, assigned to Oracle, is entitled "self service system for web
site publishing." The abstract for this patent makes it clear that its
scope is broad:
The web site system permits a site administrator to construct the
overall structure, design and style of the web site. This allows
for a comprehensive design as well as a common look and feel for
the web site. The web site system permits content for the web site
to originate from multiple content contributors. The publication of
content is controlled by content owners. This permits assignment of
content control to those persons familiar with the content.
The patent application ws filed in March, 2000; it was granted on
June 1 of this year.
Offhand, it would appear that Oracle has patented the content management
system. Such systems form the core of many thousands of web sites, so the
potential impact of this patent is large. It is worth a deeper look.
"claims" section of the patent is even more impenetrable than usual:
A method for displaying content, comprising: receiving input that
defines a set of perspectives, wherein each perspective in the set
of perspectives is a cross category grouping of one or more content
items, and wherein said one or more content items is in a plurality
of content items; storing, in a database, the plurality of content
items, wherein each of the plurality of content items belongs to
one or more categories; receiving user input that associates
subsets of said set of perspectives with each of said plurality of
content items; and in response to a request to display a web page
that contains one of said plurality of content items, displaying on
said web page a selectable control for each perspective in the
subset of said set of perspectives that is associated with said one
of said plurality of content items.
Translated into English, this claim would appear to be describing a
database-backed web site which allows the display of articles with category
metadata and comments
attached. Further claims add search capabilities, a form interface, etc.
All pretty standard stuff.
The "description" section is more readable, fortunately. It sets the stage
with a summary of the Bad Old Days, when anybody who wanted to put content
on the web had to hand it over to a site administrator who knew the right
incantations. The administrator becomes a bottleneck which slows the
process of getting content onto the net. Thus, says the patent:
Accordingly, it is desirable to generate a web site creation and
maintenance tool that permits non-technical people to publish
content on a web site. It is also desirable to generate a web site
creation and maintenance tool that apportions responsibility for
web site creation and maintenance task to the most appropriate
One wonders why nobody else ever noticed this problem. But it seems that
In the prior art, content contributors must go through the
information technology department in order to publish content. This
prior art methodology places content publication and maintenance on
a single source. In contrast, the web site paradigm of the present
invention provides for distributed control by, allowing the folder
owners ... to control content for a portion of the web site.
As an added bonus, Oracle's "invention" throws in web-based administration
of the site, a "quick picks" navigation bar for the most-used content, a
news box, etc.
This patent clearly covers no end of free content management systems - and
numerous proprietary offerings as well. There is no way that this
particular patent could have been filed for in good faith; 2000, remember,
was the end of the dotcom boom and content management systems were not
exactly hard to find. The authors knew they were patenting widely-used
technology which had been invented elsewhere. Oracle, after all, has not
made its name through innovation in the web publishing arena.
If Oracle were to attempt to enforce this patent, it could create trouble
for anybody producing or using an allegedly infringing system: Linux
distributors, web publishers, proprietary software houses, etc. With a
determined effort, this patent could almost certainly be invalidated. But
if you are a small publisher facing demands from Oracle's fearsome
lawyers, invalidating the patent will look like a distant, difficult, and
risky goal. For the time being, the threat seems low; Oracle seems more
interested in acquisitions than patent shakedowns and litigation. In the
future, however, when Oracle's core business has been gutted by free
database management systems, the company might just take a new interest in
enforcing its "valuable intellectual property."
Comments (12 posted)
The latest effort to use the Digital
Millennium Copyright Act
(DMCA) as an obstacle to competition is
courtesy of StorageTek
. StorageTek, a company
that sells a number of storage devices and data management software, is
suing Custom Hardware Engineering
(CHE Consulting) for circumventing its GetKey
algorithm to gain access to StorageTek tape library maintenance codes.
So far, so good for
StorageTek, which has received an injunction (PDF of the decision
and the injunction
against CHE Consulting, essentially preventing the company from doing any
maintenance on StorageTek tape libraries that requires access to the
libraries' event messages. For the moment, an appeals court has put a stay
on the injunction, but that stay could be withdrawn at any time.
Reading through the decision issued by U.S. District Judge Rya Zobel, it
seems clear that Zobel has been firmly convinced of StorageTek's case. From
page 10 of the decision:
The balance of harm to plaintiff from the denial of the injunction
against that to defendant from the grant thereof tilts heavily to plantiff,
given its financial losses and damage to customer relations from
defendants' deliberate and calculated misconduct and theft.
