What really surprises me is that so many people are willing to forget that this is the company that bankrolled SCO in their lawsuit.
For that reason alone the tech community should shun them. But just a few short years later and a couple of open source releases and we're supposed to believe it is all so much better now and the Microsoft of old should be forgotten.
Thanks, Microsoft for reminding us of your true colors.
In case you have trouble parsing this announcement: the 'between the lines' FUD here is that when using other cloud providers you could be sued by companies that have these scary things called patents in case it turns out you ar is infringing on any patents (nudge nudge, wink, wink, of course you are). But come and stay in my house and I will protect you against these nasty people.
Cue IV starting lawsuits against parties that in a pitch between Azure and say GCE or AWS decide to go with the latter?
I feel like I'm starting to sound like a shill in this thread... I don't work for MS, don't use Azure, and am generally considered an "Apple fan boy." So, with those bona fides out of the way... I disagree.
The reality is that this is not FUD. People actually _are_ sued on a regular basis for bullshit like this. Microsoft is indemnifying Azure customers and giving them free access to their patent portfolio for defensive purposes. This should _reduce_ patent suits, which is a _good_ thing.
No, Google, Amazon and Microsoft should push for patent reform. Not use their arsenal of patents as a protection racket. And because of IV Microsoft is - indirectly, at just about one plausibly deniable arms length - one of the bigger abusers of patents in this way.
One way in which they could have done this that would be clean would be a blanket statement that would cover parties no matter where they are hosted. To make this a competitive advantage for Azure is fairly disgusting.
Another thing they could do is assure the world without any weasel words that Microsofts patents will never again be used to seek rent on innovation, or better yet, to place them all in the public domain.
Ok, it was started by a former MS exec and funded by Gates... that's shitty, but Microsoft has lots of former employees and I'm sure Gates invests in lots of things. For all we know it was a family office investment that he wasn't even aware of... or the dude was a friend or something.
Microsoft doesn't have a stake in the company nor do they provide the company with any assistance..? Unless there's more to the story I think it's kind of a stretch to say that this is a Microsoft operation. According to Wikipedia they've actually _sued_ Microsoft.
Upon closer inspection it appears that you are correct. I interpreted "raised" as "extorted." That still may be the case (the cited source is a dead link) but I think you are right... particularly since some of the names listed are venture firms.
Whatever the case, IV is quite an enigma... founded by the creator of MS Research (which is a great group), funded by Reasonable People, but apparently sketchy as hell. I'm intrigued and will definitely be digging deeper into their story. Thanks for bringing them to my attention.
People who like Bill Gates believe it is a bad idea to volunteer your time. If you can earn $60 an hour, you should earn that $60 doing whatever you have to do so thus way you can later pay for four hours at $15.
I don't know. I mean it looks better than earning that $60 and not putting towards a charity?
Are they? I'm quite happy to be enlightened, but I've never heard of a patent-based attack against users of widely used open-source tools (the example here is Hadoop). Except for the SCO debacle.
For the younger among us, SCO (with Microsoft funding) did try suing all sorts of people over what they considered their ownership of Unix. They got their badly flayed ass handed to them in every case, because IBM spent multi-millions on a legal dream team that totally discredited their arguments (thanks IBM!).
I know Microsoft have had a welcome change of leadership and are starting to engage in open-source, but this program suggests they haven't given up on their old tricks. Instead of indemnifying only their own customers, they should join with IBM, Google, and Facebook and use their patents and legal clout to defeat ALL patent attacks on open-source software. Then I'd start believing the leopard had changed it's spots.
I'm not as interested in the part about indemnifying use of open source software. It's not worthless though: Google did something similar for Android developers when Oracle started suing (which is a much more recent example than SCO, so it does still happen). Also, my guess is that mid-to-large organizations do see patent suits on a regular basis and that most of them are never made public. So we wouldn't necessarily know how common this is.
Either way, the "patent pick" part is more interesting to me. It gives you some protection for stuff you write yourself. Quick story: I was working at a BigCo about 10 years ago and was told I couldn't embed some HTML in a javascript string and dynamically inject it into the DOM because "that was patented" and "we've been sued for doing that before." Patent pick could help defend against bullshit like that (assuming the litigant is not an NPE).
