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The Real Reason for Microsoft's TomTom Lawsuit
March 05, 2009
Posted by: Glyn Moody
A couple of weeks ago I wrote about Microsoft's suit against TomTom, which alleged infringement of eight of its patents - including three that relate to TomTom's implementation of the Linux kernel.
I wrote there that this seemed part of a larger attack on Linux, and not just one on TomTom, as Microsoft nonetheless insisted.
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This called forth a fair amount of disagreement, so I was glad to come across this post on Harald Welte's blog:
[MS] claim that this lawsuit has no relation whatsoever to Linux, and they're only targeting TomTom's specific implementation of Linux. I have actually reviewed the TomTom kernel sources a number of times during the last couple of years as part of gpl-compliance reviews. I can tell you, there is nothing "TomTom specific" in their FAT FS code. It is the plain fat/msdos/vfat file system like in every kernel.org kernel.
That seems pretty definitive. The question now is what Microsoft hopes to achieve by bringing this lawsuit. A fascinating explanation is provided as a comment to my original post from Jeremy Allison. He's one of the leaders of the Samba project, and knows more than most about how Microsoft thinks and operates, since he's been heavily involved in the EU's efforts to get interoperability information from the company. Here's what he wrote:
What people are missing about this is the either/or choice that Microsoft is giving Tom Tom.
It isn't a case of cross-license and everything is ok. If Tom Tom or any other company cross licenses patents then by section 7 of GPLv2 (for the Linux kernel) they lose the rights to redistribute the kernel *at all*.
Microsoft has been going around and doing these patent cross licensing deals with companies under NDA's so they never come to light for *years*.
That was the whole point of the Novell deal - Microsoft lawyers finally thought they'd found a way to *publicly* do these cross licensing deals and get around the GPLv2, but the GPLv3 put paid to that.
Tom Tom are the first company to publicly refuse to engage in this ugly little protection racket, and so they got sued. Had Tom Tom silently agreed to violate the GPL, as so many others have, then we'd only hear about a vague "patent cross licensing deal" just like the ones Microsoft announces with other companies.
Make no mistake, this is intended to force Tom Tom to violate the GPL, or change to Microsoft embedded software.
So it turns out that the TomTom lawsuit goes to the heart of Microsoft's attacks on Linux, and its effort to stop people using it in embedded systems – an increasingly popular option, and one, therefore, that is increasingly problematic for Microsoft.
For more open source links, follow Glyn Moody on Twitter at @glynmoody.
Update: Steven J. Vaughan-Nichols has corroboration of this analysis from no less a person than Horacio Gutierrez, Microsoft's "corporate vice president and deputy general counsel of intellectual property and licensing".
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Comments received
Frank Earl said on Thursday, 05 March 2009
The reasoning Jeremy indicated is probably the one. The rub with this play is that every one of the (6, I believe, from the reading, not 8...) patents fielded are invalid per the Bilski ruling. Unless someone sells the US Supreme Court on reversing that, they're about to LOSE those patents- all one has to do is challenge on Bilski grounds and if the Court accepts, there's little MS can do at that point. They lose.
Matt Asay said on Thursday, 05 March 2009
It's a good analysis, but I think Jeremy overestimates TomTom's importance to Microsoft and the value of it being the "first company to publicly refuse to engage in this ugly little protection racket." The refusal I can buy, but I'm not going to give TomTom credit for being a hero. It's not as if it has done much for open source...at all.
Ian Jones said on Thursday, 05 March 2009
All you have to do?
It is all about FUD. Who has got the pockets to take on Microsoft in a patent battle?
rich said on Thursday, 05 March 2009
What I understand from this is that, by not agreeing to Microsoft's little games and not complying with the GPL, Microsoft competitors can be eliminated by having the GPL enforcers do it on Microsoft's behalf. Shrewd and twisted. I guess it's one more motivation for businesses to comply with the GPL license.
Frank Earl said on Thursday, 05 March 2009
Re Ian Jones: Yeah, that's really all one has to do here. It wouldn't cost a lot of cash to do it. It's a single motion filed for Summary Judgement, indicating that they have no case as the patents are invalid due to the Bilski decision. If the Court accepts the theory (which is actually likely at this point...) then the case stops and the USPTO gets to determine if the patents are invalid using the _NARROW_ guidelines from the Bilski decision. If they fail to meet those guidelines the case largely ends at that point. No major cash involved whatsoever. Who's spreading FUD now?
brian bulkowski said on Thursday, 05 March 2009
I don't get your analysis.
