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Eolas Fallout

October 06, 2003

Ethan Marcotte has an excellent summary of the technical information now available from the major parties affected by the recent Eolas ruling.

He points out that Microsoft, Apple, Real Networks, and Macromedia have all published information on the changes, and Microsoft has gone so far as to release a special preview version of the changed Internet Explorer and publish screenshots of how the new system works.

I guess the bright side is that work-arounds were created to keep the experience transparent to the end user. But a quick read through the steps involved confirms what you knew from the day the ruling was announced: the end result makes things worse. And I really have to question how a couple of extra hoops to jump through can satisfy any patent issues when the net result is identical to the so-called infringement.

Looks like any optimism in this previous conjecture was premature. Well done, Eolas. Well done, Verisign. Well done, everyone else doing to the web what spammers are doing to e-mail. Society thanks you.

Reader Comments

s t e f says:
October 06, 11h

So this is official, then.

No more plugins for the newer versions of IE (namely, if I understood correctly, after next Christmas).

Oh the mess it’s going to create on the web as we’ve known it so far. How many websites are going to stop working altogether for those people using the newest IE, I wonder.

Normal people never complain about the browser not rendering the website – some (most?) of them don’t even know what a browser is. They’ll understand the web as a particularly ill-developed technology, won’t they?

(yeah, right, I know I’m sounding pessimistic)

Matt says:
October 07, 01h

Michael, I had the thought at first that the patent could be used for CSS, server-side includes, and all that fun stuff, but I don’t think that is the case.

Throughout the patent, the wording mentions “applications” and “programs” as the objects which Eolas is referencing with its embedded technology. You’d have to make the argument that HTML or CSS are programs before the patent could apply.

I could be totally wrong on this (wouldn’t be surprising), but that’s what I’m getting from reading through the patent.

pid says:
October 07, 01h


No rich media online? At all?
Doesn’t ring true to me.

Even Microsoft can be planning that. Either they have a solution already, or they’ve thought of an acceptable one.
A SQL based filing system, with rights management and a web services enabled architecture - now with no rich media?

Or is it no ‘web browser’?


It’s been conventional wisdom for years that it’s a bad idea to make people jump through hoops before accessing content, MS can’t want to rewrite that rule.

We’d be better off writing an Apache module (at least *that’s* still the market leader) that standardises and simplifies the ability to spot a non-compliant browser and deliver different content.

(And yes, I can do it already, but not everyone can, or has access to the conf…)

October 07, 03h

Karl - Yes, but a) consider that embedded media is 90% inaccessible anyway. (number pulled out of the air).

Nope, that’s not true. How do you with the alternative text part with a cascading object. The fact that a vocal browser can access to the content of the final accessible version of the object element.

See the spec.


Use “alt” for the IMG, INPUT, and APPLET elements, or provide a text equivalent in the content of the OBJECT and APPLET elements.

Which is also the case for javascripts. Many vocal browsers, etc doesn’t javascript, or braille readers, but they were able to handle the accessibility features of these elements. You are missing a point here.

The fact also that the pages might become contradictory to the section 508 or Accessibility validity (which maybe a good thing) because it may require a technique that will be against what US laws were encouraging.

The solutions which are given are far to be enough and they do not recommend any accessible ways of using them.

Dave S. says:
October 07, 03h

Karl, I was more referring to the content than the technology. Alt tags and even descriptive text don’t do much to describe some of the current usage of Flash and video. I’m not really sure what a Javascript or proprietary tag hack have to do with this though.

WCAG suggests making sure that a page degrades gracefully when a script can’t run. In this case, the difference between providing a text description of the media via <noscript> and adding an “alt” to the object itself is inconsequential, I’d think. None of this violates Section 508, it just makes the author work a bit harder.

October 07, 05h

“So this is official, then. No more plugins for the newer versions of IE (namely, if I understood correctly, after next Christmas).”

I’d recommend going back to source documents. (IE/Win actually disabled Netscape Plugins a few years ago, for instance, although it will often invoke an appropriate ActiveX Control from a mere EMBED tag.) ActiveX Controls will still be available in that upcoming version.

“No rich media online? At all? Doesnít ring true to me.” You are correct, that would be an incorrect understanding. Source info has more.

