Here is the ISO document [PDF] reporting the recommendation of Alan Bryden, Secretary-General and CEO, ISO, and Aharon Amit, General Secretary and CEO, IEC, to the Technical Management Board (TMB) not to pursue the appeals filed against OOXML. You could subtitle the document, "Ode to Microsoft," I'd say, and here's their predictable bottom line:Recommendation 20. The processing of the ISO/IEC DIS 29500 project has been conducted in conformity with the ISO/IEC JTC 1 Directives, with decisions determined by the votes expressed by the relevant ISO and IEC national bodies under their own responsibility, and consequently, for the reasons mentioned above, the appeals should not be processed further. I know you are not surprised. The same people who gave us OOXML were expected to tell us that they did a fabulous job. However, it does mean the appeals have been sent along to the TMB. The memo is dated June 30. You can read the filings by those who appealed -- Brazil, South Africa, Venezuela, and India -- as they are attached as exhibits, and decide for yourself if the rules were followed. I guarantee it will curl your lip. There is an August 4 deadline mentioned in the document for all the members of the TMB to take a position on the appeals, it says.

Viacom has a statement on its site now about the YouTube litigation it probably hopes will reassure you. Leaving out the anti-Google trash talk, it reads like this: A recent discovery order by the Federal Court hearing the case of Viacom v. YouTube has triggered concern about what information will be disclosed by Google and YouTube and how it will be used. Viacom has not asked for and will not be obtaining any personally identifiable information of any YouTube user. The personally identifiable information that YouTube collects from its users will be stripped from the data before it is transferred to Viacom. Viacom will use the data exclusively for the purpose of proving our case against You Tube and Google. Viacom has been in discussions with Google to develop a framework to share this data. We are committed to a process that will not only comply with the Court's confidentiality order, but that will also meet our commitment to the strongest possible internet privacy protections. That's some progress, if it's true, the part about Google redacting it first. But what's that part about Viacom didn't ask for it? They say the same thing on their homepage, where you can see this questionably true statement:Viacom has not requested any personally identifiable information from YouTube as part of the litigation. Say what? I think it would be more truthful to say that they *did too* ask for it, Google asked them to let them redact, Viacom saw the public's reaction, and so it agreed. I gather Viacom has noticed that a lot of consumers, as they view us human beings, seriously hate Viacom's guts because of this over-the-top litigation. Viacom may think they can say whatever they wish about what they asked for, since the details of their motion to compel were filed in a sealed memorandum. But we're not stupid, and we can read the Order, where the judge tells us what Viacom asked for. Let's review.

Viacom and YouTube/Google have agreed on terms regarding how to handle a problem. No. This one's not about you. We're still waiting to hear how that works out. But it indicates that the parties are able to work out issues involving confidentiality. It seems Viacom hired a firm that Google earlier had itself hired on a project, and there were concerns about leakage of info. The Stipulation was filed today, and here it is [PDF] for you.

Sean Daly has kindly prepared a text version of the EU-LEX notice of Microsoft's complaint against the EU Commission, found in the latest EU Official Journal. Microsoft says the fine announced in February is too high. It should be annulled, and if not, they ask that it be reduced. Oh, and it would like the EU Commission to pay costs. Yes, the EU Commission is the defendant. It seems it neglected to believe Microsoft's experts about how valuable its patents are. And it accuses the Commission of accepting reports from the trustee, whom Microsoft hand-picked, by the way, based on "documents obtained through powers of investigation that the Court of First Instance held to be unlawful." Whoah. No more Mr. Nice Guy for Microsoft, I see. Note that this is news to us, but not to the EU Commission, as this action was brought May 9th. So. Here we go again.

Let's continue with our look at the trial testimony and finish up day 2 with our version of the transcripts with line numbers, the testimony of John Maciaszek. Our previous articles on day 2 covered the second day of Chris Sontag's testimony (which I put together with his first day, for logic and convenience), then Darl McBride's, and then Greg Jones' testimony. Those were Novell's witnesses, the ones it called. Novell's case having been fully presented, it was SCO's turn to put on its case, each side trying to present evidence to support their opening statements. The first SCO witness called is John Maciaszek. We've seen him before on paper, and so has Judge Dale Kimball. But this is our first opportunity to watch him in person. I think by the end of his testimony, SCO's argument that UNIX System V and UnixWare are the same thing completely unravels.

