Lawyers Use Juror's Twitter Messages As Basis For Appeal

TomTom Caught Between Microsoft Rock And GPL Hard Place

from the divide-and-conquer dept

Wed, Mar 18th 2009 3:17am — Timothy Lee

Last month we covered Microsoft's patent infringement lawsuit against GPS device maker TomTom. As Mike noted, this is a pretty clear example of abusive patent litigation. The patents in question are so broad that it's virtually impossible to innovate in this space without first paying Microsoft for the privilege. Obviously, that prospect doesn't bother Microsoft's top patent lawyer very much, but it should be a serious concern for the rest of us. Since Mike wrote that post, another angle of the case has gotten a lot of attention from tech blogs: whether it's possible for TomTom to settle the lawsuit without running afoul of the GPL, the free software license that covers the Linux code that Microsoft claims infringes at least three of those patents.

A bit of background is helpful here. When the Free Software Foundation drafted version 2 of the GPL, it included a clause saying that if a vendor is forced to place restrictions on downstream redistribution of software covered by the GPL (due to a per-unit patent licensing agreement, for example), that vendor loses the right to distribute the software at all. This clause acts as a kind of mutual defense pact, because it prevents any firm in the free software community from making a separate peace with patent holders. A firm's only options are to either fight to invalidate the patent or stop using the software altogether. This clause of the GPL actually strengthens the hands of free software firms in their negotiations with patent holders. A company like Red Hat can credibly refuse to license patents by saying "we'd love to license your patent, but the GPL won't let us."

This creates a problem for a company like Microsoft that wants to extract licensing revenues from firms distributing GPLed software. Ordinarily, a patent holder sues in the hope that it will be able to get a quick settlement and a nice revenue stream from patent royalties. But the vendor of GPLed software can't settle. And if the patent holder wins the lawsuit, the defendant will be forced to stop distributing the software, depriving the patent holder of an ongoing revenue stream. Either way, the trial will generate a ton of bad publicity for the patent holder.

In a comment at the "Open..." blog, prominent Samba developer Jeremy Allison charged that Microsoft has tried to sidestep this agreement by basically forcing companies to sign patent licensing agreements that violate the GPL under the cover of non-disclosure agreements. Allison argues that TomTom got sued because it was the first company to refuse to participate in this fraud. It's important to note here that Allison can't prove the existence of these agreements, so we should take his claims with a grain of salt. But if these charges are ever conclusively proven, they would have explosive consequences. The Free Software Foundation would likely insist that such firms either cancel their agreements with Microsoft (likely triggering a patent lawsuit) or stop distributing GPLed software altogether (which could be a death sentence for a firm that relies on such software).

Regardless, TomTom is now stuck between a rock and a hard place. The GPL has left the firm with only two options. It must either fight Microsoft's patents to the death (literally) or it must settle with Microsoft and immediately stop distributing GPLed software. Given how deeply-entwined GPLed software apparently is in TomTom's products, that second option may be no option at all. So expect a long and bloody fight in the courts.

One likely result will be to create a serious PR problem for Microsoft. Some people might remember the infamous GIF patent wars of the 1990s. When Unisys tried to collect patent royalties on the GIF format, the Internet community responded by switching in droves to the PNG format. In the process, Unisys earned a ton of bad press and a terrible reputation among computer geeks who care about software freedom. Microsoft risks a similar fate if it pursues this litigation campaign against Linux. And given that Microsoft is in a business where innovation is king, it's probably not a good idea to become a pariah in a community that includes many of the world's most talented software engineers.

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Filed Under: contracts, gpl, open source, patents
Companies: microsoft, tomtom

22 Comments

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Lawrence D'Oliveiro, 18 Mar 2009 @ 3:40am

No “Likely” About It

One likely result will be to create a serious PR problem for Microsoft.

No “likely result” about it. Increasing numbers of people are already seeing this is a direct attack on Linux and Free software, regardless of Microsoft’s protestations to the contrary. The PR problems have already begun.
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Michael Kohne, 18 Mar 2009 @ 4:25am

Devil's advocate...
Can Microsoft actually make it any worse on itself with the free software folks? Realistically, they are ALREADY hated by anyone who really believes in free software, so is there a PR storm to be had here?

I have a question: Is it legal to do what Jeremy Allison has charged? Hide a license violating agreement behind NDAs on both sides? It seems to me that this is some sort of fraud. If that's so, then any lawyer that helped draft such a thing would be in deep shit with their bar for ethics violations, wouldn't they?