> For the younger among us, SCO (with Microsoft funding) did try suing all sorts of people over what they considered their ownership of Unix. They got their badly flayed ass handed to them in every case, because IBM spent multi-millions on a legal dream team that totally discredited their arguments (thanks IBM!).
Right, but they also managed to successfully push back against much wider scale adoption of Linux. Not that it worked out to their advantage in the longer run but at the time they could not have known that, they were clearly trying to bury Linux.
SCO didn't lose all the lawsuits they bullied many small business into settling out of court for quite a bit of money.
If I recall correctly they largely used this in the case against IBM. Before that victory it was unclear to many what would happen and more than a few people thought that it would kill Linux or that everyone using computers would owe SCO money or some other dystopian ending was possible.
It's true. The average and mundane company I work for has been sued more than once using patents from the late 90's/early 2000's. The patents are extremely broad and don't describe anything unique. I've spent months on this kind of crap, rather than engineering and developing things of value.
I can understand how this type of indemnification could appeal to businesses, especially ones that have had to spend money on lawyers and tie up critical resources dealing with law suits.
Just like how the mob indemnifies local businesses from unwanted fires by giving them free access to protection for defensive purposes. This should _reduce_ arson, which is a _good_ thing.
You realize the difference here is insurance companies don't go around lighting fire to houses, whereas Microsoft goes around suing companies for patent violations (the thing they are supposedly indemnifying you from) and funding noxious patent trolls.
Obviously, but yours was also an unfair characterization. I maintain that this is a good idea and that other companies (Google and Amazon) should follow suit regardless of Microsoft's behavior around patent litigation.
If it does turn out that Microsoft is only doing this so that they can go and sue people who are using AWS or GCP then I'll change my tune. Until then I'll give them the benefit of the doubt.
Furthermore, if Google/Amazon _did_ follow suit it would be mutually assured destruction for Microsoft to sue AWS / GCP users.
>I feel like I'm starting to sound like a shill in this thread... I don't work for MS, don't use Azure, and am generally considered an "Apple fan boy."
Apple is no better on IP issues. Being a fan of theirs does not bolster the credibility of one's opinion on Microsoft, pro or con.
The point wasn't to establish IP credibility, it was to establish myself as "not a shill for Microsoft." Every F100 company has done bad things with patents.
How's this: I've been a student of patent law since the late 90s. I've read "The Economic Structure of Intellectual Property Law" cover to cover. The patent system is a huge fucking mess and we need reform. I used to have pretty idealistic opinions about how to handle patent trolls until I started dealing with the ugly and expensive process of defending a suit. Until reform happens, businesses need to do what they can to survive. This helps.
You are dead wrong. Yes, people are sued for B.S. reasons all the time. The correct long term response is not to seek refuge under the wing of another, more subtle bully. It is to remove the ability for people to sue for B.S. reasons.
Not easy for an individual to accomplish, granted.
Yes, patent reform is needed. I do what I can to support that effort. In the meantime I have a business to run and I need to work within the existing legal framework to keep it protected. Access to patents for defensive purposes / patent exchanges are one way to do that.
I do not see how this, in itself, is bullying on Microsoft's part at all. The Apache 2.0 license has a similar mutually assured destruction proviso w.r.t. patent suits. It's one of the reasons that the Free Software Foundation recommends using that license. Is that bullying / FUD?
They provide protection BECAUSE they have many patents and demonstrated the will and ability to use it. Just like a mobster offer protection because he has a team of armed men and demonstrated the will and ability to use it.
"For that reason alone the tech community should shun them. But just a few short years later and a couple of open source releases and we're supposed to believe it is all so much better now and the Microsoft of old should be forgotten."
We don't have to speculate. They pulled over a billion dollars from Android through patent suit threats despite not trying to contribute to Android and trying to get rid of it with their own product. They haven't changed. They should be boycotted wherever possible.
> the company that bankrolled SCO in their lawsuit
"In early 2003, Microsoft started paying SCO what eventually grew to $16.6 million for a Unix license, according to regulatory filings. Only longtime Unix fan Sun Microsystems previously paid close to that, with a $9.3 million license deal."
Microsoft statement: "Microsoft does have a deal with SCO that has been widely reported. We paid SCO for licensing rights to ensure IT interoperability for UNIX migration technology, currently in use in Microsoft Utilities for UNIX-based Applications."
I think you and the register are inflating this "conspiracy theory" levels. The facts are all really simple.
