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Abelson Report to MIT on Aaron Swartz Released ~pj Updated
Tuesday, July 30 2013 @ 12:26 PM EDT

Harold Abelson report [PDF] to MIT about his investigation into the Aaron Swartz affair is now publicly available on MIT's website, along with a letter [PDF] from the President of MIT, L. Rafael Reif. There's a MD5 fingerprint.

It's dated July 26, and the review panel is listed as being made up of  Abelson,   Peter  A.  Diamond,   Andrew  Grosso, and   Douglas  W.  Pfeiffer  (support).

It's not a whitewash. It clearly sets out that MIT could have done more to achieve a different outcome had it cared about Aaron more and acted more harmoniously with traditional MIT culture:

If the Review Panel is forced to highlight just one issue for reflection, we would choose to look to the MIT administration’s maintenance of a “neutral” hands-off attitude that regarded the prosecution as a legal dispute to which it was not a party. This attitude was complemented by the MIT community’s apparent lack of attention to the ruinous collision of hacker ethics, open-source ideals, questionable laws, and aggressive prosecutions that was playing out in its midst. As a case study, this is a textbook example of the very controversies where the world seeks MIT’s insight and leadership.

A friend of Aaron Swartz stressed in one of our interviews that MIT will continue to be at the cutting edge in information technology and, in today’s world, challenges like those presented in Aaron Swartz’s case will arise again and again. With that realization, “Neutrality on these cases is an incoherent stance. It’s not the right choice for a tough leader or a moral leader.” In closing, our review can suggest this lesson: MIT is respected for world-class work in information technology, for promoting open access to online information, and for dealing wisely with the risks of computer abuse. The world looks to MIT to be at the forefront of these areas. Looking back on the Aaron Swartz case, the world didn’t see leadership. As one person involved in the decisions put it: “MIT didn’t do anything wrong; but we didn’t do ourselves proud.”

It has not been the Panel’s charge for this review to make judgments, rather only to learn and help others learn. In doing so, let us all recognize that, by responding as we did, MIT missed an opportunity to demonstrate the leadership that we pride ourselves on. Not meeting, accepting, and embracing the responsibility of leadership can bring disappointment. In the world at large, disappointment can easily progress to disillusionment and even outrage, as the Aaron Swartz tragedy has demonstrated with terrible clarity.

Not everyone reading the report will agree that MIT "didn't do anything wrong" as the report itself is critical of MIT's stance in certain respects. However, it does say that there is no one thing that would have for sure changed the outcome:
In concluding this review, we recognize the desire for a simple take-away, a conclusion that “if MIT had only done this rather than that, things would have turned out OK.” We can’t offer one. There were too many choices, too many might-have-beens, too great an emotional shock, and a public response that has been supercharged by the power of the Internet, the same power that Aaron Swartz epitomized and that he helped to create. Even today, with the benefit of hindsight, we have not found a silver bullet with which MIT could have simply prevented the tragedy.
Here's one. Do something about the Computer Fraud and Abuse Act. There's the silver bullet.

read more (4391 words) 228 comments  View Printable Version
Most Recent Post: 08/04 05:26PM by the_flatlander

FSFE Writes Letter to EU Commission, Objecting to FairSearch's Claims Against Google of 'Predatory Pricing' ~pj Update
Monday, July 29 2013 @ 09:12 AM EDT

Free Software Foundation Europe has just announced it has written a letter to the European Commission, objecting to FairSearch's claim that free distribution of Android software by Google is "predatory pricing":
The so-called "FairSearch" coalition is essentially asking the European Commission to favour a restrictive business model over a liberal one. This is exactly the opposite of what competition regulators should do in order to achieve a fair and open market.

"Free Software is not about price, it's about liberty, a guarantee of competition and vendor independence. Asking to cripple Free Software in order to allow proprietary vendors to sell their locked-down systems is just absurd" says Carlo Piana, FSFE's General Counsel. "The most substantial threat to competition in the mobile space today are software patents, and we have repeatedly urged antitrust authorities to address this problem," he adds.

FSFE asks the European Commission to dismiss the "FairSearch" coalition's unfounded claims regarding predatory pricing, and not make them part of whatever steps it decides to take in response to the group's filing.

