Microsoft Death Watch Continued – Windows As An Orphan Product

Late last night I noticed that Good Bye Microsoft blog had picked up on my original Microsoft Death Watch article, and wrote up his own take on the situation. I went to reply to him, to give him some more information, but he doesn’t allow comments. So I’m going to answer him here. Specifically I want to address these words:

No, I’m not suggesting this as investment advice. It could be way off base, and I’m not qualified to evaluate it. Instead, I’m offering this as technical advice: how will it affect you personally, or your business, if Microsoft were to fail? No more Windows updates. No more Office updates. No more support. No more monthly security patches.

You need a plan B. Sure, your existing software will continue to run for months or years without updates, barring any major security breach. But instead of being tied by the gonads to one vendor, and hoping for the best, perhaps you should figure out now how to move away from reliance on Microsoft.

Well Brad, if you’d have taken a look, you would have noticed that I covered this in an article titled What would you do if Microsoft went bankrupt, and Windows became an orphan product? which was published on November 30,  2009.

In other words, I’ve been thinking about this for a long time. And since that article was published, I’ve gained a lot more information, which I hadn’t published yet, but it looks like now is the time.

In simple terms we can break down computer users into several groups.

1) BSD/Linux/Open Solaris user (and other Free Software OS). No impact on them if Microsoft dies.

2) Mac user (and other Proprietary Software OS), again no impact.

3) BSD/Linux/Open Solaris Server user (and other Free Software OS). Things may get easier on the support end.

4) AIX/HP-UX/Tru64 Server user (and other Proprietary Software OS). Things may get easier on the support end.

5) Windows desktop users – the vast majority surveyed said that even if Windows was off the market, THEY WOULD NOT SWITCH. Instead they’d pirate it, arguing that since it wouldn’t hurt Microsoft, as Microsoft would be bankrupt, that piracy would be OK. A very tiny minority said that they’d try a Free OS like Ubuntu. Less than 5%. Over 95% would stick to Windows come hell or high water, even with no patches available for security issues. None would even consider switching to a Mac.

6) Windows Server admins – Much to my surprise, most Windows server admins are already working on an exit strategy. While Windows desktop users think that Windows is free, Server admins know that it isn’t, and see what the costs are to add an extra 100 seats to their Exchange server. Also most server admins almost always have some experience with other operating systems. The usual vector for another OS to enter a corporate data center is a print and file server, usually an older machine with a low work load, for which corporate won’t supply the money to buy the number of seats needed on Windows Server. Since Linux/BSD/Open Solaris are free downloads, and allow unlimited seats, the economic argument is compelling. And of course once it’s set up and running, Linux, BSD, and Open Solaris are all extremely stable. They’ll run for years without crashing, unlike Windows. So Server admins are already making plans, after all, in a recession keeping costs down is important.

So in effect, no one really cares if Microsoft goes bankrupt. Oh, Group 5 will hold onto Windows for as long as they can. Group 5 users can be generalized as the lowest common denominator in Information Technology. They know nothing, and they don’t want to know anyhing. Many of them seem to think that Microsoft invented the GUI (it was invented by Xerox), and for that matter that Microsoft invented the operating system. The Rednecks of the computer world, they’ll happily put up with virii, bad drivers, spam, just as long as they can hold onto their wonderful Windows for as long as possible. They are also the least honest. Everyone else was either willing to pay for their OS, or willing to search for a free one. Windows Desktop users would rather hunt for a crack, so that they can keep using their drug.

Which is ridiculous in my opinion. But there is a glimmer of hope on the horizon. I’ve seen a lot more Windows users looking at alternatives recently. The Apple IPod/IPhone/IPad line has changed things. The Android phones/tablets are also changing things. Microsoft is displaying total incompetence in those markets. Microsoft’s phone operating system market share is shrinking. Microsoft never really had any market share for music players. And while Microsoft controlled the tablet computing market for a long time, Apple has sold more tablets in six months than Microsoft did in ten years.

Even the most die hard Windows user is starting to open his or her eyes to the wider world.


Wayne Borean

Wednesday September 29, 2010


Stephen Harper And Michael Ignatief – The Men With The Most To Lose In The Next Election

Being the Prime Minister of Canada is a thankless task. Being Prime Minister of Canada with a minority government is worse. There are huge pressures on Stephen Harper. Many of these pressures come from his apparent inability to win a majority government. His problem is that his chance of ever winning a majority government is virtually non-existent.

Canadian politics are different. Unlike the United States, which effectively is a one party state, Canada has a far wider range of political options. And these options are shaped by Canadians themselves. Canadians on average are better educated than Americans. Canadians on average are better informed than Americans. Canadians on average are different than Americans. Way different. I can remember walking through the streets of Washington D.C. at 2:00 AM feeling perfectly safe, while the Americans who I was with were terrified to leave their hotels after dark.

Canadians are different. Way different. No other nation on the planet is like us. Talk to any immigrant, from any country. They tend to sound shell shocked for the first few years that they live in Canada. Because Canada is different.

Stephen Harper knows this. And that’s his problem. Americans are followers. If he was an American politician he’d do fine. The population would imprint on him, and would quack quack quack behind him, following wherever he led.

Canadians are like cats. Canadians do what they want, when they want, and to hell with what the politicians think they should do. While many Americans seem to think that their President was sent to them by god, Canadians consider the Prime Minister to be one of those unfortunate nuisances you have to live with, like the aunt who insists on giving a young woman a Barbie doll as an eighteenth birthday present, causing much embarrassment.

Stephen Harper’s problem is that he has been unable to communicate to Canadians why they should back the Conservative party. He’s adopted an ideology which he thinks is best for Canada, but it’s an ideology that many of Canadians don’t agree with. The only reason that he’s had any success at all, is that the other party leaders are just as disconnected as he is from the Canadian public.

With the option of voting for Tweedle Dee, Tweedle Dumb, and Tweedle Dumber, Canadians are often opting to vote for the Seperatists (at least they seem honest about what they want) or the Greens. The Greens gained a million votes in the last election. This has the traditional parties scared witless, because the Greens, like the Bloc Quebecois also seem honest about what they want. And honesty is something that Canadian politicians are nervous about. The idea that the electorate would actually expect them to keep their pre-election promises seems to be some sort of evil perversion to them. If they could, they’d love to tie it to a real perversion, like pedophilia, but they know that Canadians would see through the attempt.