SCO was attacking Linux. Microsoft was attacking Linux. SCO asked for money. Microsoft gave the enemy of their enemy money. Other companies SCO asked for money didn't give SCO money
Trying to assert that a whole company was another's puppet is a bit extreme, but if SCO had been the results wouldn't really have been much different.
It's more complicated than you seem to think -- and the reality also includes IBM. However, I was simply responding to the top-of-the-page cliche that it was "the company that bankrolled SCO in their lawsuit", which otherwise seemed to be going unquestioned.
Ah, GROKLAW. I used to camp on that website, waiting for IBM's white knights to slay the evil Darl McBride, and PJ to put on her red dress.
PJ was Pamela Jones the blogger, who gave an incredibly informed commentary of the cases. I wonder where she is now - I'd love to send her a bottle of Otago Pinot Noir.
Damn! I was just imagining a scenario where the case took a turn for the worse and came after the very customers of the Azure Intellectual Property advantage :-)
I'm not suggesting we should forget about SCO and antitrust violations of previous decades, but I would posit that this constitutes "compelling evidence" that MS has changed: https://github.com/microsoft/
Microsoft is still doing bad things like suing companies making android devices.
Microsoft wants tech professionals to pay attention to one and not the other. Both exist and if someone does something good it does not make up for the bad. Only stopping the bad stops Microsoft from being bad.
Is it just me or is this actually genius? Mutually assured destruction has been the name of the game for big companies for a while now, but that wasn't practical for small players. If Microsoft is willing to take small companies under its umbrella, it could be quite effective and helpful. Seems like what they actually do is provide you the opportunity to buy a hand selected legal weapon, but that threat may well make azure a little safer for small companies and startups. Will Google and Amazon feel pressured to follow suit?
Of course this doesn't work against patent trolls, because they have no products to sue over. As long as Microsoft doesn't start threatening to sue companies that use aws or something, I have to applaud this move.
Think of Intellectual Ventures as an example. IV licenses patents for litigation but pretend to be inventors. I say pretend because most of their revenue comes from litigation, while publicly promote their inventions. If anyone is interested, there is an old, but relevant, NPR podcast about them and the use of shell companies to hide their identity.
I believe reading that MS has a stake on IV, but I can't find anything on that. IV founder was MS' CTO. It can also be done covertly.
It's remarkable. The whole Lodsys et. al. thing terrified me during the App boom.
Why it was terrifying is because it costs trolls very little to file a suit and would cost me hundreds of thousands to defend, even if their patent was crap. Unfortunately, I don't think Microsoft is offering legal assistance, which would make it really amazing.
This is proof of the utter emptiness of the fiction of intellectual "property" as a source of innovation. IP is not a source of anything but overhead. You pay a baseline of insurance (or "protection" depending on your POV) to fend off lawsuits just to be able to do your work. It's rent-seeking, but the genius is, it's not rent-seeking over limited resources like land or resource rights, it's rent-seeking over totally artificial unlimited source of nonsense BS that you can never run out of. It's just a tax on existence, but it's not going into anything useful, just into the IP industry's pockets.
I'm not sure if I agree with the idea of killing anyone who tries to exert a claim over oneself, though I can't agree more: abolish the state, the class system and IP.
This is simply not true. IP is a vital and important part of business that protects entrepreneurs the most. Sure there is a huge raft of reforms that need to be untaken and software patents have questionable utility but we shouldn't throw the baby out with the bathwater.
I still look back to the Dyson lawsuit with Hoover as example of why we need patents and IP protection:
It's significance stems mainly from its ability to enable those who are intellectually unable to create anything of value to at least own the fruits of the productive classes labor
Latest innovation in Cloud Computing! Frivolous Lawsuit Defense As A Service.
I think at some point the archaic IP laws in USA would mean that deployment of cutting edge technology ends up happening in China. This is already happening in Shenzen.
I don't use Windows, just macOS and Linux servers so I claim some impartiality: I can't believe the hate Microsoft is getting in this thread! They are addressing a very real problem that small companies face and offering a free service on top of normal use of Azure.
Microsoft is a very different company than they were in the days when they supported SCO's lawsuits as an attack against Linux. Except for some Windows 10 privacy issues, I personally give the 'new' Microsoft fairly high grades for their current business models.