I'm asking because I don't know much about law, it just seems to me that deliberately violating a license and then hiding the fact has got to be a problem for someone.
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Bill, 18 Mar 2009 @ 5:08am

PNG, are you joking?
I only have one bone to pick with this article and that's with this: "the Internet community responded by switching in droves to the PNG format."

It's 2009, a decade past the nineties, and I remember the uproar, the calls to arms, and the png fanboys, but there's still not that much of a png following. I just did a search of my browser cache and gifs outnumber pngs by a factor of 10. This despite the "uproar" and all the advantages of png over gif.

Like it or not GPL supporters don't have numbers big enough to be more than the equivalent of flys buzzing around Microsoft's eyes. If Microsoft doesn't want something that bad they might annoy it enough for it to walk away. If it does though, it'll just ignore them.
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Anonymous Coward, 18 Mar 2009 @ 5:46am

Re: PNG, are you joking?
You must not work in graphic design or design websites. There are two image formats that are prevalent, GIF and PNG. GIF is slightly lighter but I know PNG is more common with websites created since 2000.

No need to reply arguing with me. Start checking out what file format the pics on your favorite websites are.
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Anonymous Coward, 18 Mar 2009 @ 5:53am

Unfortunatly I think bill has a point. Too many non tech savy poeple are just willing to throw there money at ms, because thats all they know.
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Joel Coehooorn, 18 Mar 2009 @ 5:57am

A little behind
I think you're a little behind the latest news on this one. It turns out that TomTom is able to get the needed licenses in this case without breaking the GPL, because there is a cap on the per-unit payments. Once they hit $250,000 they no longer need to keep paying for each unit, so for GPL purposes they can treat it like a one-time fee rather than per-unit.
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Anonymous Coward, 18 Mar 2009 @ 6:00am

Maybe 'Microsoft's top patent lawyer' is actually trying to scuttle Microsoft. :-)
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Mechwarrior, 18 Mar 2009 @ 6:01am

Re: A little behind
Can you elucidate how this affects adherence to the GPL contract?
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Joel Coehoorn, 18 Mar 2009 @ 6:06am

Re: A little behind
My source is here:
http://www.sdtimes.com/blog/post/2009/03/12/Microsofts-vanished-FAT-license-was-GPL-compatibl e.aspx

And it looks like the article was updated since I originally read it, but there's no explanation for why the opinion was changed.
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Anonymous Coward, 18 Mar 2009 @ 6:23am

Or TomTom could get the patent invalidated
The other option is to fight the patent. There are several questionable aspects of the patent. The question is whether TomTom has the financial resources to fight MS, or whether they can get outside support from the GPL community.
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Tim Lee, 18 Mar 2009 @ 6:35am

Re: A little behind
I saw those claims before I wrote this post. There seems to be opinions on both sides and I haven't seen anything definitive.
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Anonymous Coward, 18 Mar 2009 @ 6:41am

MS was derail png as well
The problem with the png format is that MS c-Blocked png by not rendering it correctly in IE. Alot of the innovation of PNG goes to wayside when it drops transparancies, lapped edges and things like that.
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Joel Coehoorn, 18 Mar 2009 @ 6:44am

Re: PNG, are you joking?
Four things here:

1) IE6 still only has limited PNG support, so some will choose GIF for that reason.
2) Some will use a GIF because they already have it or their graphics tool chooses it by default.
3) PNGs don't support transparency in the same way as GIFs, so you might choose GIF for that reason.
4) IIRC, one of the key patents covering GIF either expired or is no longer enforced, making GIF less of a burden than it was.

Considering all that, PNG is doing pretty well from what I understand.
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Bill, 18 Mar 2009 @ 7:18am

Re: Re: PNG, are you joking?
Not replying to argue but to point out that I checked the simplest way, I checked my 512MB browser cache. Ten gifs for every png.

You are correct though, I don't work in graphic design or design websites. I just browse them, mostly tech and news sites, and png just isn't very common among them.

Why don't you do the same though, do a search for png and gif files in your browser cache and report your numbers. They could easily differ from mine.
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Anonymous Coward, 18 Mar 2009 @ 7:25am

Re: Re: A little behind
As an OEM and distributor of products apparently incorporating some open-source sorce software, I am quite confused how it is that Tom-Tom and others in the same situation would run afoul of GPL licensing terms if they are not distributing software "per se". Obviously I am lacking relevant information that appears to underlie why the Tom-Tom situation creates a purported conflict.

