Apple Sues HTC For Patent Infringement, Shoots Self in Foot in Front of Information Technology Staffers Worldwide

People who aren’t in IT are going to read the title and respond WTF, but everyone in Information Technology (IT) knows what I mean. Let’s go back. Way back. To 1980, when CP/M was the Operating System of Choice.

Back in the good old days, thirty years ago, technology companies suing each other wasn’t something that IT staff really concerned themselves about on a personal level. Oh, if you worked for one of the companies involved, you were concerned. Otherwise? No.

Since then things have changed a lot. There is a far better sense of community now, enabled by the conversion of the Arpanet into the Internet. People talk to each other a lot more now. Thirty years ago most people I knew lived within a hundred miles of my home. Now I know people all over the world. So does everyone else.

And then there has been a series of legal cases – cases which have made IT cynical about the legal system, and the companies that use it. Especially the companies that use it.

Unix System Laboratories v. BSD Incorporated and the University of California – in many ways this was one of the seminal cases which changed the attitude of IT towards companies that use the legal system against their competitors. It ended in a sealed settlement. A settlement that left the community unsure, and very unhappy. Ten years later using California’s Public Records Law, a Groklaw member called dburns obtained a copy of the settlement, which Groklaw dissected, to the delight of the community. Tis case may have directly been responsible for the success of Linux, in that people who might have worked on the BSD kernel worked on the Linux kernel instead due to the legal uncertainty.

SCO Group v. International Business Machines, Inc. – the actions of the SCO Group (previously known as Caldera International) were regarded by most of the community as a direct attack on the community, even though IBM was the legal target. SCO claimed that IBM had copied millions of lines of source code directly from the Unix Operating System into GNU/Linux. When SCO turned down the community’s offer to re-write the supposedly infringing parts of GNU/Linux, the initial confusion in the community was replaced by a dogged determination to strike back. The community quickly determined that SCO’s claims were bogus by checking every claim that SCO made against the source code files in the Linux kernel. The fact that SCO (when it was still called Caldera) had open sourced an earlier version of the Unix Operating System helped. Groklaw was one of the nodes of resistance that formed, and the line by line dissection of the various filings by Pamela helped confirm that SCO was lying . One of the things that really got IT upset was how the two major players, Ralph Yarro and Darl McBride attempted to use the ‘religion’ card (both claimed to be devout Mormons – claimed – their lies prove that they weren’t).

Gordon v. Microsoft and Comes v. Microsoft – two of the Anti-Trust cases brought against Microsoft, the public filings made very interesting reading, and showed that Microsoft was no friend of the IT community, regarding them as little more than sheep to be fleeced.

Jacobsen v. Katzer – This case aroused a lot of anger. Jacobsen was part of a group that wrote the JMRI Open Source program to control model trains. Katzer infringed on the copyright, and also illegally filed for patents on the JMRI project work. Katzer then sent threatening letters to Jacobsen. Jacobsen launched a suit against Katzer in self defence. After six years the case was finally settled, with Jacobsen winning. Kind of. It cost him a lot of money to defend himself (remember, the suit was launched in self defence after he was threatened by Katzer.)

Microsoft Patent Claims – Microsoft claims that Free/Open Source Software infringes on 235 of it’s patents. Microsoft won’t say what patents, assuming that they really know themselves, and that ‘He Who Throws Chairs‘ (Steve Ballmer) didn’t dream the entire thing up. Microsoft’s patents are software patents. The community regards software patents as bogus, because Mathematics aren’t patentable in the United States, and software is mathematics. Also in every case where a software patent has been used in litigation, the community has been able to find prior art, or proof that the patent was ‘obvious.’ Much to the community’s annoyance, the US Patent Office recently confirmed the Amazon ‘One Click‘ Patent, which has been a poster boy for ‘worst patent ever’ to the community.

There are other cases as well, but these are some of the ones that angered the community most. Most of them were seen as direct attacks on the community, and like any community it doesn’t like to be attacked, and has a tendency to attack back.

And now we’ve got Apple. Apple had generally been regarded as an OK company. It makes code contributions to the community, uses Free and Open Source Software in it’s core products (OSX is based on FreeBSD, Safari is based on Webkit, etc). Apple has been somewhat litigious, but the lawsuit against HTC is the ‘straw that broke the camel’s back.’ Whether the lawsuit has any legal or technical merits doesn’t matter. What matters is that Apple has taken an action that the IT Community doesn’t approve of.

Legally Apple’s suit may have merits (another article will deal with this). That doesn’t matter. Apple has, by launching this suit, proven a disdain for the IT Community’s mores. The community has had to deal with a lot of issues, especially over the last ten years, and as The SCO Group found out, if you piss off the community, the community will come after you.

A company like IBM, while big, is easy to fight. Compare IBM to an elephant. Large. Singular. You only have one target, and because of it’s size, it’s damned hard to miss. Which is why elephants are an endangered species. You only need one gun to kill an elephant.

The IT Community is made up of individuals. Lots of individuals. Millions of individuals. Compare the community to mosquitos. You can kill a mosquito with a gun, but if you do it will be more luck than skill. And like mosquitos the community doesn’t attack all from one direction, or all in one way. But they do attack, and they keep on attacking, until the target is dead.

And this is what Apple is facing. Apple doesn’t know it yet, but Apple (unless it settles with HTC really quickly) is probably dead.

For those of you who don’t understand what I’m talking about, I’m going to list actions. Actions that the community is already taking.

  1. Recommend that people not buy Apple. Remember that the IT Community controls a huge proportion of the IT spending in North America, Apple’s home turf. When your IT staff recommend you avoid a vendor, you listen, because they know what they are talking about (if they don’t, why did you hire them?) And for those who will argue that Apple is a very small part of corporate spending, don’t forget that many IT people have been recommending Apple to their family and friends as an excellent and safe alternative to the disaster that is Windows.
  2. Researching ‘Prior Art’ to invalidate the patents Apple is using against HTC. HTC’s legal team now has several million technical experts working to kill Apple’s patents for free. After all, if the patents are invalidated, then the lawsuit dies.
  3. Building bigger and better Free and Open Source Software applications so that users have alternatives to Apple software. A good example is Garage Band – the reason I own and use Mac’s is that they are the best option if you own a recording studio, and I own a recording studio. None of the Free and Open Source Software available at present will do what I need, which is why I switched from GNU/Linux to Mac OSX three years ago. Since the IT Community is mad at Apple, a lot of programmers are going to look at what they can do to make Apple’s Value Proposition disappear. Garage Band won’t be the only target, but it’s the one that would make the most difference to me.

And of course Apple is vulnerable. While Apple has done a good job of integrating hardware and software in all of it’s product lines, Apple is extremely vulnerable to the three attacks listed above (and other attacks that I haven’t mentioned because I haven’t thought of them – but some clever person has…) Sure, Apple has a lot of money in the bank, and it builds a good product, but what does Apple do if people stop buying?

I think Apple has just shoot themselves in the foot. Badly. Oh, the damage won’t be visible for a while, but it’s there, and unlike Microsoft, Apple doesn’t have a monopoly to rely on.

Wayne Borean

Monday March 15, 2010


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