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adding version with table

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husovec 9 years ago
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@@ -24,8 +24,26 @@
- Allowing the sale of Nortel's patents to the Rockstar Bidco members to proceed without modifications or conditions would threaten competition in the market for software and ICT. There is no "red line" below which the transfer of Nortel's patents to the Rockstar Bidco members can be assumed not to cause harm to competition in the software and ICT market.
</p>

<h2>About FSFE</h2>

<h3>Table of Contents</h3>
<ol>
<li><a href="#1" name="TOC1">About FSFE</a></li>
<li><a href="#2" name="TOC2">A broad attack on Free Software</a></li>
<li><a href="#3" name="TOC3">Leveraging existing dominant positions</a></li>
<li><a href="#4" name="TOC4">Android as a likely first target</a></li>
<li><a href="#5" name="TOC5">Two lines of attack</a></li>
<li><a href="#6" name="TOC6">Line of attack 1: Blocking distribution</a></li>
<li><a href="#7" name="TOC4">Particular concern: The Linux kernel</a></li>
<li><a href="#8" name="TOC5">Line of attack 2: Raising a tax on Free Software</a></li>
<li><a href="#9" name="TOC6">Attacks by Rockstar members on Android</a></li>

<li><a href="#4" name="TOC4">Android as a likely first target</a></li>
<li><a href="#5" name="TOC5">Two lines of attack</a></li>
<li><a href="#6" name="TOC6">Line of attack 1: Blocking distribution</a></li>
</ol>

<p></p>

<h2><a name="1"/>About FSFE</h2>
<p>
Free Software Foundation Europe (FSFE) <sup><a href="#1">1</a></sup> is an independent, non-profit, charitable organisation dedicated to Free Software<sup><a href="#2">2</a></sup>. FSFE maintains that the freedoms to use, study, share and improve software are critical to ensuring equal participation in the information age. We work to create general understanding and support for software freedom in politics, law and society-at-large. We also promote the development of technologies, such as the GNU/Linux operating system, that deliver these freedoms to all participants in digital society.
</p>
@@ -33,7 +51,7 @@ Free Software Foundation Europe (FSFE) <sup><a href="#1">1</a></sup> is an indep
In pursuit of these goals, we have a long history of active involvement in competition and antitrust proceedings that affect Free Software, starting with our admission as a third party in the European Commission's competition lawsuit against Microsoft in 2001. The acquisition of Nortel's patent portfolio by a consortium of Apple, Microsoft, Research in Motion, EMC, Ericsson and Sony is such a case.
</p>
<h2>A broad attack on Free Software </h2>
<h2><a name="2"/>A broad attack on Free Software </h2>
<p>
Our concerns center around the transfer of a large set of patents, many of which are presumed to relate to basic computing and mobile technologies such as networking, to companies which have a record of aggressively using patents for anticompetive purposes. Additionally, this transfer is taking place in a market where patent aggression has recently reached unprecedented levels.
</p>
@@ -50,7 +68,7 @@ In the hands of large, even dominant companies with a record of patent-based agg
In these markets, Free Software is an important competitive force, as it provides a platform on which businesses can build and deploy their own solutions, provide services, or pursue a variety of other business models. The transfer of Nortel's patents to Microsoft, Apple, RIM, EMC, Sony and Ericsson would significantly increase legal risks for large and small companies operating in Free Software, along with individual developers.
</p>

<h2>Leveraging existing dominant positions</h2>
<h2><a name="3"/>Leveraging existing dominant positions</h2>

<p>
Mobile devices today account for roughly 2.5% of Internet traffic <sup><a href="#3">3</a></sup>, with a clear upward trend.<sup><a href="#4">4</a></sup>
@@ -65,7 +83,7 @@ It is rapidly becoming clear that tablet devices will be the point of convergenc
Nortel's patent portfolio would likely enable some members of the Rockstar consortium to leverage their existing dominance in certain areas (e.g. Microsoft in desktop computing and office productivity), into these new markets. The embedded space would be particularly under threat, as would be the market for smartphones and tablet computers.
</p>

