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Blackberry Blackout Threat to Software as Service?

Posted by Zonk on Thu Jan 26, 2006 03:41 PM
from the executives-uncoupled dept.
Patents
TheIndifferentiate writes "In light of how CEOs are reacting to a possible court injunction which could shutdown their RIM BlackBerry service, what impact do you think this will have on the 'Software as a Service' business model? The conventional wisdom in some commercial software corners has it that the threat of patent litigation should stop Open Source Software development in its tracks. If my business depends on an OSS application, and it gets shut down, I can potentially go on about my business as I have the executables and wouldn't have to stop using them until someone came knocking at my door. If an SaaS application gets shut down and my business depends on it, I'm dead in the water. Seems like one of the prime arguments against OSS also takes out SaaS too. Rhetorically speaking, how could a commercial ISV in good faith talk any business out of an OSS application and into an SaaS application?"
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  • Contingency and continuity. (Score:5, Insightful)

    by Godeke (32895) * on Thursday January 26 2006, @03:42PM (#14572234)
    Service of any kind can fail; companies should always have contingency plans in place in case of such failure. BlackBerry is a great tool, but there are other tools now that can do the same task and companies have known for some time the risk that existed to the service. Those who haven't a migration plan have simply failed to plan, but the loss won't be too grave as e-mail itself will continue internally and there are plenty of PDAs/Phones that can take over the workload.

    On the other hand, when a service is key to the operations of the company it is far more important to have solid contingency plans. We provide such a system and the big concern our large clients have is "how do we continue if your company fails". Even though we have escrowed code, it wouldn't do the clients much good as they would have to bring up servers, restore the data and understand the operations side. For that reason some clients are paying for "continuity insurance" which funds us for three to six months at a maintenance level to operate the system until the escrowed code running and ownership is transferred.

    We are handling this continuity by placing the funds in a reserve controlled by a third party that is releasable via the "triggering conditions" of a contract ending or our normal operations being threatened. Obviously, if our product was open source, there would still be the transfer concerns, so I don't think open source provides some magic bullet in the case of "software as service" since typically such arrangements include the hosting. It would provide the availability to continue development after the failure of the service, but again our code escrow and transfer effectively is the same thing (although the various clients would do so independently instead of under the banner of some foundation. I see the possibilities of a foundation that could better steer such development as perhaps the only real benefit to OSS, and frankly it isn't out of the question to BSD license the code upon failure (we don't but we could).
    • On the other hand, when a service is key to the operations of the company it is far more important to have solid contingency plans.

      Agreed. But remember the opportunity costs that come about from inaction. Too many people wait until things are "just right" to proceed, all the while losing the opportunities that could be gained by moving forward immediately.

    • Escrowed code does not address main threat (Score:5, Insightful)

      by SuperKendall (25149) * on Thursday January 26 2006, @04:03PM (#14572505)
      The threat the article described is one of another company owning patents to the software used coming in and shutting down the company.

      The problem I see even if you have a code escrow agreement, if the company you have an escrow arrangement with is being shut down is doing so because of patents they may not be legally able to give you the escrowed code and it may be withheld from you! I would imagine the first thing a patent holder would demand from a company in violation is that no source could be released unless you paid them first, and furthermore that you cease using the software at once (if it's an application, not a service)

      Code escrow only addresses the financal, not IP risks of using proprietary software - service or deployed application. The great thing about OSS is no-one really tracks who has what - so even if a project is found in violation you can simply keep running it while you execute a migration strategy.

      • Re:Escrowed code does not address main threat (Score:4, Insightful)

        by Godeke (32895) * on Thursday January 26 2006, @04:22PM (#14572721)
        That is an excellent point, but for services the financial risk is much greater than for applications. If Microsoft poofed off the planet tomorrow, I could continue to run my Windows based operating systems and applications for an undefined amount of time. If Google poofed off the planet tomorrow, I will be looking for a new search solution. Immediately.

        The issue of patents affects both applications and services fairly equally: if Windows was determined to violate a patent and was withdrawn, I'm either operating illegally the next day or am scrambling to migrate my data (and hoping it wasn't a file system patent, so I can actually read that data). If Google is found to violate a patent, I have a similar situation, except perhaps my data (say Gmail) is harder to get to (backups, backups, backups!). So while code escrow (and the continuation assurance that goes with it in the case of a service) only addresses company failures and not IP issues, I don't think it creates a *higher* risk of IP issues than applications sitting on disks.

