01.12.10
Posted in Database, Microsoft, Mono, SUN at 1:00 pm by Roy Schestowitz
Summary: Microsoft is preparing to poach users/customers of the most ubiquitous Free database software
SEVERAL MONTHS ago we showed that Microsoft was embracing and extending MySQL in some special sense. Now there’s this in the news. From Mary Jo Foley:
Microsoft tests tool for migrating MySQL to SQL Server
[...]
It’s no secret that even though MySQL has been a Microsoft partner, it also is a Microsoft competitor. And ever since Oracle made overtures to buy Sun and (get MySQL in the process), Microsoft’s been even more of a foe.
Given that context, it’s probably not too surprising that Microsoft is readying a tool designed to help customers migrate from MySQL to SQL Server and/or SQL Azure, Microsoft’s cloud-hosted version of its database. That tool is currently in the early test stage (Community Technology Preview 1), and is downloadable from the Microsoft Download Center.
Everyone knows that Microsoft is a terrible partner. Another very ubiquitous database, Sqlite, is being embraced and extended by the Mono people.
Those who have been speaking about Monty’s connections with Microsoft can make further speculations, but speculations are all they can ever be. █
Related posts:
- SAP/Microsoft Attack on Java, OpenOffice.org, Other Libre Products Culminates in Alliance
- The ‘Microsoft of Europe’ Instructs Oracle on Free Software
- Is Microsoft Lobbying to Burn Sun?
- Microsoft Has Lobbyists and Cronies Around European Commission, Working to Shatter MySQL and Defend IE Monoculture
- Why Does Microsoft Decide for the World?
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12.21.09
Posted in Database, Europe, FOSS, Microsoft, Oracle, SUN at 2:15 pm by Roy Schestowitz
“As if you could kill a dolphin by swallowing the ocean…”
–Marten Mickos, CEO of MySQL
Summary: Oracle commits to swallowing but not devouring the dolphin, whereas the creator of MySQL database, who is now with Microsoft’s CodePlex Foundation, lobbies with Microsoft against it
WE HAVE mostly abstained from saying whether MySQL should or should not be acquired by Oracle. Sun is at stake too, along with projects like Java and OpenOffice.org, so it’s a tough situation. Either way, based on reports, there is at least a promise from Oracle, which means that pressure from the European Commission paid off in some way.
A pledge in Oracle’s commitments to European regulators would continue to license MySQL, a key Web site software, for five years after Sun is acquired
An approval for Oracle is foreseen despite all the lobbying from Microsoft and SAP. Groklaw points out that Microsoft has just acquired the Toronto-based Opalis, which is a MySQL partner. Could this be strategic and intentional in some way? Who knows, but Groklaw found that important enough to mention.
“Monty could have changed the license prior to selling it to Sun, and he didn’t, so it’s a bit late now to worry about who owns it.”
–Pamela JonesNow that Michael Widenius is lobbying to block the acquisition, Groklaw’s Pamela Jones also writes: “I’m a MySQL user on Groklaw, and I think he’s serving up baloney, and definitely not anything to do with Open Source, since he’s suggesting the license on MySQL be changed to one that allows him proprietary possibilities. Monty could have changed the license prior to selling it to Sun, and he didn’t, so it’s a bit late now to worry about who owns it. I doubt the EU Commission will care about emails like this, but there’s no reason why people can’t send emails if they so choose. If so, it’s to comp-merger-registry@ec.europa.eu and mine, if I wrote one, would say, I see nothing wrong with Oracle buying MySQL.The GPL rights are irrevocable, so it doesn’t matter who owns the copyrights.”
Here are some opinions that Groklaw cites for support:
But the Oracle filing quotes several customers who said practically the opposite in response to the EU’s market survey. Vodafone Group PLC said it “does not consider that Oracle’s database offerings constitute direct substitutes to Sun’s offerings.” McAfee Inc. also said the two don’t “constitute direct substitutes.” As did General Electric Co., which added that while “both parties’ offerings may on the face of it share some functionality, they are qualitatively different.” Said Fujitsu Services Ltd.: “They operate in different markets.”
Widenius has said that Oracle’s promise is useless, but Jones disagrees when she writes: “If he claims the promises are empty, I’d not call that a success. If it is a success, then the promises must not be empty.”