They tell the Commission that they are writing to "explain how the distribution of Free Software, whether gratis or for a fee, promotes competition, rather than damaging it." For example, it's not true that Google compels Android-based phones to exclusively use its own app store, and by releasing the code for free, Google is actually enabling others to easily compete with Google:
Google's competitive advantage is essentially ephemeral: the only way to stay ahead of the competition in Free Software is to provide better products or services, and to win users' trust. Barriers to entry for competitors are extremely low. An example is that the platform allows installing alternative marketplace (or "app stores"). The Free Software Foundations promote a "Free Your Android" campaign where they solicit adoption of an alternative marketplace called F-Droid where only Free Software applications are provided.
The letter points out that most of the innovation going on in mobiles is in Free Software:
In a powerful illustration of how the Free Software model enables competition, we note that all recent additions to the list of mobile operating systems are largely Free Software. Though Android devices currently make up around 70% of mobile phones and tablets sold, several other Free Software mobile operating systems based on the Linux kernel are setting out to to compete with Android. Examples include Firefox OS (backed by the Mozilla Foundation), Jolla (from the ashes of Maemo, a Nokia project terminated after the company's strategic alignment with Microsoft), Tizen (backed by Samsung, Intel and various telecom providers such as Vodafone and NTT Docomo), and UbuntuMobile (backed by Canonical).
You can write your own letter to the EU Commission, whether you are a company, a FOSS project, or an individual. I hope you will. I know some of you have already, because you've been nice enough to let me know, and so I know some beautiful letters have already been sent. But numbers matter. Write to:
comp-greffe-antitrust at

read more (2659 words) 162 comments  View Printable Version
Most Recent Post: 08/02 06:47AM by Wol

Samsung Tells the Court: USPTO Final Office Action Finds All 21 Claims of Apple's '915 Patent Invalid ~pj Updated
Sunday, July 28 2013 @ 10:17 AM EDT

Samsung has just notified [PDF] the US District Court in Northern California that, according to another USPTO Final Office Action, Apple's '915 patent has been found invalid on reexamination. All 21 claims of the '915 patent bit the dust, as you can see in Exhibit A [PDF], the USPTO documents The issue is prior art and obviousness. So, the jury in Apple v. Samsung got another thing wrong, I see. Apple didn't invent gestures.

Here's what Samsung tells the court:

This Final Office Action by the USPTO is relevant because it rejects all claims of the ’915 patent as being anticipated or obvious in view of U.S. Patent No. 7,724,242 to Hillis (“Hillis,”), Japanese Publ No. 2000-163031A to Nomura (“Nomura,”), and other prior art references. This final rejection includes claim 8, which is the only claim of the ’915 patent at issue in this action. The jury found at trial that 21 of 24 accused Samsung products infringed claim 8 of the ’915 Patent—specifically the Captivate, Continuum, Droid Charge, Epic 4G, Exhibit 4G, Fascinate, Galaxy Prevail, Galaxy S (i9000), Galaxy S 4G, Galaxy S II (AT&T), Galaxy S II (i9100), Galaxy S II (T-Mobile), Galaxy Tab, Galaxy Tab 10.1 (WiFi), Gem, Indulge, Infuse 4G, Mesmerize, Nexus S 4G, Transform, and Vibrant. The jury awarded damages as to all products found to infringe the ’915 patent except the Galaxy S (i9000) and Galaxy S II (i9100). The new trial on damages scheduled to begin November 12, 2013 includes 12 products that the jury held to infringe claim 8 of the ’915 Patent—specifically the Captivate, Continuum, Droid Charge, Epic 4G, Exhibit 4G, Galaxy Prevail, Galaxy Tab, Gem, Indulge, Infuse 4G, Nexus S 4G, and Transform. (See Dkt. No. 2271 at 26; Dkt. No. 2316 at 2.)
Apple's fancy lawyers can contact the USPTO now and argue against this final office action by telling them the patent doesn't mean what they said it means at trial or whatever Apple tries next. But one thing is for sure: the judge was right to rule that Samsung wasn't intending to infringe. It genuinely, and now appropriately, believed Apple was bullying Samsung with some questionable patents. That's the best you can say for them now. Unfortunately, Samsung ran into a jury that didn't know how where up is and seemed to worship the ground Apple walked on. So they decided to "send a message", they said, and punish Samsung. For infringing some apparently invalid patents, as it now turns out. Actually, we at Groklaw told you these patents were ridiculous at the time, that patents on algorithms should not be allowed as patentable subject matter in the first place. That is the central problem in US patent law.

