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Apple has filed a motion to amend its complaint [PDF] to add a claim of violation of the DMCA, among other new and enlarged claims. Here's the proposed Amended Complaint [PDF]. So, not only have all of Psystar's counterclaims been thrown out, but now it faces new claims. But here's the big news. Apple alleges that it believes there are corporations and/or individuals behind Psystar, who may be added as defendants once Apple in discovery finds out who they are. Woah. Here's the new paragraph that made my eyes bug out: 18. On information and belief, persons other than Psystar are involved in Psystar's unlawful and improper activities described in this Amended Complaint. The true names or capacities, whether individual, corporate, or otherwise, of these persons are unknown to Apple. Consequently they are referred to herein as John Does 1 through 10 (collectively the "John Doe Defendants"). On information and belief, the John Doe Defendants are various individuals and/or corporations who have infringed Apple's intellectual property rights, breached or induced the breach of Apple's license agreements and violated state and common law unfair competition laws. Apple will seek leave to amend this complaint to show the unknown John Doe Defendants' true names and capacities when they are ascertained. So, Apple apparently believes that somebody else is behind Psystar, which might help to explain why a major law firm would take on what seems like a fly-by-night's case; also why Psystar has been so bold in continuing to sell its products. I knew this thing felt funny. As Alice in Wonderland might put it, "It gets interestinger and interestinger."

Analysis on balance - Standardisation and Patents - by Georg C. F. Greve FSFE, President This paper provides an analysis of the interaction of patents and standards and finishes with some concrete proposals to address the most pressing issues. It was written under the assumption of very little background knowledge, and therefore provides some of the background necessary to understand the issue. An expert in the field should be able to skip the Background section. Introduction Software patents have been a hugely controversial debate, with lines of battle drawn primarily between large corporations holding large patent portfolios and engaged in multiple cross-licensing deals, and the Have-Nots, entrepreneurs, small and medium enterprises, and software users from the student using GNU/Linux all the way to institutional users in governments. This debate got a lot quieter with the rejection of the software patent directive in 2005. Its place in the headlines was taken by other debates, such as standardisaton. Open Standards have been a buzzword for years, but never has this term been discussed more intensively. On Wednesday, 19 November 2008, both debates met in Brussels at a workshop titled "IPR in ICT standardisation", although "Patents in ICT standardisation" would have been a more suitable name because the discussion was exlusively about the interaction of patents and ICT standardisation. Patents and standards are fundamentally at odds, so many people call for a balance between patents and standards. This article comments upon the workshop and explains why standards should prevail over patents at least in the area of software.

I found a treasure on YouTube. Harvard's Berkman Center for Internet & Society has a channel on YouTube now. And they held a conference in September on the US antitrust trial against Microsoft, collecting many of the players in that famous litigation, including David Boies. So it's your opportunity to see him in action. As usual, he's impressive. I think you'll find his explanation of trials as morality plays intriguing. He talks about highly technical trials, and how the judge finally has to decide who he believes, based on credibility. In the SCO context, I'd say that might not be a winning strategy. : D Microsoft's general counsel, Brad Smith, was there too, although he wasn't at Microsoft at the time, but he is refreshingly candid about that trial, saying you can't put lipstick on that pig. He goes on to talk about his efforts to start a new chapter for Microsoft, which I found interesting in that it provides some context into Microsoft's efforts to be less obviously horrible about interoperability, even if you view what is said with one cynical eye open. In any case, fairness alone would cause me to mention it to you. Truth is complex and multi-faceted, and it's really fascinating stuff.