It seems that StorageTek has managed to convince Zobel that CHE Consulting
has violated the DMCA by going around the GetKey algorithm and that CHE has
misappropriated StorageTek's trade secrets by gaining access to event
messages on StorageTek equipment.
CHE Consulting argued that Section 117 of the
Copyright Act was designed to allow third-parties to perform
maintenance or repair, but that did not convince Zobel.
Defendants copy the Code by turning on the machine; however, they do so not
just for repair, but also for the express purpose of circumventing
plaintiff's security measures, modifying the Maintenance Level, and
intercepting plaintiff's Event Messages.
What Zobel overlooks, of course, is that the only purpose to intercept the
event messages is to allow CHE Consulting to perform maintenance on the
equipment in question -- exactly what Section 117 of the Copyright Act was
intended to allow. There is no benefit to CHE aside from being able to
In order to get additional background and both sides of the story, we spoke
to StorageTek spokesperson Joe Fuentes and CHE Consulting's president,
David York. According to York, this case has actually been going on for
some time. He noted that CHE Consulting had purchased software to access
the error codes from 1997 through the first quarter of 2001, when
StorageTek sent a letter to CHE Consulting alleging that the company was
infringing on StorageTek's intellectual property rights. York said that CHE
Consulting provided documentation that they were buying the software and
then they didn't hear from StorageTek again until October of 2002 when the
suit was filed. He also noted that StorageTek stopped selling the
maintenance code to CHE Consulting in 2001.
When we spoke to Fuentes about the case, he was largely unable to answer
most of our questions, as he said that he was not technical enough to
respond to questions about the nature of the diagnostic tools and what
would be required for a third-party maintenance provider to work on a
StorageTek tape library without access to the maintenance code. Fuentes was
also unable to provide access to a StorageTek spokesperson or employee who
was knowledgeable enough about the case or the equipment to provide answers
to our questions.
Fuentes did provide a statement about the case:
We believe that CHE was using our intellectual property without
permission. Our job is to defend that intellectual property. I can't get
any more specific than that... I think what the court is saying kind of
confirms the value of our exclusive maintenance microcode. It's a
competitive business, and we use our developed codes to provide superior
services to enterprises.
We also asked Fuentes how StorageTek's customers would benefit from this
action. According to Fuentes, "we value our relationships with our
customers and want to make sure they get the best possible service. I have
to stop there." While talking about StorageTek's services group,
Fuentes also noted that the company serviced equipment produced by EMC, HP
and other providers. Fuentes could not answer whether or not StorageTek
used event messages generated by other manufacturers' equipment when
Fuentes also said that StorageTek's position was that third-parties could
provide service for the equipment if they "invest and develop their
own diagnostic tools to work on our equipment."
We asked York if it were possible for a third-party vendor to develop their
own diagnostic tools. According to York, CHE Consulting has done so:
We've been providing this [service for StorageTek equipment] for seven
years, all we're accessing is their data. We're not accessing anything that
could be deemed to be actual diagnostics, we have developed our own
exercise routines [for the equipment] on our own... we're talking about
error data, data from the physical device. The error data is what they're
claiming to own a copyright on.
We then asked York if it were possible for a third-party vendor to develop
tools, as Fuentes suggested, that would allow them to generate their own
codes. "Is it technically possible? We could debate that for a long
time." When asked if it were reasonable to suggest that a vendor
should develop that functionality on their own, he was more
firm. "No, it is not."
We are still in litigation and we are feeling this decision. CHE has worked
hard, its team members have worked hard. We believe we have a right to
compete, we believe we have a right to exist, and we don't believe we have
infringed upon anybody's rights here. We believe we're just some
hard-working people. Based upon the fact that we're using the software with
the customer's permission as it was designed is mind-boggling to me.
Zobel decided that "defendants' conduct has caused it [StorageTek]
irreparable harm." However, Zobel doesn't seem inclined to consider
the effects of the ruling on CHE Consulting. If StorageTek is successful in
preventing CHE Consulting from maintaining their equipment, it is likely to
be fairly catastrophic for CHE. York estimated that about half of
their business consists of maintaining equipment that is now essentially
off-limits to their company, unless they are successful in fighting the
case. York says that CHE Consulting has filed a request for an appeal and
stay of the order as of Monday, July 12.
