Subject: Re: Motion to abandon Sender ID

From: "Anne P. Mitchell, Esq." <[email-masked]>
Date: Thu, 2 Sep 2004 11:01:51 -0700

> Nobody ever says why MSFT would prosecute someone who didn't have the
> license.  In court, it would be pointed out:
>
> * MSFT does not charge anything for the license, so its damages would 
> be
> non-existent
> * MSFT gives the technology away freely to those who send in a fax
> * MSFT clearly intended it to be royalty free as it was given over to 
> an
> international standards body
>
> So in court they'd have to show why a particular user who hadn't sent 
> in a
> fax should be prosecuted?  They would have to show harm done to them.

This is completely incorrect.  This would be true for a breach of 
contract case (or also a tort case), but not here.  In the case of 
someone taking or duplicating something without a license, it's piracy. 
  And there are statutory damages available for both piracy and 
malactions against intellectual property (in fact the latter is 
precisely on what our "register your domain for trademark protection to 
sue spoofers" service is founded - showing actual damage in these cases 
can be difficult - which is precisely why there are statutory damages 
available).

Even if they did have to show damages, it would be easily done by the 
loss of ability to track who is using their product, and, by extension 
then, who may be diluting it by altering it and still distributing it 
as a "Microsoft product" (and if not as a "Microsoft product", then we 
get to areas of infringement).

Anne

Anne P. Mitchell, Esq.
President/CEO
Institute for Spam and Internet Public Policy
Professor of Law, Lincoln Law School of SJ
Committee Member, Asilomar Microcomputer Workshop

---

From: "Harold A'Hole" <[email-masked]>
Date: Thu, 2 Sep 2004 12:31:54 -0700

> someone taking or duplicating something without a license, it's piracy.

Pirating a freely available, open source solution that was written by
another party and simply had some IP that MSFT may or may not even own would
be hard piracy to battle.  There's no loss on MSFT's part.  Heck, the
solution provider could have acquired the license themselves (I'm sure
sendmail and other OSS systems and all commercial email providers would have
no trouble sending in the free fax).

While I don't doubt the actual law as you are suggesting, the key question
is what would MSFT really do.  Again, since the "license" costs nothing and
is given to all parties without bias, the loss of having a license wouldn't
impact MSFT at all.

> can be difficult - which is precisely why there are statutory damages

Again, the IP argument would hold if they sold the IP.  When you give it
away freely, it's pretty hard to defend that you were harmed by a user who
downloaded sendmail and it contained infringing code.  It would be hard
enough to prove the the user of the software even knew about it.  And the
remedy would be a simple fax.  Why would MSFT spend legal dollars after they
have said they want it to be a freely deployed standard?

> get to areas of infringement).

But this isn't MSFT's product at all.  There's no copyright on the code
itself (such as within sendmail)  MSFT would not own any of that code.  And
right now, MSFT doesn't even have such a patent, so the license is only to
give you permission in case they get the patent.

But this pressure is good because I do believe that MSFT will come up with
something more open.  It's in their best interests and there's really
nothing for them to gain since they are giving it away anyway.  While smart
(and therefore unlikely to be done by a bunch of IP attorneys at a big
monopoly), they'd simply request the group/organization/company that
DEVELOPS code that uses the IP should acquire the free license and then
allow them to distribute it to all users without further obligation.  After
all, that's how ALL OTHER IP is ever handled when it's integrated inside a
computer system.  It's rare for the software manufacturer to require each of
its users to acquire separate licenses from a variety of vendors that may
have known IP within their own code.

Harry

---

From: <[email-masked]>
Date: Thu, 2 Sep 2004 16:07:02 -0400

> no trouble sending in the free fax).

Do you have much experience with patent cases?  I don't think you need
to show actual monetary damages either to recover statutory damages,
or to get an injunction against further infringing activities.  Also,
as I've made clear in previous messages, sending in the "free fax" is
not so easy if you work for a university.

That said, since several people are so sure Microsoft would never
pursue this kind of case, I'm wondering if anyone out there would be
interested in indemnifying me against patent suits by Microsoft for
distributing a Sender-ID-compliant SMTP server?  In exchange for
signing a legal agreement, I'll be glad to give you an unlimited,
non-exclusive, royalty free, and even sublicensable right to use, copy
and distribute a very cool SMTP server.

Before you indemnify me, though, you might want to take some history
into account.  Remember that Microsoft didn't use to be a very
litigious company at all.  Then one day they decided it was in their
strategic interest to enforce their patent rights on video codecs. 
Who knows what's going to happen in the next 20 years?  Is it really
so hard to imagine a scenario in which, say, a popular open-source
mail server uses a small but highly effective extension of Sender ID
to thwart spam, and Microsoft believes distribution of this software
is not in their strategic interest?  (Remember, the license only
allows strict compliance with the standard.)

---

From: James Couzens <[email-masked]>
Date: Thu, 02 Sep 2004 13:28:35 -0700

> allows strict compliance with the standard.)