“itís a bad idea to make people jump through hoops before accessing content, MS canít want to rewrite that rule.” That’s likely true… MS browser changes are to minimize their legal vulnerability. There’s a way to make visitors in that future browser have the same experience as currently, though, as detailed in the original source documents.


October 07, 06h

How is either workaround—especially MS’ NOEXTERNALDATA attribute—a legally acceptable solution? Both simply provide a backdoor to continue violating whatever claim Eolas has to plug-in technology. Is it just an attempt to lay the blame on developers who utilize the new attribute, the old “I sold him the gun but I didn’t shoot the victim, therefore I can’t be held responsible” act? …

October 07, 06h

And the proposed methods are……. innaccessible. It’s very bad in fact.

People with disabilities will have no access anymore to the content.

bryce says:
October 07, 06h

I agree with Shaun. How are the workarounds proposed by Apple and Macromedia any different from the original issue? It’s almost as if AT&T sued someone for trademark infrigement, and the workaround was just to start using the “completely different” ATT &amp; T and proceed as usual.


October 07, 07h

I’ve been thinking about this, trying to feel concerned about it. Frankly, I don’t think any of it matters. I’d be happy if Micro$oft made Internet Explorer give dotted 1px borders when specified and not dashed borders. And that box model thing could do with amending too. This other stuff is just a giant squirming. The world will carry on. Seamlessly embedded technologies aren’t so great anyway. Okay, if you’re the kind of web designer who relies on a lot of embedded content then it’ll be a problem for you for a while, but the world will carry on. The web is not being destroyed, it is simply facing an evolutionary challenge, that’s all. I prefer to think maybe the dinosaurs won’t survive it. And afterwards the web will have a sharper edge to it.

Dave S. says:
October 07, 07h

Shaun - exactly. The changes shift the blame from browser manufacturer to content developer. Either this is a convenient loophole for them, or it’s a solution that’s legally inept. We’ll see.

Karl - Yes, but a) consider that embedded media is 90% inaccessible anyway. (number pulled out of the air). And b) that 11% who browse with javascript off will shrink as a result of this. The inaccessibility problems will have to be resolved so that your statement is no longer true. This isn’t going away.

Matt says:
October 07, 07h

Regarding the legality of the new method…read this quote from the W3C:

“The patent claims to cover mechanisms for embedding objects within distributed hypermedia documents, where at least some of the object’s data is located external to the document, and there is a control path to the object’s implementation to support user interaction with the object.”

The MS noexternaldata attribute is a clear workaround for the second clause of the quote above. What I’m still a little fuzzy on is how the user prompt dances around the patent. My best guess is that a user prompt signifies that the user has in fact requested the external data, instead of it being embedded within the page itself.

Chris Cooper says:
October 07, 10h

This may not be the appropriate place, but I need some things clarified about this matter. If there is an appropriate forum to discuss this, I would appreciate the URL. Thanks.

It was my understanding that a patent covers singularly invented methods of acheiving certain results. There are lots of different patents that do that same thing in different ways. On EOLAS’s web site, it says that this technology was first demonstrated back in 1993. Were the methods of embedding media that are used now even around back then? I’ve been on the web since late 1994, and I don’t remember them being around then. And if OBJECT and EMBED are the targets of the EOLAS case against Microsoft, shouldn’t the standards body that created those tags be held liable for implementing them in the HTML specification before Microsoft should be held liable for implementing the HTML rendering engine?

So did this guy patent a technology, or just an idea for a technology? This is like saying that the guy who invented the toaster could sue someone else for using a different method of making toast and win on the claim that he invented the idea of making toast.

I might just be naive, but from what I can see this whole thing is a load of crap, and I think we are all giving EOLAS too much consideration for even calling “them” that. It’s one guy named Mike for goodness sake, and he’s becoming a major pain in our bum bums and getting rich off of it to boot, all behind the facade of some heroic quest against Microsoft. Besides, any moron can see that embedded web technologies have been around for quite a few years in all browsers and it should have been immediately apparent that the patent was broken the first time embedded media was used. You know this guy has been enjoying embedded web media all along also, probably using MSIE as his primary browser. IMO we could all take a lesson from children right now. If this happened to third graders, EOLAS would have been told to go climb a tree because they waited too long to say anything.