IMO, their willingness to use patents as a protection racket, and their conduct with Windows 10, shows that their true colors haven't changed one iota from the SCO days. The "rainbows and unicorns and open source" schtick is great for getting our guard down, but when push comes to shove, it's Embrace, Extend, Extinguish.
So basically the same rent seeking behavior Microsoft applied to Android vendors, now applied to the cloud? Except instead of paying $20 to $40 per handset to MS, you have to use Azure and deal with the resulting mess.
"
On June 19, 2014 the United States Supreme Court ruled in Alice Corp. v. CLS Bank International that "merely requiring generic computer implementation fails to transform [an] abstract idea into a patent-eligible invention." [5][6][7]
The ruling continued:
[...] the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention. Stating an abstract idea “while adding the words ‘apply it’” is not enough for patent eligibility.[] Nor is limiting the use of an abstract idea “‘to a particular technological environment.’”[]. Stating an abstract idea while adding the words “apply it with a computer” simply combines those two steps, with the same deficient result. Thus, if a patent’s recitation of a computer amounts to a mere instruction to“implemen[t]” an abstract idea “on . . . a computer,” [] that addition cannot impart patent eligibility.
"
So just how broken and captured are lower US courts that, despite a supreme court decision invalidating software patents, this kind of extortion continues? Are software patents only invalid for those who can afford to litigate all the way to the supreme court, and the lower courts are ignoring this ruling?
IANAL, but from what I understand, Alice didn't invalidate software patents. In fact, it's generally agreed that they tried very hard not to rule on software patents. All they did was say that a generic abstract idea (like "escrow") doesn't suddenly turn patentable just because it may run on a computer. You need to have an "inventive concept" to qualify.
Alice didn't invalidate software patents wholesale, but it seems like it killed a lot of the more objectionable ones and collapsed settlement values early in cases.
That particular patent was killed because it was even less innovative, as CompuServe Mall already had shopping carts in a computer before. Unfortunately, it had to go all the way to the court of appeals, and only thanks to Newegg choosing to fight it rather than pay them off: https://arstechnica.com/tech-policy/2013/01/how-newegg-crush...
So, now MS starts using their patent arsenal, as an incentive for their users. I.e. "come use us, we have some lethal weapons in stock, in case of threats we'll rent them to you". This doesn't smell good at all.
How about remembering, that MS are themselves one of the major patent aggressors and proponents of patent arms race?
That may have been true in the past but, as far as I know, Microsoft hasn't been that way for years.
Every large tech company has a patent portfolio. Hell, Google bought Motorola to get their patent portfolio to use defensively in suits against Android.
In my opinion companies should not be punished for using patents defensively. It's really the only viable option outside of a major legal change. So, I think Microsoft giving other people access to their portfolio for defensive purposes is a good thing. It should _reduce_ the amount of patent litigation.
There is a difference between only using them defensively, and using them for protection racket. As far as I know, MS still do the later (especially with Android).
They also like standards poisoning with their patents, and then collecting money from everyone who is forced to use that. Example - exFAT widely used on SD cards. Why didn't everyone use some free filesystem? Because MS.
> Why didn't everyone use some free filesystem? Because MS.
When you look on Wikipedia, there are like a dozen goofy file systems that a developer could use for flash storage. They could sort through all that or, you know, they could just use FAT, like everyone has done forever.
I wonder if the open source world's perpetual inability to get behind one standard hurt them there.
Usage of anything other than MS supported file systems would have led to devices that don't work out of the box on windows pcs plus even if your user is a OK with installing support it's entirely possible for Microsoft to sabatoge such an effort silently which would sound awfully paranoid if they hadn't been found to have done just that in other instances.
The reason FAT and exFAT is being used with devices, is Windows.
If you used any other fs, like f2fs, the ordinary user would insert the card into their computer - and nothing would happen. No, Microsoft is not going to ship alternate filesystems with Windows, when they can use theirs as racket.
You might be right, but it's worth noting that nobody with any pull - the digital camera industry, the smartphone industry, the storage manufacturers - ever even tried to make it happen.
I'm kind of surprised, Samsung didn't push f2fs more. They initially announced it as a flash oriented and free filesystem, and promised a Windows driver as well. I don't think it ever materialized. And Samsung have enough weight to push it through.