Is there anyone in "internet land" who can better explain the tension between the GPL and OEM product sales?
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Anonymous Coward, 18 Mar 2009 @ 8:06am

Can't they just "buy" their Linux from Novell and be protected by their un-holy alliance with Microsoft?
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PRMan, 18 Mar 2009 @ 9:32am

Don't they have some other options...
Other than the bifurcation presented in the article (bifurcation = reduction of choice to either or), couldn't they?

1. Complain to the Justice Department that Microsoft is abusing their monopoly position in the filesystem market (after all, the cards all come preformatted as FAT, making the filesystem a defacto monopoly)

2. Use only short 8.3 filenames? After all, the lawsuit is about the long filename created by Microsoft using FAT entries.

In #2 they would not have to pay Microsoft per unit, or at all.
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Anonymous Coward, 18 Mar 2009 @ 9:55am

Re: Devil's advocate...
This isnt true. Microsoft and open source are in an ongoing cold war which actually benefits us by creating an arms race of products on both sides. One can appreciate the existence of both sides. However, any blow which upsets this equilibrium is to be condemned.
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Shaun W, 18 Mar 2009 @ 10:46am

Re: Re: Devil's advocate...
Microsoft and open source are in an ongoing cold war which actually benefits us by creating an arms race of products on both sides.

This sounds good in theory and I have heard this before but there is one huge problem: wars, perhaps especially cold wars, divert resources to weapons development and away from other areas. In this case the weapons are patents, not nukes, but your analogy does hold quite well - vast amounts of money are spent not only on patent development but on lawyers fees in court cases etc.

Another delightful cold war concept used in terms of software patents is that of MAD - Mutually Assured Destruction: if you attack us we'll take you down with us. It is hardly beneficial to consumers to have competitors on both sides go down in flames...

Absent patents (and perhaps copyright for good measure) this could be just healthy competition as they would be forced to compete on the merits of their products. In this case they aren't even really competitors, rather TomTom is more a consumer who chose Linux for their devices rather than buying a MS product. Microsoft should be trying to tempt TomTom to use their own product on its merits (which could produce the supposed beneficial "arms race") rather than suing them for choosing Microsoft's competitor.

In any case even if this is a "cold war" Microsoft may learn the lesson we (hopefully) learnt in the Vietnam war(one of the many "hot" wars in the "cold war"), and that is that no matter what your fire-power, you can't win if your opponent has the support of the locals.
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Anonymous Coward, 18 Mar 2009 @ 4:10pm

Re: Re: Re: A little behind
I am quite confused how it is that Tom-Tom and others in the same situation would run afoul of GPL licensing terms if they are not distributing software "per se".

I'm confused as to how you think they aren't distributing software.
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Anonymous Cowherd, 22 Mar 2009 @ 2:14am

It depends on what GPL is on the software they're using. If it's GPLv2, they're in no trouble. They can put a patent royalty into the price of each device and carry on. If it's GPLv3, though, distributing the devices with the code means distributing the source. If MS insists on patent royalties from distributing the source, not just the devices, then they're screwed.

For more on this, we go to our Washington correspondent TREKFAN.

TREKFAN?

TF: "I'm here in damp and miserable Fereng^WRedmond where there is a large group of picketers out front of Microsoft's headquarters, despite the weather, shouting slogans. There are motorcars idling out front. A man is now emerging from inside -- wait, it's not just any man, it's Grand Nagus^W^WMicrosoft CEO Steve Ballmer himself! He's making his way now to the cars, accompanied by armed escort. Wait, the crowd is getting agitated. They're trying to get to ... My God, the guards are firing into the crowd! Some are scattering but others are surging *forward*. They're ... my God ... it's awful. They just tore them apart! No ... wait ... I think I must have been daydreaming again. It's quiet and miserable and no-one's about. Nothing to report here. Perhaps there's more going on at the FSF headquarters...From Redmond, this is TREKFAN with nothing to report yet again."

Well, it looks like nothing much is happening right now. We will have more about this non-breaking story in our regular newscast at 11.
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Anonymous Coward, 20 May 2009 @ 5:28am

As we all know, nearly almost plastic products around you was made through plastic injection molding – the mouse you are using to click, the PET containers you use to store water or food, and also China printing can help us made the labels to attract potential customers and steel and aluminum made scaffolding made for the purpose of construction and renovation works.
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