Michael Ignatief, Liberal, and Stephen Harper, Conservative
The two men with the most to lose in the next election. Images courtesy of the Wikimedia Commons.

Even worse from the point of both Stephen Harper and Michael Ignatief, is that they know that a large number of the members of both their parties would love fit them with concrete boots and toss them overboard, and fully intend to do so if they don’t manage to win a majority of seats in the House of Commons. But Canadians have had an experience with minority government, and most Canadians have decided that they like it. Minority Government means that the two big parties can’t get away with the sort of ideological law making that they’ve done in the past. The two big parties hate this. They dream of the days of Trudeau and Mulroney when they could literally get away with murder. But Canadians don’t want that. They dream of a government that they, not the politicians control.

There will have to be an election soon. Within the next year. Stephen Harper will wait until he thinks he has some sort of chance, call it, and hit the attack ads hard. Michael Ignatief will hit back just as hard. And while the two of them are fighting, the smaller parties, including the new and untested Pirate Party will make their move.

I don’t know how this is all going to play out. No one does. What we do know is that the Canadian electorate is undergoing a huge sociological shift. Fifty years ago when I was a child, Canadian society was very conservative in outlook. Improved communications, through an improved telephone system, widespread adoption of Television, cheaper transportation, cable TV, then the most disruptive technology of all, the Internet, have changed the country. Things that no one knew about, now everyone knows about. The murder of a Polish immigrant at the Vancouver airport by police would have been a non-issue fifty years ago. Now it’s a major issue, and the reputation of the Horseman (Royal Canadian Mounted Police), and all other police forces have suffered badly because of it. Note that while I’m calling this a murder, it may end up being ruled justifiable homicide, or self defense. Having seen the video made by a member of the public who was present, in my opinion it was murder. I’m aware that there are people (mostly wearing uniform) who disagree with me, and might be stupid enough to attempt to sue. Which is why I’ve been talking to a lawyer.

Canadians are now better informed about what is happening across the country, and for that matter across the world. Small groups who would have had no means of meeting, now can meet virtually using technology that is inexpensive, and reliable. Improved communications have helped the Greens become a force, and they will help the Pirates become a force too. A generation which has never known a time when they couldn’t communicate, is communicating, and much to everyone’s surprise, their parents are communicating too. Communication is changing the face of Canadian society, and no one can stop it. Unless they manage to make using the internet illegal. Which makes one wonder exactly why everyone seems to anxious to pass laws like Bill C-32.

There’s an old Chinese curse – May you live in interesting times. I suspect that Stephen Harper and Michael Ignatief feel that it was written for them.


Wayne Borean

Sunday September 26, 2010

Microsoft Death Watch – Confirmation From Dave Newman

I don’t know Dave Newman. I’d never even heard his name until a couple of minutes ago, when someone over at Groklaw linked to a blog posting of his titled Leaving .Net.

I stopped programming using Microsoft tools about ten-fifteen years ago. This means that I’m really out of touch with what Microsoft is doing with programming languages, and what their customers are using the languages for. Yes, I’ve heard of .NET, and I know of Miguel D’Icaza’s .NET imitation called Mono. I knew that Microsoft had developed their Codeplex Foundation to attempt to gain developer mind share among Free and Open Source programmers. Beyond that, well, I don’t run Windows, and since Codeplex appears to be 100% Windows, there’s nothing to interest me. And while Mono can run on nearly anything, quite frankly when I tossed Windows, I was so feed up with Microsoft Technology, that I swore I’d never use it again. Since Mono is imitation Microsoft Technology, I don’t use it.

And then I read Dave’s screed. Wherein he blasts .NET, Codeplex and Microsoft.

I was struck by the similarities between what he was saying about the situation that has caused him to decide not to program using the .NET languages, and some other situations I’m seeing.

Dave’s major complaint is that no one is paying attention. Improvements are suggested, in many cases the improvements are actually coded, and uploaded. What happens? Nothing. There is no feedback, no one knows if the improvement will be used or not. Instead they wait, until from on high, Microsoft issues the next update.

And here’s the point. It’s all about communication. Communication, feedback, incremental improvements that over what is often a relatively short period of time become major improvements.

Consider this blog. Yes, I write virtually all of the articles. I don’t do this on my own. Oh yes, it’s my name that is signed at the bottom, it’s my name that you see everywhere. But this is not a one man show, it’s a community effort. I get a lot of feedback, from a lot of places. Oh, most of it is from English speaking countries. But I get things from other places as well, and I’m really glad that there’s so many people who are willing to contribute by sending me links and information. Without that help (including the help I get on grammar and spelling), the blog would junk.

And that’s the situation that Microsoft has put themselves in. By not working with the community, a community that they worked to form, they are hamstringing themselves. .NET as a programming paradigm could be far better than it is, if they committed themselves to the community, the way they told the community that they would do.

Instead, they are trying to run a Top-Down organization, and it just isn’t efficient enough. It’s so inefficient that developers like Dave, who have a lot of time and effort invested in programming using Microsoft tools, are abandoning ship, and moving to Free Software tools.

I’ve known about the migration for a while, but hadn’t written about it before. I’ve talked to several people like Dave, and while I’d gotten a feel for what was going on, no one had explained the issues in enough detail for me to be certain of what was really happening. Thanks to Dave I know have a good understanding, of what is going on.

And as so often happens, Dave’s article ties in with other things, things that he may not have though of himself.

Let’s go back to 1995. In 1995 Microsoft introduced Windows 95. Windows 95, as bad as it was, was better than Mac OS 7. It was also better than Linux. At that time.

Since then we’ve watched Mac OS take a giant leap ahead of Windows, with OSX 10.3, and then move further ahead. Mac OS X 10.6.4 is miles ahead of Windows Seven. During the same time, Linux passed first Windows, and then Mac OS X. Technologically Linux is so far ahead of Windows and OS X that it isn’t even funny.

And there’s a very solid set of reasons that this has happened.

