In Autodesk case, judge rules secondhand sales OK

A Seattle judge ruled in favor of a man arguing that he has the right to sell secondhand software, in a case that had some people worried about an end to used-book and CD stores. EBay later banned Vernor from the site, based on Autodesk's complaints. The suit was initially filed by Timothy Vernor after eBay, responding to requests by Autodesk, removed the Autocad software that Vernor was trying to sell on the auction site. Vernor argued that since he was selling legitimate versions of the software - not illegal copies - he hadn't violated any laws.

But no matter how Autodesk describes the agreement with customers, it is transferring ownership to end-users, the judge, from the U.S. District Court for the Western District of Washington, found. Autodesk contends that it doesn't "sell" its software, but instead licenses it and therefore prohibits buyers from reselling it. Autodesk had argued that its restrictions on the way that buyers can use the software show that users license rather than own the software. "A person who buys a home is nonetheless restricted in his use and subsequent transfer of the home by property laws, zoning ordinances, and fair housing statutes," Judge Richard Jones wrote in his ruling. "No one would characterize the person's possession, however, as something other than ownership. Autodesk said it will appeal the decision. "We disagree with the Court's interpretation and application of copyright law so, on that basis, will appeal the decision to the Ninth Circuit Court of Appeals, the Court of Appeals with jurisdiction over this matter. Similarly, the court cannot characterize Autodesk's decision to let its licensees retain possession of the software forever as something other than a transfer of ownership, despite numerous restrictions on that ownership." The judge also agreed with Vernor's argument that owners of software have "first sale" rights under copyright law, which entitles them to "sell or otherwise dispose of" the copy they bought.

We will rely on more recent Ninth Circuit cases that, as the district court acknowledged, favor Autodesk's position," the company said in a statement. But he said he thinks the impact will be minimal. In previous arguments, both sides warned of dire consequences that could follow the judge's decision. Autodesk argued that if the judge decided that people own its software, prices will rise for end-users. Vernor has argued that if the judge ruled that the software was indeed licensed, then any copyright owner could impose severe restrictions on how their products are used.

But that argument ignores the secondhand market, which offers better prices for consumers, the judge noted. "Although Autodesk would no doubt prefer that consumers' money reaches its pockets, that preference is not a basis for policy," Jones wrote. For instance, book publishers could bar resale and lending, eliminating the used-book market as well as libraries. The judge denied Vernor's charges against Autodesk of copyright misuse. Even if he had ruled against Vernor, such fear was "misplaced," the judge said. "Although the interpretation of 'owner' in the Copyright Act no doubt has important consequences for software producers and consumers, the court is skeptical that its ruling today will have far-reaching consequences," he wrote.

Senate kills bid to make White House czars accountable

A proposed amendment that would have given Congress more oversight over the White House cybersecurity czar and at least 17 other czars appointed by President Obama was shut down in the U.S. Senate today. Susan Collins (R-Maine), sought to restrict federal funds for the expenses of White House-appointed czars unless two conditions are met. The amendment, proposed by Sen.

One of them was to require the president to agree that every czar would respond to "reasonable requests" to testify before Congress on matters related to the office. The proposed amendment was in an Interior Department environmental appropriations bill on the Senate floor. The other required White House-appointed czars to issue a report to Congress twice a year. In a statement , Collins said the amendment was needed to ensure greater transparency and accountability. The amendment however was ruled "non-germane" to the pending bill in the Senate this afternoon and will not move forward, a spokesman for Collins said in an e-mail. "The amendment fell," following an objection by Sen. She had claimed that direct White House appointees were largely insulated from congressional oversight and often duplicated or diluted the statutory authority and responsibilities of Cabinet-level appointees who had been vetted by Congress.

Dick Durbin (D-Ill.), he said. At a committee hearing in May on strategies for securing cyberspace, Collins had said that putting the White House in charge would make it harder for Congress to exercise oversight over critical cybersecurity policies and budgets. Collins, who is the ranking minority member of the Senate Homeland Security and Governmental Affairs Committee, had raised similar concerns previously, especially with regard to Obama's plans to appoint a White House cybersecurity czar, or agency coordinator. Collins proposed instead that the government consider adopting the model used in setting up the National Counterterrorism Center (NCTC). The NCTC, which was established in August 2004 on the recommendations of the 9/11 Commission, works in the Office of the Director of National Intelligence (ODNI), a setup that allows for greater congressional oversight, she had said. The president announced the position in May and stressed the need for a national strategy for securing U.S. interests in cyber space. The developments come amid a delay by the White House in naming a new cybersecurity coordinator.

