What do you really know about Ferguson?
Ferguson
Category: Legal
NSA Spying Scandal – An Analysis
Like a lot of people, I’ve been following the NSA Spying Scandal closely. In fact, I’ve been following it for several years, since before I first ran into Barrett Brown. Seriously. The leaks about go back a long way, and most writers appear to have missed the implications.
SCOicide – The SCO Group vs the World
On June 28, 2002, Darl McBride became the Chief Executive Officer of Caldera International, and proceeded to kill the company.
The above statement may seem rather strong to those who don’t know the background. Caldera International was a Linux Distributor. The company had made many improvements to Linux (including the first GUI installer), and while the Caldera version was never as popular as the Red Hat version, it was generally well respected. But Caldera was a money losing proposition. It had never made a profit one during it’s years of operation.
One move that Caldera made to try and become profitable was to buy the Unix business from the Santa Cruz Operation. The aim was to use the software distribution channel that Santa Cruz had successfully built up as a Unix vendor to sell more Linux, as Linux was expected to replace Unix in the X86 marketplace.
And then came Darl. The story gets really murky at this point. The people involved either aren’t talking, or are lying like a rug. This sounds harsh, but it’s the only viable conclusion based on the available evidence.
The public story is that Darl noticed that Caldera’s main source of income was the Unix business it had bought from Santa Cruz, and decided to concentrate on growing it. He also started asking questions about how Linux could be competitive to Unix in features and capabilities when it was a free software project (Darl apparently considered Free Software to be ‘hobbyist’ products, the sort of thing your Aunt May did on Saturday evening). As I said, this is the public story. Supposedly Darl was convinced that someone had transferred capabilities from Unix to Linux, and so Caldera sued IBM.
The lawsuit against IBM which originally was for $1 Billion US sent a shockwave throughout the tech community. Many of us wondered if maybe there wasn’t something to it – after all, the source for Linux was widely available, and if someone had copied something they shouldn’t have into it, it would be easy to find. Another consideration is that only an idiot would sue IBM without solid proof. Seriously. Would you launch a lawsuit against a company that was capable of ‘darkening the sky over Utah with lawyers’ without solid evidence to back up your claims?
I, along with a lot of other geeks started looking for answers. One of my searches lead me to a blog over at Radio Userland called Groklaw in early 2003 (the blog moved to Groklaw.net soon after). The blog was written by a PJ (Pamela Jones), who said she was a Geek and a Paralegal. PJ had written a lot of detailed articles. She explained how the legal system in the United States worked, evaluated the legal filings in the Caldera v. IBM case as they were filed, researched cases that were referenced and explained why they were important, and effectively ran an online seminar for programmers on legal system basics. It was a great resource.
Due to the interest in the case, Judge Kimbell told both parties to minimize redactions in the documents that they filed, and not to minimize the number of documents filed under seal. Because of this we learned that Caldera had hired people to investigate and prove the transfer of code, and that they reported that they COULD NOT FIND PROOF OF ANY TRANSFER. They filed their reports before the original lawsuit was launched. Darl, the CEO knew that he didn’t have any proof. None. But he went ahead with the lawsuit against IBM anyway.
Also there was the issue of whether or not Caldera actually owned the Unix copyrights. It was about this time that Novell, the seller, claimed that they sold the business to Santa Cruz, not the copyrights. So now Caldera sued Novell too. And Red Hat sued Caldera. And Caldera sued AutoZone. And Daimler Chrysler.
It was like watching a rabid dog running down the street, attacking everything in sight.
Or maybe watching a train wreck in slow motion. It was less than six months after the original lawsuit had been filed that PJ, along with the regulars who hung out at Groklaw managed to prove that what Darl was claiming was impossible. Which didn’t stop Darl of course. Remember at the start that I said only an idiot would launch a lawsuit of this sort?
It’s only now, that Caldera (which changed it’s name to SCO Group, apparently to confuse the Jury) has finally ended up in court, in front of a jury. The CEO is gone, they are in Chapter 11 Bankruptcy, and even if they win, they probably won’t survive.