I was trying to figure out how to explain to you all that is involved in the case of the U.S. v. Lori Drew, the cyberbullying case that so many lawyers are expressing concerns about. I felt I needed a lawyer to explain it, but where would I find one who felt like doing some unpaid work, and over the Thanksgiving holiday to boot? Then I had a brainstorm. I could show you the amicus brief [PDF] submitted in the case by the Electronic Frontier Foundation, the Center for Democracy and Technology, and Public Citizen, which was also signed by "14 individual faculty members listed in Appendix A who research, teach and write scholarly articles and books about internet law, cybercrime, criminal law and related topics at law schools nationwide". Appendix A is at the very end. If you look at the list, you'll see that it's some of the finest and most knowledgeable lawyers and law professors specializing in cyberlaw. The brief was written by Jennifer Granick of EFF and Philip R. Malone of Harvard Law School's Berkman Center for Internet and Society's Cyberlaw Clinic. I think when you read it, it will turn your hair white. It did me. In fact, I don't think it's overstating it a bit to say that unless this case is overturned, it is time to get off the Internet completely, because it will have become too risky to use a computer. At a minimum, I'd feel I'd need to avoid signing up for membership at any website, particularly MySpace. Why particularly MySpace? The Times Online has their statement: MySpace, which is a division of News Corporation, owner of The Times, said in a statement that it "respects the jury's decision and will continue to work with industry experts to raise awareness of cyber-bullying and the harm it can potentially cause." If it respects this decision, I don't feel safe there. I didn't even want to visit its web site to try to find its terms of use. But according to this article, MySpace gets to be the one that decides if we've violated their terms: MySpace users agree that the social networking site has the final say on deciding whether content posted by users violates a long list of regulations contained in the agreement.There is no recourse. They make the law and if you mess up, you go to jail. You used a computer, after all, didn't you, and their server isn't yours, and if they say you have violated their terms, you have. I'd also never upload anything to YouTube, and I wouldn't use anyone's blogging software. I'd definitely stay out of the Cloud, because I don't own those computers either, leaving me open to Computer Fraud & Abuse Act allegations, which is what Drew was charged with. In short, it'd be time for me to just pack up and leave, if this verdict stands. If you think EULAs were bad, imagine after this ruling if they can be tied to the CFAA. Do you think it'll be long before folks are tossed in jail for defining fair use in ways a copyright owner doesn't like? Would Microsoft hesitate to criminalize its EULA terms? You think? You trust?

The clerk that handles sending on notices of appeals for the US District Court for the District of Utah has sent SCO a letter, letting it know that the notice of appeal has been filed with the US Court of Appeals for the 10th Circuit and providing SCO with instructions, including to download the rules and forms from here. Just read the letter, and you'll immediately understand what appeals are like. This is just the beginning, of course. SCO has to do a lot more than file a notice of its appeal. Next the SCO lawyers have to tell the Court of Appeals exactly what they think was decided wrongly at the lower court level. I would guess that was mostly written some time back, beginning in August of 2007, with refinements added after July of 2008. Really, lawyers plan the appeal from day one, as far as strategy goes. So much paper. So many picayune instructions. So much is at stake, and all of it depending on your lawyer getting every detail just right. To me, reading the instructions is a lot like reading IRS tax booklets, but without the refreshing illustrative examples. It's a legal specialty, actually, doing appeals, because not everyone can stand it.

SCO has filed a notice of appeal in the SCO v. Novell litigation, as they said they would: 567 - Filed & Entered: 11/25/2008 Notice of Appeal Docket Text: NOTICE OF APPEAL as to [377] Order on Motion for Partial Summary Judgment,, Order on Motion for Summary Judgment,,,,,,,,,,,,,,,,,,,,,,,, [565] Judgment filed by SCO Group. Appeals to the USCA for the 10th Circuit. Filing fee $ 455, receipt number 10880000000000796676. (Hatch, Brent) Here's the website for the US Court of Appeals for the 10th Circuit, which is where we are headed. You'll see at the bottom of the page a link to download some of the initial paperwork that SCO's attorneys are filling in these days, along with instructions. If you read the instructions, you'll get a taste of what appeals are like. It's below the notices about the resignation of one of the judges after allegations of judicial misconduct. There is also a link for a PDF of instructions for filing a petition for review. Here are the Rules and Forms and 2008 Federal Rules of Appellate Procedure and Tenth Circuit Rules (F.R.A.P. effective Dec. 1, 2007; 10th Cir. Rules effective Jan. 1, 2008). The answers to many of your questions about process and what happens in an appeal are in there.