Patent isn't covered under GPL 2, so agreeing that a section of the kernel is under MS patent doesn't seem to cause any difficulty.
The kernel is clearly still under GPL 2.1. I went and looked at my kernel source, and there's lots of "2.1 or later" all over the place. 3 is incompatible with 2, so "2.1 or later" means 3. As you point out, only 3 says anything about patents, but I haven't read it carefully because I don't use any GPL 3 code that I'm aware of.
I suspect there's an arm of microsoft out there trolling for its patent money - a legal and reasonable action. They'd rather fight this one with a small, non-US enemy. If the patents are ruled invalid, then so be it.
It's going to be really hard, at this point, to push embedded developers over to WinCE - WinCE is nearly a dead letter.
Glyn Moody said on Thursday, 05 March 2009
@brian: I can't claim credit for the analysis, which is Jeremy's. As one of the leaders of the Samba project, he spends a lot of time looking at GPL licences, so I suspect his analysis is correct, but IANAL.
samwyse said on Thursday, 05 March 2009
@brian bulkowski: GPLv2 quite clearly *does* cover patents. Allow me to quote:
If, as a consequence of a court judgment or allegation of patent
infringement or for any other reason (not limited to patent issues),
conditions are imposed on you (whether by court order, agreement or
otherwise) that contradict the conditions of this License, they do not
excuse you from the conditions of this License. If you cannot
distribute so as to satisfy simultaneously your obligations under this
License and any other pertinent obligations, then as a consequence you
may not distribute the Program at all.
anonymous coward said on Thursday, 05 March 2009
@Brian
Please check your facts before BS'ing.
Patent _is_ covered by by GPLv2.
See section 7, just like Jeremy said:
http://www.gnu.org/licenses/old-licenses/gpl-2.0.html#section7
John said on Thursday, 05 March 2009
So why isn't MS being sued for restraint of trade?
Wanderley said on Thursday, 05 March 2009
There is an either/or for TomTom: stop using FAT. I know it's painful remedy, but better than obliteration or capitulation. In fact, I wonder how long it will take for the CE industry to realize they're better off without FAT in their stupid memory cards anyway. Linux itself can survive without FAT as well (until those patents get invalidated or expire).
Adrian said on Thursday, 05 March 2009
Tomtom aren't that dependent on FAT anyway. It's a convenience for users to be able to maintain the devices by accessing the filesystem directly, but the main suppported access is via their 'tomtom home' application which installs maps, music etc. No paid-for functionality would be lost by dropping FAT, just the convenience of using an open system (in the sense that no special tools are needed to make small changes).
anonymous coward said on Thursday, 05 March 2009
Time for hardware vendors to start shipping some ext2 driver in the flash keyrings...
Robert Pogson said on Thursday, 05 March 2009
Isn't inducing a company to violate a licence illegal? The GPL is about copyright so this is an inducement to violate copyright.
Glyn Moody said on Thursday, 05 March 2009
@Robert: this is where we need some lawyers. I've heard that the Software Freedom Law Center might be getting involved....
Ummmm...... said on Thursday, 05 March 2009
What companies have "agreed to violate the GPL" as you suggest? Names or it didn't happen. There's a reason lawyers argue the law and bloggers are only bloggers.
Tom Buckner said on Friday, 06 March 2009
Let's all take a moment to remember that Microsoft was in serious antitrust jeopardy (concerning web browsers) when the Republican majority on the Supreme Court intervened to make George W. Bush president. The antitrust case, years in the making, fell dead as he took the oath of office. Microsoft was then free to pursue other predations.
Just another in the thousands of corporations having too much power to be good citizens in this democracy.
Donny Viszneki said on Friday, 06 March 2009
Quite a few people seem to be taking seriously the possibility that [partially] dropping FAT support is a reasonable way out. Can we as a community really let Microsoft win this fight? I don't like the precedent that would set. I don't want to lose *any* kind of FAT support on my OS.
Fran Taylor said on Friday, 06 March 2009
Matt Asay, TomTom's technology and products and their relative strengths and weaknesses have nothing to do with it. In fact their weakness is their undoing. This is a move by Microsoft to assert their power and to establish precedent. They intentionally chose a weak prey, knowing that it will be easier to get the desired result in court, or even out-of-court.
bob dagit said on Friday, 06 March 2009
this is not a good question,
Wesley Parish said on Friday, 06 March 2009
I would say one way of pulling Microsoft's teeth would be for the various FOSS projects to state that while this sort of nonsense is going on, and thus all FOSS developers are under threat, all FOSS projects consider themselves under threat from Microsoft and will not port to Microsoft - unless Microsoft proves its good intentions by releasing majorly significant MS "IP" - ie, the Windows source trees, the MS Office source trees, etc, under the GPL v3.