What do our readers think? Is the European Commission doing the right thing by obstructing Sun (and Oracle)? Is it defending MySQL from a hostile takeover? We lost a great deal of confidence in the European Commission when Steve Ballmer met Neelie Kroes and bamboozled her until she accepted software patents. The president of the FFII wrote a few hours ago: “Nellie Kroes in bed with Microsoft for protecting their soft patents, commercial software redefined, champagne in Redmond!”
This was indeed a disappointment which we wrote about yesterday and also covered in [1, 2, 3]. Initially, the Commission caved and obeyed Microsoft lobbyists, later inviting Microsoft again. With several Microsoft cronies inside the Commission, this might not be entirely shocking. As someone who maintains about 20 MySQL databases, I’d appreciate input from readers. Who’s “right” and who’s “wrong”? █
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12.09.09
Posted in America, Apple, Australia, Bill Gates, Database, Europe, Intellectual Monopoly, Law, Microsoft, Mono, Novell, OpenDocument, Patents, SUN, Standard at 6:03 am by Roy Schestowitz
Summary: Vigilant eye on laws that restrict or ban Free software, with new examples ranging from Microsoft to similar companies
THIS latest roundup actually begins with a weird new example where copyrights — not patents — are used by someone to ‘own’ SQL queries.
Can someone copyright a SQL query?
[...]
So back to the subject’s question: Can he really copyright this query? And if so, is modifying it ourselves a copyright violation? In my mind, a single query isn’t program code. It’s more a command line command. But I don’t know what it’s considered legally.
Need programmers now check every SQL query of theirs and ensure it does not infringe on copyrights? This is insane. What’s even more insane is a subject that was brought up before — that some companies are creating intellectual monopolies on methods vital to saving the planet. These are now being fast-tracked.
The US Patent and Trademark Office said Monday that it’s launching a test program that will greatly speed the review of “green” technology patents.
The new fast-track pilot program is expected to shave a full year off the patent review process, which takes an average of 40 months to reach a final decision, according to the USPTO.
It is suicidal to use patents to limit the use of such methods. It shows that the patent system prioritises profit — not betterment — of the industry.
Looking at some proprietary software giants, Apple is looking to reverse a decision regarding a patent (in Eastern Texas of course).
Apple has been told to pay OPTi $21.7m in damages after an Eastern Texas Court issued a final judgment in the firm’s long-running patent infringement case.
But reports this morning suggest the Mac maker’s next move will be sending an appeal to the ruling, rather than a cheque.
Microsoft is meanwhile getting together with a company that attacked Free software using software patents. That would be NetApp. It may have put ZFS in a life-threatening position.
Microsoft and NetApp have struck a 3-year strategic alliance centred on virtualised server environments and technology integration.
President of the FFII is unhappy about Peer-to-Patent’s extension into Australia because it only helps legitimise software patents as a whole. Pointing to this new report about threats to the European patent system [1, 2, 3, 4], he argues that “Bifurcation of infringement and validity will be a disaster, as it is completely one-sided in favour of patentees.” He also adds that “Mono Hackers [are] coming to HSB for FOSDEM, should bring some Microsoft software patents covering Mono?” We wrote about this before.
Those who are not paying attention to what Microsoft is doing in Europe do so at their own peril. We have already shown how Microsoft pressure groups CompTIA, BSA, and ACT were lobbying for software patents in Europe’s interoperability framework [1, 2, 3]. The FSFE is now highlighting their role in the successful perversion of EIFv2 (European Interoperability Framework version 2) and concludes as follows:
Based on the above analysis, we can only conclude that the European Commission is giving strong preference to the viewpoint of a single lobby group. Regarding interoperability and open standards, key places of the consultation document were modified to comply with the demands of the BSA. Input given by other groups was not considered on this issue. Beyond ignoring this input, the Commission has apparently decided to ignore the success of the first version of the EIF, and to abandon its efforts towards actually achieving interoperability in eGovernment services.