The SCO bankruptcy plods right along. I predicted that the SCO bankruptcy hearing on SCO's First Omnibus Objections to Claims would be short, sweet, and simple, and the minutes of the hearing [PDF] indicate that is exactly how it went. We'll know more when the transcript is made public, but the only interesting detail I see in the rubber stamp session is that IBM sent a lawyer [PDF] to observe, presumably. What it means is that those who did not bother to respond to the objections just had their claims disallowed and expunged [PDF]. Also, Tanner got anointed for its new assignment as accountants to SCO. Is Tanner not the luckiest accountant firm in the world, or what? And the stay has been lifted [PDF] so that the IPO plaintiffs can go forward with that litigation against SCO, subject to the terms agreed upon, that any damages award against SCO will come exclusively from the insurance company and not the bankruptcy estate.

Let's conclude our series of articles on In Re Bilski by looking at what the ruling may mean for Microsoft's threats against Linux. We can start by figuring out what kinds of patents Microsoft might think it owns. We've already seen that Microsoft acknowledged in its amicus brief that it owns "process patents", which is the category that the ruling was addressing, and by submitting the brief, clearly Microsoft thought Bilski could impact its software portfolio. When the ruling first issued, you'll recall patent lawyer Gene Quinn immediately wrote that it was bad news for Microsoft, that "much of the Microsoft patent portfolio has gone up in smoke" because, as Quinn's partner John White pointed out to him, "Microsoft doesn't make machines." Not just Microsoft. His analysis was that many software patents that had issued prior to Bilski, depending on how they were drafted, "are almost certainly now worthless." Much of Microsoft's portfolio, then, must be process patents. He was not the only attorney to think about Microsoft in writing about Bilski.

Do you remember the horrible case against OLPC in Nigeria, where a company called Lancor claimed infringement of its design patent on a keyboard? They were asking for $20 million in damages. I have some happy news from OLPC News' recent newsletter:In the domestic Nigerian keyboard case, the court granted OLPC's motions to dismiss Lancor's claims. This means all of Lancor's claims against OLPC, Nicholas Negroponte, and Quanta were dismissed. Nicholas and Quanta are out of the case. OLPC will proceed with its request for a declaratory judgment in the matter. Many thanks again to the outstanding support from the legal team at Foley Hoag. I am not surprised, in that OLPC told the court it never used the Lancor keyboard and the design registration Lancor relied on had expired. However, early news from the local court had been discouraging, but now comes this, and so another bogus claim bites the dust. But it's a crying shame a charity had to go through something like this at all. I'll try to get us more details, but I wanted to share this with you right away. Update: I have been in contact with the OLPC folks. This news is not about Nigeria. It's about the US case, where the OLPC Foundation asked the Middlesex Superior Court in Massachusetts for a declaratory judgment of noninfringement. Update 2: While I don't yet have the documents from the local Massachusetts court, I do have two documents from the US District Court in Massachusetts. Lagos tried to send the case to the federal court, on a claim of copyright infringement. However, the court sent it back to state court, the Middlesex Superior Court in Massachusetts, in May, where OLPC had originally filed. If you read the two documents regarding where the case should be heard, you'll see what the issues were by each side's descriptions. Here's OLPC's memorandum in support of its motion to remand and Lagos Analysis' opposition memorandum, both PDFs.