And every day, for the last six years, I’ve visited Groklaw at least once a day. My wife at one point accused me of having an online affair with PJ, much to my amusement.
Thank you PJ – for doing a wonderful job. For teaching me so much. For working so hard.
Thank you.
Wayne Borean
Thursday March 11, 2010
Microsoft – Tax Evader Par Excelence
I’m not a tax law expert. I’m especially not a U.S. Law tax expert, Canadian Tax law I know a bit about. However the people over at Microsofttaxdoge.com appear to know a fair bit about the tax laws, specifically in regards to Washington State law. Now they may be a bit biased, but the article ‘Washington to Give Microsoft a $100 Million Annual Tax Cut…and Possible Amnesty on Past Tax Evasion‘, if accurate, is troubling.
Microsoft plays a good game, trying to market their company as a responsible corporate citizen. Using the rules to avoid paying taxes by having an office in another state to collect one type of revenue may be legal (I’m not familiar with the local rules). It may not be legal. But avoiding taxes when your home state as a horrible budget deficit is not the act of a responsible corporate citizen.
Read it. Think about it. There could be 1.2 billion owed, depending upon how the law is interpreted. And the assemblyman responsible for the newest legislation used to work for Microsoft. The optics on this one are really bad.
Wayne Borean
Tuesday February 16, 2010
Invent Help Sues IPWatchdog Alleging they are Not a Scam
I don’t often agree with Gene Quinn over at IPWatchdog. Gene thinks that if it moves, you can patent it (or at least it seems like that). Gene thinks that Climate Change is a myth. So we disagree on some issues.
That said, I’ve formed the impression from jousting with him at IPWatchDog that Gene is basically a nice guy. He cares about the little guy. Which is apparently why he’s on the wrong end of a lawsuit.
Gene has written several articles critical of Inventhelp.com. He is somewhat skeptical of their claims, and actually went so far as to classify them as a scam. They didn’t like this, and ‘Invention Submission Corporation”, doing business as Inventhelp is suing Gene, and his wife.
I am not a lawyer, so while I’ve read the court filing, I’m not going to claim to understand the fine details. But I recommend that everyone read it, remembering that it was written by a lawyer who is trying to put the best spin on her client’s position. Compare the ‘Facts’ section, with the posts on IPWatchdog and with the information available from Inventhelp.com. You will probably notice some points that don’t match the facts as stated. I did. I don’t know how significant the deviations are.
But… I’ve seen Inventhelp.com’s advertisements in the past. I’ve read them. And you know what? If it isn’t a scam, it sure as hell looks like one. It reminds me of those emails I keep getting from my friends in Nigeria.
Gene says he’s going to fight this. Based on what I’ve seen so far, I’m going to sit back and cheer for him.
Wayne Borean
Tuesday January 26, 2010
PS: I suggest doing a Google search on the term ‘Inventhelp scam,’ it returns some really interesting links.
Sookman Deflates Pending Lists Claim to Vilify Artists
Oh dear. I hadn’t seen this post of Barry’s before he retweeted it. Um, how do I put this politely? Barry, you messed up.
Prof. Geist tries to taint the recording industry as blatant copyright infringers, without ever delving into the industry wide accepted custom for clearing mechanical rights. The pending list system, which has been around for decades, represents an agreed upon industry wide consensus that songwriters, music publishers (who represent songwriters) and the recording industry use and rely on to ensure that music gets released and to the market efficiently and the proper copyright owners get compensated.
But Barry, the recording industry are blatant copyright infringers. Or at least they sure give that impression. Let’s see:
Courtney Love Sues Record Label
Allman Brothers Band sues record company for $13M
Eminem Sues Record Label Over iTunes Royalties
Eurovision star sues record label over contract dispute
Smashing Pumpkins sue record label over use of songs in Pepsi promotional deals
Travis Tritt sues record label
I think that by this point you get the idea. Barry is trying to make his clients out as kindly, well meaning toffs (lords) – like Frodo in J.R.R.Tolkien’s Lord of the Rings, when instead they seem to be more like Anthony Soprano.
