Bruce Perens: Microsoft and TomTom Settle, Justice and Linux Lose

Wednesday Apr 1st 2009 by Bruce Perens
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The outcome of the Microsoft-TomTom legal confrontation raises questions about the effect of patents on software innovation.

About the Author: Bruce Perens is the creator of the Open Source Definition, the manifesto of Open Source and the criterion for Open Source software licensing. Perens represented Open Source at the United Nations World Summit on the Information Society, at the request of the United Nations Development Program.

Microsoft and TomTom have settled their patent lawsuit in a way that leaves Microsoft's FAT patents active as a threat to other companies.

Since I last wrote on this topic, TomTom brought a counter-suit against Microsoft, attempting to get the software giant to license four mapping patents that TomTom claims MS infringed. Tomtom apparently had previously been attempting to convince Microsoft to license. So, it's hard for me to find sympathy for either player in these lawsuits, but there's lots of sympathy to hand out to the software industry, justice, and Linux – all losers in this deal.

Justice lost because there's been no trial to overturn the FAT filesystem patents. As venture capitalist Larry Augustin wrote: "Those of us who have PhDs in computer disciplines and have studied operating systems and file systems, don't see anything particularly innovative in FAT or its extension to support longer file names, FAT32."

Indeed, the FAT patents have been invalidated for being non-innovative in Germany, and only survived invalidation in the U.S. through a patent office appeal in which opponents were not allowed to participate. It would take a trial in court to finally settle the issue, a trial that Microsoft would likely have lost.

But justice is too expensive. A trial to invalidate the eight patents Microsoft brought against TomTom, none of them poster-boys for innovation, would have cost more than TomTom had to spend, perhaps in excess of $10 million dollars. Obviously Microsoft offered TomTom an out for much less than that, but all we've been told is that TomTom paid Microsoft, and Microsoft didn't have to pay Tomtom. How much?

There's nothing in the press release about the settlement to contradict the notion that TomTom might have settled for one dollar. The terms of settlements are generally sealed by the court, with penalties for disclosure. Sometimes we can find out about them in later financial filings of the companies involved, but this isn't always the case. What Microsoft really wants from TomTom isn't money, it's support in building fear about Linux in other companies, especially the makers of mobile and wireless devices just like TomTom's own product. Microsoft wants you to believe you need a Microsoft license to deploy Open Source software. This settlement is likely to deter some of those companies from using Linux at all.

As part of its settlement with TomTom, Microsoft also revived the end-run around the GPL 2 license that Microsoft and Novell engineered when those two companies made their much-criticized patent deal: Microsoft will directly license TomTom's customers, rather than TomTom, to use the patents in TomTom's Linux system.

The GPL license has terms that are meant to put all the users of GPL software in the "same lifeboat," making individual patent licensing by one of those users untenable because the copyright license on the software would become invalid in response. Thus, an attack against one company deploying Linux would be an attack against all and would be vigorously defended.

Microsoft and Novell's loophole makes it possible for companies to ignore the welfare of the rest of the folks in the lifeboat, and TomTom now joins Novell in exiting the lifeboat to save its own neck without consideration of the other passengers.

Like Novell, TomTom's action shows contempt for the Linux developers whose resources they gained for free and use to great profit in their product. They violate the spirit of the license granted by those developers by using a legal trick that purports to comply with the letter of that license.

But then again, this might have been the only action possible to keep TomTom, already in financial trouble, from an outright takeover by Microsoft, which many had thought to be the goal of the lawsuit.

And let's not forget Microsoft. All of that talk about interoperability with Linux coming from them? It was just talk, because they've shown that anyone who tries to interoperate with Microsoft technology even as simple as the FAT filesystem will eventially be sued, or pushed into licensing, for their efforts. The way they act, the Microsoft-internal definition of "interoperability" must be "making the whole world owe us."

And so, you should be wary of FAT, Office Open XML, .NET (including Mono), Silverlight, and of Microsoft's participation in standards committees that don't have a clear royalty-free committment, or, as is the case for Office Open XML, when the royalty-free committment is less than complete. These technologies leave the door open for submarine patents to sink your business.

And the Open Source community, as well, should understand where the cards lie. The Novell-Microsoft strategy is back, indeed it was never gone, and Open Source projects aren't safe from Microsoft and its patents. As I told Sam Ramji, Microsoft's public face for Open Source, the other day: I'm sure things would be different if you were running the company, but you aren't. We're seeing the same old tactics Microsoft has used against Linux and Open Source from its earliest days: promoting fear, and litigation rather than innovation. There's no "new face of Microsoft." It's the same old company.

Much of the fault for Microsoft's FAT filesystem being a de-facto industry standard lies with companies outside of Microsoft that have been willing followers for too long. When removable storage like USB sticks came about, those companies thought of Microsoft's floppy disk filesystem as a sort of standard, already supported by both Microsoft and Apple. By using it, their devices would "just work", and they'd not have to concern themselves with software. So, as a result, pretty much everything that appears in the filesystem browser when you plug it in a USB port (MP3 players, cameras, etc.) uses the FAT filesystem to do the job.