OSOR has written about this too. We previously wrote about EIFv2 in:
- European Interoperability Framework (EIF) Corrupted by Microsoft et al, Its Lobbyists
- Orwellian EIF, Fake Open Source, and Security Implications
- No Sense of Shame Left at Microsoft
- Lobbying Leads to Protest — the FFII and the FSFE Rise in Opposition to Subverted EIF
- IBM and Open Forum Europe Address European Interoperability Framework (EIF) Fiasco
- EIF Scrutinised, ODF Evolves, and Microsoft’s OOXML “Lies” Lead to Backlash from Danish Standards Committee
- Complaints About Perverted EIF Continue to Pile Up
- More Complaints About EIFv2 Abuse and Free Software FUD from General Electric (GE)
The ODF Alliance has just published a post which shows that the US administration wants “Open Formats”, but it is only a matter of time before Microsoft lobbyists redefine “open” in the United States too and then pressure the government to use proprietary formats instead. Microsoft’s top lobbyist [1, 2, 3], Bill Gates, is even making phonecalls to politicians to achieve such goals.
The Obama Administration’s Open Government Directive was unveiled today. Concerning open formats the key provisions are:
“each agency shall take prompt steps to expand access to information by making it available online in open formats……..To the extent practicable and subject to valid restrictions, agencies should publish information online in an open format that can be retrieved, downloaded, indexed, and searched by commonly used web search applications. An open format is one that is platform independent, machine readable, and made available to the public without restrictions that would impede the re-use of that information……..”
Just give us the data! That’s been the mantra of open-government enthusiasts, developers among them, who have created mashups – web-based tools that make the reams of government data more accessible and, importantly, put this data to effective public use. For example, Stumble Safely, highlighted in a recent New York Times article, links data regarding incidents of crime with popular locations, such as bars, restaurants and transportation hubs to help guide people home safely after a night out.
It seems safe to assume (based on experience) that Microsoft is already leaning on the right people. █
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11.28.09
Posted in Database, GNU/Linux, Novell, OpenSUSE, Review at 7:07 am by Roy Schestowitz
Summary: More reviews of OpenSUSE 11.2, the OpenSUSE Boosters Team, and site theme makeovers
THE release of the latest OpenSUSE is just weeks behind and one of its reviewers, Caitlyn Martin, has some followups on last week's review. In her blog she complains about what she describes as ‘the’ community, as though there is one happy family with a cohesive set of ideas and goals, all living in harmony. The reality is more complex because some factions advocate DRM, others exploit GNU/Linux for cost, and others value Freedom for example. There are many other dimensions of division. In O’Reilly’s domain, she writes some more about the subject in relation to her review of OpenSUSE. She did receive some abuse from people, but this is by no means unique to users of GNU/Linux. It is a little disappointing to see it attributed to people who are classified by the operating system that they use.
Read the rest of this entry »
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11.20.09
Posted in Database, Deception, FOSS, GNU/Linux, GPL, Microsoft, Mono, Novell, Oracle at 9:51 pm by Roy Schestowitz
Summary: How Microsoft partners and former employees have reached the point of infesting and deforming “open source” as we once knew it
THE title is borrowed from a book of Christopher Hitchens, which was intended to alert using strong words. What we increasingly find in Microsoft’s “open source” endeavours is the “Embrace, Extend and Extinguish” strategy, which was explained many times before, even years ago.
Microsoft’s CodePlex Foundation, where Miguel de Icaza is working (and which is explicitly intended to help promote Mono), is making a lot of noise these days and Mono boosters, who are also former Microsoft employees (MindTouch), lend their voice to it. As we noted yesterday, they also suck up to Matt Asay and it's paying off.
MindTouch bills itself as the open source alternative to Sharepoint and recently named our own Matt Asay as the second most-influential executive in open source.
Matt Asay finally has this new post which bears an alarmist headline: “Microsoft’s embrace of MySQL could kill it”
Here are the opening words:
For those who have fret about Microsoft fighting against open source, I have news for you: Microsoft’s impact on open source may be worse as a friend than as an enemy.
Now with MySQL inside! Yes, we can.
Over the past few years, Microsoft has steadily warmed to open source, to the point that it now hosts its own open-source code repository and has seen its Microsoft Public License used more often than venerable licenses like the Mozilla Public License or the Eclipse Public License, according to new data released by Black Duck Software.
The open-source world should be worried.
We previously showed how Microsoft was lobbying to ruin MySQL [1, 2]. In emerging markets, MySQL is said to have a market share of 46% which is huge. No wonder Microsoft wants to ruin MySQL and with its big ally, SAP, Microsoft is doing a sort of Slog. To whit:
“Working behind the scenes to orchestrate “independent” praise of our technology, and damnation of the enemy’s, is a key evangelism function during the Slog.”