Just speculating. It could be a leverage thing. They created it, and MS gave them free usage of exFAT or anything of the sort (in return for not pushing it further). Could be just usual mismanagement too.
It certainly should be one or the other. It's completely crazy that you can copyright something, then make a vague description of it and patent it too (without even having to make the original source code available!). And having worked for companies that got sued for patent infringement quite a bit, what usually happens is that someone sues you and demands your source code in discovery. So it isn't even a "I'll show you mine if you show me yours" -- it's "Your software could plausibly have been implemented using our patented technique. Let's have a look at your source code that proves that it isn't".
So instead of being a tool that trades off a limited monopoly for a technique in exchange for making public something that would have been a trade secret, it's a way of protecting a particular implementation while at the same time being able to force your way to see all of your competitor's implementations.
I disagree that it could be patents or copyright. I don't think it should ever be patents. Patents are designed to give the patent holder a monopoly on the innovation so that they can protect their development and research costs. They exist for things with high R&D costs.
Software is much more akin to math or music. You can not patent math or music, and fundamentally it's for the same reason. We must do away with all software patents.
Selling accumulated, weaponized, patent and IP defense as a service reminds me of how protection rackets work.
Also, this sort of leverage isn't something a non established large business could provide, stiffling competition in the cloud space. If the other Google/AWS follow suit, the "cloud" and hence the future internet will not be a better place.
disclaimer:I work for a competitor but this is strictly my opinion on the matter, not that of my employer.
Yeah but MS is a good guy now right ? Look at all the open source ! Linux integration ! Nobody insulting competition anymore ! And Bill Gates is saving Africa !
Now please forget all the terrible things they did for 20 years. They don't matter.
Appears that they're offering patent lawsuit indemnification as a built-in to using Azure, as they have a massive patent portfolio: "use Azure, and as an additional benefit, we'll cover damages related to patent law suits that arise, if we have a patent with which we can defend."
I'm not even sure I understand what's happening here. Are they offering to rent their patents to you to use in defending yourself against patent suits? What?
1. They promise that if you get sued for using something open source that Azure is built on, they will indemnify you. Eg, with AWS, in theory someone could say to you: "We have a patent on DB replication, you use MySQL with RDS, that has replication, you owe us money." Unsure if that's a valid risk, but maybe.
2. If you get sued and you've been paying $1k a month or more to Azure, MS will give you one of a their 10k patents on a list if it'll help mount a defense. Could be helpful, I suppose, but hard to figure out the value. If I'm sued, AND MS has a relevant patent on the list, how useful would it be?
3. MS promises that IF they transfer some of their patents to a patent troll in the future, the terms of the transfer will prevent the troll going after you. Again, hard to quantify the value, especially since it depends on MS's actions. "We have a big hammer, but we promise not to hit you" is only partially reassuring. But still better than no promise at all!
On balance these all seem like unmitigated goods, although it's hard for me to evaluate if they have any value. It never occurred to me to be concerned that I might be sued for using open source tools on AWS. :)
I'd estimate it to be about 80% marketing, and 20% a good faith attempt at defusing the disaster that is modern IP laws.
(Edit: And contrary to some other commenters, I don't see anything malicious or harmful going on here.)
In my experience there's definitely value here. Companies get sued on the regular for bullshit like this. I've had to deal with three patent suits at startups. They were all bullshit, and they all ended in settlements of ~$10,000 (cheaper to settle).
Countersuing is probably the #2 most common response to a patent suit (after settling). It's so common that there's a name for it: "defensive patent strategy." Basically, you file a bunch of patents, but you don't proactively go out and look for infringers. You're just hanging on to them in case you get sued. If you get sued you go and look at the person who's suing you and try to find one of your patents they're violating. This actually works fairly well because the patent system is so broken, and patents are so easy to get, that you can almost definitely find a violation given a reasonably large portfolio (and 10,000 patents is reasonably large).
Unfortunately, countersuing doesn't work against NPEs... and NPEs are usually the ones doing the suing.
> They were all bullshit, and they all ended in settlements of ~$10,000 (cheaper to settle).
You are part of the problem. NEVER settle with a patent troll. I've had plenty of these assholes come after me and nothing ever stuck, on top of that I've helped others defend against the trolls with a 100% success rate when and if they stuck to the end.
Yes, it can cost you money, but this real life prisoners dilemma can only be won if we stick together. And MS is playing both ends against the middle here, to their own advantage of course.