VC Larry Augustin contends, and I agree, that it's time for that to stop. The industry must turn to a royalty-free filesystem for removable devices, and it's an excellent time to do so: an increase in the size of FLASH memory devices will require a conversion from FAT32, which won't accomodate larger devices, to something else. One of the many Open Source filesystems that are licensed with liberal terms, and that already handle extremely large disks and long filenames, would do.

Microsoft and Apple won't have to pay royalties or deal with the GPL, and neither will anyone else. Microsoft doesn't really have to accept this for it to work. A filesystem driver will give Microsoft systems real interoperability, rather than the Microsoft flavor. What we need to collect now is some resolve, among various industry players, to break from the past.

Unfortunately, they haven't broken so far. The "something else" the industry has selected for the next removable media filesystem so far is really the same thing: ExFAT, an even-more-patented Microsoft technology derived from the previous FAT filesystem. This is the choice of the SD Card Association for the new SDXC cards. I previously portrayed that choice with the statement: SD stands for "Shooting Downwards." Hopefully they'll wake up now. Augustin suggests a "Get the FAT Out" campaign similar to the movement against GIF files years ago, when Unisys attempted to enforce a patent royalty on the use of pictures on the internet.

Besides the industry's too-easy acceptance of Microsoft technologies that later turn out to have patent royalties, the Linux Foundation and the Open Invention Network have some blame to take as well. Both organizations operate attempts to mitigate the effect of software patenting on Linux and other Open Source software without really solving the problem. The way to solve the problem is to eliminate software patenting. But IBM, the world's largest patent holder, is on the boards of both organizations. Thus, you aren't going to see any substantive effort against software patenting come from either organization. And the "feel-good" projects they run divert attention from the real solution.

Among the feel-good projects are an effort to improve the "quality" of patents with two Peer-to-Patent programs that attempt to use volunteers to point out "prior art", the fact that something's been invented before, and a Defensive Publication program for pointing out the existence of unpatented inventions before they can be patented. They've also created a financial resource to support the defense of non-profit developers.

Unfortunately, these programs don't have legal teeth, they're easy for a patent holder to avoid or overturn. The financial resources aren't available to the businesses being sued, and aren't deep enough to pay for more than just a few cases. So, these programs make the Open Source folks feel that someone's working on the problem, and give the companies something positive to talk about when asked about software patening and Linux, but they don't solve the problem. Their greatest effect is that they deter other efforts that might actually help.

The peer-to-patent programs even endanger the Open Source developers that work on them, because those developers are exposed to patent text, and the United States has a penalty for looking. If you knowingly infringe a patent, you pay three times as much in lawsuit damages than if you had never looked at the patent. So, volunteers on the peer-to-patent program can get their Open Source projects into trouble, if the project's work happens to exercise one of the patented principles they examined in the past.

The Free Software Foundation recently made an effort, apparently funded by the Shuttleworth Foundation, to overturn software patenting in the courts, through an amicus curæ filing in the Bilski case. That case, and a fall-out case, In re Ferguson, have tightened the rules for software patenting and have potentially invalidated many granted patents, but have not eliminated software patenting. An appeal has been filed by Bilski and his partner, the creators of a business method patent now rejected by the court. Any findings by higher courts are years in the future.

But the real solution is a legislative one. Software patents hurt more than just Open Source. Small and medium-sized proprietary software companies are essentially hostages of patent holders, often larger companies with deep litigation budgets, that can force the small companies to license rather than endure a multi-million-dollar case just to prove they're right. So, tomorrow's disruptive technologies are hostages. Weren't patents supposed to promote innovation? Software patents aren't doing so, and it's time to be rid of them.

But there's also room for thought about the problem of the high cost of justice. Why should it be the case that only a company willing to waste millions on legal fees is able to prove its innocence to an infringement charge by invalidating a patent in court, while other developers, especially the Open Source developer who doesn't charge for his work, are stuck? How can we claim that there's justice in the United States when only the rich can afford it?

While a legislative campaign against software patenting has been mounted in Europe, there's never been a significant one in the United States. It's time. Both the small- and medium-sized proprietary software developers and the Open Source developers have common cause in this. It's important to realize that any company is a software company these days, as even mere users of software are vulnerable to a software patent lawsuit. And they aren't doing anything to protect themselves. They'd better wake up.

One critical issue is that the U.S. currently has a one-size-fits-all patent system. You get the same patent for pharmaceuticals as for software, and the pharmaceutical companies have the best government they could buy. Decoupling the issue of software patenting from that of medicine will be critical to winning this effort.

ALSO SEE: Bruce Perens: How Many Open Source Licenses Do You Need?

AND: Bruce Perens: Combining GPL and Proprietary Software

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