As to the ‘Mechanical Licensing Agreement‘ that Barry likes so much – think about this. Your major source of money says to you, hey, it would be real convenient to do things this way, using the compulsory licensing… Don’t you hear Tony’s voice? Are the artists really in a position to object?
Barry states that the amount is only $58 million. Think. Only $58 million. This of course assumes that his clients are telling him the truth, and that there aren’t any interest payments due, and that everything is accounted correctly. And it would never occur to Barry to question them, after all, to him, they are the good meaning toff’s illustrated so well by Tolkien. In a Fairy Tale. They’d never do anything like slip four extra words into the The Satellite Home Viewer Improvement Act of 1999 would they? After all, they keep telling us that they have the best interests of the artists in mind. So they wouldn’t have done anything like that, would they? So what if the artists assert their copyright termination rights. The companies support the artists – they should be happy! Not. An article on Law.com covered this very nicely, one of the lawyers interviewed represents the Eagles, Journey, and John Dozier Jr.’s favourite artist, Barbara Streisand.
But they did. They did just that. From Wired:
The record labels tried to defuse this bomb in 1999 by sneaking an amendment to the Copyright Act through the House of Representatives that would add sound recordings to the Act’s list of copyrights that were considered “works for hire,” which would make them exceptions to the grant termination clause. According to one source close to the situation, the labels told Congress that the Copyright Act already covered sound recordings as exceptions because albums of music are “compilations” — but that “just to be absolutely clear, [the labels] wanted to put it in so nobody can debate it.”
After musicians, including Carly Simon, reacted negatively, the amendment was withdrawn amid public outcry leaving record labels with precisely two options for fending off notices of termination, neither of which looks promising. The first is to continue to claim that albums are compilations, which doesn’t pass the common-sense test (compilations include songs from different artists), and probably won’t pass legal muster either.
So the friendly, kindly toff’s did try to slip something in, and got caught with their hands in the till. Figuratively. But it was a close run thing.
If you can only read one of the articles, the Wired one has a really good explanation of how the Recording Industry tried to pull a Tony Soprano on the artists. And it was a damned close thing – if it wasn’t for someone catching it, it might have slipped through.
And the labels wonder why the artists don’t trust them. You think they’d get the picture by now. No, wait, they do know how much the artists don’t trust them. And don’t care, as long as they get to keep raking in the shekels.
Disclosure – I spend a lot of time with musicians. If you are in a pub listening to musician shop talk, the shear cynicism that pervades the musicians side of the argument will shock you. I’m not saying that musicians are saints. They aren’t. But the treatment they get from the labels is often little better than blacks got after the Civil War. Free often means free to starve. Me, I prefer musicians. They create something. The labels just package it, and try to take all the credit and money they can, leaving only enough for the artist to pay rent, if that.
Wayne Borean
Monday January 18, 2009
PS: Barry, why don’t you return my calls?
Oink.CD – Oink's Pink Palace Part One
The acquittal of OINK.CD admin Alan Ellis has caused a firestorm of confusion across the net, with comments flying fast and furious claiming just about anything you can imagine, and a lot you probably couldn’t imagine. The problem is that so far we don’t know a lot. After the initial raid the police and prosecutor in England went silent, and to the best of my knowledge some of the major pieces in the case (like the original search warrant) are still not available for analysis.
And of course the reporting of the case was variable. Some of the articles seemed credible, others, including the original BBC report were incredulous to say the least.
Still, after reading a blog posting by Pangloss, I thought I’d take a shot at it. Pangloss seemed a bit confused about what happened and why, and with good reason. But if you are willing to do enough digging, there is information available, and I’m a stubborn sort.
OINK.CD (full name Oink’s Pink Palace) was a BitTorrent tracker. BitTorrent is a file transfer protocol, designed to allow fast efficient file transfers, which was invented by Bram Cohen, the founder of BitTorrent Inc. BitTorrent as a protocol, puts a lot less stress on the central server, as each user who downloads part of a file, also makes that part of the file available. In practise this means that as a Torrent is first seeded it will run slowly, speeding up as more users have parts of it. This makes it especially useful for distributing large files, such as operating systems (Linux, Solaris, and BSD kernel based operating systems are usually distributed using BitTorrent). World of Warcraft is another heavy BitTorrent user, and the Canadian Broadcasting Corporation has used it to distribute TV shows.