The delay in making the appointment has fueled speculation about the likely candidates and the nature of the job . Earlier this month, the Reuters news service. quoting an unnamed source with "direct knowledge" of the matter, said the front runner for the post was Frank Kramer , an assistant defense secretary under President Bill Clinton.

IPass makes MiFi available for business users

MiFi is going to the enterprise. The actual MiFi device will be free for a two-year service commitment, or $99 for a one-year commitment, on top of a one-time $50 configuration fee per device as well as the iPassConnect service. IPass Inc. said today it will resell in December the Novatel Wireless MiFi 2200 mobile broadband device used by consumers but it will be preconfigured with customer-specific security and connections to iPassConnect mobility manager software for business users. That service runs $45 to $60 per month per user in the U.S. and gives 3G WAN wireless broadband access as well as easy Wi-Fi connections globally to 160,000 hot spots, said iPass vice president of product and offer marketing Rick Bilodeau.

With iPassConnect, the IT shop of each company also has a single console where it can manage potentially thousands of users. IPass, launched in 1996, is already used by about 400 of the world's largest companies whose workers can find wireless WAN and Wi-Fi access from laptops using broadband cards easily as they travel from country to country, Bilodeau said in an interview. Adding MiFi to its portfolio means iPass customers can connect wirelessly as many as five Wi-Fi-enabled devices to the 2-ounce MiFi device , which then connects to a wireless CDMA 1x EV-DO Rev network. IPass has been device agnostic and already provides access to its software from a variety of laptop broadband cards, but the relationship with Novatel has been longstanding and seemed logical, Bilodeau said. The MiFi device without a service plan would cost a user about $215, Bilodeau said. "Today, MiFi is just an open hot spot out there, and we see the primary use of MiFi with iPass by folks in consulting and accounting or professional services who visit customer sites and can't use a third-party Wi-Fi service," Bilodeau said. "This approach allows a 3G wireless connection to a corporate VPN, so you still have security." IPass is adding SSID and security keys to MiFi devices specific to each customer, with a configuration to iPassConnect, he said.

It is not exclusive to Novatel, however, he said. Paulak said iPass is basically reselling the MiFi service offered by CDMA carriers Verizon Wireless and Sprint Nextel Inc., but iPass will be able to offer a more complete managed mobility service than Verizon or Sprint. With support for MiFi, iPass is able to extend its management service from, for example, a single worker to a workgroup that could need a temporary office solution as the group travels together, said Eric Paulak, a Gartner analyst. In addition to the MiFi service, iPass also announced a new Open Device Framework to allow its customers to quickly integrate new 3G devices into the iPassConnect software. Paulak said the Open Device Framework sounds like a good idea because it offers a process for helping customers connect to new and different devices, but he had reservations about its impact on newcomers to mobile management. "My concern is that it is going to be lost on most companies that don't see [device management] as a problem today," he said. "This is mainly a promise to existing customers ... but it will be hard to convince non-customers of the value of this type of service."

The capability will come to IT managers and others in the form of templates that can be adapted to a growing number of devices that will be wirelessly capable, including machine-to-machine devices that aren't even voice capable, Bilodeau said.

MySpace replaces all server hard disks with flash drives

Social networking site MySpace.com announced today that it has switched from using hard disk drives in its servers to using PCI Express (PCIe) cards loaded with solid state chips as primary storage for their data center operations. MySpace said the solid state storage uses less than 1% of the power and cooling costs that their previous hard drive-based server infrastructure had and that they were able to remove all of their server racks because the ioDrives are embedded directly into even its smallest servers. "We looked at a number of solid state solutions, using many different kinds of RAID configurations, but we felt that Fusion-io's solution was exactly what we needed to accomplish our goals," Buckingham stated. The PCIe cards, from Fusion-io Inc., have allowed MySpace to replace multiple server farms made up of 2U (3.5-in high) servers that had used 10 to 12 15,000 RPM Fibre Channel drives each with 1U (1.75-in high) servers using a single ioDrive . "In the last 20 years, disk storage hasn't kept pace with other innovations in IT, and right now we're on the cusp of a dramatic change with flash technologies," said Richard Buckingham, vice president of technical operations for MySpace, in a statement. MySpace's new servers also have replaced its high-performance hosts that held data in large RAM cache modules, a costly method MySpace had been using in order to achieve the necessary throughput to serve its relational databases.