When does plain old human commen sense get to play a role?

G. I. says:
October 07, 11h

I used to embed Flash objects with MM’s Javascript detector code anyway and it seems to be OK by the new rules. So what’s the problem, do I miss something?

Michael Havard says:
October 07, 12h

Patents by definition should be very specific about implementation. This keeps (or should keep) the overly broad patents from bleeding companies dry. This does leave loopholes for people to go slightly around the patent by provided a slightly different path to the same solution.

So there are two arguments: One says that the work around is dirty pool because it subverts the patent holders hard work, the other says that if the work around gets to the same place just as easily is the original invention so earth shattering as to deserve a patent.

Essentially what EOLAS has patented is embedding one document inside of another seamlessly (i.e. no user prompt). So it could be used in a very broad sense to include not only plugins (although the plugin ‘idea’ is the main focus), but also css, iframe content, images, and other included documents. The work around just nullifies the ‘seamless’ part of the patent. EOLAS doesn’t own the patent on embedding documents it owns the patent on embeding documents SEAMLESSLY. So MS et al find a mechanism for making it not so seamless because there’s a prompt but then also find a way to automate the prompt so that the system retains it’s usefullness to the user.

Again it could be seen as bad to subvert the IP of the patent holder but then again the patent is so flimsy that it’s begging to be worked around (over). At this point I think it’s also a means of civil disobedience. So many people are sitting here shaking their heads as to how this could happen and how far reaching it is (i.e. it doesn’t just effect MSIE) and where to go from here, especially those companies that this challenges their whole business model and profit margin.

Matt says:
October 07, 12h

I think the issue is whether or not the new rules are legal. And if they aren’t, whether or not Eolas feels like making another challenge after they hit their financial windfall.

I’m curious to see if the dialog box will be enough. The patent reads “…wherein said embed text format is parsed by said browser to automatically invoke said executable application…” The argument is that displaying the dialog box means that the content is no longer automatically loaded. It is a tight squeeze.

October 07, 12h

heck…eolas invented the “e” sign that looks like the @ sign…i bow down in front of such creative design genius…
i’m afraid of flushing my toilet now, lest eolas invented that one as well…

Anonymous says:
October 08, 03h

Don’t suppose that Microsoft could’ve taken advantage of the fact that they need to update IE by also fixing the various standards-compliancy issues too? For example: better CSS1/2 support maybe? Proper XHTML standards-compliant rendering mode (with the XML header and in application/xhtml+xml format) maybe? One can only dream…

Michael Havard says:
October 08, 04h

Well now it’s 520million + 111 million interest + additional charges from 2001-current. And they’re asking the court to enjoin MS from distributing the browser, which I’m sure includes stopping them from shipping out the “workaround”.

Oh but of course this could all be stopped my MS simply paying the paltry sum of 630+ million dollars and obtaining the official EOLAS seamless content plugin license. Then for a nominal fee MS would be allowed to continue to use said technology for another 4-7 years (I can’t remember if it’s 14 or 17 years for their patent). Damn why is Microsoft being so stubborn about his, I mean it’s maybe only three quarters of a billion dollars, they can spare that, right? Chump change!

I want to know how much the government gets in return for these patents that come out of the Universities. I know there’s obviously a payoff for the companies that fund the initial research and for the universities gaining income and the students getting employment and signing bonuses, but what does the government get. The government does spend tax dollars on grants/loans, provides at least some of the universities with operating cash and resources. What does the government get in return when these companies/universities benefit from a patent windfall. Taxes? What about ROI?

Maybe in the long run EOLAS patent is inconsequential. Unfortunately it points out a significant amount of flaws in our patent system, with the courts, and with our colleges. I don’t like it a bit.

October 08, 04h

Shouldn’t we be glad someone is doing something to stop the distribution of that broken browser IE6? That browser we as web designers have complained about incessantly for screwing up our CSS layouts?

Perhaps EOLAS will develop friendly relations with Mozilla. Perhaps Mozilla Firebird will find a way of playing Flash by directly building it in, by arrangement with Macromedia. Perhaps this is all very very good.