Microsoft Windows is a huge, top down project. Top management draws up a list of what functions they want in Windows, and various teams are assigned to implement the functions. The the teams try to integrate it. Try. Ever wonder why Windows has to many bugs? Imagine a thousand teams, each working on it’s own to do something, with little knowledge of what the other teams are doing, and then attempting to fit it all together. That there are problems isn’t surprising.

Mac OS X managed to pass Windows technologically, by bootstrapping off of the FreeBSD project. The license that the FreeBSD project uses allows anyone to use all or part of it, in just about any way they want. Apple used it as the basis of a Twenty-First Century operating system, adding their own concept of a user interface on top. By leveraging the work that the FreeBSD team did, Apple was able to gain thousands of man hours worth of programming, at little cost (Apple does make contributions to the FreeBSD project). But Apple has an Achilles heel. Apple has very specific requirements, and those specific requirements aren’t always things that the FreeBSD community is interested in, and so Apple has to do that work, along with the User Interface, and a variety of hardware/software specific things that make an Apple, well, an Apple, themselves.

Linux (more properly GNU/Linux) has been able to move even further ahead. Microsoft has to have 100% control of everything in Windows. Microsoft is limited by the number of programmers that it can hire. Apple doesn’t have the same level of control as Microsoft, Apple uses Free and Open Source software for a lot of OS X. But it can’t use it for everything, and again, Apple is limited in the number of programmers it can hire (note that OS X, and IOS, the IPad, IPhone, and IPod operating systems are closely related, using a lot of the same components, or Apple would need even more programmers). Linux has no limitations. Most of the programmers who work on Linux are paid to do so by companies like IBM, Intel, AMD, Nokia, Sony, etc. Some work on it just for the love of doing so.

Because of the economics of GNU/Linux, there’s no limit on the number of programmers involved. Anyone, even me, could help develop it. As a result GNU/Linux has been able to develop at a rate that no proprietary software project can match. It’s nothing unusual for Linux distributions to work on a SIX MONTH release cycle. Compare that to Windows Vista, which took FIVE years to produce! Five years. Five years during which both OS X and Linux left Windows far behind.

And Microsoft can’t afford to hire enough programmers to catch up. It’s main cash cow, Microsoft Office is under price pressure from a variety of competitors, all of which are less expensive. Some of them are free. Microsoft is loosing sales to these competitors. The only way Microsoft may be able to maintain market share is to cut the price of Microsoft Office dramatically, and if they do, their margins drop dramatically. Catch 22.

It’s operating system, Windows Seven is behind technologically. Without the programmers they can’t afford to hire, it won’t catch up. Even worse, some design decisions made in the past were wrong, leaving Windows with security issues that OS X and GNU/Linux don’t have. Microsoft appears unable, or unwilling to make the changes necessary to correct the problems. And every programmer who’s working on patches to try and hold Windows together, isn’t working on improving it. Microsoft doesn’t have enough programmers to get patches built and tested to fix vulnerabilities before attacks targeting them surface. Some Microsoft patches take six months to design, built, and release. Compare that to GNU/Linux where a major problem was found in the Kernel this week, and patched in less than twenty-four hours.

Unless Microsoft is willing to make massive changes in management and development styles, they will continue to fall further behind technologically. Their ability to make these changes is constrained both by existing debt, and by the squeeze on the profit margins of their core businesses.

This is why I estimated that Microsoft would have to enter Chapter 11 Bankruptcy Protection last year. I said five years at the time. We’ve only four years to go. Assuming that Microsoft doesn’t do something. Soon.

The Future of Microsoft
The Future of Microsoft

My guess is that they won’t. The company knows it has problems, but Microsoft has never relied on producing the product that customers want to buy. Instead they’ve concentrated on getting the OEMS to install their product on everything. That worked fine for a long time, but the new markets opened up by Netbooks and Tablets aren’t open to Microsoft in that way.


Wayne Borean

Friday September 24, 2010

Microsoft Death Watch

Last week an Apple Store opened in Newmarket Ontario. I haven’t seen it yet, but my wife and daughter mentioned that there was a line up out the store and down the mall, so it looks like it may be servicing a pent up demand. A demand that I wouldn’t have thought would exist. Yes, Newmarket is a relatively prosperous city, but it’s not what you would consider a progressive city. I know that when I’ve been there, my MacBook gets a lot of stares, and I’ve had to answer a lot of questions about it. Things like yes, it really does work, no it doesn’t get virused, no, I don’t need to use Microsoft Software for anything. I point out to those who ask that since I’ve dumped Microsoft I’ve been way more productive, between running OSX on my laptop, and Linux on my desktops, and no, there’s no way I would ever touch that Eatoin Shrudlu piece of garbage called Microsoft Windows.

That Apple is doing this (opening their sixth store locally) at the same time that Best Buy and Staples are also selling IPads, IMacs and Macbooks is interesting. It indicates that sales must be doing really well, which of course is eating into Microsoft’s OS and Office Suite share. Just think – when was the last time you heard anything about Microsoft’s own retail stores? If Microsoft retail store sales were doing well, they would have made damned good and sure that we’d heard about it.

Since it’s introduction, Apple has sold five million plus IPads. This has had an affect on the Notebook market. While some IPad buyers are existing Mac users, others are probably making their first major Apple purchase (I don’t consider an IPod a major purchase). Microsoft, which has been pushing the tablet computer market for close to ten years now, and has been unable to sell a decent number of tablets. Several OEMS who had planned Microsoft Tablets have dumped the idea for Android. Hewlett Packard even showed a Windows Seven tablet at a trade show, and then less than a month later announced that the product was being abandoned for an Android OS tablet. Microsoft must have been furious. At present is appears that there may not be any Windows Seven tablets released, everyone other than Apple seems to be moving towards Android or some other Linux variant. Windows for Tablets is a miserable failure.

And of course Microsoft is once more pushing a program to pay people to use Bing. That they need to do this indicates that they are having a hard time keeping users (never mind gaining any).

Last night one of my connections told me that Oracle is working really hard on the next version of Open Office. He isn’t close enough to the situation to have solid details, but he was told that Oracle is aiming to take Open Office from good, to fantastic. If Oracle manages to do this, it could do a huge amount of damage to Microsoft, as Microsoft’s main cash cow is Office. And of course ever office suite installation that Microsoft loses to Gnome Office, Google Docs, IWork, KOffice, OpenOffice, Word Perfect Office, and that other available alternatives has a major impact on profitability.