        Meanwhile, if an open source product is determined to violate patents, in theory using the software is no more legal than in either of the above cases. Sure, you might be able to operate below radar longer, but I would hate to have *that* as my contingency plan.
        • Meanwhile, if an open source product is determined to violate patents, in theory using the software is no more legal than in either of the above cases. Sure, you might be able to operate below radar longer, but I would hate to have *that* as my contingency plan.

          I do agreee that the "deeper sand to hide your head in" plan is not exactly the best idea... perhaps a better aspect to consider is that potential finanical liability would be lower if you were not paying for the software itself and only for services
          • Except that, by definition, the owners of a patent do not have any right to claim liability by the users of a product that infringes the patents. The infringing party is the person or company that created it. Now, if you knowingly import or use a patent-infringing product with intent that the importation or use would circumvent a patent, you can be sued for contributory infringement. However, in practical terms, unless your reason for getting the open source software is because you tried to write your ow
      • The problem there is that YOU also often do not know if you are in violation. So you never think of a migration strategy until after the lawyers come knocking at your door.
    • If Blackberry really violates the patents with its text-messaging service. Who's to say sms and email doesn't violate too?

      I haven't gone into the details, but the claims looked pretty broad last time I read an article about it.
    • It's impossible and time wasting to have a contingency for every possible failure. Some things you just have to take a chance on and assume they will be there.

      What contingency does your company have if all your phone service were lost? Or if there were no electricity? Or how about the roads leading into your company having been washed away?

      Sure, you could probably string together some paper cups, and have people ride stationary bicycle generators and build a human bridge. But in reality, you probably do
      • We use open source internally, but we never mention it to our clients (since the systems *they* use live on Microsoft platforms). The reason: when we tried to use open source foundations the clients balked. (These are large insurance companies and are very conservative). So our costs are higher than neccessary and that is transferred on in pricing to the client. I think it is silly as what we do could easily be done with open source components from top to bottom, but when we say .NET, SQL Server and Windows
      • Actually, this is kind of interesting. If they have not gone after cell phone manufacturers and telco's, that would mean their patent is null and void, right?

        If I'm not mistaken, you cannot be selective about who you go after with patent issues - its an all or none type of thing.
        • you cannot be selective about who you go after with patent issues - its an all or none type of thing.

          Yes you can. Other companies do this all the time. You go after the weaker "infringers" first. Build a war chest and tackle the tough nuts. They saw RIM as being in a weak position since RIM's entire business relies on the technology being claimed by NTP.

          This is not like Trademark. There if you don't go after *all* infringers, you can (and most likely will) lose any right to that trademark. The wo

  • Absolutely (Score:5, Insightful)

    by monkeydo (173558) on Thursday January 26 2006, @03:48PM (#14572307) Homepage
    This has been an issue in outsourcing deals since forever. If you put your eggs in someone else's basket, you have a stake in how they build that basket. If you are big enough, contracts can be structured to strike an acceptable risk sharing balance. If you're just Joe Customer, you might get screwed, but you might not have a choice.

  • Making Your Bed (Score:3, Interesting)

    by Billosaur (927319) * <wgrotherNO@SPAMoptonline.net> on Thursday January 26 2006, @03:52PM (#14572383) Journal

    RIM created this problem by not having the foresight when the whole thing with NTP first surfaced, to create a contingency system which avoided the systems in question. Lack of vision now threatens to destroy everything they've built up, if they're fix to this problem is not easy for Blackberry users to implement and use.

    That said, no one can truly anticipate where the attack is going to come from, but in developing a service you have to be prepared for anything to occur which may alter your service's operation. This doesn't mean just Business Continuity Planning for Katrina- and 9/11-type disasters, but the possibility of patent fights, industrial espionage, and just plain stupidity. It may add to lead times and slow production and upgrades, but more time spent up front will save a lot of time on the back end.

    • I've heard that RIM does have a backup plan in place, with different software that is non-infringing. I'm assuming it will just cost them some fixed amount to switch over, and it will be business as usual.

  • Thumbs: 'Blackberry Blackout is OK with me.' (Score:3, Funny)

    by digitaldc (879047) * on Thursday January 26 2006, @03:53PM (#14572389)
    "After Angelina Jolie, the wireless portable e-mail device is the thing every business leader wants by his side at the annual World Economic Forum, where hundreds of chief executives, dozens of heads of state and the odd celebrity couple gather to discuss world woes and corporate trends."

    And some of those business leaders wanted Brad Pitt even more. Oh woe is the world.
  • Blackberry is not going to shut down and Toyota and Honda are not going to stop making hybrids. They're in business to make money, not to be martyrs for the anti-patent crowd.

    That said, obviously holding your own files, both applications and data, is safer (part of why I don't have the slightest interest in this supposed Google Office Suite) but not for any reason having to do with patents.