–Microsoft, internal document [PDF]
“[O]rchestrate “independent” praise of our technology,” eh? How might that be?
We once wrote about Black Duck promoting CodePlex. What too few people are aware of is the fact that Black Duck has a Microsoft genesis [1, 2] and the firm is selling fear about Free software. Black Duck is a purely proprietary software company with proprietary methods and proprietary data. It goes back to the post from Asay, but watch what Dana Blankenhorn is now parroting uncritically.
The latest Black Duck Software figures on open source license popularity make it clear.
Microsoft is gaining.
Is it really? Is the source of the claim unbiased? What is it measuring? A wise gentleman (or several gentlemen to whom it’s attributed) once said:
“Lies, damned lies, and statistics”
One of our readers warns us that Black Duck is currently selling fear in more places, for a fee. The same reader tells us that Novell’s “Michael Meeks and ex-Sun employee [are] talking about why Mono sucks.” The source, says our reader, are “some pictures of a friend of a friend on FB.”
Is it not curious that a Novell and GNOME developer bashes Mono? Even Novell employees seem to understand that Mono is technically inferior. The main reason to use it seems to be Microsoft’s contentment and its promoters include existing and former Microsoft employees. “Open Source” is being poisoned from the inside. Doing nothing would not resolve this issue. █
“[The partnership with Microsoft is] going very well insofar as we originally agreed to co-operate on three distinct projects and now we’re working on nine projects and there’s a good list of 19 other projects that we plan to co-operate on.”
–Ron Hovsepian, Novell CEO
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11.10.09
Posted in Database, Europe, Law, Oracle, Patents at 11:23 am by Roy Schestowitz
Summary: Enlarged Board of Appeal to make decision regarding software patentability in Europe, but some judges may have already made up their minds
THE FFII’s president has just pointed out that the “European Patent Office “independent” Enlarged Board of Appeal says its judges are “independent”.” We append its response in plain text. Of course they would just act in self defence here, justifying their own integrity rather than relying on independent, external judgment. To quote the crux of the matter:
In an amicus curiae brief addressed to the Enlarged Board on 26 April 2009 Mr M. Schulz contested the impartiality of the Board giving the following reasons:
1. A technically qualified person in charge and mandated by the Enlarged Board of Appeal had officially and publicly given his opinion on the decisions mentioned in the referral of the President and on the interpretation of the EPC with respect to the exclusion of computer programs from patentability, among others on the decision in the case T 1173/97.
We previously wrote about this referral to the Enlarged Board of Appeal in:
I have also submitted my own brief.
Separately, says FFII’s president, “Oracle [is] not mentioning patents” when claiming that “because MySQL is open source, it cannot be controlled by anyone.” Oracle wrote this in response to the European Commission, which blocks the Sun takeover.
We wrote about MySQL and patents back in 2008 [1, 2, 3, 4, 5]. █
b
Europäisches European Office européen
Patentamt Patent Office des brevets
Große Enlarged Grande
Beschwerdekammer Board of Appeal Chambre de recours
Internal distribution code:
(A) [ ] Publication in OJ
(B) [X] To Chairmen and Members
(C) [ ] To Chairmen
(D) [ ] No distribution
Datasheet for the Interlocutory Decision
of 16 October 2009
Case Number: G 0003/08
Language of the proceedings: EN
Referral by the President of the EPO in relation to a point of
law pursuant to Article 112(1)(b) EPC
Headword:
-
Relevant legal provisions:
EPC Art. 24
RPBA Art. 4
Relevant legal provisions (EPC 1973):
EPC Art. 24
Keyword:
"Objection to a member of the EBA, suspicion of partiality"
Decisions cited:
G 0001/05, G 0002/08, T 0954/98, J 0015/04
[2002] EWCA Civ 90, [2003] QB 528 - Taylor v. Lawrence; [2003]
UKHL 35, [2003] ICR 856 - Lawal v. Northern Spirit Ltd.;
Locabail (UK) Ltd. v. Bayfield Properties Ltd.