In the fall of 2009 I predicted that Microsoft would enter Chapter 11 Bankruptcy Protection in five years, based on my reading of their United States Security and Exchange Commission filings. That was before I was aware that Microsoft was in debt – my thanks to Dr. Roy over at Techrights for digging out this information. Attempting to fully evaluate Microsoft’s current financial health is difficult. The company regularly moves products from one division to another. While other companies also do this, in Microsoft’s case a lot of the moves appear to make to have no rational basis, leading me to believe that Microsoft is doing this to hide the true financial health of the company.

So at present I’m not going to try and refine my estimate further. I have seen nothing that leads me to believe that the company has taken any substantive actions which will allow it to avoid bankruptcy. If you own shares in Microsoft, you should seriously evaluate your position. If I am right, holding them could be dangerous to the health of your portfolio. If I’m wrong, now might be the perfect time to pick up some cheap.

There is one important product release coming up. Microsoft will be releasing Windows Phone Seven shortly. Based on the timing, I believe that success or failure of the Windows Phone Seven product line, will be a solid indicator of the success or failure of the company as a whole.


Wayne Borean

Friday September 24, 2010

Mageia – A New Linux Distribution – Fork Of Mandriva/Mandrake

I’ve had a love/hate relationship with Mandriva/Mandrake for a long time. It was always one of the best distributions. Period. But it was also one of the worst.

The big problem with Mandriva, and Mandrake before was that it was it served a corporate agenda. The corporation wanted to make money. There’s nothing wrong with wanting to make money. The problem was that they artificially limited Mandriva’s capabilities to do this. Rather than providing value, they restricted value. As a result, I didn’t use Mandriva.

There was an announcement today at LWN of Mageia – a Mandriva fork. The Mageia project is a community endeavor. To quote the announcement:

Most employees working on the distribution were laid off when Edge-IT was liquidated. We do not trust the plans of Mandriva SA anymore and we don’t think the company (or any company) is a safe host for such a project.

There is often conflict between a community and it’s corporate supporters. When there is, the community really has no option other than to move forward on it’s own. I wish the Mageia community the best of luck as they move forward on this, and I am really looking forward to trying their first release.


Wayne Borean

Saturday September 18, 2010

An Explanation Of My Views On Copyright Part Four – The Sky Is Falling

Right now in Canada (and in other places worldwide) we are seeing the Chicken Little School Of Copyright Law attempting to take over the copyright debate. Various people are viewing with alarm every single technological innovation that has occurred in the last two hundred years, and screaming that it is going to kill their business.

And who knows – they might be right. The real question, which is mostly being ignored, is whether killing their business will be good for the artists and their fans. This is a hard question to answer. There have been a variety of studies produced. The backers of Bill C-32 have a group of favorite studies, which they claim are the most accurate. Other studies that they don’t agree with are put down as inaccurate, or biased. They aren’t willing to admit that their own studies might be inaccurate or biased too.

Attempts to legislate by panic are dangerous. Consider the panic caused by the terrorist attacks on 9/11. Many countries (Canada included) rushed through laws meant to combat terrorism. The United States, the target of the 9/11 attacks, was the country that enacted the harshest anti-terrorism laws. But did these laws really do what they were intended to do? The 9/11 attack, like earlier and later attacks, could have been handled under existing laws. In fact many articles in the American media have been critical of the new laws, claiming that they have only added an extra level of bureaucracy and cost to the security systems, without making Americans any safer than they were before the 9/11 attacks.

Bill C-32 is an example of panic legislation. Despite the proof that the American Digital Millennium Copyright Act (which is based on the same WIPO Treaties that Bill C-32 is based on) has had no effect on copyright infringement, Bill C-32 is being pushed as a good start at addressing the problem. But there is no solid proof that ‘The Problem’ is really a problem. The studies that the CRIA likes say it is, other studies say it isn’t. Who do you believe?

In the Balanced Copyright For Canada Facebook Group there have been a series of discussions on the issue. Some of the people involved work for CRIA member companies, some are independents like myself. Some of the statements which have been made were to say the least, a little bit weird. Let’s take a look at some of them:

  1. I mentioned that I usually don’t buy CDs, that I get almost everything from ITunes. This shocked a lot of people, who pointed out you get great artwork with the CD. But quite frankly, who cares? My CD collection is in a box in the basement, which never gets opened, and will never be opened. Most compact discs only have one good song on them, why am I going to pay $10.00 for one song, and artwork that I’ll never look at? Now a tee-shirt is different. My favorite tee-shirt says ‘FENDER’ on it, and yes, I play a modified Stratocaster.
  2. I think copyright should exist to protect artists, most especially from the CRIA member companies. I think this because I know people who have gotten screwed by them. The company backers of course claim this never happens. Who do I believe, people I know, or people I don’t know, but who I know work for the companies who seem to specialize in screwing artists?
  3. Unlike most of the people on the Balanced Copyright group, I understand technology. I have built TPM/DRM systems in the past, and I know how easy it is to break them. Of course since they don’t understand technology, well, they believe what they are told, that TPM/DRM is perfect, even when news arrives of the Blu-Ray TPM/DRM being permanently broken.
  4. And of course, they back making it illegal to break a digital lock, even though they claim that digital locks are unbreakable, a curious dichotomy.

The one thing we agree on, is that current Canadian copyright law is outdated. It was designed in a period before internet usage became widespread, and doesn’t reflect current technological or social systems. What we disagree about is what to do about it. The other thing we don’t agree on is how fast we need to act. There’s an old saying, ‘Marry in haste, repent in leisure’, and I think it fits this situation. While the current law has it’s problems, Bill C-32 will be a lot worse.

In my opinion the law needs to be changed to protect the artists from the corporations, not their fans. This view is rather unpopular. I sometimes get the impression that 90% of the people posting on the Facebook page work for CRIA member companies.