We also asked York whether he was concerned about other vendors using the
DMCA to prevent third parties from servicing their equipment:
I'm certainly concerned, but I can't say what another company might do. We
service IBM equipment, even though we're partnered with them. For us to be
able to provide service, IBM sells diagnostic code, manuals,
parts... having said that, IBM, it appears, welcomes competition. If there
is competition, IBM makes the most of it by saying, "Okay, we can sell some
things, we win, independent organization wins, and most of all the customer
Meanwhile, StorageTek's customers lose, and so does CHE. There would be
little incentive for CHE to access event codes if some of StorageTek's
customers had not decided that they wanted to have their equipment serviced
by another organization.
StorageTek is not the first company to attempt to use the DMCA to lock
competitors out of their business, nor are they likely to be the last.
Until such a time as the DMCA is reformed, we will continue to see this
sort of case. As this case
illustrates, it's simply not enough to count on the courts to prevent abuse
of the DMCA, nor is it enough to depend on the goodwill of corporations to
protect the rights of their customers or act in their best interests.
Comments (8 posted)
There has been some movement in a few of SCO's legal cases, so it's time
for an update.
Our last episode in the Novell case ended with Judge Kimball
dismissing SCO's suit because SCO did not make a claim of actual specific
damages. SCO was given 30 days to refile the suit with that little
oversight taken care of. SCO's new filing is available in
PDF format; it's not clear that the company will get much further this
The specific damages alleged include:
- Companies are refusing to buy licenses from SCO at this time because
it's not clear that SCO owns what it claims to be licensing.
- Novell's claims are being cited in various other SCO cases, making it
harder for SCO to carry out its legal shakedowns.
That is about it. This discussion may be enough to keep the suit alive for
now; it depends on what the judge thinks. Said judge, who, in his previous
ruling, said that there was considerable uncertainty in just what the asset
purchase agreement transfered, may not be amused by the repeated reference
to the "clear and unambiguous terms" that are alleged to have transferred
the copyrights to SCO.
The AutoZone case has
been put on hold, pending the outcome of the IBM and Novell cases.
AutoZone successfully argued that, until the issues in those other cases
are decided, there is no point in going forward. This decision makes
AutoZone's attempt to move the case to Tennessee moot for now; that motion
may be reconsidered at a later time.
SCO was given the opportunity to move for a preliminary injunction,
however, if it can show "irreparable" harm which could be mitigated that
way. It remains to be seen whether SCO will avail itself of this
opportunity. In the mean time, SCO's one attempt to shake down an actual
Linux user is stalled. Though, as described in this
Groklaw article, the case SCO presented in Nevada centers around its
OpenServer libraries, and has little to do with Linux.
In the IBM case, things are heading toward the crucial August 4
IBM's motion for a partial summary judgment that its Linux activities do
not infringe on SCO's copyrights. IBM's position is, essentially, that
(1) SCO has certified that its response to IBM's discovery questions
regarding allegedly infringing code is complete, and (2) that response
contains no examples of infringing code. Thus, IBM says, there are no
disputed questions of fact and the judgment can be rendered. Or,
alternatively, if SCO now comes forward with some sort of evidence, it
should be sanctioned for failing to comply with discovery while falsely
certifying that its response was complete.
SCO fears this hearing, even though it has never claimed (in court) that
IBM has engaged in direct copyright infringement through its contributions
to Linux. An IBM victory would make it impossible for SCO to make such
claims in the future, and would go a long way toward establishing the
cleanness of Linux in general. So SCO has moved
for a dismissal of IBM's motion, or, at the minimum, yet another delay.
SCO's motion has been accompanied by a massive tome of a memorandum in
support (available in
PDF format); the company had to ask for special permission to submit a
memo of this length. With all those words, SCO tries to establish that it
didn't really certify that its discovery response was complete, that
it needs more time to dig through more of IBM's code (and IBM has been
stonewalling), that it has not alleged copyright infringement resulting
from IBM's Linux activities, and so on.
There are also a few "examples" of copyright infringement included; these
include the ELF code, read-copy-update (which SCO, it seems, now claims
directly), the header files, etc. Here's one new example:
The Linux kernel, for example, uses a ULS [user-level
synchronization] routine to block and unblock access to shared
data. The Linux ULS routine is substantially similar to a ULS
routine in UNIX. A Mr. Russel [sic] of IBM helped a Mr. Jamie
Lokier contribute the UNIX ULS code into Linux. If SCO had access
to IBM's CMVC, then SCO might have discovered that Mr. Russel
worked on ULS for IBM, and could have deposed Mr. Russel to
determine what specific help he provided in the contribution of ULS
to Linux and to whom he provided that help.