Personally I wish EOLAS good luck. Have they shown any signs of attacking any other organisation for patent infringement? Perhaps he will use some of the money to donate to a worthy cause, like Firebird. We are all being rather premature in denouncing the actions of EOLAS I feel.

Isn’t this a case of my enemy’s enemy is my friend? Let’s see, this could be the best thing to happen to the web in a long time, yet all I see is short-sighted grumbling by people not seeming to consider how it may pan out.

Michael Havard says:
October 08, 06h

Bah! I hate all that “the enemy of your enemy is your friend”. Firstly because I’ve never seen it to be true. Often the enemy of your enemy is just as big a piece of crap as your enemy is, it just so happens that you can use that crap to defeat your enemy. Plus it’s normally used to justify bad behavior on someones part. For example I don’t see either SUN or ORACLE or AOL as friend to anyone but their own pocket book, yet people have time and time again cheered on those companies bad behavior because that behavior was in some way detrimental to Microsoft.

It’s yet to be seen if EOLAS is friend to anyone. So far most of what’s come out of that camp is “we’re your friend, really, no come on we’re here to help” but when asked about licensing for all of those other groups that are “infringing” it’s “I’m sure that we can come to some agreement on terms” - nothing specific, nothing to say that they had thought about it in advance or that they had contacted anybody at all. No they’ve allowed the controversy to brew and bubble, allowed the W3 and the hordes of companies to scramble to show work arounds without a word of comfort or correction. Sorry it makes me a little suspicious of there intent.

As for IE, what I’d like to see is IE upgrade it’s compliance NOT IE no longer in the market place. I think Mozilla (et al) needs competition to make it stronger and right now there’s not much available in that arena (IE or not).

October 08, 06h

Mike Doyle has already stated that his license is royalty-free for non-commercial uses. That includes Mozilla.

What exactly is Doyle’s “bad behaviour” here? It’s all very well flinging around this accusation, but what has he done wrong? He is chasing Microsoft’s commercial exploitation of his patent. If Microsoft paid up what they owe for their theft, rather than trying to find loopholes to preserve their own monopoly, this debate would not be happening. But it strikes me most people have grasped the wrong end of the stick.

Microsoft obviously aren’t interested in plugin transparency for competing technologies, they’d rather have you use their own built-in technology, that’s the subtext here, and I think Doyle fully realises this. Yet intelligent people are slagging off Doyle, rather than Microsoft. Amazing. Proof that the internet dulls the senses.

Basically, I too would prefer IE to be upgraded to be truly standards-compliant. But until this EOLAS thing came along Microsoft showed little willingness to make any changes whatesoever to their browser, content to let it rot out there until 2006 and Longhorn comes along.

Doyle has made some good arguments here:,4149,1304252,00.asp

So what’s with all the “Bah humbug” and Doyle bashing eh?

Brian G says:
October 08, 06h

I swear, if the new implementation of this hack this takes one single MOMENT out of the time that I could be using to re-design, develop new products, fulfill client obligations, or even sleep, somebody’s gonna get their pants sued off them.

Ya hear that EOLAS and all you other lame-o “patent holders”? Put some of them bucks aside, because I’m comin’ for ya.

Somebody says:
October 08, 07h

As far as I know, Mosaic, the first GUI browser was developed in 1992/93. The EOLAS patent was filed on 10.17.1994. I would be led to believe that the patent was filed before embed and object got to be used in the browsers.

I am not defending EOLAS, hell no.

The issue I am trying to raise is that a person X comes up with a “technology” and files a patent. A couple of years later, this technology changes the world on its head. In this time, he gets the patent. Now, is this guy EVIL if he tries to fight for the rights to the technology he invented, which others (knowingly or without knowledge of his patent application) used and got famous. Now if he sues those others, and wins, and if the victory means that this “bleeding-edge technology” cannot be use, what do we do? Isn’t it this guys right to protect his own patent?

I am technically inadequate to make a personal judgement on EOLAS; my comments are therefore general about the patent rights issue, not specific to the EOLAS vs MS case. Should the courts be granting patents to an idea or a software? What if someone had patented the “idea” of an operating system?

Tom T says:
October 08, 07h

Interesting reading, thanks to someone at YH!:

Maybe MS’s legal dept will stand up and take notice? Seems to me that I do remember Lotus Notes being a very big deal which got strangled by the web.