The final judgment [PDF] from Utah is here at last. It recites what the August 10, 2007 and July 16, 2008 orders said, but it also resolves the recent dispute over SCO's desire to voluntarily waive some claims and then bring them back to the table after an appeal, should it prove successful. Here's SCO's motion to voluntarily dismiss, and Novell's response, so you can verify that this judgment indeed represents another loss for SCO. You'll see that it was Novell that suggested the wording regarding SCO's voluntarily dismissed claims that we see in the judgment, that they be dismissed "without the possibility of renewal following appeal." SCO caved on its voluntarily dismissed claims, then, and Novell did not. So, another loss for SCO. No matter what happens on appeal, then, SCO can't resurrect those claims. It can appeal the rest of the matters it lost in August 2007 and July of 2008. Novell, however, in an identical circumstance, can pull its voluntarily dismissed claims out of its back pocket and go after SCO. And I'm sure it would. In the wording of the judgment, Novell has "the right to pursue these claims only in this action, should there be a subsequent adjudication or trial in this action." So if there were an appeal and SCO got the case sent back to Utah for a jury trial, for example, SCO's favorite daydream, then Novell could bring back to the courtroom all its voluntarily dismissed claims. Here, in contrast, is the wording on the SCO claims from the judgment: 3. The remaining portions of SCO's claims for Breach of Contract (Count II), Copyright Infringement(Count IV), and Unfair Competition (Count V) are voluntarily dismissed with prejudice, without the possibility of renewal following appeal. So, all the tricky language SCO suggested to the judge was for naught. Whew.

SCO has withdrawn its "Motion of the Debtors for an Order Providing that Creditors' Committees are not Authorized or Required to Provide Access to Confidential Information of the Debtors or to Privileged Information", which it filed in September of 2007, when it first filed for Chapter 11 bankruptcy protection. Remember that? They filed it back when SCO thought someone might care enough to actually form a creditors' committee. But since that never happened -- the top 20 unsecured creditors (SCO Group's and SCO Operation's list, PDFs) being mainly friends and allies of SCO -- it obviates the need to protect SCO's secrets from any such committee. There was supposed to be a hearing on that back in October of 2007, but that never happened, and so now for some unknown reason, they are clearing it off the docket.

There is a bankruptcy hearing scheduled for November 20th, and there's a Notice of Matters Scheduled for Hearing [PDF] just filed that tells us that the issue of the constructive trust has been resolved "in principal" and there will be a stipulation or consensual order filed. Good Golly, Miss Molly. Is Novell finally going to see some of its money from SCO? Has somebody sprinkled fairy dust in the air or something?

Psystar's counterclaims against Apple have been dismissed, which does not in the least surprise me. I told you they were off the wall, in my view. The judge agreed. He curls his lip to add that he found Psystar's cases "unenlightening". That's legalese for "are you kidding??" Here's the order [PDF], so you can read all about it.The judge did give them 20 days to try again to get it right, following the map he lays out for them to make improvements:For all the above-stated reasons, Apple's motion to dismiss Psystar's counterclaims is GRANTED. Psystar may move for leave to amend within twenty calendar days of the date of the entry of this order. Any such motion should be accompanied by a proposed pleading and the motion should explain why the foregoing problems are overcome by the proposed pleading. Plaintiff must plead its best case. Failing such a motion, all inadequately pled claims will be dismissed without further leave to amend. For more background, here's Apple's motion to dismiss, Psystar's Memorandum in Opposition [PDF], and here are Psystar's counterclaims to Apple's complaint. What does it mean? It means the counterclaims are gone, and with them any motivation to settle on Apple's side, I'd think, and the complaint remains, unless Psystar can plead its best case within 20 days. Dum dee dum dum.

SCO, or more precisely, SCO Operations has filed an amended Schedule F [PDF], its list of unsecured nonpriority creditors, or in bankruptcy lingo "creditors holding unsecured nonpriority claims". Here's the original Schedule F [PDF], if you wish to compare the lists. Schedule F is found on page 7 of the older PDF. It is interesting to compare, even without fully understanding what it all means.