read more (2030 words) 163 comments  View Printable Version
Most Recent Post: 08/05 11:22AM by Anonymous

Viacom Files A Second Appeal in Viacom v. YouTube/Google - They'd Like a Trial and a Different Judge ~pj
Saturday, July 27 2013 @ 11:32 AM EDT

Viacom can't seem to find a judge to agree with them that the DMCA Safe Harbor should be reinterpreted Viacom's way or that YouTube/Google, specifically, should lose its protection because of its conduct. Their war against Google's YouTube is into its 7th year, and Viacom still thinks that YouTube and parent Google should be held responsible for what users do on it. Specifically, it wants them to have the editorial burden of preventing copyright infringement from happening in the first place, not acting on it when notified of specific infringement by the copyright owner, and it wants it to have to pay for it all by itself.

So far, it hasn't worked out for Viacom, because that's exactly what the DMCA says shouldn't happen, so they're appealing a second YouTube victory on summary judgment, shopping for an outcome they'd like better than what they keep getting. It argues to the appeals court that the district court judge failed to properly follow the appeals court's directions after the first appeal.

So in their opening appeal brief [PDF], Viacom asks the U.S. Court of Appeals for the Second Circuit to send the case back once again to the district court for a trial, but this time with a different judge, once who might be more receptive to Viacom's interpretation of the DMCA:

Given the protracted nature of this litigation (the case is now well into its seventh year) and the evident firmness of the district court’s erroneous views regarding the DMCA, this Court should exercise its discretion to remand the case to a different judge “to preserve the appearance of justice.”
Not that this implies any criticism of the judge, Viacom tells the court. No. Oh no.

You know Hollywood. They want what they want and they want it now. So rather than ask Congress to change the law, they are shopping for a judge who will do it for them the easy, cheap -- and I might add, improper -- way via a strained interpretation of the law's wording based on the Grokster case. But in reality, whether they realize it or not, what they *really* want is for the Internet never to have been born, or at least to be different, more controlled from above, like television and the movies, where they can control everything their way, and users just sit back and passively buy what they sell. And since they can't have that, they want Google to have to control users on the Internet on *their* dime instead of Viacom's, which under the law has the responsibility to identify copyright infringement and send take-down notices. Not so, Viacom argues, if, as in the Grokster case, YouTube was willfully blind.

read more (4343 words) 84 comments  View Printable Version
Most Recent Post: 08/07 03:06PM by Anonymous

Google Files Reply Brief in the Oracle v. Google Appeal - There Is Too a De Minimis Defense and Oracle Knows It ~pj Updated
Thursday, July 25 2013 @ 01:25 PM EDT

Google has now filed its Reply Brief [PDF] in the appeal in Oracle v. Google. This cross appeal is about alleged copyright infringement for copying by mistake 9 lines of rangeCheck code (out of millions of lines of code) and eight decompiled test files that never made it onto any Android device and were done by a contractor in violation of Google's instructions.

What's the big deal, you ask? Exactly. "Google’s copying was de minimis—too insubstantial in relation to the “work as a whole” to be actionable," Google writes.

If you recall, Oracle in the brief Google is here replying to, said that there is no de minimis defense in the Ninth Circuit, only fair use. Oracle also admitted this was the first time it brought this up. It also argued that the materials copied were important.

Google says there is too a de minimis defense in the Ninth Circuit, and Oracle knows it. Oracle now claims the cases establishing that defense were "wrongly decided", but earlier in the litigation "Oracle actually proposed jury instructions embodying the de minimis-copying doctrine whose existence it now denies." That bars Oracle from making the opposite argument now in the appeal, Google states.