The first two times the decision was made above my head.
The third time I was in the C-suite and it was a joint decision. I had a heart-to-heart with our lawyers because I _did not_ want to settle. Our head IP lawyer said he felt me -- he thought the suit was bullshit, would love to fight, etc -- and if we decided to defend he'd be 100% with us. However, his firm was currently engaged in defending another suit with the litigant and it had been appealed through the circuit court in Texas. At that time it was pending hearing by the Supreme Court. That client had already accumulated more than $250,000 in legal fees and there was no guarantee that they'd win. Even if they did win, it was unlikely that they'd be able to recover any of those fees. He estimated total cost of fighting would be between $250,000 and $500,000.
I reached out to friends at large tech companies to see if they had experience dealing with the litigant. I heard back from two of them that they did have experience, and that they settled. Since there was an ongoing case involving the litigant that was already heading to the Supreme Court (and one that had at least as good a chance of winning) we opted _not_ to spend a significant amount of our venture capital fighting an expensive battle that, at best, would cost us hundreds of thousands of dollars and, at worst, we would lose in Texas.
In the end we spent significantly more money on investigating a defense then we actually paid in settlement.
If you're interested in covering the financial costs associated with fighting these suits please let me know. I would definitely take you up on that and fight all day every day.
Extortion is enabled by the previous rounds of victims paying up, so it's an endless cycle that simply won't stop until people stand their ground.
> If you're interested in covering the financial costs associated with fighting these suits please let me know.
I'm well aware of that, there were years when I paid more to the lawyers than to the tech department. Still, overall it was worth it. Big factor in our survival was that we had an EU parent company rather than one on the far side of the Atlantic.
I did too until I realized that the alternative had a high probability of ending in bankruptcy resulting in loss of employment for two dozen employees. I'm fine taking a moral stand when I'm the only one who stands to lose. It's harder when you're playing with other people's money / lives.
I guess this is where it helps that I was the CEO of the company being sued, had a European parent company (where software patents at the time were not valid) and would rather go down fighting than give in to blackmail. I can see the economical argument and I also see your argument with respect to playing with other peoples lives and money. The problem is that that attitude eventually results in more effect on other peoples lives and money, just not the people in your direct vicinity.
It's great that you can afford that stance. It really is. But you can't expect individual companies all to be vigilantes; it's governments and/or governing bodies that need to step in and fix this mess.
Its clear that you are really passionate about this, however I don't think saying stuff like that helps. The respondent went so far as to describe a very reasonable scenario in which his company was outmatched by the litigant insofar as their willingness to lose money.
I don't think that should be vilified.
100% success rate when and if they stuck to the end
Except your "success rate" doesn't include things you can't get back, like time and effort which is crucial for a startup - even in the unlikely case that you get your attorney's fees back.
> Except your "success rate" doesn't include things you can't get back, like time and effort which is crucial for a startup - even in the unlikely case that you get your attorney's fees back.
That I'll readily agree with. Still, I absolutely believe that settling with these jerks is making the problem much worse.
It would seem obvious that if one party with a large pile of patents can look at an independent entity and their work and find something they own the rights to that their ideas are probably obvious and ought not to be protected.
> On balance these all seem like unmitigated goods, although it's hard for me to evaluate if they have any value.
> It never occurred to me to be concerned that I might be sued for using open source tools on AWS.
Well there you go -- you've answered your own question: Yes, it has value, if for no other reason than it got you thinking that using AWS might just be risky.
I'm not saying that is incorrect, or even that this new Azure "feature" is nesicerily a bad thing -- just pointing out the PR aspect.
I'm also refraining from labelling it as FUD, even though it does indeed sow fear, uncertainty, and doubt, since I think FUD should be reserved for false or misleading fear, uncertainty, and doubt.
>2. If you get sued and you've been paying $1k a month or more to Azure, MS will give you one of a their 10k patents on a list if it'll help mount a defense. Could be helpful, I suppose, but hard to figure out the value. If I'm sued, AND MS has a relevant patent on the list, how useful would it be?
If you are sued by a troll or some other sort of non-practicing entity, that is worth zip. You can't defensively assert against them since they don't do anything.
If you are sued by a real company, it could help bring down settlement costs. Hard to value that, but it's worth something.