SCO is talking about the FUTEX code, which was refined and fed into the
kernel by Rusty Russell. It is highly unlikely that Rusty has been
anywhere near the AIX code. In any case, the FUTEX code was developed in a
very public mode over several months; every step in the process was posted
to and discussed on the linux-kernel list. If SCO wishes to press a claim
to any piece of
the FUTEX code, it should have no trouble pointing out exactly which code
and saying when, and by whom, it was contributed.
SCO has also filed a renewed
motion to compel discovery, claiming that IBM has not lived up to its
obligations. SCO is requesting full access to IBM's revision control
system. The company is also trying harder to turn up a "smoking gun" email
from one of IBM's executives; the motion memo claims that IBM is being
dishonest when it says that these messages do not exist.
The Red Hat case, remember, is currently on hold. The judge in that
case had ordered both parties to file a letter every 90 days describing how
things are progressing. The first set of letters is now available.
letter seems motivated by fear of an unfriendly ruling in the IBM
case. The company is now backpedaling somewhat on its claims that the IBM
case covers "most, if not all" of the copyright issues brought up by Red
At the same time, since September 2003, SCO has obviously had the
opportunity to conduct further investigation of improper
contributions to Linux by parties other than IBM. Through that
investigation, SCO has discovered significant instances of
line-for-line and "substantially similar" copying of code from Unix
System V into Linux. That non-IBM conduct is conduct that SCO's
complaint in Utah -- by its express terms -- does not challenge or
SCO has found itself in a bit of a difficult position here. If the IBM
case addresses all of the copyright issues, and IBM wins its summary
judgment, then the outcome of the Red Hat case (which Red Hat filed to
establish its claim that its Linux distributions do not infringe on SCO's
copyrights) is clear. If, instead, the IBM case is not so all-encompassing
after all, the Red Hat case may be taken off hold and moved forward - and
that is not something that SCO wants.
Hat's letter responds directly to SCO's, and does not mince words.
SCO's June 17 effort to explain away the numerous inconsistent
statements it has made to this Court and to other federal courts
around the country again make plain SCO's litigation
strategy. SCO's ultimate objective is to delay for as long as
possible resolution of the copyright claims that are at the heart
of each of the pending lawsuits. By avoiding final adjudication of
its copyright claims, SCO can continue to foster fear, uncertainty,
and doubt in the marketplace about the long-term viability of
Red Hat points out that SCO wants the AutoZone case to go forward. If,
says Red Hat, the AutoZone case presents sufficiently interesting issues
that it should be heard now, Red Hat's case should go forward as well.
Whether the judge agrees remains to be seen; given the history of this
case, the likelihood of any near-term movement is small.
Finally, for those of you who have not had enough SCO fun, remember that SCO Forum 2004 is happening in Las
Vegas, starting on August 1. This will be your chance to attend no
end of fascinating sessions, including a keynote speech by "analyst" Rob
Enderle. Don't you wish you could be there?
Comments (3 posted)
Page editor: Jonathan Corbet
Inside this week's LWN.net Weekly Edition
- Security: Mozilla and security; New vulnerabilities in ethereal, moinmoin, PHP, and wv.
- Kernel: NULL v. Zero; Latency problems in 2.6; RCU-safe reference counting.
- Distributions: Distribution list update; FC3T1; Vidalinux
- Development: p0f, the Passive OS Fingerprinter,
Firefox roadmap, Schemer's Gazette,
new versions of Glom, Knoda, dosemu, logcheck, mnoGoSearch,
XFce, SQL-Ledger, Bakery, pygtk, Gaim-RSS-Reader,
Planner, KOffice, Epiphany, LTK, DrPython, Bugzilla.
- Press: Can LSB keep penguin from mutating?, Running free with Linux wireless,
Australian guide to open-source, Electronics design moves to Linux,
numbering in OOo Writer, Open source usability.
- Announcements: UK Linux event merger, Mandrakesoft migrating 1500 French servers,
Java/Bluetooth Developer Kit, UKUUG Linux 2004, 2nd Swiss Unix Conf.