Empat Pelajaran dari Hasil Penyelesaian Kasus Pelanggaran HaKI Microsoft vs Distributor Open Source

Ada empat Pelajaran yang kita dapat dari hasil Penyelesaian Kasus Pelanggaran HaKI Microsoft vs Distributor Open Source, yaitu " Microsoft and TomTom Settle Patent Infringement Cases" dimana Perusahaan Distribusi OSS Tom Tom setuju mengambil paten berbayar dari Microsoft untuk lisensi penggunaan navigasi kendaraan, dan menghentikan penggunaan software File Allocation Table (FAT) yang di-klaim sebagai milik Microsoft, guna melindungi para pengguna produk Tom Tom. Ini menandakan bahwa konflik antar pengguna HaKI akan tetap ada selamanya, namun dapat diselesaikan melalui Pengadilan sebagaimana kasus-kasus lainnya yang biasa diselesaikan.

Adapun empat pelajaran itu adalah sebagai berikut:

1. Software Open Source bukan wilayah software HaKI gratis, karena keberadaan software Open Source adalah karena adanya HaKI GPL (General Public License).
   
2. Tuntutan Pelanggaran HaKI, termasuk atas OSS, adalah proses tuntut-menuntut biasa dan dapat diselesaikan (business as usual).
3. Tuntutan terhadap OSS memang dapat terjadi namun dapat diselesaikan seperti pada kasus Tom Tom diatas, dimana Tom Tom membayar hak paten yang dipakainya dan menghentikan penggunaan software FAT milik Microsoft.
4. Penyelesaian kasus2 tuntutan HaKI adalah baik bagi para pengguna Software itu, karena dapat menggunakan tanpa rasa ketakutan.

Rincian lengkap dari artikel " Four Takeaways from the Microsoft-TomTom Settlemen" ada terlampir dibawah ini:

by JeffSeul, Holland & Knight
Apr 8, 2009 9:28:58 AM

Whatever one thinks about open source software and software patents, the recent settlement of Microsoft's patent infringement lawsuit against TomTom illustrates that both are here to stay and that conflicts between owners of intellectual property rights (IP) at the intersection of the two can be resolved in the usual way.

To be sure, five of the eight Microsoft patents at issue in the case had nothing to do with the open source Linux operating system used in TomTom's car navigation devices. Microsoft stressed that its lawsuit was not the beginning of an assault on Linux(1), and Jim Zemlin, executive director of the Linux Foundation, characterized it as "a private dispute" and urged others not to jump to the conclusion that it was anything more(2). Nonetheless, the lawsuit – and its quick settlement – may tell us something about the ongoing evolution of the tech industry and how open source software (OSS) figures within it.

What does the Microsoft-TomTom settlement mean for tech companies and their customers? Here are four takeaways:

Takeaway 1: Open source software is not an IP-free zone.

There is a great deal of confusion among non-lawyers about the applicability of intellectual property (IP) rights to OSS. Perhaps contrary to popular opinion, the OSS model is based upon the existence of IP rights.

The most commonly used OSS license is Version 2 of the GNU General Public License, or GPLv2. As explained in the GPLv2 itself(3), it relies upon the existence of and ability to enforce copyrights, as does any software license. All licenses grant users a subset of the rights held by the software's creator, so long as users comply with the obligations and restrictions found in the license. For example, like other "copyleft" OSS licenses, the GPLv2 requires users to make any improvements (and related source code) available to the world only under the GPLv2, just as the original creator of the software chose to do. OSS also can be protected by patents, and it can infringe patents that protect other software.

The Microsoft-TomTom settlement is further evidence that sophisticated developers and distributors of OSS understand that OSS is not an IP-free zone. A settlement is not an admission of liability, of course, but TomTom's decision to settle quickly, on terms that require it to stop using some of Microsoft's Linux-related patents and shield its customers from lawsuits for infringement of other Linux-related Microsoft patents, presumably is a tacit acknowledgment that Microsoft's infringement claims need to be taken seriously.