Salt Lake City-based Fusion-io claims the ioDrive Duo offers users unprecedented single server performance levels with 1.5GB/sec. throughput and almost 200,000 IOPS. The system can reach such performance levels because four ioDrive Duos in a single server can scale linearly, which provides up to 6GB/sec. of read bandwidth and more than 500,000 read IOPS. The cards come in 160GB, 320GB and 640GB capacities. MySpace said its new servers using the NAND flash memory modules give it the same performance as its older RAM servers. A 1.28TB card is expected in the second half of this year. "Social networking sites and other Web 2.0 applications are very database dependent. Ethernet pipe," David Flynn, CTO of Fusion-io, said in an interview. Our 320GB ioDrive can fill a 10Gbit/sec.

FCC Moves Toward Net Neutrality

The FCC convened this morning and voted to move forward with formalizing net neutrality guidelines. The FCC has already imposed net neutrality principles in past decisions such as banning broadband Internet provider Comcast from throttling peer-to-peer networking traffic. The vote was unanimous, including Republican Commissioners Robert McDowell and Meredith Attwell Baker, and initiates the process of debating the proposed rules before any net neutrality policy is actually implemented.

Without a formally sanctioned set of rules though, such decisions could be seen as arbitrary or capricious. Of course, in Washington DC today there are distinctly partisan battle lines involved in where to eat lunch or what color the sky is, so I suppose that should come as no surprise. When FCC chairman Julius Genachowski first announced his intention to pursue formalizing net neutrality, it did not take long to see that there are distinctly partisan battle lines involved. Still, it was a little shocking that within hours of Genachowski's statement regarding net neutrality GOP lawmakers had already filed an amendment (later retracted) to prohibit the FCC from pursuing it. This week AT&T was accused of astroturfing- creating a fake grassroots movement- by encouraging employees to voice their concerns on the FCC web site using their own personal email addresses. In the weeks between Genachowski's initial statement and today's vote the lobbying pressure and the rhetoric in the media have been relatively constant from net neutrality opponents.

Proponents of net neutrality were not as vocal until more recently. Verizon didn't completely defect, but it did break ranks with other broadband and wireless providers when it issued a joint statement with Google expressing agreed upon common ground for governing net neutrality. A coalition of 30 tech-focused venture capitalists, under the banner of the Open Internet Coalition, sent an open letter to Genachowski just yesterday urging support for net neutrality rules. Perhaps it's a reflection of the new partnership forged between Verizon and Google to develop Android-based mobile handsets like the upcoming Droid. Canada upheld the right of providers to 'manage' the traffic on their networks, but within certain guidelines. Just yesterday the Canadian government ruled on its version of net neutrality.

It also stipulated that traffic throttling should be a measure of last resort. Comcast talked about how the Internet has thrived without net neutrality, while tacitly admitting that it is only because of the threat of net neutrality that it has played by the rules. I maintain that net neutrality rules are essential. AT&T reversed its position on allowing VoIP over its wireless network and pointed to that decision as evidence that the industry can police itself, while not-so-subtly demonstrating that the new policy was a direct attempt to influence the net neutrality debate. If they thought they could act with impunity, they would. The bottom line is that the providers only treat consumers right and do the right thing because of government oversight or the threat of it.

Comcast is rumored to be pursuing a stake in NBC- would that give them the right to provide preferential bandwidth to NBC web content and throttle the other networks? Tony Bradley is an information security and unified communications expert with more than a decade of enterprise IT experience. There is simply too much convergence and overlap creating conflicts of interest to allow the industry to police itself. He tweets as @PCSecurityNews and provides tips, advice and reviews on information security and unified communications technologies on his site at tonybradley.com.

Microsoft's CodePlex Foundation leader soaks in stinging critique

After a stinging critique from a noted expert in establishing consortia, the leader of Microsoft's new CodePlex Foundation says such frank evaluation is welcome because the open source group's structure is a work in progress. The CodePlex Foundation's aim is to get open source and proprietary software companies working together. Sam Ramji, who is interim president of the CodePlex Foundation, was responding to last week's blog by Andy Updegrove, who said the group has a poorly crafted governance structure and looks like a sort of "alternative universe" of open source development. Updegrove, a lawyer, noted expert on standards, and founder of ConsortiumInfo.org, laid out in a blog post five things Microsoft must change if it wants CodePlex to succeed: create a board with no fewer than 11 members; allow companies to have no more than one representative on the Board of Directors or Board of Advisors; organize board seats by category; establish membership classes with rights to nominate and elect directors; and commit to an open membership policy.