As a tracker, OINK.CD did not host any files. In effect a Torrent tracker can be considered a specialized search engine.
Now we get into the fun stuff – the above is fact (to the best of my knowledge). The rest of the article is speculation based on news reports and press releases, which may or may not have been accurate (and even the ones that were accurate may have been wrong – if I quote you, and you don’t know what you are talking about, it doesn’t matter how accurate my quote was – it’s going to be wrong).
OINK was an invite only tracker. You had to have an invite to get access, which meant that you had to know someone who was a member in good standing. I have been told that there was no cost to join. Users had to maintain a certain upload/download ratio, specifically for every megabyte you downloaded, you had to upload the same. No leaches need apply. If you weren’t able to maintain a good ratio, too bad. Unlike some sites, donations were NOT credited towards your download ratio, and were totally voluntary.
Note that this is what I’ve been told. I don’t know if my source really did have an account there.
The first that most people heard of OINK, was when a writer named Darren Shan hired the law firm of Addleshaw Goddard, claiming that people were downloading his books from OINK. OINK at this time was run from OINK.ME.UK, however the law firm went after the Domain registrar, and this cause OINK to change the domain to OINK.CD in July of 2007. While this trouble appears to be separate, it is possible that the news about OINK’s problems may have raised it’s profile with the music industry, even though there were claims by the IFPI that they had been investigating OINK for two years. IFPI claims have to be looked at carefully all through this case – for example they claimed that OINK was illegal, and the jury apparently found that it wasn’t.
The second major story about OINK to hit was the raid and arrest, on October 23, 2007, which was covered by the BBC, TorrentFreak, Gazette, Sun, and the Guardian. To the best of my knowledge, the Guardian was the only news site to publish any sort of correction, and as Bobbie Johnson of the Guardian pointed out, a lot of the information from the Police and IFPI (International Federation of the Phonographic Industry) was obviously incorrect. You can still view the IFPI Press Release on their website. Curiously the Cleveland Police have removed all traces of of the press release from their site, and there is nothing at archive.org or in the Google cache. A search for ‘operation ark royal’ shows up a link for an updated press release, but you get an ‘access denied’ message when you try to access it. I have emailed the Cleveland Police for copies of the press releases, and will update this when and if I receive them.
A very interesting take on the situation was posted at Sceptic Isle, titled ‘First they came for the torrent websites…‘ in which is written:
The police claim in their statement that the operating of OiNK was “extremely lucrative” and “members paid donations via debit or credit cards, ensuring their continued access to the site”. The former is highly unlikely, while the latter is completely untrue. While I was not a member of OiNK, mainly because I already have more music than I can listen to, I have friends that were, and unlike some other private torrent trackers, where you can donate to bounce your download/upload ratio back up to 1.0, OiNK was well known as being one of the most vigorous pursuers of those who failed to keep their ratio at the required level. As one former user has wrote on a forum:
Donations were completely voluntary. At most you received advanced search features which allowed you to break down your searches by year/artist/album/genre etc. You also gained immunity from the inactivity ban sweeps. They put it this way: “No amount of money you donate will replace the bytes you’re not uploading.” All that donations did was give you two invites, give you a star, make your irc hostname end in .donor, give you advanced search abilities and access to statistics, no ratio changes, nothing.
Running a site with 180,000 users would incur significant server costs. OiNK, again like other sites do, never begged for donations towards those costs. For the police to claim that this was “extremely lucrative” smells like the proverbial, and for the Scum to suggest the man arrested was making hundreds of thousands of pounds a year, extrapolating from the statement that “this is big business, with hundreds of thousands of pounds being made” is outrageous.
Now I don’t know who the writer is, since his profile isn’t public, but what he has written matches what I was told, and what I’ve seen posted in other places on the net. And he/she makes a very important point – the first sentence of the IFPI press release says:
British and Dutch police today shut down the world’s biggest source of illegal pre-release chart albums and arrested a 24-year old man in an operation coordinated between Middlesbrough and Amsterdam.