It's common for companies to develop patent portfolios mainly for defense.
Say you build a product, maybe VR goggles, and you legitimately infringe someone else's VR patent, because that's pretty much unavoidable these days. The owner of that patent is in the same VR space, and decides that you're a threat to their business, so they decide to file suit on this patent you've infringed and make your life difficult.
But! You've been developing your own defensive patent portfolio around VR, because that's the business you're in. In this case, it's common to find that your competitors are also infringing some of your patents, because you're all working on the same thing. When this happens, it's easy to cross-license -- I'll let you use some of my patents if you let me use some of your patents. Patent problem avoided.
This is Microsoft allowing you to use part of their patent portfolio for defense in this way.
No. That's just another FUD article. What the practical upshot of that clause is is that if you are going to troll Amazon with your patent portfolio you can't be a customer at the same time. They do not require you to 'give up your IP', either entirely or in part. Copyright is still what it was before, your patents are still yours.
And all this subject to interpretation by a competent judge.
The hypocrisy lies of course in Amazon patenting just about every dumb 'innovation' that they came up with in the early days of the web (recall the 1-click shopping patent). So for Amazon to want to be protected pre-emptively against customer lawsuits over patents is silly.
I also highly doubt a judge would honor their survival clause, but it's up to Amazon to put in their contracts whatever they want, it's up to a judge to decide if it holds water or not. So until this has been litigated it doesn't mean a whole lot.
Probably consistent with what you said, but just to clarify, I think the AWS license also applies to suits against AWS customers. The license states "...you will not assert... against us or any of our ... customers... any patent infringement or other intellectual property infringement claim regarding any Service Offerings you have used."
It's difficult to imagine how one AWS customer would be able to use this to defend a patent suit from another AWS customer though, since they are not a party to the contract between Amazon and the patent holder that conveys the license. You'd probably have to get Amazon to intervene in your suit.
I'm not a lawyer, but I have dealt with patents a fair amount... so here's a quick ELI5...
1. Uncapped indemnification: this one is pretty simple. If you're sued for using some tech that powers Azure, Microsoft will cover any losses (indemnify you).
2. Patent pick: if you're sued for patent infringement _at all_, Microsoft will let you "pick" one out of a selection of 10,000 available patents to use in a countersuit. This is an extremely common tactic in IP lawsuits, but one that is only available to folks with large patent portfolios (this is what people mean when they say they have a "defensive patent strategy"). For example, Oracle sues Google for infringing patent X, Google countersues for infringing patent Y, eventually everyone settles (or not, heh). Presumably, the patent will actually be transferred to you (you become the legal owner of the patent) for the duration of the suit (I'm sure there are lots of conditions here).
3. Springing license: "non-practicing entities" (NPEs) are a _huge_ problem for tech companies. They're also known as "patent trolls." The reason they're so hard to deal with is that they don't actually do anything (other than sue people) so it's hard to use the countersuit tactic mentioned above (if you don't do anything, you're probably not violating any patents). Microsoft is saying that, while they do not generally transfer patents to NPEs, if they ever did so there will be a "springing license" to that patent granted to eligible customers. Therefore, those customers could not be sued by the NPE.
Now, some editorial. I actually think this is a good thing. They're trying to create a "patent free zone." They can't get rid of patents, so the only way to do that is with "legal hacks" like this. Right now small companies without patent portfolios are at a huge disadvantage when it comes to defending against frivolous patent suits. This would absolutely help. Moreover, one of the eligibility requirements states that you must have remained "patent peaceful" against Azure workloads for the past two years. The only way they could have made this better is if they had made the program more broadly available (btw, you're only eligible if you spend > $1,000/mo on Azure).
For what it's worth, the ideas here are not completely novel. Patent exchanges are fairly common (although you usually need a patent portfolio to join one). There are also some similarities with the Apache 2.0 "mutually assured destruction" clause which (again, in ELI5 terms) tries to prevent patent suits for use of Apache licensed software by saying that if you sue someone for using Apache licensed software then other people can sue you for your use of Apache licensed software (without giving up their right to not be sued).
Cloud IP insurance policies would be something interesting to see in this space.
I was at an insurance analytics conference (kind of) recently, and everyone was all hyped up on this notion of trying to write policies for cybersecurity protection. The problem was the underwriting and how to price the policies. I think another thing we could see in this space is how to insure IP that's in the cloud. Cybersecurity insurance meets IP.