1. See Q&A: Microsoft's IP Chief on TomTom, Linux and Patents (last visited Apr. 8, 2009).

2. See Note on MIcrosoft TomTom Suit: Calm Down, Hope for the Best, Plan for the Worst (last visited Apr. 8, 2009).

3. Paragraph 5 of the Preamble to the GPLv2 says, “We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software.” See GNU General Public License, version 2 (last visited Apr. 8, 2009).

Takeaway 2: IP lawsuits, including suits involving OSS, are just business as usual.

Traditional software companies have brought IP infringement lawsuits against one another for eons. Now, we not only see traditional software companies occasionally suing distributors of OSS, we see distributors and proponents of OSS suing others, both offensively and defensively(4).

For example, in September 2007 the Software Freedom Law Center, an organization that provides legal services to protect and advance OSS, filed an enforcement action against Monsoon Multimedia on behalf of the creators of BusyBox software, which is distributed under the GPLv2(5). The suit alleged copyright infringement for distribution of modifications to the software without making source code for the modifications available as required by the GPLv2. In Europe, guardians of OSS also are aggressively pursuing license violations as copyright infringement. A group called the gpl-violations.org project claims to have successfully enforced the GPL in over 100 cases between 2004 and 2006(6).

Patent related OSS litigation is also becoming common(7). Microsoft is not the first traditional software company to sue an OSS vendor for patent infringement, and TomTom is not the first major OSS distributor to settle a suit. In June 2006, Firestar Software sued Red Hat, a leading commercial distributor of OSS, alleging that Red Hat's open source Hibernate product infringed a patent covering Firestar's ObjectSpark technology(8). The companies have since settled the dispute.

In another recent case, Trend Micro, a developer of software that protects computers against viruses and spam, sued Barracuda Networks, a company that sells hardware containing open source anti-virus and anti-spam software, for patent infringement(9). In response, Barracuda Networks sought support from the open source community. It ultimately initiated a separate lawsuit to try to have Trend Micro's patents declared invalid(10) and another lawsuit alleging that Trend Micro was infringing three patents newly acquired by Barracuda Networks from IBM, which contributes to OSS projects and distributes OSS as part of its marketing strategy for its hardware and services offerings(11). TomTom used Barracuda Networks' defense strategy – counter-suing with patents newly acquired from a third party – in a patent infringement suit brought against it by another competitor, Garmin(12). Before the recent settlement, TomTom also sued Microsoft for patent infringement in response to Microsoft's lawsuit.

Patent infringement claims by OSS vendors aren't always defensive. Indeed, TomTom sued its Japanese navigation product rival Aisin AW last year for allegedly violating four of its patents(13). Barracuda Networks, TomTom and other OSS vendors are sophisticated companies that understand the IP environment and deploy both IP rights and OSS to their commercial advantage(14).

4. See generally Francis M. Buono and McLean Sieverding, Trend Spotting: Recognizing the Growing Risk of IP Litigation Facing OSS Developers and Implementers, METROPOLITAN CORPORATE COUNSEL, Vol. 16, No.9 (Sept. 2008).

5. Andersen et al. v. Monsoon Multimedia, Inc., No. 07-CV-8205 (S.D.N.Y. 2007) (settled). Similar suits have been brought against others. See, e.g., Andersen et al. v. Xterasys Corp., No. 07-CV-10455 (S.D.N.Y. 2007) (settled); Andersen et al. v. High-Gain Antennas, No. 07-CV-10456 (S.D.N.Y. 2007) (settled); Andersen et al. v. Verizon, No. 07-CV-11070 (S.D.N.Y. 2007) (settled).

6. GPL-Violations.org (last visited Apr. 8, 2009).

7. The following cases provide a few examples, in addition to those discussed in the body of this article: Jacobson v. Katzer, 2008-1001 (Fed. Cir. 2008); IP Innovation LLC v. Red Hat, Inc. et al., No. 07-CV-00447 (E.D. Tex. 2007); Network Appliance v. Sun Microsystems, No. 07-CV-06053 (N.D. Cal. 2007).