    • Sorry, couldn't resist :-)

      There actually is a very good chance that the BlackBerry network will shut down. RIM's position seems to be that the only deal they can get from NTP is too costly, time-consuming, or whatever, and that they'd rather go down in flames.

      If that's what RIM wants to do, that's what's gonna happen. And if they piss NTP off too much, it won't matter how deep their pockets are - NTP seems willing to deny RIM a patent license for spite.
      • Here went my moderation...

        Not for spite.

        Check the recent investors in NTP (or licensees - investment SCO style).

        Check the owners of alternative solutions to RIM which are at the moment bottom feeding on scraps from the edges of the market.

        Compare.

        Think.

  • Nothing I'd like better (Score:5, Insightful)

    by QuasiEvil (74356) on Thursday January 26 2006, @03:54PM (#14572409)

    I'd have to say there's nothing I'd like better than a Crackberry network shutdown, at least for a week. It might actually wake up the execs to the mess the modern patent system has made.

    Also, probably some 80% of the people I know who have the damn things only have them to make themselves feel important, not because a life-and-death email could come in at any moment. It's very disruptive trying to talk to some ass who thinks every time his CB goes off he should pick it up rather than continuing the discussion with the real, live person in front of him/her, yet that's what most of them do... Plus, most of this 80% have increased their stress level unbelievably by destroying the greatest feature of email - the ability to get back to it when it doesn't disrupt things, unlike, say, phone calls.

    That said, redundancy is a good thing for those people where it really is an end-of-everything scenario to be out of touch with their email. There should be a backup plan, and this will be a healthy reminder. When I'm on call for production support, I have a cell phone and a pager at all times, and if I'm home, email and my land line work as well. Inevitably, at least one of these often fails to reach me, that's why there are backups.

    The rest of the people, the 80% above, well, they just need to pop a valium or two and realize that it doesn't matter that much...

    Nathan

    • I'd have to say there's nothing I'd like better than a Crackberry network shutdown, at least for a week. It might actually wake up the execs to the mess the modern patent system has made.

      Because this shutdown wouldn't affect the government members that might actually move to do something about it, it's not going to change anything there. If anything, with all the execs seeing how it could hurt their competition, it's going to fuel even more patent attacks.

      • Re:Nothing I'd like better (Score:4, Interesting)

        by hawkbug (94280) <psx AT fimble DOT com> on Thursday January 26 2006, @04:25PM (#14572757) Homepage
        I've thought about this, and it won't work using webmail. Here's why:

        1) For starters, it's more than email. It syncs Outlook contacts and calendar items, but yes - I know there are plenty of PDA/phone alternatives for those functions - but it's nice they sync wirelessly. If you make a change in Outlook, it syncs through the air. Very cool.

        2) You said Webmail, which is nice when you turn it on and login to check yourself. The BB is nice because you don't have to check, it checks for you. It shows a message icon when you get a new one. It can also ring, vibrate, or light up when you get a new message. No webmail app is going to do that for you.

        3) You can then email people just like you can with Outlook directly from your Address book / contacts, which I already mentioned sync wirelessly.

        If somebody can come up with a good alternative to BB, let me know - I'm all ears.
  • I don't know much about the software infrastructure that RIM uses, but I would think that if the USPO gets them shut down in the US...just relocate their servers in Canada. It probably all goes out via TCP/IP and Cellphone systems, I would think. Probably add a few seconds of lag...

    ttyl

  • I don't understand why this is "special" for either OSS or SaaS.

    If Microsoft Word infringed on patents and the patent holder refused to settle with Microsoft, and you relied on Microsoft Word, you're just as fucked as anyone using OSS or SaaS that got killed by patents.
    • And you better with OSS because in this case you don't only have the exe but the source as well!

      • And you better with OSS because in this case you don't only have the exe but the source as well!

        No, you aren't. In the case of a patent infringement problem, all the source gets you is an opportunity to be sued by the patent holder. And it's worse than that - at least here in the USA, you'd be subject to treble damages for knowingly violating the patent.

    • No, because you would still have Word installed on your machine.
  • When I think of "software as a service" I don't think of centrally-administered, service-providing software-based services like the Blackberry.

    Instead, I think of the millions of software developers who write code designed to provide services to some sort of business entity, without trying to sell the software per sae.

    As this software is never exposed (being that it is never sold as product) it is immune from patent protection. If you have invented and patented some widget, and I build a similar widget for
    • I build a similar widget for my own use (but never sell it) then I am not infringing your patent.