In short, Oracle is making a big fuss over trivialities. Normally, nobody sues over this kind of trivial copying. But since Oracle has, Google says it was supposed to demonstrate why such copying was *not* de minimis, which it has failed to do. Like, who could? It's stupidly teensy weensy stuff. Why Oracle can't see that it's making itself look petty and small is the only mystery.

read more (7959 words) 233 comments  View Printable Version
Most Recent Post: 07/30 01:16AM by Ian Al

FTC Announces The Final Google/Motorola Settlement - No Ban on Injunctions for FRAND patents ~pj Updated
Wednesday, July 24 2013 @ 03:40 PM EDT

Here's today's announcement from the FTC: "FTC Finalizes Settlement in Google Motorola Mobility Case". And here's the Final Order [PDF], based on the settlement with Google, who admitted no fault and for good reasons, in my view, in that it wasn't at fault. I've long maintained that this is a manufactured complaint to smear and harass and hamper Google by competitors, the usual suspects. And the good news is, The FTC altered the settlement terms to try for more balance than the draft it published for comment back in January.

The ban on injunctions on the Motorola FRAND patents has been lifted, although there remain certain restrictions. What does it mean? It means, to me, that there have been reverberations from the ITC decision recently to grant an injunction against Apple for reverse patent hold up, rejecting its defense that Samsung was violating its FRAND obligations by asking for too much to license. That told the world that injunctions are available to FRAND patent owners. Second, I think it means that the Microsoft/Apple/FOSSpatents campaign to make the world believe it should be impossible for FRAND patent owners to seek injunctions is failing. The tide is turning. Third, this is an order based on a settlement agreement, so it doesn't apply necessarily to anyone else but Google's Motorola patents. But it should have an impact on litigation currently in progress.

read more (1790 words) 125 comments  View Printable Version
Most Recent Post: 07/26 10:12AM by DarkPhoenix

Apple Files Opposition to Samsung's Motion for a New Trial on '381 Patent ~pj
Tuesday, July 23 2013 @ 02:05 PM EDT

Apple is, of course, opposed to Samsung's motion for a new trial regarding Apple's '381 patent, and it has now filed its opposition [PDF] with the court. It's the public, redacted version. Samsung asked for the new trial based on what it says is newly discovered evidence, namely his motion is based on "newly discovered evidence"after "Samsung learned from PTO records made publicly available on June 12, 2013, that Apple had successfully advocated a new claim construction of the only asserted claim – Claim 19 – and significantly narrowed its scope in connection with reexamination proceedings before the PTO to avoid having this claim rejected ..."

Apple however says it has done no such thing. Or at least, it hasn't done so "unambiguously". Hmm. "...Apple’s reexamination statements are completely consistent with the position Apple has taken throughout this case," Apple argues. Samsung's expert has mischaracterized what Apple said to the USPTO, it says:

Apple’s statements merely made explicit what was already implicit in the patent—that a centering function alone without the recited instructions to translate “until the area beyond the edge of the electronic document is no longer displayed” cannot meet the requirements of claim 19.
Even if this were newly discovered, it wouldn't change the outcome at trial. "The Van Dam Declaration ignores the unrebutted evidence at trial that Samsung’s products practice all the limitations of claim 19, rather than merely 're-centering' documents." And the cherry on top is the argument that it's too late for Samsung to get a do-over. Samsung's motion is time-barred. You only get 28 days after judgment to ask for a new trial, even if there is newly discovered evidence, Apple writes.

read more (2619 words) 152 comments  View Printable Version
Most Recent Post: 07/28 03:20AM by Ian Al

IBM Files Motion for Partial Summary Judgment Based on Novell Agreement in SCO v. IBM ~ pj Updated
Tuesday, July 23 2013 @ 08:55 AM EDT

IBM has now filed its promised Motion and Memorandum for Partial Summary Judgment Based on the Novell Judgment [PDF] in SCO v. IBM.

I started to write IBM v. SCO, because that is what it really is now. For those who keep track, IBM had received an extension of time to file, until the 22nd, giving it an extra few days.

IBM points out that SCO doesn't own the copyrights it sued over, the pre-1996 UNIX code, Novell does, so SCO is in no position to complain about copyright anything. SCO has already claimed that it's talking about claims that now, after it lost the pre-1996 copyright claims, really have to do with post-1996 copyrights or contract issues. But you don't get to rewrite your complaint any time you think it would be handy, and SCO's complaint was all about pre-1996 code. Until now, the SCO attempt at a workaround.