8. FireStar Software, Inc. v. Red Hat, Inc., et al., No. 06-CV-00258 (E.D. Tex. 2006) (settled).

9. Trend Micro initiated an action before the International Trade Commission seeking an order preventing Barracuda Networks from distributing the allegedly infringing products. Trend Micro, Inc. v. Barracuda Networks, Inc., No. 337-TA-624, 72 Fed. Reg. 74,329 (USITC, Dec. 31, 2007).

10. Barracuda Networks, Inc. v. Trend Micro, Inc., No. 07-CV-01806 (N.D. Cal. 2007).

11. See generally Ryan Paul, Barracuda bites back at Trend Micro in ClamAV patent lawsuit, ARS TECHNICA (July 2, 2008), (last visited Apr. 8, 2009).

12. See Press Release,Garmin Ltd., Garmin Obtains Complete Victory on TomTom Patents, Will Pursue Own Patent Claims Against TomTom (Dec. 23, 2006), (last visited Apr. 8, 2009).

Takeaway 3: Settlements of lawsuits involving OSS can and do occur.

All of the lawsuits mentioned above were settled. IP lawsuits, including those involving OSS, settle in one of the following ways, or some combination of them: the defendant stops using the plaintiff's IP, the defendant pays the plaintiff for a license to use it, or the parties cross-license IP to one another.

In the Microsoft-TomTom settlement, TomTom agreed to take a paid license under Microsoft's car navigation patents. While TomTom agreed to stop using the FAT LFN file system technology covered by two patents that Microsoft claims are infringed by the Linux operating system used in TomTom's navigation devices(15), TomTom will continue to use technology covered by two other patents that Microsoft claims are infringed by Linux. Microsoft agreed not to sue TomTom's customers based on their use of that technology(16).

Some people believe the GPLv2 prohibits all types of "discriminatory" settlements of patent suits, i.e., settlements that protect some licensees of GPLv2-covered software without providing the same protection to all other licensees. It does not. The GPLv2 prohibits agreements that cannot be honored while honoring the terms of the GPLv2(17), but it is possible to structure settlements and other agreements that do not induce anyone to violate the GPLv2. Microsoft has now reached several patent truces with companies that distribute software under the GPLv2, not least of which is its 2006 agreement with Novell. That agreement includes a covenant not to sue end users of products containing the infringing patents. Several leaders of the Free Software Foundation, including Richard Stallman, have publicly stated that the Novell deal is consistent with the GPLv2(18).

13. See TomTom sues Toyota navigation company, TRAFFIC TECHNOLOGY TODAY.COM (Feb. 18, 2008).

14. According to the online records of the United States Patent and Trademark Office, Dean Drako, the founder of Barracuda Networks, filed applications for two anti-spam related software patents long before Trend Micro sued Barracuda Networks: Patent Application No. 20060248575, titled "Divided encryption connections to provide network traffic security," filed on November 2, 2006; and Patent Application No. 20060238991, titled "Low profile expansion card for a system," filed on October 26, 2006. Both applications are still pending.

15. Some critics of Microsoft's suit against TomTom, like Bruce Perens, creator of the Open Source Definition, claim Microsoft’s File Allocation Table Long File Name (FAT LFN) patents are not innovative, implying, it seems, that they could be invalidated if challenged. See Bruce Perens: Analyzing Microsoft's TomTom Lawsuit (last visited Apr. 8, 2009). In fact, each patent has been affirmed twice by the U.S. Patent and Trademark Office, in the original examination and later during re-examination in 2006. U.S. Patent No. 5758352 was affirmed through reexamination on October 10, 2006, and U.S. Patent No. 5579517 was affirmed through reexamination on November 28, 2006. It also is well known that many companies have taken licenses under them. See TomTom Can License FAT Without Violating GPL (last visited Apr. 8, 2009).

16. See Microsoft and TomTom Settle Patent Infringement Cases (last visited Apr. 8, 2009).

17. GPLv2, Section 7.

18. See Transcript of Richard Stallman from the fifth international GPLv3 conference, Tokyo, Japan; 2006-11-21 (last visited Apr. 8, 2009).

Takeaway 4: Settlements are good for IT consumers, the people who matter most.