Specifically Canadian Copyright law needs to be changed so that copyright REMAINS WITH THE ARTIST. I know several people who have lost control over the own creations because they signed with one of the major labels. How allowing a corporation to take control of an artists creative product helps Canadian artists (or artists in any other country) is something that no one has been able to explain to me. In fact they don’t even try. They do try to pretend that it doesn’t happen. This fails, because this business practice is too well documented. The most substantive change that the Government of Canada could make to Bill C-32 would be to make copyright a non-transferable right, that remains with the artist while they are alive, and then transfers only to their heirs. James Moore’s claim that ‘Bill C-32 effectively balances the demands of many stakeholders‘ is in effect an admission that he isn’t interested in protecting artists.

Going back to the section on Digital Locks, let’s assume that Bill C-32 passes into law with no changes. So Randy Bachman releases a new compact disc, and the Record Label uses TPM/DRM on it. The way the law is currently written, Randy Bachman could not legally break the TPM/DRM, even if he owns the copyright. Even worse, he wouldn’t be legally able to break the TPM/DRM if he owned the Record Label, and the compact disc pressing plant. You might argue that he shouldn’t need to, as he’d still have the masters, but accidents have happened before, and masters have been lost. Even if Randy controlled every step of the chain, legally he can’t break the TPM/DRM he decided to use. Does this make sense?

I oppose Bill C-32. If Minister Moore adds the protection for artists that I am advocating, I’ll back Bill C-32.


Wayne Borean

Friday September 17, 2010

In Defense of Software Patents – Part 2 – With Commentary On Why Martin Goetz Is Wrong

It was with some amusement that I read Martin Goetz’s ‘In Defense of Software Patents – Part 2‘. I was even more amused when the post was apparently pulled from Patently O. Curiously there’s no statement as to why it was pulled. It just disappeared. Unfortunately for them, I kept a copy.

I don’t agree with Martin Goetz. In fact, as most people know, I don’t agree with anyone. Martin Goetz however in this post demonstrates the lack of education that I’ve found all to often in arguments on the subject of patents. Specifically his lack of historical knowledge has affected his reasoning.

How has it affected his reasoning? Simple. He is unaware of the background behind law in the United States. Let’s take a look at his article. I’ll fill in the historical background at the end.

Guest Post: In Defense of Software Patents – Part 2

Guest Post by Martin Goetz

Back on November 30, 2009, PatentlyO published my article “In Defense of Software Patents” in response to the editorial “Abandoning Software Patents” by Ciaran O’Riordan, Director of End Software Patents (posted on PatentlyO on November 6, 2009) which had as its premise that software companies are trying to protect “software ideas”.

In this article I comment on the Bilski Opinion as well as give some concrete examples of software-only patents as well as hardware/software patents. Also, my previous article received hundreds of comments, many being negative, and part of this new post is in response to those negative comments.

Since the June 28th Supreme Court Bilski decision there have been many articles on what the Opinion stated and inferred about the patentability of software.

The first paragraph is probably the most accurate one. Yes, there’s been a lot of ink burned discussing Bilski, and there will continue to be a lot of ink burned. Even among patent attorneys there appears to be many views on what it means, not only in regards to patenting of software, but patenting of hardware as well.

The Opinion restated what previous Supreme Courts concluded: that laws of nature, physical phenomena, mathematics, mathematical formulas (by themselves), algorithms (by themselves), and abstract ideas (which would include software ideas) are not eligible for patent protection.

While the Bilski Opinion never directly questioned the patentability of software, the Justices wrote extensively about the meaning of Section 101, the meaning of the term “process” and why the test for patent eligibility should not exclusively be “the machine-or –transformation test”. Justice Kennedy, with the concurrence of all other Supreme Court members, wrote that the Information Age puts innovation in the hands of more people and raises new difficulties for the patent law (and the Patent Office) to determine who should or should not receive patent protection.

This is where in my opinion he starts to loose it. The ‘machine or transformation test’ did definitely put some limits on patentability. And the Supreme Court recognizes that there have to be limits. He appears to think that by stating that the ‘machine or transformation test’ is not the only method of determining whether or not something can be patented, that the court in effect is leaving the field wide open. This is not true. The court in it’s questions appeared to be quite troubled by the extending of the bounds of patent law to cover wider and wider ranges of subject matter, and wished to set some limits on what could or could not be patented. At the same time the court didn’t want to tie the Patent Office’s hands with a ruling that couldn’t be justified.

Having the ‘machine or transformation test’ as the sole means of deciding of a patent could be issued must have struck the court as too limiting, which is why the court said it shouldn’t be the only test, but the court appears to have left the decision as to what other tests should be used to the Patent Office.

My November 2009 PatentlyO article “In Defense of Software Patents” produced hundreds of comments. Many wrote that they were against the patenting of software because software was an “algorithm” or “mathematics”. In that article my primary argument was that a computer software invention is as patentable as a computer hardware invention and the only difference is the mode of implementation. My thesis was that Software Product companies in the Software Industry are looking to patent a machine process and not a computer program, which is protected by the copyright law. I showed why software product companies can be viewed as high technology manufacturing entities and should be just as eligible for patent protection as computer hardware companies.

In this article I give examples of patents where the preferred implementation of an inventive machine process is in software (via a computer program), hardware (via circuitry), or a combination of both software and hardware.

Here he seems very confused. Software, be definition, is intangible (though it may be fixed on tangible media). Hardware by definition is tangible. Let’s take Microsoft for example. He describes them as a high technology manufacturing company. Manufacturing is defined in Wikipedia as the use of machines, tools and labor to make things for use or sale. Microsoft’s manufacturing cannot be considered high technology, since they simply use Compact Disc and Digital Video Disc pressing equipment that they have purchased. This is true of all software companies. The software that they make may be high technology, the method of making distribution media isn’t.

There is little argument that “processes” and “machine processes” are patentable subject matter The question has always been about the nature of software and what one is trying to patent. For over 40 years I have been involved in that argument since I received the first software patent in 1968 for an innovative way to sort large amounts data on a computer that had tape drives that could only read and write data in a forward direction (See Patent # 3,380,029, Sorting System, Issued April 23, 1968).

Actually there is a fair amount of argument about whether processes of machine processes should be able to be patented. Since he apparently hasn’t heard of the arguments, it appears that he has been sleeping.

