The Macalope Weekly: C:\NGRTLNS.W8

[Editors’ Note: Each week the Macalope skewers the worst of the week’s coverage of Apple and other technology companies. In addition to being a mythical beast, the Macalope is not an employee of Macworld. As a result, the Macalope is always free to criticize any media organization. Even ours.]

Lodsys, the pluckiest little company in the patent trolling business, doubled down this week. The Macalope doesn't know if they're holding the cards or not, but he's got the mature reaction: name-calling. Meanwhile Microsoft opens a kimono and you'll be glad to know it's not Steve Ballmer's.

A cup of sorrows

Hey, turns out there is something we can agree on with Lodsys.

For many people, it is easier to call Lodsys and other rights holders names for trying to be compensated for their rights, within a system that is established and known, than it is to consider one’s own responsibility, or the promises and motivations of the platform provider.

It sure is easier! Particularly seeing as how you’re being such jerks! And, if the Macalope may say so, a bunch of gigantic babies.

See? That just rolled right off the Macalope’s tongue. Turns out it’s not only easy, but also very cathartic, too.

Read more...

To be clear, while the Macalope is fine with name-calling in this situation, he is categorically not recommending any kind of name-calling campaign against Lodsys. He completely agrees with Florian Mueller that that would be counterproductive. But if individuals want to name call? More power to you. The horny ones doesn’t get why Lodsys is even bothering to pretend it has the moral high ground. No one but a lawyer is going to applaud for the company.

Well, maybe a mime. They’re the only other creature on Earth that’s jealous of the accomplishments of real humans. But a mime, of course, would only applaud silently.

Of course, Lodsys is right that most of us are not lawyers, so we really don’t have two legal feet to stand on when talking about this case. But while we may not know the law, we know what we like—and it sure as heck isn’t Lodsys’s “business model,” which seems indistinguishable from the feeding habits of a lamprey. And to be fair to the lamprey, it’s just doing what nature built it to do.

The Macalope is going to take small exception to his editor (and kindly point him to the “even ours” part of the disclaimer at the top) who says:

Lodsys seems pretty sure of its position however. The company has promised that it will pay $1000 to any developer that it has accused of infringement if it is determined that Apple’s license covers third-party developers.

If the company were really sure of its position, it would have sued big-time developers, not the seven small shops it’s picking on. After all, that’s where the money is, right? Seems more to the Macalope like Lodsys is picking on the little guys in the hopes that Apple will step in and throw it some more cash for sitting on its butt and doing nothing. (To be fair, those holier-than-thou blog posts don’t write themselves.) A $7000 bet with a potential upside in the millions? That’s not much of a risk.

While the system may be “established and known,” that doesn’t mean it doesn’t suck. It’s not protecting the people it should be protecting: the people who are creating value.

How can the Macalope state that without legal footing? Because, having read Lodsys’s crappy patent, he can tell you categorically that no one at Apple or The Iconfactory or anywhere else got the idea for in-app purchases from reading it. So, once we’ve dispensed with the idea that something has been directly stolen from Lodsys, we’re left with the concept that it should be able to purchase loosely-defined ideas and then hold them for ransom, with no intention of ever using them itself. This is not “intellectual property,” it’s intellectual hostage-taking.

Lodsys has even brought Marco Arment and Fred Wilson—who don’t always see eye to eye—to agreeing that software patents should be abolished. Indeed, it’s stuff like this that makes one nostalgic for the Swiss industrialists of 1884 (PDF) who suggested to their government:

“[t]hat in the interest of the general prosperity of industry and trade, patent protection, that cup of sorrows, may pass from [us].”

Well said, dead Swiss guys. At the time, the Swiss system said you could only patent things that could be represented by working mechanical models. Of course, as the linked paper indicates, this didn’t work so well when trying to patent chemicals. Still, the Macalope thinks that some kind of practical implementation should be required, because it’s galling to have companies that do nothing other than litigate sit around and collect money from people who actually produce things.

To paraphrase Steve Jobs: “By the way, what have you done that’s so great? Do you create anything or just sue others who do?”

We already know the answer to that.

So, guess what, Lodsys? Even if what you do is legal, even if you’re eventually proved right within the law, we still don’t have to like you, or your business model of profiting from a flawed system. We don’t even have to be polite to you. Because however this legal battle ends up, the Macalope knows one thing: the right to call you names is constitutionally protected, just as it should be.

If you can’t take the heat, you could always drop the suits.

Saying "no"

Now, another in a continuing series of Macalope disclaimers (the Macalope’s promise to you is that no article will be printed until it’s thoroughly disclaimed): The title of this piece is a joke. We’re dismissive Apple fans. Jabbing Windows is just a thing we have to do, whether it’s right or wrong. (But, if it’s wrong, why does it feel so right?) No praise comes without a "but," no compliment is given that isn't backhanded. It's all good fun.