<h2>Android as a likely first target</h2>
<h2><a name="4"/>Android as a likely first target</h2>
<p>
Google's Android operating system is currently leading the smartphone market in terms of market share. Given that five of the six Rockstar member companies are active in the smartphone business, and three of them (Apple, Microsoft, and RIM) market their own software platfroms, it is widely reckoned that the immediate purpose of the Rockstar consortium members in acquiring Nortel's patent portfolio is to engage in patent litigation against Google and/or the various companies which make and distribute Android devices. In fact, several such lawsuits are already underway in Europe and the US. We will list them in detail below.
</p>
@@ -73,17 +91,17 @@ Google's Android operating system is currently leading the smartphone market in
Yet we would like to emphasise that the risk which we see in this transaction is by no means limited to Android. Given the fundamental nature of many of the technologies covered by Nortel's patent portfolio, almost any company in the software industry could see itself faced with aggressive behaviour based on these patents. Android is likely to be merely the first target, rather than the only one.
</p>

<h2>Two lines of attack</h2>
<h2><a name="5"/>Two lines of attack</h2>

<p>
If our assumptions about the nature of Nortel's patent portfolio are correct, these patents will put the Rockstar Bidco members in a position to either block the distribution of, potentially extract a tax on pretty much any modern computing device or program. The question will merely be which one they choose to target.
</p>


<h2>Line of attack 1: Blocking distribution</h2>
<h2><a name="6"/>Line of attack 1: Blocking distribution</h2>

<p>
The first line of attack is that companies such as Microsoft or Apple may use the patents in an attempt to prohibit outright the development and distribution of Free Software programs which compete with their own proprietary offerings. High-profile targets are programs such as the Linux kernel, LibreOffice, and many parts of the GNU/Linux operating system.
The first line of attack is that companies such as Microsoft or Apple may use the patents in an attempt to prohibit outright the development and distribution of Free Software programs which compete with their own proprietary offerings. High-profile targets are programs such as the Linux kernel, LibreOffice, and many partParticular concern: The Linux kernels of the GNU/Linux operating system.
</p>

<p>
@@ -102,7 +120,7 @@ The obligation to pay a licensing fee in order to redistribute the software is j
The second line of attack, which we discuss in more detail below, is aimed not at removing Free Software competitors from the market. Instead, the goal is to impose a tax on these systems, driving up their price to be equal to or higher than the price of competing proprietary systems offered by the Rockstar member companies.
</p>

<h2>Particular concern: The Linux kernel</h2>
<h2><a name="7"/>Particular concern: The Linux kernel</h2>

<p>
A key reason why we believe that this transaction poses a broader risk to Free Software is that many of Nortel's patents are presumed to read on technologies implemented in the Linux kernel.
@@ -123,14 +141,14 @@ Taken together, this means a huge swathe of the IT industry would be negatively
The Linux kernel is also the basis of the Android operating system. Put simply, the Android mobile operating system consists of the Linux kernel and the Dalvik virtual machine. Applications ("apps") on Android run within the Dalvik virtual machine.
</p>

<h2>Line of attack 2: Raising a tax on Free Software</h2>
<h2><a name="8"/>Line of attack 2: Raising a tax on Free Software</h2>

<p>
As previously mentioned, patent litigation in the smartphone industry has recently reached unprecedented levels, with new lawsuits being launched on a weekly basis. The sale of Nortel's patents to the Rockstar consortium would only add fuel to this fire.
</p>


<h2>Attacks by Rockstar members on Android</h2>
<h2><a name="9"/>Attacks by Rockstar members on Android</h2>

<p>
Several member companies of the Rockstar consortium are currently engaged in a lawsuit against makers of Android devices. In a market where proprietary platforms are the norm, Android acts as a disruptive force. It turns mobile phone operating systems into a zero priced commodity. It also turns over greater power to users and OEMs.


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