The Sorting System patent was dubbed a software patent but it could also have been a computer hardware patent. It was dubbed a software patent solely because the preferred implementation (the disclosure) was a logic chart (which is recognized by the patent office as a proper disclosure). My Sorting System patent would not have been controversial if the disclosure had been hardware circuitry since there were many hardware patents for sorting data on special-purpose computers and special apparatus. In my patent application I referenced six of those patents which all had unique hardware circuitry in their patent disclosure. Three of them are available online, courtesy of Google Patent Search.

Yes, you can often implement something in more than one way. A good example is the comparison hardware level and software level DVD playback. But there’s other considerations. Anything that is implemented in software, can by definition be done mentally. I know a lot of people will argue with me on this point, however it is true. If you can’t do the function mentally, you can’t write the software.

As to his assertion that his Sorting System wouldn’t have been controversial if it had been a hardware implementation, I’d like to refer him to KSR v. Teleflex, where the hardware implementation was considered controversial, and the court ruled against it’s patentability.

From 1968 through 1980 my previous company, Applied Data Research filed Amicus briefs in the Prater & Wei, Benson, Johnson, Flook, and Diehr cases in which we argued that a machine process patentable in hardware is equally patentable in software. Here is exactly how we posed a “Question of Law” “in our 1980 Diehr brief

Whether a computerized machine or industrial process that is patentable subject matter under 35 USC 101 when constructed with a hardware program (wired circuits) would also be patentable subject matter when constructed with a stored computer program (i.e., firmware or software)?

The USPTO is currently in agreement with that “Question of Law” when in 1996 it published its Examination Guidelines for Computer-Related Inventions (Final Version). The Guidelines stated in its Introduction the following: “The Guidelines alter the procedure office personnel will follow when examining applications drawn to computer-related inventions and are equally applicable to claimed inventions implemented in hardware or software.”

Now he’s making a circular argument. An invention is patentable, if U.S. Patent and Trademark Office decides it is patentable. This is manifestly not true, again see KSR v. Teleflex where an invention that the USPTO decided was patentable was later ruled unpatentable by the United States Supreme Court.

In that 1980 Diehr brief we also posed the following argument to the Supreme Court:

An inventor demonstrates his new invention to his patent attorney with great pride; he has developed a cabinet for     reading books out loud to the blind. The cabinet contains both a reading and talking computer. After the demonstration, the patent attorney responds:

What’s inside the cabinet? Did you build it with software or hardware (a stored program or hardware circuitry)? If built with     a hardware program, your machine would be patentable. But if you built it with a stored program, the Patent Office would say it     was merely mathematics and, therefore, unpatentable.

The example above of a hypothetical “cabinet for the blind” invention was back in 1980 in our Diehr Amicus brief.

Twenty years later, in 2000, a renowned inventor, Ray Kurzweil received a patent named Reading System which Reads Aloud From An Image Representation Of A Document. The patent disclosure shows a diagram of a monitor, scanner, speakers, and a PC computer composed of a processor, storage and a keyboard. The essence of the disclosure and the invention is a logic chart describing a machine system which interacts with a speech synchronizer and the various devices.

The first sentence of the abstract in the patent stated “a reading system includes a computer and a mass storage device including software comprising instructions for causing a computer to accept an image file generated from optically scanning an image of a document.”

At that time, Ray Kurzweil’s company, Kurzweil Educational Systems marketed a special purpose hardware/software system called the Kurzweil 3000 Reading Machine which was marketed to the blind and poor readers. Their 2000 year patent protected this product from imitators. Today the company sells a software only system called Kurzweil 3000 and continues to have the protection of the patent system thru his original 2000 patent and with additional patents e.g., Reducing processing latency in optical character recognition for portable reading machine (which is a software-only patent).

Few would argue that the Kurzweil 3000 Reading Machine was not an invention and not deserving of a patent.

Actually a lot of people would argue this for several reasons.

1) Prior Art. I know of a description of a similar system dated to 1965.

2) Obviousness. The invention is an amalgamation of existing parts, that would be obvious to someone skilled in the field. Apple and Microsoft both produced technology that did most of this as early as 1990. All that Kurzweil did was take off the shelf components, cobble them together, and write some software, which did what existing software already could do.

This is one of the reasons I am so skeptical of the Patent system. All too often I see patents being issued for ‘inventions’ that do not appear to have required any inventiveness. Rather than being a source of innovation, the patent office more often seems to act as a method to exclude competition from a market, by making the cost of entry too high (prosecuting or defending a patent suit costs millions of dollars).

This is not to say that people don’t invent things. They do. But there are people who are gaming the system, and the way the system is set up, even if someone has been proved to be gaming the system, there is no punishment. Because there is no punishment, there is no incentive to act in an ethical manner, in fact acting in an ethical manner can be dangerous when your competition isn’t acting ethically.

While I am a strong advocate for software-related patents I have always been opposed to the patenting of Business Method Patents (BMPs). In my 2006 article Patents: Where’s the Invention? I stated that the Patent Office should do what the European Patent Convention did when it ruled that anything that consists of “schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers” is not an invention and therefore not patentable.” Justice Stevens, in his Opinion also wanted to ban BMP’s from being patentable subject matter when he concluded that a method of doing business is not a “process” under 101.

Although the Bilski Opinion disallowed the Bilski application they stated that under certain conditions business methods could still be patentable subject matter. On July 27th the USPTO set up more stringent rules for the issuance of BMPs in their Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski v. Kappos. In many ways those guidelines are similar to the way computer software and hardware patents are currently being treated under the 1996 Guidelines for Computer-Related Inventions.

You will note that he doesn’t define the difference between software patents and business method patents. In many cases the two overlap. This makes his opposition to business method patents somewhat self serving in my opinion. He appears to be trying to say that his software patent deserves protection because it isn’t a business method patent.

Part of the problem is he is arguing that anything that consists of schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers shouldn’t be patentable, however a sorting algorithm is a mental act, which would make his ‘invention’ not patentable.

One of the greatest challenges facing the Patent office today for BMPs, software or hardware patent applications is in discovering prior art and determining if there is an invention. The USPTO “Peer to Patent” pilot project” which allows the public (including professionals in their respective fields) to comment on patent applications is still in its infancy, but offers the potential to assist the Patent Office in rejecting the large number of applications that are filed each year. The stated goal of the pilot project was to “connect the USPTO to an open network of experts online.” Also, private companies e.g., the Article One Partners, a patent research firm, have the potential to significantly reduce the large number of patent litigation cases.