Well, now that Apple's on top, anyway.

Anyway, Microsoft gave a first look at Windows 8 the other day, its first kind-of-tablet-optimized-plays-for-sure version of Windows. While some of it does look snazzy, the Macalope agrees with John Gruber and Jason Snell about its shortcomings (there’s a shocker). The skin of Windows 8’s tablet experience looks terrific. It’s in declining to rethink the app experience where it fails.

Snell:

The company that spent a decade trying to push Windows tablets on a market that just didn’t want them is still convinced that it’s a selling point that Windows 8 tablets will run Microsoft Excel for Windows and if you hook up a keyboard and mouse to them, you can get an arrow cursor and click to your heart’s content.

Awesome! Well, not so awesome that Microsoft’s going to show how well that interaction goes in its demo video. Excel is launched and the file open dialog is shown, but the user declines to try to actually use the application, because that would require either tapping those little menu-bar icons or hauling out a mouse. You’ll probably be using your tablet someplace where there’s a flat surface, anyway, right? Well, you will if you use a Windows 8-based tablet.

Surface?

Slate?

Sheesh, what kind of company goes through so many names for the same thing?

But while it would be so easy to just write Microsoft off as a completely clueless company that’s just living off its former glory, the fact is that there’s some very interesting work going on at Microsoft.

It’s true. It’s just the CEO who’s clueless and living off the company’s former glory.

It just seems to be stuck inside a company that can’t let go of the past in order to embrace its own promising future.

And this is the problem with Microsoft’s success, or at least how the company chooses to deal with its success. Except for a couple of isolated examples, it doesn’t know how to turn the aircraft carrier. That’s why some investors are calling for the sweaty head of Steve Ballmer.

One the latest edition of the Talk Show, John Gruber noted that the right way to play the game is to be the one to replace your own products. If you sit on something too long, you run the risk that someone else is going to do the job for you. Microsoft tried to do it right with Windows Phone 7, it just got a late start.

The company often seems to have a problem telling people “no”—an issue that Apple has never had. Apple tells lots of people “no.” No, you’re not getting a floppy drive. No, you’re not getting a physical keyboard on our cell phone. No, we’re not crapping up our mobile devices with Flash. No, for that last time, we’re not porting HyperCard to OS X, it’s been 11 years, will you just drop it already, UGH, JEEZ?!

If you want a ride to the future, there are two ways to get there. One is to catch a ride in the race car Apple’s driving and accept the fact that, for the pleasure of a nice ride, you’re going to have to pay the tolls along the road. Otherwise, you can catch the Microsoft bus. They don’t make you pay the tolls but the bus stops everywhere.

It’ll be interesting to see if any silly pundits bite on this being an “iPad killer.” The Macalope suspects those people have now been burned too many times, but you never know. Dumb springs eternal. The Macalope’s so old he remembers being told Windows Mobile 7 would totally destroy the iPhone. Of course that was only three years ago, but he is at least that old.

And that was not Windows Phone 7, mind you, but Windows Mobile 7. Which never shipped. That Windows Mobile 7. Admittedly, it’s hard to keep track with the horrible names that Microsoft uses.

The Macalope actually does wish Windows Phone 7 success (well, within reason, anyway), because it’s original and a complete rethinking of what they were doing before. It’s good for Microsoft and it’s good for the market. As it stands, though, he can’t completely say that about Windows 8.

It's not just Windows H8

While he doesn't claim it's going to be an iPad killer, Time's Jared Newman does take exception to both Gruber and Snell's analysis. Gruber's already deconstructed Newman's argument which, when you strip out the trite misrepresentations of what Gruber and Snell said, is this:

What Microsoft demonstrated on Wednesday is exactly what I want in a computer -- a lightweight tablet UI that's meant for casual computing and a powerful, classic Windows that allows me to work.

The problem with Newman's argument is that the part Gruber, Snell, and the Macalope are suggesting isn't going to work is the part that Microsoft has already tried and failed with. If people are dying to run full versions of applications on tablets, why haven't they been doing that for years? Answer: Because the user experience is like trying to put on a production of Riverdance in an airplane bathroom.

Despite evidence to the contrary, Microsoft and Newman still seem to think that not only can you get 18 clowns into a Mini Cooper, you can do that and still get a nice ride. We don't buy that. Not because, as Newman says, we're disdainful Apple enthusiasts—sometimes we are, but, in our defense, there's a lot to be disdainful of—but rather because we're observers of history.

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