      Patents protect the holder from people "practicing" that patent, not just selling it. There is generally understood to be an exemption for research, but using the patent to make money even if you're not selling the actual implementation of that patent is most definitely infringing it.
    • And you are WRONG!

      The patent protects the patent owner EVEN if you never intend to sell the device. The monopoly granted is (almost) absolute. Government is exempt, and there are certain other minor exemptions. But, outside of those, the patent holder can tell you to cease and desist.

      Even if you have never sold a device.

      Ratboy.

  • Another reason why patents are bad (Score:4, Informative)

    by MikeRT (947531) on Thursday January 26 2006, @04:01PM (#14572479) Homepage
    All it took was one little patent holding company to bring down a legitimate product used by millions of business users. Does NTP even make a product of their own? The main reason that I see this as a problem is pretty simple: software patents' shelf-lives are too long to do anything but make them a pay day for the lawyers. A one or two year term would work, but the 17 year term makes the format/approach/algorithm completely unusuable to most competitors for derivatives, extensions, etc. for its entire useful life. Does anyone honestly think that a company in Microsoft, Apple or Oracle's position would license their patents to a small, but viable competitor without charging near bankrupcy rates?

    Software development is the cheapest type of engineering there is. Unlike other industries, it's far easier for a small outfit to grow on a small budget and see a return on its investment.
    • NTP was at one time a real company that sold real products using the patent involved. They lost money and went out of business, in part because of competion with you guessed it, Blackberry. Now they have only one real asset, the patent that they claim Blackberry violated.

      However, I think their product failed not because of competition, but because it was an inferior product that cost too much.

    • All it took was one little patent holding company to bring down a legitimate product used by millions of business users. Does NTP even make a product of their own? The main reason that I see this as a problem is pretty simple: software patents' shelf-lives are too long to do anything but make them a pay day for the lawyers.

      I agree that software patents are bad for programmers, but this isn't a software patent case. And despite what some folks would have you believe, NTP isn't some patent troll. Yes, th

  • It seems to me that alarms are sounding a little bit too loudly here. For IP cases where licensing is the issue and a settlement is imminent; Prudently the company would pay the fine in lieu of a forced service shutdown. Case closed. Is it reasonable for the BlackBerry to be shutdown? No. Will it happen? No. Think like a reasonable judge would: punish the company not the users who use the service.

    The case where a service is shutdown is most often due to bankruptcy. If your business relies heavi

  • Same thing could happen with them, and the impact would be far greater. Read your EULA, MS reserve the right to revoke your license without any explanation or compensation. This is the reason why 'proprietary file formats considered harmful.'

  • Not equivalent (Score:3, Insightful)

    by Tlosk (761023) on Thursday January 26 2006, @04:03PM (#14572502)
    As much as I support OSS and I think the argument that commercial software is just as vulnerable to the risk of patent infringing, I disagree that they are comparable in likely outcomes. A business that sells the software under their own liscence has the option of settling with the patent holder, paying liscence fees, mounting a legal challenge that invalidates the patent, etc. That none of these things happened in the Blackberry case is more the result of factors unique to this particular conflict and the players themselves.

    But take an OSS software that is distributed for free. Most if not all of these options are off the table, meaning they are much more likely to get shut down as a result of an infringement case. Hence more risk. Though in a shutdown situation I agree that OSS would be preferable as it would at least allow individual users to continue in-house development until they were able to move on to something else instead of potentially facing an overnight shutdown situation.

  • There is an endless list of useless and/or misused software products being purchased by business today. If your SaaS can get some cool buzzwords and lots of hype, the PHBs will line up to buy it, nevermind the risk.
     

  • "If my business depends on an OSS application, and it gets shut down, I can potentially go on about my business as I have the executables and wouldn't have to stop using them until someone came knocking at my door. If an SaaS application gets shut down and my business depends on it, I'm dead in the water. Seems like one of the prime arguments against OSS also takes out SaaS too. Rhetorically speaking, how could a commercial ISV in good faith talk any business out of an OSS application and into an SaaS appli

    • If a company succeeds in bribing politicians to changing laws in their favor, that company wins.

      To bring this back on-topic, I should point out that the newly-elected Prime Minister of Canada is very chummy with a certain American president/party - and he has a vested interest in seeing that this dispute is resolved in RIM's favour. So Rule #3 may be invoked by RIM :) (Not by bribes, though, just by simple requests)

  • It is almost inconceivable that the service will get shut down, for the simple reason that it would hurt NTP as much as it would hurt RIM (and their customers). Some patent suits are about keeping a somebody from competing with your business, but RIM isn't NTP's competitor. NTP has no business other than (trying to) license their patent(s).