I am in partial agreement with what he has said. Prior Art is a huge issue. For example several attempts have been made to patent natural plants. The problem is less of discovering the prior art, than it is adding rules to the Patent System which punish misbehavior.

The other issue is that the USPTO seems to believe that it exists to help inventors to get patents, and to err on the side of the inventor if there is any question. It is abdicating it’s responsibility to act as a gate keeper, to ensure that the patents which are issued deserve to be issued. The USPTO is supposed to serve the public, and by not screening patents more rigorously it is not doing so.

In conclusion, while I am a strong proponent of software patents I am very aware, and agree with, many of the arguments against patents because of patent trolls, frivolous patents, e.g. Amazon’s one-click patent, and frivolous patent litigation that can put companies out of business. And I support changes in the Patent Law to reduce those problems. But if one believes in the how the Patent System has fostered innovation and helped the US grow and prosper, then there is no rational reason to eliminate technology inventions that use software as its implementation.

In my previous article there were many comments from diehards that continued to believe that software companies are trying to patent a computer program. Whether those diehards still believe that a computer program is mathematics, or a mathematical formula, or an algorithm, or an abstract idea, so be it. Computer software programs are not what software companies are trying to patent. A software patent invention is on a unique machine process —- nothing more and nothing less. And the criteria should be 1. Innovation 2. A proper disclosure and 3. Usefulness — the same requirement that is the criteria for all patentable subject matter.

What he’s saying is, See? I’m a nice guy. I oppose the Amazon one-click patent. Yeah, right.

Like most Americans, Martin is rather uneducated. Seriously. Americans really don’t know the history of their country. Oh, they can often rattle off the names and dates of battles, but they miss more important things.

Why did the Thirteen Colonies rebel against the British Empire? Most people will say that freedom is involved, but when you push, you quickly find out that they don’t know how.

The Thirteen Colonies rebelled against the English for economic reasons. The Empire was set up as a supplier of raw materials for English factories. Raw materials were shipped to England, and manufactured goods were shipped back. To keep this profitable setup in operation, it was necessary to pass legislation limiting the ability of the colonies to set up their own manufacturing plants.

A group of rich inhabitants of part of North America, including the very wealthy George Washington, didn’t like this. They wanted to set up their own factories in North America, so they could grab a slice of the huge market themselves. Factories in North America would have dramatically lower shipping costs than factories in England, which would be a huge advantage. The English merchants of course were opposed to this, as it would cost them money.

It ended up costing them money anyway, when the Colonies actually managed a successful rebellion against the Crown. Did you ever notice how many of the Founding Fathers were be-wigged aristocrats? Now you know why. The Founding Fathers were in it for the money, honey.

Their experiences with the British Empire model also made the Founding Fathers extremely skeptical of intellectual property protection. They had, after all, been on the short end of the stick, as one of the weapons that the British used against the colonies was patent law. Thomas Jefferson was particularly skeptical as this page at shows, though his attitudes changed later, possibly because he was able to make money from the patent system.

For another example of how the British Empire used the colonies as suppliers of raw materials, consider India. Before the British takeover of India, there were a lot of manufacturing operations. After the British took over, they closed most of them, and forced India to buy manufactured goods from England.

In closing, either Martin Goetz doesn’t know what he’s talking about, or he’s lying. I can’t see any other options.


Wayne Borean

Tuesday September 14, 2010

Tea Party Suicide – Why Closing The United States Environmental Protection Agency Is Part Of The Platform

One of the fascinating occurrences in American Politics in this off-year is the growth of the ‘Tea Party’, which isn’t really a party. The Tea Party espouses limited government. So limited that they appear to wish to shut down most of it.

The Tea Party’s stated policies are often in conflict. There is widespread support for limited government in the Tea Party, both as a philosophical concept, and as a means of cutting taxes. Curiously there is no support that I have seen for cutting the Military, one of the largest expenses that the United States has.

One of the agencies most often mentioned for closure is the Environmental Protection Agency (EPA). Unlike the other agencies that are often cited as not needed, the EPA doesn’t have a direct connection with the public. Compare that to the Department of Education which has a direct connection to anyone who has children, or have attended school themselves! So why is the EPA on the Tea Party’s hit list?

Several investigations of the Tea Party have indicated that while it claims to be a non-partisan, grass roots group, it is heavily funded by corporate backers. The New Yorker recently ran an article titled Covert Operations – The billionaire brothers who are waging a war against Obama. Other media outlets who have carried out investigations have confirmed the connection.

Koch Industries is heavily involved in the oil and coal industries. The brothers who own the firm are rich by anyone’s standard. They pay a lot of taxes, and produce materials which are either regulated by the EPA, or have effects that are regulated by the EPA.. They have a vested interest in reducing the impact of government regulation, and government costs on themselves and their company. Curiously the very things that the Tea Party is concerned with.

Since Koch Industries is privately held, it isn’t required to give the same level of disclosure as a publicly traded company. This gives Koch a level of freedom that British Petroleum, Exxon and other publicly held companies do not have, to take part in the political debate. And the company, denials to the contrary, is taking part. Based on American investigations, it appears that the Tea Party is actually the Koch Party. What actions Tea Party advocates will take if this connection is proved to them is unknown, however I expect them to be interesting. Tea Party members as a whole do not appreciate astroturfing, however they do seem to have a blind spot when dealing with people who purportedly have the same interests.

Fake grass roots campaigns have a nasty habit of back firing. Take the Tea Party’s support for closing the Environmental Protection Agency. The EPA has been responsible for cleaning up some truly horrible pollution. Have you ever heard of the Iron Mountain Mine? Runoff from the Iron Mountain Mine, which included a variety of acids and poisons, did tremendous damage to the Sacramento River, damage that the river may never recover from. The runoff also damaged the health of all of the communities downstream. Then there is the damaged caused by lead anti-knock additives in gasoline. Or the infamous Love Canal, where ‘A survey conducted by the Love Canal Homeowners Association found that 56% of the children born from 1974-1978 had at least one birth defect.