Groklaw has been recognized with a 2008 Prix Ars Electronica Honorable Mention, in the category of Digital Communities. Here's what that means: The "Digital Communities" category will honor important achievements by digital communities as well as innovative artistic approaches towards web-based communities. This category focuses attention on the wide-ranging social and artistic impact of the Internet as well as on the latest developments in the fields of social software, ubiquitous computing, mobile communications and wireless networks. Special attention goes to community-related "net.art". "Digital Communities" spotlights bold and inspired innovations impacting human coexistence, bridging the geographical as well as gender-based digital divide and cultural conflicts, sustaining cultural diversity and the freedom of artistic expression or creating outstanding social software and enhancing accessibility of technological-social infrastructure. This category showcases the political and artistic potential of digital and networked systems and is thus designed as a forum for the consideration of a broad spectrum of projects, programs, artworks, initiatives and phenomena in which social and artistic innovation is taking place, as it were, in real time. A Golden Nica, two Awards of Distinction and up to 12 Honorary Mentions will be awarded in the Digital Communities category in 2008. I am surprised that they recognized us, given their emphasis, but I'm very grateful, because it means that there is an awareness that what we did was innovative and well worth doing.

I found some evidence Google tried hard to protect user confidentiality, in some letters to the judge in the court docket of Viacom v. YouTube. After the Order [PDF; text here] issued, Google didn't give up, but is continuing even now by asking the court in a letter to reconsider the decision and let them redact personally identifiable data. They fought hard against Viacom's motion to compel [PDF]. And the evidence indicates to me that what happened was a kind of SCO-like maneuver on Viacom's part. Viacom filed its motion, Google filed its memo in opposition combined with a cross motion for a protective order [PDF], and then Viacom in its reply, which is supposed to be the final word before a motion is decided, put in new materials and new legal arguments, according to Google's letter. As you remember, from SCO v. IBM, when that happens -- and it's not supposed to happen -- the other side can ask the judge to let it file a surreply, so it gets a chance to answer the new arguments and evidence, which otherwise would stand unopposed. Viacom denied the accusation, but Google's letter was successful, which ought to tell us something. I'll show you the letters that Google and Viacom sent to the judge regarding the motion to compel, and in reading them, I think you will get a more rounded glimpse of what went on, despite the sealing of the memoranda of law in connection with the motion. I have some more filings too, to complete the picture, including an exhibit listing videos on YouTube that Viacom views as infringing.

Tanner has filed yet another bill, its 9th, asking this time for $53,612.50 for June. And $439.68 in expenses. We haven't seen a bill as large as that from Tanner since February. You'd think for all that money, they'd be able to teach SCO how to file MORs that are comprehensible. The three categories of services this time were for "Audit", "Tax", and "401(k)Audit". It's an interim bill, meaning it is asking for 80% of most of the bill to be paid now, or around $40,000, and the rest later. Tanner was approved to expand its role in February to include doing SCO's state and federal taxes, and in June its role expanded to include doing the audit of the 401(k), so that explains the large bill. It was approved to bill for the audit $17,000, and that means it gets 100% of that bill now, not just 80% it gets for hourly work. But it is also asking for $17,515.50 for 124 hours of work on the taxes, and yet the bill states that they have only begun to perform the tax procedures, as it calls them. So what was the time spent on?

Friends, I don't know what it means but look at this docket entry in the SCO v. Autozone case: 69 - Filed & Entered: 07/03/2008 Minute Order Docket Text: MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 7/3/2008. IT IS HEREBY ORDERED that the parties shall submit a status report to the Court no later than Monday, July 14, 2008. (no image attached) (Copies have been distributed pursuant to the NEF - TKH) Here's what it could mean: the judge has been reading the funny papers; or SCO or Autozone raised an issue it wants addressed. If I had to bet money, I'd say the first, that the judge was going through his case log and wants to know what's going on. It's been almost a year since SCO filed for bankruptcy, after all. It filed a Notice of Bankruptcy, but there was no order, that I see, shutting down the case. And SCO has announced that SCOForum is being postponed until October 1. According to Heise, the reason is that there is a "new investor" offering to help it out of Chapter 11. I have no idea whether this means the Stephen Norris deal is dead or what it means. I can guess it means SCO is telling us a lot of stories, one after another, and so far none of them pan out.