Catchword:
-
EPA Form 3030 06.03
C2034.D
b
Europäisches European Office européen
Patentamt Patent Office des brevets
Große Enlarged Grande
Beschwerdekammer Board of Appeal Chambre de recours
Case Number: G 0003/08
I n t e r l o c u t o r y D e c i s i o n
of the Enlarged Board of Appeal
of 16 October 2009
Composition of the Board:
Chairman: P. Messerli
Members: M. J. Vogel
P. Alting Van Geusau
M. Dorn
A. G. Klein
U. Scharen
J.-P. Seitz
C2034.D
- 1 - G 0003/08
Summary of Facts and Submissions
I. In the present referral case under Article 112(1)b EPC
concerning several questions raised by the President of
the EPO on Computer Implemented Inventions ("CII") the
Enlarged Board of Appeal invited the public to file
opinions on the questions submitted by the President.
II. In an amicus curiae brief addressed to the Enlarged
Board on 26 April 2009 Mr M. Schulz contested the
impartiality of the Board giving the following reasons:
1. A technically qualified person in charge and
mandated by the Enlarged Board of Appeal had officially
and publicly given his opinion on the decisions
mentioned in the referral of the President and on the
interpretation of the EPC with respect to the exclusion
of computer programs from patentability, among others
on the decision in the case T 1173/97.
2. In the documents of the Diplomatic Conference of
2000, the decision in the case T 1173/97 was considered
to justify the deletion of the EPC provision excluding
computer programs as non patentable subject matter.
This means that this decision was not taken on the
basis of the law in force at that time.
3. Furthermore, the person mentioned above, now a
member of the Enlarged Board in the present case,
supported the EU-proposal of a directive on CII as a
lobbyist of the Commission. He declared publicly that
the then-drafted version of the EU-directive would not
initiate a reversal of the jurisdiction of the Boards
of Appeal. This is further proof that the then-valid
C2034.D
- 2 - G 0003/08
law, which excluded computer programs from legal
protection, had been disregarded by the Boards.
4. Finally, just before its publication, a member of
the Boards of Appeal publicly took the position that
the referral of the President was inadmissible. This
was an undue attempt to put pressure on the President
and the Members of the Enlarged Board.
5. On the strength of past experience with the
behaviour of Board members the question is not whether
there are different decisions and even whether these
decisions are in line with the Convention. These
questions have already been answered by the Boards'
decisions. The question is rather whether it is
possible having regard to the foregoing facts to
compose an Enlarged Board from members of the Boards of
Appeal, who have already been subject to a reproach of
obliqueness.
6. Under these conditions there is a suspicion of
partiality with the consequence that the present
composition of the Enlarged Board has to be dissolved
and the grounds of dissolution have to be published.
III. After due deliberation of the Board, in the absence of
the member concerned, the Chairman of the Enlarged
Board of Appeal by order dated 28 September 2009
appointed Mr Alting van Geusau as alternate to Mr Rees
for the purpose of the proceedings under Article 4
RPEBA and Article 24(4) EPC.
IV. In his statement according to Article 4(2) RPEBA
Mr Rees declared that, as a director in DG 2 between
C2034.D
- 3 - G 0003/08
2000 and 2003, he was assigned the duty of explaining
the examination policy of DGs 1 and 2 with respect to
computer-implemented inventions (CII), which was based
on the case law of the Boards of Appeal, to the public
and external bodies like the European Parliament.
Furthermore he did the same when he attended as an
expert for the European Commission a number of meetings
of the responsible committee of the Council of
Ministers where the proposal of a EU-directive on CII
was discussed.
Reasons for the Decision
1.1 As provided by Article 24(3) EPC, members of a Board of
Appeal or of the Enlarged Board of Appeal may be
objected to by any party for one of the reasons
mentioned in Article 24(1) EPC, or if suspected of
partiality. Whereas objections based on Article 24(1)
EPC (iudex inhabilis) may be raised by anyone, whether
he is a party or not, the right to object to a member
of the Board because of alleged partiality (iudex
suspectus) is reserved to parties in the proceedings
(see interlocutory decision of 15 June 2009 in case
G 2/08, point 1.4 of the Reasons). In referral cases
under Article 112 EPC, however, members of the public
who file amicus curiae briefs do not have the status of
a party. They are not entitled to file requests but
only to submit their personal view of the case or that
of their organisations, in order to support the Board
with arguments that should be considered in its
findings. Since an amicus curiae is not a party to the
referral proceedings his request for exclusion of a
C2034.D
- 4 - G 0003/08
member of the Enlarged Board or of the Enlarged Board
as a whole is inadmissible under Article 24(3) EPC.
