Telephone Order Merchandise Rule seems to indicate so.

Let me draw the picture as I see it then. Microsoft's continuous assaults against Linux/GNU has had no legal enforcement for several years. By continuing to intimate ( indicate or make known indirectly; hint; imply; suggest. ) that Linux/GNU violates Microsoft owned technology without taking the steps to address those infringements directly, Microsoft has forfieted any legal right to those technologies.

Now, I'm not sure what the statuette of limitations is on Intellectual Property issues, so I'm not sure if a direct legal forfeiture would stand as Microsoft has as of yet taken no steps to rectify these issues in a legal manner.

However, it is my opinion that if Microsoft does NOT immediately state and make known the infringements, then Microsoft itself is guilty of Mail Fraud.

Think about it. What would be the legal implications if Microsoft has sent the intimations about Linux/GNU using Microsoft technology through the US Postal System. As these claims have not been legally substantiated, but Microsoft is using them to control OEM's and ISV's, then are not the intimations fraudulent? Again, I'm not a lawyer, not by any stretch of anybodies imagination. Maybe I'm looking at this too simply.

Somebody posted in MepisLovers that they didn't understand how exactly Microsoft could be committing mail fraud. While I think it is quite clear what the implications are and how they are arrived at, it looks like I'll have to spell it out.

If you use the US Mail system to transmit any mails that contain fraudulent information that is designed to scam or defraud business's or people, then you are guilty of Mail Fraud.

If Microsoft has used the US Mail System at any time to send letters, copies of letters, memos, or copies of memos to Independent Hardware Developers (ATi, Nvidia, AMD, Intel, Via, SiS, Sun Microsystems), Original Equipment Manufactures (Sun Microsystems, IBM, Dell, Hp, Gateway), Original Design Manufacturers (Foxconn, Clevo), and or Independent Software Vendors (Blizzard, NCSoft, Corel, IBM, Sun Microsystems) where they use the claims that Linux/GNU infringes on Microsoft developed and held technology in order to halt development, suspend development, or interfere with development projects and or products...

then Microsoft is guilty of Mail Fraud. Microsoft would be using the Mail System to defraud the IDH's, OEM's, ODM's, and ISV's.

To parallel this, imagine Toyota sending letters to Ford, Chevy, and BMW because Toyota owns the technology behind a 4 door car. Because of these letters, Ford, Chevy, and BMW can not make 4 door cars. However, it is found that Toyota did not hold the technology behind the 4 door car. If Toyota has sent any of the letters through the US Postal Service, Toyota would be guilty of defrauding Ford, Chevy, and BMW.

Yes, the example is extreme, and I'll add this into the blog post, but it should paint a clearer picture of what Microsoft may have done.

Now, I need to stress this : I don't have any proof that Microsoft has done this, or is guilty of Mail Fraud. I do know, however, that Microsoft's legal team would use any method possible to attack Linux/GNU vendors. Since many vendors sell and/or ship their CD's through the US Postal Service, they could be opened up to Mail Fraud as they would have been misleading their clients/customers about what they were shipping through the service.

A more specific example of what Microsoft could have done is this: Lets say that somebody is making a cross platform mail server and they publish the code to SourceForge. Microsoft sends the developer a letter stating that their mail server uses technology from Microsoft Exchange that Microsoft owns. The developer is given the proposed choices of pulling his software, buying a license from Microsoft to use the technology, or being taken to court and sued for using the technology. However, if it is found that Microsoft was not the holder of the technologies, and that say, Qualcomm was the holder of technologies, then Microsoft will have committed fraud in their letter. If the letter was sent through the US Postal Service, then Microsoft would have been guilty of Mail Fraud. Again, this is just an EXAMPLE.

As such, I stand behind the challenge made by at : Microsoft needs to stand up and either legally defend their property, or we need to start declaring any further intimations to be libelous.

From there, we should take the appropriate actions against any news source (be it Associated Press or Reuters) that runs Microsoft's threats without noting that there has been no legal action to protect the technology. It would also be my opinion that at such a point the Open Source Communities should start taking their own appropriate actions and notifying various regulatory authorities and demanding investigations.

That is what I would like to see happen, but I will be the first to admit, I doubt it would.
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