Well. I got a very nice note from Gene Quinn. He's reading Groklaw. I'm reading what he is writing, because it's fascinating, and it's an opportunity to speak directly with a patent attorney who is a true believer. His most recent article is one I think we should answer, since his fundamental question is this: why should software *not* be patentable? From a conceptual standpoint why not allow for software to be patented. What is the harm? I know many of you reading this have now gone into an apoplectic rage, but conceptually why should software be treated any differently? Isn't the problem that patent offices, particularly the United States Patent Office, are increasingly doing a poor job of finding relevant prior art and weeding out what is new and non-obvious from what is old and obvious? If prosecution were more meaningful, what is the harm in granting software patents? I see none because there is none.... Software is not a mathematical equation, nor is it a mathematical language. How anyone who writes software or professes to understand software could argue to the contrary is beyond me. Do people who write software actually think they are sitting down and writing mathematical equations and stringing them together? It is absurd to have such a narrow view of software. When you write software you are trying to enable a device, such as a computer, to provide certain functionality given a certain stimulus. So you are writing instructions for a computer or other device and explaining how the computer or device needs to process information. You do not explain how to process information with mathematical equations. If you would read his article in full and then answer him here, in members-only space, I'll collect the best comments and try to tie it all together, if it works out well. It's an opportunity to reach not only Quinn but all the other patent attorneys who do read what he writes. Game on? Update 2: I'm reading your comments, and I don't think I can improve on them. So I'll let you all speak directly, by making this article public now.

More bills are in for SCO to pay in the bankruptcy. Tanner, Berger Singerman, and Pachulski Stang all have filed for mo' money. From the bills, we can discern through a glass darkly what's been going on. Here's what: the Swiss SUSE arbitration shows activity. You can find it on page 11 of Berger's Exhibit A, where we see a notation that SUSE has filed a "submission" to the tribunal. It references "SUSE arbitration statement to tribunal" also, but it could be the same thing. This happened on 10/1/08. And what else? Research and strategizing on the plan went on in October, which to me points to work on a cramdown. You don't have to research and strategize over a wonderful plan where sufficient money is available for one and all from a fabulously rich prince on a camel. At least by the end of October, there was just researching and strategizing happening, from what we can see in the bills.

It turns out that Stephen Norris did attend SCO's Tec Forum after all, at least according to SCO's latest SCO Partner News newsletter someone sent me. He expressed that SCO's strengths are its customers and its products. That's why the investors he says he represents are "so excited about the business prospects of working with SCO" and in particular because of SCO's commitment to backward compatibility of "all its products -- going all the way back to Xenix". Hmm.

I said I'd write next about Microsoft in my series of articles trying to explain what In Re Bilski means. I also said it would be the last in the series, but it's not. I'm sorry it took me so long, but I decided as I was constructing the article that without the full text of the amicus brief Microsoft filed in the Bilski case, it was almost impossible to be comprehensible. So I took the time to do the text version of the PDF. You'll also want to have the decision [PDF] itself handy. The text version we did of the Bilski decision is here. The Microsoft brief was filed along with Dell and Symantec, and it's an attempt to get the court to deny the Bilski claims while at the same time trying to keep the court from going all the way and deciding software should not be patentable. There are some logic bumps along the way, as you will see. The court diverged from Microsoft's argument about three-quarters of the way through, and it didn't directly address software patents, except in one footnote, mainly because Bilski wasn't about software. So it left unaddressed Microsoft's chief argument about why software should patentable, namely because of what it does to a computer. There will be future cases, though, that certainly will be on this point, so it seems a good time to point out everything we can think of to help the court understand what's wrong with the Microsoft-Dell-Symantec position. I'll start, but jump in any time. You'll see more than I will, since so many of you are programmers. I'm smiling already just thinking about it. Anyway, what I thought would be just one article is now two, because of the length. Here, I'll just address what I understand Microsoft's arguments to be and what a "particular machine" is to Microsoft. I'll save the part about what it may mean for Microsoft's threats against Linux for the next article.