1.2 However, pursuant to Rule 4(1) of the Rules of
Procedure of the Enlarged Board of Appeal (RPEBA) in
the version approved by the Administrative Council of
the EPO on 7 December 2006 (OJ 2007, 304), the
procedure of Article 24(4) EPC is also to be applied,
if the Enlarged Board of Appeal has knowledge of a
possible reason for exclusion or objection which does
not originate from a member himself or from any party
to the proceedings. Under this provision the
submissions of a third party with respect to a member
of the Enlarged Board to be objected to according to
Article 24(1) EPC or suspected of partiality under
Article 24(3) EPC are taken as information on the basis
of which the Board can ex officio look at the alleged
grounds of objection or suspicion of partiality.
2.1 In the amicus curiae brief under consideration it is
not alleged that one of the members of the Enlarged
Board should be excluded from the case for reasons of a
personal interest in the case, or for having been
involved previously as a representative of the party
(Article 24(1) EPC). Rather, the submission is based on
the ground that one member of the Enlarged Board of
Appeal in this case as well as the Board as a whole is
suspected of partiality.
2.2 The interlocutory decision in case G 2/08 mentioned
under point 1.1 above states that it might appear
appropriate not to proceed any further with a complaint
or information received if the so-called "possible"
reason for exclusion or objection which does not
C2034.D
- 5 - G 0003/08
originate from a party to the proceedings or the
Enlarged Board of Appeal itself, would amount to an
abuse of procedure. The decision mentions as an example
a complaint that is completely unsubstantiated or
ignores established case law (point 2.3 of the Reasons).
2.3 Turning to the present case, the Enlarged Board notes
that the submissions in the amicus curiae brief are
vague and largely unsubstantiated. The brief does not
say who made which concrete remarks in which function
under which circumstances and in which connection with
respect to the referred questions such as to justify
his exclusion as a member of the Enlarged Board of
Appeal for reasons of suspicion of partiality.
Nevertheless the Enlarged Board is in the position to
identify Mr D. Rees on the basis of these submissions
as the member suspected in the amicus curiae brief and
is also aware of his earlier duties as a director in
DG 2 of the EPO between 2000 and 2003 and as an expert
for the EU-Commission in the field of CII at that time.
But these facts submitted to establish the suspicion of
partiality are not suitable to do so. The mere general
and unsubstantiated assertion that the member in
question explained as an expert in earlier times, when
he was still a director in DG 2, that the jurisprudence
of the Boards of Appeal in the field of CII would not
be against the EPC and the law of the member states of
the EPO cannot support an argument that this member or
even the whole Enlarged Board in this case (G 3/08)
should be excluded from dealing with the referral. Nor
can such a conclusion be supported by the – actually
incorrect - submission that the members of the present
Enlarged Board are all members of the Boards of Appeal.
C2034.D
- 6 - G 0003/08
This is not an argument justifying the assumption that
- deciding on the present referral - they are not
solely bound by the provisions of the EPC.
2.4 According to established case law of the Boards of
Appeal, of the Enlarged Board and also of national
courts of member states, the mere fact that a board
member has expressed a view on the legal issue to be
decided on a previous occasion, be it in a prior
decision or in literature, be it in a prior position in
the EPO or as an expert for external political
institutions, cannot lead to the conclusion of doubts
as to impartiality. Nor does a purely subjective
impression that the opinions of a board member might be
disadvantageous to a particular interest justify an
exclusion (see T 954/98, point 2.4 of the Reasons; see
also J 15/04; see further Interlocutory decision of
7 December 2006 in case G 1/05, point 20 of the Reasons;
confirmed in G 2/08, supra, point 4.2 of the Reasons;
[2002] EWCA Civ 90, [2003] QB 528 - Taylor v. Lawrence;
[2003] UKHL 35, [2003] ICR 856 - Lawal v. Northern
Spirit Ltd.; Locabail (UK) Ltd. v. Bayfield Properties
Ltd.; Rappel de la portée des stipulations de
l'article 6 de la Convention européenne des droits de
l'homme et des libertés fondamentales, JurisClasseur
Justice Administrative, Fasc 70-11; Baumbach/Lauterbach,
Zivilprozessordnung, Vol. 1, 67th Edition, 2009, § 42
Margin 44, 45, 57; Zöller, Zivilprozessordnung, 27th
Edition, 2009 § 42 Margin 26, 33; Fasching, Lehrbuch
des österreichischen Zivilprozessrechts, 2nd Edition,
1990, Margin 154; Fasching, Kommentar zu den
Zivilprozessgesetzen, Vol. 1, 2nd Edition, 2000, § 19
Jurisdiktionsnorm Margin 10).