It contradicts the promises on the homepage. I would not sign up unless I get the signature of Nadella on a contract stating that Microsoft won't sue me
So, it's unclear because the details on the legal instruments used to effect the patent transfer don't see that clear.
(If anyone has a link to it, i can't find it)
The requirements seem very clear:
A. pay azure 1000/month
B. get sued for a patent you aren't being indemnified about (which are the open source ones)
C. be able to use an MS patent for defensive purposes in a counter-suit.
Note that only exclusive licensees of patents could do C, so it must be some kind of transfer.
Without seeing the instrument, it's hard to see what the loop holes are, but at the very least, it seems like you could very cheaply tie up these 10000 patents forever.
1. Build 20000 shell companies
2. pay azure 1000/month through 10000 of them.
3. Acquire 10000 worthless patents not in the area of open source, distribute to half the ones not paying.
4. Sue the 10000 that are for patent infringement.
5. Pick 10000 microsoft patents to counter-assert
6. Sit in legal limbo forever
7. Repeat as necessary
Subsection 4.17a$19 in terms: we reserve the right to not license you any patent if you do that thing you just described.
Seriously though, hopefully there's some mechanism covering this sort of abuse. Even if there's not, if I were MS I would simply not comply. It's civil law, and your behavior is completely unreasonable and does not reflect the any reasonable interpretation of our agreement -- come at me. Besides, what are your damages?
Interesting. For conversation sake if I were to build a service directly competing with an exisiting Azure service offering am i protected from microsoft itself?
such a pity you asked so far down the thread. I really enjoyed having a crack at a reply. So much so...
I found there were several ways to consider your question, not all of which were immediately obvious.
To capture my thought, well I put up a repo, same handle as here, at github, https://github.com/amygdyl , under HN_REPLY, where the context and flow of my thought really needed to bypass the "comment is too long" objection I encountered.
(Having done this, I realized just how much I've been discarding in frustration, when editing simply did not bring my reply within the limit, so this may begin a hopefully worthwhile habit.)
My partial conclusion went as follows:
"[...] the outcomes are ternary: the indemnity is worthless; the indemnity by putative assignment of a defensive patent has some
limited use, but you are defending not Microsoft directly, but MS + 3rd party; or "highly dependent on strategic evaluation".
I do not think that this contracts provides any straightforward indemnity against adverse action initiated by Microsoft,
however. Simply nothing in the context or wording leans towards supporting that interpretation.
However, in the event that Microsoft initiated suit claiming infringement of one of the portfolio of 10,000 patents covered by
the clauses within this contract, clearly the siutuation created by the contract would become a nullity.
So, in dealing with 3rd party risks, the result could be quite open to interpretation, at least in early stage litigation.
However, as to your question on face value (and making a number of assumptions) then the answer is - if these assumptions became fact, in particular the tort for infringement cited a patent among the 10,000 portfolio, then, yes, this would constitute effective, but implied, mitigation and defense, which if the relevant clauses were enacted, and defense argued, would create a nullity.
How this benefit for customers of Azure actually plays out, if it in fact is ever played out, might never encompass as risky and interesting a scenario as that which I in passing posit. But I believe that in potential, Microsoft might have done a extremely
positive, open minded and market generative, act, in offering this standard term.
It gets more interesting, if you consider the possibility of two Azure customers, suing for infringement, where Microsoft IP
might come "in between" their claims. [...]*
I hope that makes some sense to you, but I genuinely felt the complete flow of my argument was worth putting down, would absolutely appreciate your thoughts - john
What really surprises me is that so many people are willing to forget that this is the company that bankrolled SCO in their lawsuit.
For that reason alone the tech community should shun them. But just a few short years later and a couple of open source releases and we're supposed to believe it is all so much better now and the Microsoft of old should be forgotten.
Thanks, Microsoft for reminding us of your true colors.
In case you have trouble parsing this announcement: the 'between the lines' FUD here is that when using other cloud providers you could be sued by companies that have these scary things called patents in case it turns out you ar is infringing on any patents (nudge nudge, wink, wink, of course you are). But come and stay in my house and I will protect you against these nasty people.
Cue IV starting lawsuits against parties that in a pitch between Azure and say GCE or AWS decide to go with the latter?