Litigation involving OSS is increasing, so it is good to see that suits involving OSS can be resolved in the usual way. Many tech companies, like TomTom (and Microsoft ), now pursue a "mixed source" strategy in which they distribute both open source software and proprietary software – often in the same product. Many OSS projects begin as labors of love, but most significant projects ultimately must find financial sponsors to survive and thrive. The Linux operating system, the Apache HTTP Server, the Firefox Web browser and other major OSS projects are supported by financial contributions and "volunteers" paid by major companies that produce revenue from products and services which are wholly or partially dependent upon the success of those projects. As Sun Microsystems explains in its 2007 10-K filing with the SEC, "[w]e build relationships with [the open source development community] to stimulate demand for our commercial products."

When software companies resolve their differences by agreement, they show respect for their customers, many of whom know and care little about the geopolitics of the tech industry, and all of whom want good products at reasonable prices that they can use without concern about debates among IP lawyers. According to Microsoft, for a year before it filed suit it tried to persuade TomTom to take a license under its patents. Given how fast the suit settled and the terms of the settlement, one wonders what changed from TomTom's perspective – except that it could no longer question whether Microsoft was serious. It seems a public skirmish could have been avoided, but the Microsoft-TomTom settlement is nonetheless another hopeful sign that the tech industry is evolving to accommodate different business models and development paradigms within the system of IP rights on which innovation for the benefit of consumers partially depends.

Oracle Agrees to Acquire SUN Microsystems

By STEVE LOHR

Published: April 20, 2009

In its acquisition of Sun Microsystems, Oracle sees a technology company that is a software gem, skillful in computer design and ripe for cost cutting.

Skip to next paragraph

Related

Cash in Hand, Technology Giants Go Shopping (April 21, 2009)

Readers' Comments

Readers shared their thoughts on this article.

• Read All Comments (50) »

The big database software company’s $7.4 billion bid for Sun on Monday, analysts say, also promises to make Oracle a more formidable competitor in the lucrative market for corporate computing, especially against I.B.M., Sun’s previous suitor.

The Oracle-Sun deal came little more than two weeks after I.B.M. ended its talks with Sun. The Sun board balked after I.B.M. lowered its offer to $9.40 a share from $10. The Oracle bid at $9.50 a share, would have a net cost to Oracle of $5.6 billion, after accounting for the value of Sun’s cash and debt.

Lawrence J. Ellison, Oracle’s chief executive, explained in a conference call Monday morning that Sun’s Java programming language and its Solaris operating system were the main attractions. He said Java, the language used in most computer science schools and a technology used daily by millions of software developers, was “the single most important software asset we have ever acquired.”

More of Oracle’s corporate database software runs on Solaris, a version of Unix, than on any other operating system. In the last few years, however, Oracle has moved to make Hewlett-Packard and Dell stronger allies, as Sun’s business has declined.

With Sun, Oracle will more directly compete against I.B.M., H.P. and other tech giants selling products and services used in corporate data centers by big corporations. The move by Oracle is part of the trend of the largest technology companies to assemble more offerings — hardware, software and services — for corporate customers, often through acquisitions, as I.B.M., H.P., Cisco and Oracle have all done in recent years. “Oracle is transforming itself into a soup-to-nuts information technology vendor,” said Gordon Haff, an analyst at Illuminata, a technology industry research firm.

Among industry rivals, the Oracle-Sun deal, analysts say, has the most potential impact on I.B.M. and H.P. “This deal promises to revitalize a systems competitor that I.B.M. and H.P. were writing off as dead,” Mr. Haff said.

Oracle can offer a more complete set of corporate software, from Sun’s operating system and programming tools to Oracle database and business applications to automate operations like finance and customer relations management. The combined company, according to Oracle and Sun executives, will be able tweak and integrate its software to reduce costs and bugs, and to tighten security. Sun’s computer designers, they said, can tailor hardware systems for their software stack, promising further gains in efficiency.

Executives from the two companies pointed repeatedly to the benefits of this “systems” approach, combining software and hardware. Yet while Sun makes most of its revenue from selling computers, Oracle executives emphasized that they did not regard Sun as a hardware company, which suggests owning factories and large capital investments.