*cough* FAT32 and flash disks *cough*

Cheers,

James

-- 
James Couzens,
Programmer
                        ^                            ( ( (      
      ((__))         __\|/__        __|+|__        '. ___ .'    
       (00)           (o o)          (0~0)        '  (> <) '    
---nn-(o__o)-nn---ooO--(_)--Ooo--ooO--(_)--Ooo---ooO--(_)--Ooo---
http://libspf.org -- ANSI C Sender Policy Framework library
http://libsrs.org -- ANSI C Sender Rewriting Scheme library
-----------------------------------------------------------------
PGP: http://pgp.mit.edu:11371/pks/lookup?op=get&search=0x7A7C7DCF

---

From: Sam Varshavchik <[email-masked]>
Date: Thu, 02 Sep 2004 18:50:41 -0400

> is given to all parties without bias, the loss of having a license wouldn't

Ummm, MSFT can certainly sue for an injunction prohibiting the F/OSS 
developer from using patented IP without a license.

Since, as you've acknowledged, the F/OSS developer is not likely to have the 
financial resources for a protracted fight, and challenging the patent, 
Microsoft's legal expenses will be rather minimal.

Do you think that there would be any value for Microsoft in blocking a 
competing F/OSS implementation of Sender-ID?

Hhhhhhhmmmmmmm?

> have said they want it to be a freely deployed standard?

Lol!

Like Microsoft never spent money on anti-F/OSS legal actions, directly and 
indirectly, before…

---

From: "David H. Lynch Jr." <[email-masked]>
Date: Sat, 04 Sep 2004 13:51:00 -0700

> developer from using patented IP without a license.

    You can not get a broad "nobody can infringe on my patent anywhere" 
injucntion. M$ would have to institute proceedings against each 
individial infringer.
   
    I beleive preliminary injunctions are granted based on the 
likelyhood of M$ to prevail, the patent will be presumed valid, But if 
there are substantial questions regarding
whether there is actual infringement an injuction will not likely be 
granted. They are also granted based on the potential harm to the patent 
holder. Since all Microsoft is asking for
 a license is registration, the damages that an injunction would prevent 
probably are not significant enough to warant one.

>
> Since, as you've acknowledged, the F/OSS developer is not likely to 
> have the financial resources for a protracted fight, and challenging 
> the patent, Microsoft's legal expenses will be rather minimal.
>

    M$ can not afford a fight either. They may have plenty of money, but 
they are significantly short on good will. The DOJ may have wimped out 
for the moment, but they are still watching things. Ashcroft is not
a Freind of Bill, the Democrats if elected are even less so. The EU is 
still proceeding, and world markets are enormously Microsoft unfriendly.

    M$ will benefit enormously by playing a key role in this standard. 
Everyone will suffer if they do not.
    Conversly, they will suffer if they are perceived as an impediment 
to the solution to this problem. M$ has an enormous PR problem. I can 
not think of a major company that is perceived of so poorly.
   
    The resources available in an F/OSS vs. Microsoft engagement might 
prove much more significant than you perceive. The SCO vs. IBM case 
might be more of a model.
    In the event they beleive it is in their own self interests - and 
weakening Microsoft may be in most of the rest of the industries self 
interest. A significant amount of Linux's current success, can be attributed
    to industry efforts to prick Microsoft. I would also not 
underestimate the desire of other major corporate sponsors to take a 
possition that makes them look like the good guy. Further ignoring the 
resources from
    Linux corporate sponsors. F/OSS has gottent large enough and 
cohesive enough to fend for itself. While there might be some F/OSS 
legal resources available, the research resources would be enormous.
    Again witness the SCO vs. IBM dispute. Research is the bane of any 
IP claim. Prior art is somewhat difficult and often expensive for a 
small business to prove, But the F/OSS community can probably provide 
Published prior art
for just about any software concept. I understand there ar 2,000,000 
F/OSS developers. Most are deeply steeped in this industry.

    Again using the SCO vs. IBM conflict as a model. I would note that 
Microsoft clearly wants SCO to triumph, but to the same extent has been 
unwilling to take a high profile stance.
    Microsft can not afford to be on the wrong side of SPAMmers vs. the 
rest of us, or Micorosoft vs. F/OSS.

    If you wish to attribute evil intentions to Microsoft here, the only 
scenario I see where they win is one where they get to claim to have 
contributed to a standard, while F/OSS developers self regulate and 
refuse to
    impliment it because of Microsoft's License. IP rights and patent 
law are just tools. The real battleground is one of perception. 
Microsoft is not below sabotaging F/OSS, but is unlikely to want a 
direct public confrontation.
    Microsoft is pretty bad at PR, but they are pretty good at finding 
the weaknesses of their competition and trying to exploit them.