He added, however, "There are some best practices [for running the boards of non-profits] that we are not as familiar with as we would want to be." Slideshow: Top 10 open source apps for Windows  Stephanie Davies Boesch, the foundation's secretary and treasurer, is the only board member with experience sitting on a non-profit's board. Despite the stinging tone in Updegrove's assessment, Ramji says he is thankful for the feedback. "Andy's been incredibly generous with his expertise and recommendations," Ramji says. "It is the kind of input and participation we were hoping to get by doing what is probably non-traditional for Microsoft but not necessarily non-traditional for non-profit foundations, which is to basically launch as a beta." For instance, Ramji says that the decision to go with only five people on the board came from Microsoft's experience that larger groups often have difficulty with decision making. Ramji says Updegrove's suggestion to have academic representation on the board was "outstanding. And basically it is re-writable. We did not think of that." And to Updegrove's point on becoming an open membership organization, Ramji says, "our goal is to become a membership organization and Andy has some excellent recommendations for that."He says the fact that Updegrove took the time to respond "in the format that he did is more proof that there is something worth doing here." Ramji, compares the Foundation's formation to the early days of a software development project. "We have said in these first 100 days we are looking at everything as a beta.

Obviously, there are some areas like contributions and licensing agreements we put a lot of time into but even those can be modified." Microsoft announced the foundation Sept. 10 with a stated goal "to enable the exchange of code and understanding among software companies and open source communities." The company seeded the group with $1 million and Microsoft employees dominated the interim board of directors and board of advisors. One is a call for a broad independent organization that can bridge cultural and licensing gaps in order to help commercial developers participate in open source. Ramji says the foundation has spent the past couple of weeks listening to feedback in "Twitter messages, email, and phone calls in order to understand what people hope this can be." Within that feedback two patterns have emerged, Ramji says. The other focuses on creating a place where open source .Net developers can gain strong backing. "Look at projects related to Mono, you also can look at NUnit, NHibernate, we really feel optimistic that the Foundation could help them gain a higher level of credibility in the open source community. Miguel de Icaza, the founder of the Mono project and the creator of the Gnome desktop, is a member of the Foundation's interim board of directors. They feel they have been lacking that strong moral support," Ramji says.

From a high level, Ramji says the Foundation stands as a sort of enabler that helps independent developers, companies and developers working for those companies navigate the nuances and practices of open source development so they can either contribute source code to projects or open source their own technologies. "One suggestion has been that the Foundation should house all the best practices we have seen software companies and open source communities use," said Ramji. "We want to have a place where everyone interested in how to participate can come and read and if they choose they can use our license agreements or can use the legal structure of the Foundation to grant patent licenses and copyrights for developers and derivative works." Those licensing agreements have a distinct focus, Ramji said, on the rights that are related to code that is being contributed and on how to contribute the patent rights on that code. Ramji says the goal is to service multiple projects, multiple technologies and multiple platforms rather than having one specific technology base, which is how most current open source foundations are structured. "It's early days and we have received a lot of good ideas from experts in a variety of fields from law to code to policy that is what we had hoped for," says Ramji. "Someone wrote it is nice to see Microsoft engaging early on without all the answers and to have the community solve what they would like to see. Once those issues are settled, code would be submitted using existing open source licenses. That is satisfying for me and refreshing to others. This is the right way to proceed." Follow John on Twitter

Lotus simplifies client licensing; makes Designer free

IBM/Lotus Tuesday whittled its client licensing options from 11 to two and said its Domino Designer development tool would now be offered free of charge in hopes of increasing application development on the platform. The Messaging license, which allows access to Domino e-mail from any client, is $99 per user. The news came as Lotus unveiled Notes/Domino 8.5.1, a point release that includes support for real-time synchronization with Apple's iPhone (see related story here). As part of the 8.5.1 unveiling, IBM revealed two client options that will replace the laundry list of previous options.

The Enterprise license is $159 per user and adds Mobile Connect VPN software and Domino Designer tools that give users access to any existing Notes applications and any homegrown programs. The tool was originally built into the Notes client in its very earliest releases. IBM officials say giving away Designer was a major step toward expanding development on the Domino platform. The tool eventually became a separate offering that carried a price tag of $864. "When we started to sell to IT more, when Lotus was bought by IBM, we put the Designer into a separate product and it took it out of the hands of the power users, the people who are in the line-of-business and really sort of isolated Notes application development to this specialized universe," says Ed Brill, director of product management for Lotus Software. "What we are really trying to do by giving it away free is democratizing it again and getting it out into the hands of everybody." Users can download Domino Designer, which is based on the Eclipse platform, free at IBM deverloperWorks. Other features of the 8.5.1 release include updates to Domino Designer, which adds support for Lotus XPages application model running on a Notes or mobile client. Users who want to link the software with a Domino server will have to buy a $150 license.

Web browser support was added in 8.5. XPages lets users develop Web applications with little or no coding. Follow John Fontana on Twitter: twitter.com/johnfontana XPages also can be used to convert existing Notes applications to Web applications.