The problem with this, is that the only logical source of pre-release albums, is the record industry. Think about it. Do you have access to the latest recording by ‘insert star artist name here’? I know I don’t. I don’t work in the industry. Oh, I have stuff that no one else has, but I have a recording studio in my basement, and I recorded it myself. So what we have here, is an industry claiming that outsiders are causing it’s problems, when the only logical source of the problems is internal! Does this make sense to you? Indeed, a 2003 study into pre-release issues in the movie industry pointed the finger at industry insiders (PDF Warning).
OK, so let’s look at the next thing that happens. On the same day as the arrest, somehow the IFPI and BPI (The British Recorded Music Industry) have somehow managed to take over the site. Think about this. Allan Ellis has been arrested, but hasn’t been charged yet. So how could the ownership of the domain have been legally transferred? Especially since the registered owner spent most of the day in p0lice custody. It’s pretty hard to sign over a domain registration document from inside a police station, where you are ‘helping police with their inquiries’ as the quaint British term goes. One would not expect a private organization to have been allowed access to someone in that sort of situation, and if they weren’t allowed access, how could he sign? And of course Allan Ellis had at this point not even been charged with anything, never mind being found guilty of anything illegal in a court of law!
And then to confuse things even further, somehow on October 27th, The Pirate Bay managed to gain control of the domain.
***** End Part One *****
I had the impression when I started that I’d be able to cover this fairly quickly, however the amount of information I’m finding is phenomenal, so I’m cutting this off at about 1500 words, and will be back tomorrow with another segment. Based on what I’ve got so far, I am expecting the total when completed to be 10,000 words or more.
Microsoft, the Monopolist Zombie
A lot of people know that I’m not a fan of Microsoft Operating Systems. In fact, if I could bill Microsoft for all of the time I’ve spent trying to fix their mistakes, I’d be a rich man now.
What most people don’t know, because they don’t read court filings, is that Microsoft has deliberately attempted to block competition in Operating Systems, and Client Software for a good many years. In fact the company was found guilty of anti-competitive acts in several countries, including the United States.
However if you don’t have a technical background, it can be hard to understand what Microsoft did, and why it’s important. In simple terms, what Microsoft did was make sure that their products were interoperable when first introduced, so that they would be widely adopted, and once the products were widely adopted, would introduce incompatibilities into them, so that Microsoft products would only work well with other Microsoft products. They would then blame the competing product, claiming it didn’t work properly.
The result was a series of Microsoft products that worked great with other Microsoft products. Since other vendors products didn’t work well with Microsoft products, the easy way for most customers was to adopt a 100% Microsoft ecosystem.
This wiped out many Microsoft competitors, and once Microsoft felt it had a commanding lead in a market, it would increase prices on it’s products. This is documented by Anti-Trust cases that Microsoft lost both in the European Union and the United States.
There was also a class action lawsuit launched against Microsoft in the state of Iowa, called Comes v. Microsoft. The case was unusual in that the lawyers for the class posted all of the documents that they obtained from Microsoft during discovery on a website. Many people took advantage of the availability and downloaded copies. Mirrors of the original site can be found in various places around the net.
This week Groklaw, a geek legal site run by the redoubtable Pamela Jones, a paralegal, published several of the documents as text. In addition to the work done by the Boycott Novell website, the work done at Groklaw gives a view inside Microsoft, where as far back as 1999 Microsoft was more concerned with blocking Linux adoption, than they were in providing a superior product.
Groklaw’s main concern is the damage Microsoft has done to Free Software, but Free Software hasn’t been Microsoft’s only target. They used the same attacks against a wide range of competing companies, including IBM, Novell, Digital Research, Word Perfect, Corel, Apple, Commodore, Atari, Berkeley Softworks, Lotus, Borland, Real Networks, Netscape, Micrografx, Beos, Sun, Go Corporation, Ashton Tate, and Stac Electronics. Many of these companies no longer exist due to Microsoft’s machinations, which have left a trail of wrecked companies and lives.