       F/OSS developers and distributors are not going to support a 
standard that requires sending a signed license to Microsoft. Getting 
that scenario is a WIN for Microsoft. Microsoft gets to claim a 
standards compliant solution and all the F/OSS players leave the feild 
to commercial developers. If some F/OSS developer does move forward 
without licensing Sender-ID from Microsoft,  M$ starts a PR campaign 
about the lack of respect F/OSS has for IP and how they are all just a 
bunch of untrustworthy hackers anyway.

    The losing scenario for Microsoft is the perception that M$ 
splintered MARID. Leaving us all with either weaker or not broadly 
implimented solutions to this problem.

    Regardless, our responsibility has little to do with Microsoft. It 
is to get the best standard with the broadest possible implimentation. 
If we reject Sender-ID we may loose Microsoft which would be bad. If we 
do not
    we lose F/OSS which would be worse.

---

From: Sam Varshavchik <[email-masked]>
Date: Fri, 03 Sep 2004 19:05:24 -0400

David H. Lynch Jr. writes:

> injucntion.

That's why I used the word "the", above.

>              M$ would have to institute proceedings against each 
> individial infringer.

There are not that many F/OSS MTA developers.  An individual injunction for 
each one of them is quite feasible.  Game over.

> granted.

If the F/OSS developer implements Sender-ID without registering with 
Microsoft, and without giving Microsoft a reciprocal patent license (as I 
believe Microsoft's current licensing terms mandate) proving an infringement 
won't be that difficult.

>          They are also granted based on the potential harm to the patent 

You are thinking about monetary damages.  The purpose of getting this 
injunction is not to win some cash.  If Sender-ID becomes widespread, and 
becomes a necessary component of a secure, well-executed E-mail 
infrastructure, there will be a clear benefit to legally barring F/OSS from 
competing with Microsoft's commercial offerings.

> still proceeding, and world markets are enormously Microsoft unfriendly.

http://www.linspire.com/lindows_michaelsminutes_archives.php?id=131

The real figure may not be $200 million; but I don't think that's the major 
point.

I don't see the DOJ, or the EU, doing anything about it.

>     M$ will benefit enormously by playing a key role in this standard. 

Yes.  Locking out F/OSS carries quite a bit of benefit.

> Everyone will suffer if they do not.

I don't think so.  With a little work even today you can achieve an 
acceptable junk mail filtering ratio.  The world will not come to an end if 
Sender-ID does not get promoted.

> not think of a major company that is perceived of so poorly.

Completely irrelevant.  Microsoft's reputation was not a factor in reaching 
my decision.

> cohesive enough to fend for itself.

Right, and that's why we don't need to hop aboard a patent-encumbered train.

>                                     While there might be some F/OSS 
> for just about any software concept.

Probably true, but why should I even want to deal with this, when it is much 
easier to avoid the whole mess in the first place?

> contributed to a standard, while F/OSS developers self regulate and 

I assure you that I haven't spent even a single second musing whether 
Microsoft's intentions are "evil", or not.  It is certainly in their best 
interests to stamp out competition; this is true of any business.  Here, 
their competition is F/OSS, as they clearly spell out in their 10Q:

http://news.com.com/2100-7344_3-5347325.html

This is purely business sense, not some metaphysical manifestation of 
"evil".

> law are just tools. The real battleground is one of perception. 

Earlier you've claimed that their rep is poor.  Looking at their balance 
sheet, I doubt that their perception has any impact on the bottom line.

> the weaknesses of their competition and trying to exploit them.

Right, and the IP situation in the US is an acknowledged weakness for F/OSS.

> to commercial developers.

That's OK.  There's not a lot of Netcraft-style breakdown for E-mail server 
software; but from the data that I've seen commercial E-mail server 
software's share is not that great.  Microsoft's dominance in E-mail client 
field is not going to help in the context of Sender-ID, which requires 
server support.

>                           If some F/OSS developer does move forward 

I am confident that this scenario will not happen, no matter what the IETF 
decides.  Surveying the list archive, I see no evidence suggesting that any 
F/OSS developer has such plans.

> implimented solutions to this problem.

I do not agree.

> is to get the best standard with the broadest possible implimentation. 

This really depends on what definition of "best standard" one chooses.  
There is no standard definition for that.  My definition pretty much 
excludes patent-encumbered technologies (with few exceptions).

>     we lose F/OSS which would be worse.

I'm not sure what "lose F/OSS" means.  Certainly F/OSS will not go along 
with Sender-ID; this, I think, does not need to be debated any further. It's 
a foregone conclusion.  F/OSS will simply use an alternative.  It looks like 
the consensus is that F/OSS will proceed with SPF classic.

Do you know what that means?

It means that most organizations will choose to publish only SPF records.  
Some may choose to also publish Sender-ID records; I don't think that 
there's going to be anyone who'll publish only Sender-ID records.

This is because publishing SPF records is the only way to guarantee the most 
widespread coverage.  Everyone will support checking SPF records, and if you 
want to use MARID to prevent your mail domain from being forged, you want as 
much coverage as you can possibly get.