The problem is that the average person doesn’t have the knowledge about how pollution hurts them and their families to make an informed decision. Because of that, it is possible to use an astroturf campaign to convince them to take a position that is contrary to their own best interests. For a time at least. Until the next disaster, the next Love Canal.

Yes, I know a lot about the Love Canal. In the area I where I grew up, we could receive television signals from Niagara Falls, NY, and Buffalo, NY, so we got to hear all about it. Later, professionally, I worked for a company involved in manufacturing pollution control products, and attended many meetings held by the Environmental Protection Agency. As a result I’m better educated on the issues than most people, and while I’m no longer in the industry, I still have a strong interest in environmental issues.

The average Tea Party member doesn’t have my background. For a time at least they can be fooled. For a time. But what happens when the truth is violently pushed on them, as happened to the Love Canal residents and their neighbors?


Koch Industries may think that funding the Tea Party, and trying to get it’s aims adopted is a good idea. In the short term it may be. The problem is that most people aren’t stupid. They may not know things, if they haven’t been taught. But they can, and will, work out what is happening. And when that happens Koch Industries is in trouble. Big trouble.

Because the various groups that make up the Tea Party are an attack on the establishment. Koch Industries is a big part of the establishment. The Tea Party groups are attacking the establishment because the establishment no longer stands for the values that they hold dear. When they realize that part of the establishment is using them, to attack another part of the establishment, they will be furious.

The Tea Party also stands for responsibility. Koch’s funding of the Tea Party is an attempt to evade responsibility, an attempt that the Tea Party members will not stand for when the connections become clear to them. They don’t like being taken advantage of, and this is what Koch is doing.

Koch will continue to try and hide the funding connections, and the policy connections. But in the long term they will fail. Too many people are curious now. Too many people are looking at what is happening. Too many people know that many of the Tea Party policies disadvantage Tea Party members. When a group is disadvantaged by it’s policies, there is solid evidence that someone hiding behind the scenes is attempting to use them for his or her own advantage.

Koch Industries actions show a total lack of respect for the intelligence of the American public. This lack of respect that will fuel a sense of rage that will eventually burn up Koch as an operating entity.


Wayne Borean

Saturday September 11, 2010

Long Gun Registry Redux – Lead Is The Answer

As a politically aware Canadian, who is the son of two politically aware Canadians, the husband of a politically aware Canadian, and the father of three politically aware Canadians, well, I read a lot of political news. And a lot of the current news is about the Long Gun Registry.

As I mentioned in this article on September 2/2010, the long gun registry is part of our rural/urban divide. Urban Canadians love it. Rural Canadians hate it.

Most Urban Canadians are terrified of guns. They have no experience with them. Except for when they watch the ever more violent American crime dramas on TV.

Today Rosie Dimanno published an article in the Toronto Star titled Long-gun registry won’t save the lives of spouses. I don’t normally read the Star, a newspaper so left wing that it makes Jack Layton, leader of the New Democratic Party, look like a Conservative. But I found the article on National News Watch, and thought I should check it out.

Rosie starts talking about Domestic Violence, and then points out that the murder rate in Canada has been dropping for thirty years. According to her numbers, knives are more commonly used then guns. Her numbers were:


16 were knifed to death

12 by a rifle or shotgun

12 strangled

6 clubbed by a blunt instrument

6 shot with handgun

19 by other means


15 stabbed

9 women were killed by a long gun

8 strangled

1 women killed by a handgun

If you include all homicides in Canada, in 1995 there were 93 murders. In 2008 there were 62 murders, 31 less than in 1995, even though the total population had grown by about two million people during that time.

So what did Rosie miss? Easy. She missed that old wonder material, tetraethyl lead. Tetraethyl lead was a fuel additive first introduced in the Roaring Twenties, which functioned as an anti-knock agent in Gasoline fueled internal combustion engines. The lead part of a Tetraethyl lead molecule separates from the rest of the atoms during the combustion phase of the engine, and is exhausted out the tailpipe of the car.

There is a big problem with that. Lead was building up in the environment, an effect that had not been fully foreseen when leaded gasoline was first introduced.

Starting in 1974 unleaded gasoline was offered beside leaded gasoline in fuel pumps across Canada. In 1993 the use of leaded gasoline was banned across Canada, and in 1996 the United States finished it’s phase out of lead fuel additives (except for aviation and racing fuels).

About five years after unleaded gasoline started to be sold, the murder rate in Canada started to decline. Thirty years later, the murder rate has dropped even futher.

Lead is a Neurotoxin. During the seventy years leaded gasoline was sold in Canada, tailpipe lead emissions were damaging public health. High levels of lead can cause serious damage to the brain, impairing function. Lower levels cause cognitive dysfunctions which lead to impaired decision making. Those suffering from impaired decision making are not aware that their decisions are impaired.

As the use of lead in gasoline products was reduced in both Canada and the United States, there was a documented drop in crime rates for most crimes (the exceptions being crimes which were historically under reported like sexual abuse). As noted in studies, the reduction of environmental exposure levels reduces the level of cognitive impairment, even though long term damage remains. Reduce the level of cognitive impairment, and you reduce the crime rate.

In simple terms, the reduction of environmental lead exposure is responsible for the drop in the murder rate by about a third.

But don’t take my word for it. Google for articles on lead poisoning at other sites. Google for reductions in the violent crime rates in various jurisdictions, and compare when the reductions started with the date of removal of lead from gasoline. There is a strong correlation. And remember that one of the issues with lead, is that it does not appear to have a ‘safe exposure limit’ unlike most other substances.

I know. This sounds totally weird. But lead really is that poisonous. There are currently attempts being made to ban lead fishing weights, and the lead wheel weights used on automobile tires, to further reduce environmental lead. There has also been an attempt to block the sale of lead based ammunition.

But we have all that lead, already in the environment. Lead doesn’t go away quickly once it is in the ecosystem. Unlike iron it doesn’t rust, and there’s not a lot we can do to get rid of it.

The original reason for the Long Gun Registry was to cut firearm deaths. At the time the bill was written, the scientific understanding of how lead poisoning caused cognitive impairment wasn’t as well researched as it is now. In other words, the drop in the number of murders per year is more likely to have been because of the ban on lead based fuel additives.


Wayne Borean

Saturday September 11, 2010