It’s impossible to determine how much damage Microsoft has done to the world economy by it’s anti-competitive actions. We know that the EU Competition Commission levied a fine that was over a billion euros, and which apparently has done little or nothing to change Microsoft’s actions. It appears that fines are part of the cost of doing business from Microsoft’s point of view.
However it’s possible that Microsoft has in the end done more damage to themselves than to anyone else. For years Microsoft was the 800 pound gorilla of the computing industry. Since 2003 Microsoft has not introduced one product that has achieved widespread adoption, and has lost money on every new field that the company has entered. While it’s difficult to be sure, it appears that Microsoft’s focus on preventing competition, has done more damage to Microsoft than the competition, at least in the last 6 years, due to a lack of focus on product design. It doesn’t matter if you are a monopolist, if you design a product that isn’t attractive to your customers.
For example many people think that Microsoft’s XBox360 is wildly successful. And Microsoft did sell a lot of these since their introduction. But at a tremendous cost. The systems have been very unreliable, with Microsoft having to replace enormous numbers of them under warranty. No other consumer electronic device has every had as high a failure rate.
Microsoft’s Windows Mobile was supposed to be the operating system that would introduce smart phones to the masses, however first RIM with the Blackberry, and then Apple with the IPhone have produced devices that worked better than Windows Mobile devices, and nearly wiped Windows Mobile out as an operating system. Microsoft claims that Mobile is still a major part of their corporate focus, however it is difficult to see how they can gain back the market share that they have lost.
Microsoft’s Zune Media player is another product that hasn’t sold at all well. While the device does work, it seems unable to compete with the Apple IPod, or for that matter with the less expensive Chinese made media players.
Apple has hit Microsoft hard, literally taking the top end of the personal computer market by storm. Some estimates give Apple 50% or more of the market for computers costing over $1000.00 US. Apple’s Mac-PC ad campaign has helped to introduce a new generation of computer users to the Mac platform, which only a few years ago most people had written off as dead. In Canada some estimates put Mac OSX at 10% of the total market of in-use systems.
Firefox has taken market share from Microsoft’s Internet Explorer every month since it’s introduction. In fact in some areas of the world it now appears to be the dominant browser, despite Internet Explorer being shipped with every copy of Windows. Other browsers are also taking market share from Microsoft, including Opera, and Apple’s Safari.
Microsoft Office has also taken a hit, with a variety of competing Office Suites nibbling at it’s market share. Word Perfect is still around, and gaining share slowly. More dangerous to Microsoft is Google Office, an online collaborative suite. For those who don’t want to keep their data on the cloud, and can’t afford Word Perfect or Microsoft Office, there’s Open Office, which is a free download, and has most of the functionality of Microsoft Office. In fact it’s better than Office in some ways, for example when opening legacy Office documents, OpenOffice works better.
The question is, can Microsoft still compete? The answer appears to be no, in the short term. It got fat and complacent, just like General Motors did. General Motors had to go into bankruptcy protection to survive. But GM produced a hard product. Microsoft doesn’t. And that could be what kills Microsoft.
Wayne Borean
Saturday January 16, 2010
SCO Train Wreck still occuring in slow motion – molasses would be quicker
Oh dear. The total idiots at The SCO Group finally had a court decision that fell partly in their direction. Partly. The Appeals Court has decided that Summary Judgment was the wrong way to deal with the case, that it should have gone do jury trial, as there were facts which a jury was best able to address. This of course happened just as the trustee was appointed taking control of the company away from management.
What will happen next? It’s hard to tell. So far nothing has happened the way I thought it would, when I thought it would. But at present SCO looks like a Zombie from one of the Living Dead films.
Even mostly dead though, they still called an Investor Conference Call, which seems rather silly. Who is going to invest in a company that is in such bad financial shape.
Well, they have one true believer. Maureen O’Gara continues to sing the company theme song. You have to wonder why she is doing this? It gives the impression that they are either paying her (or she has invested heavily in SCO Group stock).
So we’ll have to wait and see. But it’s in the hands of the Trustee now, and unless someone (possibly from Redmond) is willing to put a lot of money on the line, it looks like the train wreck is nearly over.
Through the Looking Glass 