Continuing our series on the In Re Bilski ruling [PDF], here is Judge Mayer's dissenting opinion as text, the one that points out how utterly damaging all business methods patents are. Also, a reader sent me this link to what I agree is the best overview of the ruling that we've seen yet, by the law firm of Ladas & Parry. It sticks to what the ruling says, as opposed to predictions of what it might mean. Here's how they paraphrase Judge Mayer's dissent: The decision is too complicated. State Street should have been over-ruled and patents confined to technological inventions. Clear and simple. And if I might be allowed, Amen. But that might be a little too simplified. Here's a more substantive taste of Mayer's dissenting opinion, in his own words: The en banc order in this case asked: "Whether it is appropriate to reconsider State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), and AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999), in this case and, if so, whether those cases should be overruled in any respect?" I would answer that question with an emphatic "yes." The patent system is intended to protect and promote advances in science and technology, not ideas about how to structure commercial transactions. Claim 1 of the application of Bernard L. Bilski and Rand A. Warsaw ("Bilski") is not eligible for patent protection because it is directed to a method of conducting business. Affording patent protection to business methods lacks constitutional and statutory support, serves to hinder rather than promote innovation and usurps that which rightfully belongs in the public domain. State Street and AT&T should be overruled....There is nothing in the early patent statutes to indicate that Congress intended business methods to constitute patentable subject matter....In passing the 1952 Act, Congress re-enacted statutory language that had long existed, thus signaling its intent to carry forward the body of case law that had developed under prior versions of the statute. Because there is nothing in the language of the 1952 Act, or its legislative history, to indicate that Congress intended to modify the rule against patenting business methods, we must presume that no change in the rule was intended. See, e.g., Astoria Fed. Sav. & Loan Ass'n v. Solimino ... ("[W]here a common-law principle is well established . . . the courts may take it as given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident." Also clear and simple, but as you see, it isn't just State Street that Judge Mayer feels should be overruled but also AT&T, which I highly recommend you read, but not if you have high blood pressure and are a programmer. It was about methods patents, but also about whether or not one could patent a mathematical algorithm. Here's a quote for you: Because 101 includes processes as a category of patentable subject matter, the judicially-defined proscription against patenting of a "mathematical algorithm," to the extent such a proscription still exists, is narrowly limited to mathematical algorithms in the abstract. I know. It takes us into OMG territory. It's what Bilski was trying to address. The AT&T decision built on and depended on State Street, and Judge Mayer is saying that State Street came out of the blue, contradicting prior common law and the patent statutes, and it really needs to be clearly killed off and buried, along with any of its children, because it was a mistake, one that launched what he calls "a legal tsunami" of regrettable patents on what ought to be the unpatentable.

SCO has filed a Statement Regarding Entry of Final Judgment [PDF], responding to Novell's Response to SCO's Notice of Voluntary Dismissal , which asked the court to confirm the amount of the constructive trust the parties have agreed to and to make SCO pay it now, which in turn followed SCO's Notice of Voluntary Dismissal. It's breathtaking to me. SCO actually argues, quoting selectively from the trial order's wording, that while one clause of the 2003 Sun agreement was not authorized, the rest of the agreement was, and in fact in the judge's "nuanced" trial order, that's what he meant, that SCO was authorized to enter into the agreement except for that one itsy bitsy part. Just excise that one clause, and what do you get? An *authorized* agreement. What? Don't hyperventilate. SCO does this. Here's the part of the July 16, 2008 trial order SCO *doesn't* quote from: The Court concludes that Sun's 2003 Agreement License, therefore, "concerns" a buy-out, and SCO was required to follow the additional restrictions imposed by Amendment No. 2 on transactions that concern buy-outs. SCO did not comply with these terms. The Court thus concludes and declares that SCO was without authority to enter into the 2003 Sun Agreement under Amendment 2, Section B, of the APA. Do you see any wiggle room there? Any lack of clarity on the judge's part? If so, send your resume to Boies Schiller right away. They might have use for you.Joke. Joke.