MJH says:
October 08, 07h

What will happen with ESPN’s front page, where video content is already streamed to your computer? Did they get around the patent by issuing us an agreement (that we –oooh– clicked) to stream the content to our computer?

Tom T says:
October 08, 08h

So, I went and read that article you posted Joel…and unfortunately I think I can sum up Mr. Doyle’s position in one word: blackmail. His opinion? “Microsoft used our technology to dominate the marketplace, and so many Fortune 1000 companies have based their information systems on IE and ActiveX…and so since MS is refusing to pay up, those companies, instead of bitching and fearing the changes they’ll have to cope with should force MS into paying up.”

The reality, regardless of who or what or what kind of idealism is the current trend, is that economics drive pretty much everything, especially when it comes to technology. If I remember right (and it’s been a long time, so I could be wrong), Netscape was the first to be using plug-ins, and not MS. ActiveX appeared in what, IE4?

I’m sorry, but despite Mr. Doyle’s arguments justifying his actions as “freeing up the market from MS dominance”, all I see here is a man after a lot of money.

Dave S. says:
October 08, 09h

More fun:

Doyle’s now trying to legally bar Microsoft from distributing IE.

October 08, 10h

Isn’t the img tag supposed to be replaced with the object tag for use with images in the next XHTML specification? Wouldn’t the proposed changes to IE force pop-ups for any images marked up in this way?

Niket says:
October 09, 08h

An interesting quote from Doyle’s interview:

“We released our browser back in 1995 to the world free for non-commercial use, so that should be an indicator to people that the OPEN-SOURCE COMMUNITY SHOULDN’T HAVE ANYTHING TO FEAR FROM US. The extent that those products are used commercially by others or resold commercially, sure we expect to be talking to people who are making money through the use of that technology.”

The best thing that can come out of this is that all IE, NS, Opera and others fight for the space currently occupied by IE. We need competition, and that means we NEED IE for the web to keep improving in the future.

Djorgas Bilarvi says:
October 09, 11h

Go check his website. He just got granted a patent for the concept of extending linkable, clickable imagemaps to multimedia, which effectively means he’d own any markup tag or attribute supporting this concept, any extension to movie file formats supporting this concept, and any extension to players supporting this concept. There isn’t an actual software mechanism being patented, just the idea.

No, the best thing that could happen involves the Doyle brothers, their law firm, a welded-shut cage and Roy Horn’s tiger Montecore after being unfed for three days, but I’m applying for a patent on the details so anything you imagine based on these factors will have to be licensed from me.

October 10, 10h

You can read more about better solutions to the eolas problems here

If we’re lucky, Microsoft will listen up to the proposed changes outline in the article.

Dan Moran says:
October 23, 03h

Can anyone get the workarounds working with the latest service pack? I get the impression that they worked on the beta version but Microsoft have changed all that with the latest update. All the workaround sites give me the prompt which doesn’t inspire me with confidence.
I am trying to get a site working which relies on svg and pdf’s using the embed tags. I have changed the embed tag to be an object tag with no params and also created the tag using javascript. None work. If anyone can point me in the right direction there is a pint in it for them.

Dan Moran says:
October 23, 08h

Don’t panic, I got it working by uninstalling Windows Script Debugger. I claim the pint for myself.

November 10, 12h

Sorry about lack of English and misspellings…

We have set up a page to unite webdesigners and webmasters in a protest campaign against the annoying ‘Accept’ button.

We are not willing to do the job for MS (you should really look at Macromedias embed page, and find out how hard the job REALLY IS - the idea of a single line in a page as solution is not working at all), we are not willing to spend hundreds of hours again on a work, that has made Internet interesting, artistic and competetive but now doesn’t interest because of tactics and strange movements.

We do not accept IE changes. They will condemn millons of pages and Internet is also an historical archive that has to be defended.

We’ve set up a page in Spanish (sorry, but maybe this comment will encourage others to set up similar pages in other languages) to protest. So far, about 1400 webmasters and designers have signed in.

1400 is nothing, we know. It’s a drop in the desert. But that’s how raining starts. With just one, insignificant drop of water.

Make it rain.

Best wishes,

Miguel Furlock

(Non commercial site)