Safra Catz, Oracle’s president, called Sun a “modern technology company” that “outsources nearly all the manufacturing, assembly and servicing of its hardware.”

Yet Sun has struggled, and corporate and government customers have expressed doubts about its future, eroding its business. Under Oracle’s wing, Sun, analysts says, suddenly looks much stronger.

An Oracle-Sun combination, George Weiss, an analyst at Gartner, said “really amounts to another axis to I.B.M. in offering both hardware and software. This could open up significant new opportunities for both Oracle and Sun in a lot of corporate accounts, especially the teetering Sun accounts.”

The Oracle-Sun deal also promises to subtlly alter the competitive fault lines in an industry where the biggest companies compete in some businesses and cooperate in others.

Sun is expected to be smaller and leaner under Oracle. “We will be able to run Sun at substantially higher margins,” Ms. Catz, the Oracle president, said. She estimated that Sun operations would generate an additional $1.5 billion a year in operating profit, and add 15 cents a share to Oracle’s profit in the first year.

Under Oracle, she said, the Sun businesses will be able to achieve operating efficiencies “far in excess of what Sun has done to date.”

The Oracle and Sun executives made no comment about coming job cuts at Sun, and they took no questions during the conference call. But industry analysts estimated that Oracle’s cost-savings estimates from Sun operations suggest job cuts of up to 10,000 workers, from Sun’s payroll of more than 30,000.

Ashlee Vance contributed reporting.

AP larang akses berita tanpa bayar: Akhir dari Era Web 2.0?

Perusahaan Pers terbesar di Dunia Assocaited Press mulai melarang akses atas content-nya oleh masyarakat bila mereka belum membayar langganan buanannya. AP mengeluh karena banyak perusahaan lain yang mengeduk untung besar dengan menyebarkan content miliknya yang gratis. Oleh karena itu mulai sekarang AP akan mengharuskan para pelanggannya untuk membiayar biaya keanggotaan sebelum mereka dapat men-dowbload content.

Kebijakan ini bila di-ikuti oleh berbagai penyedia berita lainnya akan menyebabkan konsep bisnis Web 2.0 akan berakhir. Tentu saja di Era Masyarakat Informasi, akan terjadi penyesuaian-penyesuaian bisnis proses agar terjadi keseimbangan baru. Salah satunya adalah akan terjadi model bisnis baru, dimana akan muncul Agregator Berita baru dimana Ia akan memperoleh berita-berita secara gratis dari para Blogger yang tersebar diseluruh dunia, sehingga dapat dimanfaatkan oleh para pencari berita yang memerlukan.

Berikut ini kami lampirkan berita lengkap tentan Associated Press sebagai berikut:

The End of the Web 2.0 Free-for-All

“The latest moves by the Associated Press toward putting a stranglehold on its content online, making it unavailable to other online publications who aren’t paying for it, signals the impending end to the free-for-all that’s defined Web 2.0.”

The backstory is that for months the AP — a cooperative with more than 1,400 U.S. newspaper members — has griped that its content is unfairly used online. The first publicized incident occurred in June when the AP sent the Drudge Retort a cease-and-desist letter for excerpting and linking to its content. The debate was heightened this week when in a statement and at its annual meeting the AP affirmed that it will pursue legal action against online publications that use its material without paying for it or at least sharing revenue.

“We can no longer stand by and watch others walk off with our work under some very misguided, unfounded legal theories,” said Dean Singleton, AP chairman, in a statement. “We are mad as hell, and we are not going to take it anymore.”

The AP’s issue is with publications that excerpt and link to its content, and with search engines, like Google News, which aggregate news stories that may be using the AP’s content without paying for it.

And while we know it’s hard to take seriously anyone who quotes Network in an annual statement, there’s good reason for concern.

Over the last few days there’s been much back and forth contesting the AP’s argument, with Google saying its search engine is good for news organizations, The New York Times questioning whether Yahoo is more of a friend to AP than Google is, and experts like ThinkerNetter Scott Hilton exploring the legal issues.

But regardless of the finger-pointing, the underlying theme is clear: AP does not want to share its content with those who aren’t paying for it, and that changes things drastically.