We also find out what IBM meant when it said that it believed the Novell Judgment affected more claims than SCO believed it did. IBM says that the Novell victory also affects some of IBM's counterclaims, not just the two and a half SCO claims that remain in the case:

Contrary to SCO’s suggestion, the Novell Judgment is not immaterial to IBM’s counterclaims. It compels a judgment in IBM’s favor on two of the counterclaims, and it resolves elements of other counterclaims against SCO.

read more (7812 words) 128 comments  View Printable Version
Most Recent Post: 07/27 11:00AM by Anonymous

What's Wrong With The Latest FairSearch Complaint to the EU Commision About Google? A Lot ~pj Updated 5Xs
Thursday, July 18 2013 @ 04:16 PM EDT

I've been thinking a lot about the latest complaint to the EU Commission by those persistent anti-Google complainers, FairSearch. Believe it or not, part of the complaint is that it's anticompetitive to distribute Android for free when proprietary companies have costs for development:
When its comes to the charges related to "predatory distribution of Android at below cost" Blaber is less understanding of FairSearch's stance. "That is a very difficult argument to make in a mobile industry where open source is quickly becoming the norm. ... Really it's only Microsoft that still has a model based on license fees," he said.
Aha! Microsoft. So, it's about *Microsoft's* business model, not any other FairSearch member? Well, maybe Microsoft's little partner, Nokia, but that is the same thing, having trouble competing against Android, and complaining to regulators that it's not fair to distribute Android for free when others have proprietary products that they claim they have to charge for to recoup their investment. That makes this complaint yet another anti-Linux, anti-Open Source, anti-GPL attack from Microsoft, which has a long history of such behavior. It's an attack against the Open Source development model itself. Free distribution is the norm for Open Source. It's also, I believe, part of a coordinated smear campaign against Google. And while FairSearch claims it's not dominated by Microsoft, this complaint demonstrates otherwise.

I suggest writing to the EU Commission, to make sure they understand what is at issue. Here's the page that lists who to write to:

comp-greffe-antitrust at
I know I don't need to remind you that politeness counts. Also, do read all the instructions on that linked page. For example, they don't accept any emails larger than 8 MB. I could do it in a tweet, I suspect:
FairSearch attacks Open Source/GPL. #NotFair.
I doubt the EU Commission realizes this is what is at stake, if it took me this long to figure it out, and I'm always trying to be on the alert. If the EU Commission gets this wrong, the result would be that it would discourage use of Open Source code, out of fear of being accused, if successful, of anticompetitive behavior for offering free code.

Incidentally, South Korea just acquitted Google of any antitrust behavior regarding search, after looking into it for two years, saying there are plenty of alternative search engines (here are 11 of them), and the EU Commission should not accept this new attack against Google as valid either. So far, it's just a complaint, and the Commission looks into any complaint filed, but it's not yet an official investigation, and it should never become one. I'll show you why I say that.

read more (5956 words) 523 comments  View Printable Version
Most Recent Post: 08/01 04:00PM by PJ

Apple v. Samsung Appeal - Oral Argument Aug. 9 - Can you go? ~pj
Wednesday, July 17 2013 @ 10:58 AM EDT

Correction: I jumped the gun. This is the appeal of the N.D. Cal.'s decision not to award Apple an injunction against Samsung, in the case where the trial was held last year, not the one about Samsung's successful injunction against Apple at the ITC. Who can keep track of all the smartphone patent trials? I should. But I goofed. So here's the correct info.

Oral argument has been set [PDF] in this Apple appeal of Judge Lucy Koh's ruling that no injunction would be ordered against Samsung in the first Apple v. Samsung litigation. That's docket # 2013-1129 at the US Court of Appeals for the Federal Circuit. Argument on the appeal of this one issue will be on August 9 in Washington DC, at 10:00 A.M in Courtroom 203 before the US Court of Appeals for the Federal Circuit, Howard T. Markey National Courts Building, 717 Madison Place, N.W., Washington, D.C. Each side gets only 15 minutes to speak, so it will be quick. It's Quinn Emanuel's Kathleen Sullivan for Samsung and Wilmer Hale's William F. Lee for Apple. If there is any way any of you out there can attend and be our eyes and ears, that would be awesome.

read more (3245 words) 150 comments  View Printable Version
Most Recent Post: 07/21 07:27PM by Anonymous

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