    Imagine if you will, the (absurd) situation of RIM throwing up their hands and saying, "OK, you win, we'll stop infringing, shut it all down, and go out of business".

  • It's local vs. remote! (Score:3, Insightful)

    by sillivalley (411349) <sillivalley&comcast,net> on Thursday January 26 2006, @04:39PM (#14572918)
    Look at it as local control vs. remote. If I have the application and the data on my local machine, what do I care if another company gets an injunction against the manufacturer of something? I can still do what I need to do.

    But if things are remote -- Blackberry, remote storage, remote applications such as SaaS are examples -- then I'm far more vulnerable.

    Not just to injunctions shutting down the service, "upgrades" that go wonky, but to idiots with backhoes!

    It comes down to that risk - benefit analysis. Am I willing to risk having key parts of my infrastructure in the hands of someone else, or do I want it local, where I can see it (and screw it up myself, but that's another part of the equation).

    Do I want to put myself in the position where someone can say, "Sorry, you don't have permission to open that document any more."

    Nope, I want things where I can see them. Remote backup is another story, but I want the primaries under my control.

    And saying this is another death-blow to OSS is just more FUD.

    Namaste--

    • Not just to injunctions shutting down the service, "upgrades" that go wonky, but to idiots with backhoes!


      Funny you mention this. The water main to our building went down at 11AM (for "two hours"), and now we are told it's out for the rest of the day. No water, no coffee, no restrooms... It's 2PM and I just finished lunch a few hours ago with a large soda and I'm feeling pretty screwed right now.

      So I know exactly what you mean!
  • Basically, you have to say "Fine you say we've violated your patent." The courts are backing you.

    Now how do you propose to handle the transition?

    We'll be shut down as of .

    If you're not up and completely able to pick up the service seamleassly as of , you've essentially told all of your customers: "Oops. RIM were supposed to blink, roll over, and shove lots of lovely money at us. We never intended it to go this far. Sorry."

    What is your plan for taking it from us? Do you have a capital plan? Resources? Commun

  • Looks like the Supremes don't read SlashDot (Score:3, Interesting)

    by feijai (898706) on Thursday January 26 2006, @06:11PM (#14573963)
    Every time an RIM story gets posted here, all we hear about is how evil NTP is, how its patents are going to be invalidated, how the patent system is evil, etc.

    What's missed here is that NTP was formed largely because RIM was a first-rate jackass company.

    Among NTP's primary shareholders are the actual inventors of the patents. Or perhaps I should say "were", as one of them recently died: RIM kept this bottled up in court that long. These inventors produced actual products at early computer tradeshows which ran email over a sophisticated wireless protocol to a PDA-like device. Sound familiar? The earliest such patents were filed in 1994 based on inventions several years earlier. Let's put this into context: the earliest Newton was in 1993, and the earliest similar device I am aware of was a PCMCIA pager card that could be put into the Newton circa 1995, enabling it to receive (but not send) messages over a pager network. This combination of technologies was both novel and original, and the inventors didn't just make them up to sell patents. But their company foundered.

    Then came along RIM. RIM started selling the Blackberry and then started suing the daylights out of its competitors. Surely you remember this. RIM's nickname on The Register was "Lawsuits In Motion". When the original patent holders got wind of what RIM was selling, they realized it was largely a duplication of their patent. And so they contacted RIM and told them they were infringing. That's when RIM refused to return their calls. For a year.

    This is not how ordinary companies operate. If someone owns a valid patent on your work, you don't refuse to even talk to them. So NTP was formed basically to force RIM to actually talk.

    Legal battle ensues, and out come the slashdotters. NTP's patents are invalid and are getting all knocked down (um, the lynchpin ones are not). NTP is just a holding company to go after people (um, NTP was made to financially enable the original inventors to go after a specific company which was flagrantly violating their patent). Patents are evil (um, you know why patents exist, right? You're familiar with the evil that was the Trade Guild? No, I'm not talking about Star Wars).

    RIM was repeatedly reprimanded in court by the judge for all sorts of obnoxious actions. And to top it off, RIM went to congress to ask them to override the judge because they'd given free blackberries to congress, and now wanted to claim that shutting RIM down would put the nation's security in jeopardy. I am not pulling your leg. Only Jack Abramoff could pull off a lobbying stunt more inappropriate.

    And now the courts have sided ... against the slashdotters! How could the Supremes have not been reading the /. comment stream? What were they thinking?

    Short answer: RIM is a nasty, obnoxious company which violated patents and sued people's pants off for things they didn't own. They got what they deserve. Too bad one of the original inventors didn't live long enough to see a dime from them.

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