C2034.D
- 7 - G 0003/08
2.5 Once lawfully appointed, a judge is deemed to act in
good faith and is therefore presumed impartial until
proven otherwise (see interlocutory decision in G 2/08,
point 3.2 with further remarks). Moreover the parties
to judicial proceedings have a right to have their case
considered and decided by lawfully appointed judges.
Such judges not only have the right to be member of a
Board but also have the duty to decide in the cases
allocated to them. They can neither withdraw at will
from the proceedings, nor be objected to, at will, by a
party to the proceedings, or by any other person. On
the other hand they have to withdraw from a case in
which their impartiality could be reasonably doubted
(see interlocutory decision in case G 2/08). E.g. there
might indeed exist an issue of partiality if a judge
let it be known that he would never change his mind on
certain questions on which he has given his opinion
before. However, in the present case there is no
indication whatsoever that this might be so.
3. Therefore, this Board sees no reason to exclude Mr Rees
from its composition in case G 3/08 or to replace
further members.
C2034.D
- 8 - G 0003/08
Order
For these reasons it is decided that:
1. The request of Mr Schultz is rejected as inadmissible.
2. The composition of the Enlarged Board of Appeal in case
G 3/08 remains unchanged.
The Registrar: The Chairman:
P. Martorana P. Messerli
C2034.D
“A stacked panel, on the other hand, is like a stacked deck: it is packed with people who, on the face of things, should be neutral, but who are in fact strong supporters of our technology. The key to stacking a panel is being able to choose the moderator. Most conference organizers allow the moderator to select die panel, so if you can pick the moderator, you win. Since you can’t expect representatives of our competitors to speak on your behalf, you have to get the moderator to agree to having only “independent ISVs” on the panel. No one from Microsoft or any other formal backer of the competing technologies would be allowed -just ISVs who have to use this stuff in the “real world.” Sounds marvellously independent doesn’t it? In feet, it allows us to stack the panel with ISVs that back our cause. Thus, the “independent” panel ends up telling the audience that our technology beats the others hands down. Get the press to cover this panel, and you’ve got a major win on your hands.”
–Microsoft, internal document [PDF]
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11.08.09
Posted in Antitrust, Database, Europe, Java, Microsoft, Oracle, SUN at 7:37 pm by Roy Schestowitz
Summary: A person from Pappas & Associates, which has history with Microsoft, tries to derail the Oracle deal and thus leave Sun altogether abandoned
TWO weeks ago we showed that Microsoft was lobbying behind the scenes in order to cause trouble for Oracle, Sun, and projects that Sun currently possesses. Groklaw has just scooped up the following gem:
“Neither path Ms. Kroes faces is a pretty one, and yet this is the decision she might end up being remembered by,” said Spyros Pappas of the law firm Pappas & Associates in Brussels. “Probably the best escape for her would be for Oracle to cancel the deal.”
Mr. Pappas has in the past represented Microsoft, an Oracle rival, but is not currently representing any companies involved in the case.
Remember the role of Ed Black and CCIA in T3/Microsoft's lawsuit-by-proxy against IBM for its GNU/Linux-running mainframes. It’s a familiar story.
Microsoft might wish to delay the deal in order to ruin projects like Java and OpenOffice.org, making Sun suffer in the mean time, mostly of uncertainties, lost market share, erosion of market cap (value), and layoffs, i.e. workforce. Groklaw points out the following opinion:
Oracle might use the cover of the EC delay as an excuse to abandon the deal altogether. But history suggests that when Mr Ellison wants something he sticks with it to the end, so dropping Sun at this point would be surprising.
In recent weeks we also showed how Microsoft was gaining influence inside the European Commission. It’s all about people. █
“Microsoft is now talking about the digital nervous system. I guess I would be nervous if my system was built on their technology, too.”