Viacom has won, or more accurately partially won, a motion to compel Google to turn over a lot of YouTube records so that the court can tell what proportion of videos are infringing compared to how many are not. Here's the order [PDF]. Google opposed the motion, trying to protect its users, with a Cross Motion for a Protective Order, and it was able to narrow the amount of information Viacom was granted, but it's still a lot. The judge seems to think that what he has ordered will protect user privacy, but of course, I think he is mistaken. Again, lack of tech cluefulness strikes. For some of the reasons why it will not protect user privacy, you can read Kurt Opsahl's article. He hopes Google will appeal the order, believing that it violates the federal Video Privacy Protection Act (VPPA), and it is certainly possible Google will appeal. But do you get now why I have been conducting Summer School in Fair Use? Justia has the entire docket (except for the new order) available to the public, so you can read all about it as your homework assignment. Speaking of fair use, here's Harvard Business Review's concept -- up to 500 words from their articles. Refreshing, no?

There's some news on the Trend Micro v.Barracuda Networks case. That is the one where Trend Micro sued Barracuda over ClamAV and brought a complaint to the International Trade Commission. Barracuda has just filed a countersuit in California, alleging patent infringement by Trend Micro. They say it's a defensive use of three patents they bought from IBM. Barracuda asks for money damages and an injunction on further sales of infringing Trend Micro products. They plan to contribute proceeds, if they win, to the open source community. "We are grateful to the open source community, many of whom have contributed significant prior art in our ongoing case against Trend Micro," Dean Drako, president and CEO of Barracuda Networks, is quoted as saying in the press release, which I'll share with you. That would include us. This news follows the media reports that a Groklaw member came up with some very valuable prior art for Barracuda on top of all that you guys turned up as a group.You know how Red Hat said when it first started to file for patents that it was exclusively for defense purposes? Here's an example of when some software patents can come in handy.

I thought you would like to see a recently decided US case where fair use was upheld as a defense. I collected some materials to explain fair use in an overview the other day, but here's a case that explains the elements that courts look at, in a real live case, and it particularly makes clear what transformative use means. Here are the facts of the case. Some folks made a movie, a documentary, and they got sued for using 15 seconds of the John Lennon song "Imagine" without permission. The case is Lennon v. Premise Media. That's Lennon as in Yoko Ono Lennon, joined by John's two sons and EMI Records. EMI sued in state court, and the Lennons in federal, both for copyright infringement and they threw in some trademark infringement claims too. I think that was mainly insurance, though. Lawyers do that. And there was a dispute as to who had the right to the copyrights. The plaintiffs in both cases had asked the courts to issue a preliminary injunction to shut down the movie, which had already been released, and pull back previously released copies off the market, so the 15-second clip could be cut out. And they wanted the usual bucket of money. But it wasn't just about money; it was also about control, about having a say in how a work is used. The district court denied their motion.

Do you remember Copiepresse, the Belgian association of newspapers that went after Google for linking to their members' articles in Google News? They tried to do something similar to -- get this -- the EU Commission, but they just got zonked. Their case was tossed out last Thursday by the Belgian Brussels Court of Seizures, and in a way that bodes well for Google, I'd say, not to mention for the Internet and those of us who like to use it. The last link is to an article in French, and others I'll show you are too, and it was Groklaw's Sean Daly who brought this news to my attention and helped me to understand what is happening. It seems the EU Commission has a kind of news aggregator of its own, which it calls European Media Monitor, with several different services, and Copiepresse filed a lawsuit against the EU Commission for copyright infringement for linking to its members' Most Holy IP in the aggregation without asking for permission first. Well, the Court of Seizures, which is a fine name for a court, threw out the Copiepresse complaint on jurisdictional grounds. Copiepresse says it won't appeal "for strategic reasons", but it will move the case to the civil court. I don't know how much that will help them. The Court of Seizures was persuaded by the EU Commission that its news search engine services are perfectly legal.

Here's the transcript from the June 17 bankruptcy hearing on SCO's motion to get another extension of exclusivity, as text. When SCO's attorney, Arthur Spector, arrives at the podium, he tells the court that this "itty bitty SCO case" is unique. "I don't think the Court has seen many cases like this," he says. And indeed, he speaketh truth, yea verily. SCO *is* unique, happily. But that is also the problem. It's harder to spot a problem you've never confronted before. And this judge certainly doesn't seem to realize what he's dealing with. Or if he does, he doesn't care. That may be in part because in bankruptcy court, one gets used to less than noblemen, I suppose. His job is to get them back on their feet, if possible. But I don't honestly think that's all that is going on. But he certainly got an earful at this hearing, this judge, and not only from Novell. The US Trustee also speaks plainly enough that SCO's lawyer protests, calling it a broadside attack on his client. You and I would just call it truth, and in fact the judge deflects the criticism.