The news organization is taking a lot of heat for not playing by the rules of the digital age, but it certainly isn’t alone. YouTube has been dealing with similar anger from the large networks who, oddly enough, don’t want their content stolen and uploaded on its site. Despite our collective delusion, the content of the world does not belong to everyone, and, yes, the people who pay for it do mind when you’re making money on it and they aren’t. Crazy, we know.

AP’s harsh tactics and legal threats are out of step with how the Internet works, which is why this is such a big deal. Most organizations operate under the pretense that excerpting and linking back to content is fair game on the Web.

But, despite our cries, the facts are clear: If organizations like the AP take a stand against this whole free-for-all, where what’s mine is yours and what’s yours is ours, it will signal the end of Web 2.0.

We can stomp our feet as we like and call the AP out of touch, but we can’t shun them completely and think the Web can otherwise survive. Without content from the big guys — the news organizations, the networks — the Web as we’ve come to know it does not exist. The large organizations operate as separate entities, and the underdogs who’ve been making some form of money off of them have to figure out how to stand on their own or share the little revenue they have for access.

When the people providing the content wake up to that fact, as the AP has, and start to pull it out from under the rest of us, that’s when reality will settle in for those whose livelihood and business model rely on its availability.

— Nicole Ferraro, Site Editor, Internet Evolution

Saatnya Teriakkan 'Merdeka' untuk ICT Indonesia

(Sumber: Andrian Fauzi - detikinet)

Bandung - Berawal dari keprihatinan terhadap pemanfaatan ICT di Indonesia, khususnya di bidang pendidikan, para pendidik bersatu meneriakkan ICT Merdeka. Saatnya menjadi pencipta, bukan sekadar pemakai!

Seperti yang dikatakan oleh Dr. Munir, M.IT, Direktur, Direktorat TIK Universitas Pendidikan Indonesia (UPI) kepada detikINET di Kampus UPI, Jalan Setiabudhi. Menurutnya, sudah saatnya ICT bisa merdeka di Indonesia dan hanya dengan open source dan open konten, ICT bisa merdeka.

"Karakteristik ICT menciptakan kita menjadi merdeka dalam menjaring informasi. Baik ilmu pengetahuan, sosial, budaya dan berbagai informasi lain yang serba ada. Apapun informasinya kita bisa dapatkan di internet. Namun, kemerdekaan itu masih dalam tahap penerima dan pengguna," ujarnya.

Dorongan penggunaan open source, imbuhnya, digagas oleh Kementerian Negara Riset dan Teknologi dan Depkominfo serta difasilitasi oleh Telkom dengan program INDIGO-nya. UPI menyadari akan peran dan kiprahnya dalam dunia pendidikan terutama dalam penyedia tenaga kependidikan cukup besar. Itulah kenapa UPI berniat merangkul Lembaga Pendidikan Tenaga Keguruan (LPTK) atau eks IKIP di seluruh Indonesia untuk mendeklarasikan ICT Merdeka.

"Tanggal 16 Desember 2008 di Hotel Sari Pan Pasifik ditandatangani MoU antara Kementerian Negara Riset dan Teknologi, PT Telkom Indonesia dan UPI untuk mengadakan aktivitas ICT Merdeka dengan salah satu fokusnya adalah pendayagunaan open source dan open konten," papar Munir.

Rencana dan strategi pun dilancarkan oleh UPI. Diawali dengan seminar ICT Merdeka beberapa waktu lalu, UPI mengajak penggiat IT, terutama bidang pendidikan, membangun komitmen bersama memanfaatkan open source dan mengembangkan konten digital dalam bidang pendidikan.

"Kemarin kita memang berencana untuk mendeklarasikan ICT Merdeka. Namun baru ada 5 LPTK, jadi masih dikonsep dulu. Namun pada dasarnya akan didorong lembaga pendidikan kepada open source dan open konten. Kita masih terima masukan dari yang lainnya," ungkap Munir.

Menurut Munir, deklarasi ICT Merdeka lahir untuk memerdekakan dari penerima informasi menjadi pemberi informasi dan dari pengguna software menjadi pencipta dalam pengembangan software. ( afz / faw )