I can't think of any other way to break Microsoft's teeth.
Anyway, has anybody from "The Relevant FOSS legal muscle" got in touch with TomTom?
zato said on Friday, 06 March 2009
ugly vast protection racket describes Microsoft, as I see it.
me said on Friday, 06 March 2009
Have you guys looked at it from a different angle: The TomTom share is down down down and if it goes even more down, MS could easily buy TomTom. They might not be interested in TomTom itself, but in TeleAtlas, which was acquired by TT last year and is one of only two map makers for navigation systems in the world. Maps are everywhere right now and they could be an interesting asset for MS portfolio. Just some thoughts...
Glyn Moody said on Friday, 06 March 2009
@me an interesting angle, but I don't think they'd go to the trouble of suing in this case - especially with the GPL stuff in the background
Geo said on Friday, 06 March 2009
let's set up a lawsuit donation fund to give tom tom money to defend this whole racket and shed light on it in court. Seems they could defend it as a defense against racketteering since microsoft forcing someone to violate copyright law by distributing linux while violating GPL would in itself be criminal right?
Peter Tobin said on Friday, 06 March 2009
The reality is that just about every company in the industry is
using a mix of open and proprietary software. To the extent that anyone is doing patent agreements, by implication these agreements must provide ways for these companies to use one another’s patents whether in proprietary or OSS code. So what are people suggesting – that every company publish every patent agreement they sign? That all these patents agreements are violations of the GPL?
Franky said on Saturday, 07 March 2009
TomTom is not a small company. They have a very proftable business (http://investors.tomtom.com/overview.cfm?Language=1). If you have profitable commercial business that uses Linux as a basis, Microsoft will come after you with its parents. You can absolutely never escape that. If you are free and open source, or a company with niche market, you are safe.
Mike Sax said on Saturday, 07 March 2009
I'm surprised a reputable publication like ComputerWorld would publish a conspiracy theory like this. The core argument, that by licensing a patent TomTom would be prohibited from distributing GPL software makes no sense at all. How is it that the IBMs and Suns of the world license patents AND distribute Linux all the time? Are they part of the companies that have, according to Jeremy Allison, have "silently agreed to violate the GPL"? Are they part of this big conspiracy?
Jeremy Allison said on Sunday, 08 March 2009
Mike Sax wrote:
> How is it that the IBMs and Suns of the world
> license patents AND distribute Linux all the
> time?
Because the patent licensing agreements that IBM and HP have with Microsoft (don't know about Sun) explicitly exclude Open Source/Free software. Their legal people are very sophisticated about Open Source/Free software licensing. It is possible that the other companies who have done patent deals under NDA with Microsoft also exclude Open Source/Free software as well but I doubt it.
Jeremy.
Paul Wayper said on Friday, 13 March 2009
I've seen one analysis - http://www.businessinsider.com/why-microsoft-should-settle-the-tomtom-linux-patent-lawsuit-at-any-price-2009-2 - that says that it's in Microsoft's best interest to settle this, and notes that Microsoft has been keen to include in all its press releases on the lawsuit that it's keen to reach a settlement (with the implication that they've been 'forced' into litigation by TomTom's 'refusal' to agree to their demands).
The article is somewhat Microsoft friendly, likening Linux to a religion rather than a serious competitor. But I agree with its conclusion, because Microsoft's patents will be judged much more harshly in the light of the Bilski decision. In all probability they will be thrown out; and then all the other companies that Microsoft has done the 'license and stifle' deal with will be back on the air...
Tel said on Saturday, 14 March 2009
I think you guys are wrong about Tom Tom not being able to legally license VFAT from Microsoft. All they have to do is make a public statement that they do not admit any guilt, and they do not believe that any patent violation occurred. Then they are merely paying license fees as an out-of-court settlement because they wish to save money on a court case that they can't afford to fight.
Nothing in the GPLv2 prevents this.
If any kernel developers come after Tom Tom over GPL violation, the Tom Tom reply will be that no patent infringement exists and that settlements are just a cost of doing business. The kernel developers would have to go out and prove that patent violation does exist which would be a rather silly thing to do.
izzitme101 said on Monday, 23 March 2009
@tel
you do realise your advocating and encouraging extortion by taking that route?
Say you need to make sure your comments dont disappear, pay me 100 dollars and ill make sure it stays!
sophie said on Tuesday, 12 January 2010
let the courts decide.