SCO has filed two monthly operating reports, one for SCO Group and one for SCO Operations. This is like watching water drain from a slow tub. Also the transcript of the June 17 hearing is now available. And Dorsey & Whitney have submitted another bill going back to April. From the transcript, we see the first words out of the judge's mouth, after "good morning", is about the quarterly fees: "Yes, I'm prepared to approve those." And then, after all the lawyers on the phone for the fee applications decide to leave since there is nothing for them to say, the court turns to Arthur Spector to present SCO's need for an extension of time to file a reorganization plan. "It's a pleasure to be back," Spector says, as he begins. "Good to have you back," Judge Gross responds. I believe that captures the tone of the day perfectly. I'll comment more on the transcript when we post it as text.

Recently, I did an update on the Sun/NetApp litigation, but now there is something better, an update by Mike Dillon, Sun's General Counsel. What a great name for a lawyer it would be if his parents had named him Matt. He says thank you to all who helped with prior art: After NetApp sued Sun, we responded with six reexamination requests on the patents asserted by NetApp. Reexamination is a procedure in which a party submits documents (prior art) relating to a patent to the US Patent Office (PTO) and asks that it reconsider whether that patent should have ever been issued. If the PTO agrees and determines there is a "substantial new question of patentability" (SNQP) it will grant the request and reopen the patent examination process on that patent. Included in our requests was a significant amount of highly relevant prior art that was not considered by the PTO when it first granted the NetApp patents. (By the way, to those of you who submitted prior art - "thank you!") Over the last two months, the PTO has granted the first five of our reexamination requests, finding in all the cases that multiple "SNQP" exist for each patent (one request filed in June is still pending). That would include you guys, prominently so, and I wanted you to know your efforts were effective and appreciated. But there's another part I wanted to highlight. It has to do with ethics.

These findings are quite thorough and detailed, especially in regards to practical challenges of successful implementations. Parsing through this report should be helpful when addressing concerns by decision makers and members of the community. Here's a quote from one of the participants from the document that is quite interesting. “We should use it in every class, instead of our binders and our folders and all that stuff, only the XO and that’s it.”

Here is the testimony of the final witness Novell called in the SCO v. Novell trial, Greg Jones, Vice President of Technology Law at Novell. He followed Darl McBride to the stand. His testimony came on day 2 of the trial. It's primarily because of what I learned from this testimony that I took a long time to write an analysis of the trial. I was, frankly, too angry to trust myself to write about it until I had some time to cool off some. We learn two primary things from Jones' testimony: first, what a cynical role Sun played in the SCO saga, and second, that all the time SCO was calling on the world, the courts, the Congress -- nay heaven itself, if I may say so -- to sympathize with it over the ruination of its Most Holy Intellectual Property by it being improperly open sourced into Linux, not that it turned out to be true, it had already secretly given Sun the right to open source it in OpenSolaris. Remember all that falderol about SCO being contractually unable to show us the code, much as it so desired to do so, because of being bound to confidentiality requirements? What a farce. SCO had already secretly given Sun the right to open source Solaris, with all the UNIX System V you can eat right in there. The simple fact is, I gather from Jones' testimony, Sun could have prevented the harm SCO sought to cause by simply telling us what rights it had negotiated and received from SCO prior to SCO launching its assault on Linux. Yet it remained silent. When I consider all folks were put through, all the unnecessary litigation, and all the fear and the threats and the harmful smears, including of me at the hands of SCO and all the dark little helper dwarves in SCO's workshop, I feel an intense indignation like a tsunami toward Sun for remaining silent.

Do you remember back in 2005 a company called Cognex took on Lemelson Partnership and won, invalidating 14 of Lemelson's patents? Well, it turns out that after that, they took on Acacia Research, and they just beat them too. Acacia is now minus one of its patents. Here's the order [PDF]. Cognex is now aggressively going after Acacia for defamation, attorneys fees, and damages, including, or so they hope, according to a motion to amend their complaint, special and punitive damages. I love this company. They take on patent trolls and win. What do they sell? "Machine vision sensors and systems"? Whatever that is, I'll take ten.

Now that AP has purported to establish fair use guidelines that would make 5 words licensable as *not* fair use, I thought I'd explain a bit about fair use and about why Groklaw no longer will link to or quote from any AP articles. I've seen reports that AP has backed off in some not quite clear-to-me way, but I notice their list of fees remains online. To begin, since AP asserts therein a fee for 5 words or more, let's see what 4 words look like, shall we? Remember, they claim you have to pay $12.50 for 5-25 words, so you can only safely quote 4, if I've understood the 'AP Personal Version Fair Use Copyright Act'. So let's try to stay safe, using some articles from Google News Sci/Tech as a base instead of any AP articles. I'm fairly sure Google won't sue me.