–Sun Microsystems President Scott McNealy
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10.26.09
Posted in Database, Europe, Microsoft, Oracle, Security, Windows at 1:47 pm by Roy Schestowitz
Summary: Courtois infiltrates another area where there is a potentially-forbidden conflict of interests and Microsoft deceives the EU Commission
WOW. Microsoft never ceases to amaze with underhanded tactics and cronyism, even in European member states. Recall Microsoft's hiring of a big gun (John Vassallo) in Europe, which it needed after the OOXML corruptions that had the Commission launch a formal investigation.
Microsoft has other big guns in Europe, one of whom is Courtois. We wrote about him earlier this month in relation to previous actions that involved him, e.g. [1, 2, 3, 4, 5, 6]. Well, watch how incestuous things are getting in the European Commission right now. From CNN blogs:
It’s a sign of the growing détente that Courtois himself, a 25-year Microsoft veteran, is currently serving as an official “ambassador” for a jamboree called the “Year of Creativity and Innovation” organized by the E.U.’s executive commission — the same body that has been taking Microsoft to task over its business practices. He will be sharing a podium in Brussels in early November with the commission’s president, José-Manuel Barroso, and the other 14 ambassadors. “We’re trying to be a partner with Europe,” Courtois says, pointing out that Microsoft spends about $600 million on research and development in Europe, and provides thousands of jobs in the region.
The above text was written in relation to the Web browsers “war”, which as far as Europe is concerned is still an antitrust issue because Opera, Mozilla, and ECIS are not happy with the Microsoft deal [1, 2].
Putting Web browsers aside for a moment, Groklaw has noticed that Microsoft and its close ally SAP are both lobbying regarding the Oracle takeover of MySQL, which is the reason the Commission leaves Sun hanging and burning .
The investigation followed lobbying by Oracle competitors including SAP AG and Microsoft Corp.
Now, here is where is gets really interesting. The other day, Groklaw alleged that Monty may be used as a 'front' for Microsoft (we know from one reader of ours that Monty censors even polite comments that are critical of Microsoft) and now comes this report from The Inquirer, which says:
Microsoft wants MySQL sold
[...]
“To make things clear, I have not ever been paid anything from Microsoft and I have no relationship with them. The Codeplex foundation is an independent organization from Microsoft; It’s true that a lot of the people on it are still paid by Microsoft, but that is supposed to change soon,” wrote Widenius.
Monty also expanded upon his support for Codeplex, stating
“What is interesting with the Codeplex foundation is that if it is, what Microsoft claims it is, it will make it easy for people employed by Microsoft to actively participate with Open Source. This would be a great mind set change for Microsoft and as an Open Source/Free Software advocate I want to be sure that they do it right and there is no hidden agenda in the Foundation. The reason for me to accept to be on the Codeplex Advisory board was that it gives me a chance to ensure the above. I also believe that the more we get Microsoft employees (and actually any company) engaged in Open Source, the better it will be for Open Source projects in general.”
Still, Microsoft can be seen to have a massive vested interest in MySQL and whoever ultimately owns it.
The FSFE has had time to lay out its case as well. MySQL is hugely important to so many Free software projects and thus its independence is important, as Richard Stallman of the FSF would probably argue. There are no intuitive answers here. MySQL is also vital as a component in the fabric of Fog Computing (more proper name for “Cloud Computing”) where Microsoft is now trying to push and earn certification — quite sadly a certification from the same ISO it corrupted and hijacked.
Microsoft Corp. wants to get its suite of hosted messaging and collaboration products certified to the ISO 27001 international information security standard, part of an effort to assure customers about the security of its cloud computing services.
Fog Computing security and security of data “out there” (in the so-called ‘cloud’) are not the same thing. Microsoft can achieve neither because Windows is easy pickings and backup is not Microsoft’s best skill. We’ve covered the Sidekick fiasco, for example, in:
Some hospitals are still foolish enough to give patients’ data to Microsoft.
Microsoft got a seat at the health IT table last week as Caritas Christi, a Catholic-based hospital chain in Massachusetts and Rhode Island, decided to standardize on Amalga software.
They didn’t learn from Sidekick, did they? The hospitals can never tell doctors that they will recover just part of their data in about 2 weeks, just maybe.
Windows botnets already cause many deaths in hospitals [1, 2, 3, 4, 5, 6] (there are many Conficker examples from British hospitals), not just trillions in damages. But anyway, we’ve deviated from the main subject of this post. This issue of data control will be revisited at a later date. █
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