The Echo of TomToms in the Amazon Deal

It’s hard not to have an overwhelming sense of deja vu every time word of a new Microsoft patent deal reaches the news.

Such, indeed, was the case last week, when the legal eagles from Redmond gleefully proclaimed their success in making a patent cross-license offer that even the likes of Amazon apparently couldn’t refuse.

“We are pleased to have entered into this patent license agreement with,” said Horacio Gutierrez, corporate vice president and deputy general counsel for intellectual property and licensing at Microsoft. “Microsoft’s patent portfolio is the largest and strongest in the software industry, and this agreement demonstrates our mutual respect for intellectual property as well as our ability to reach pragmatic solutions to IP issues regardless of whether proprietary or open source software is involved.”


Indeed, the case has been particularly notable for the frequency with which open source has been mentioned, as noted by the Linux Foundation’s Jim Zemlin and others.

Though Zemlin urged the Linux community not to dwell on the agreement — “nothing to see here,” he wrote — bloggers had a hard time keeping their speculation to themselves.

“Technically, it’s not extortion if you threaten to sue someone and then demand payment to prevent suit, but it should be when the grounds for suit are baseless,” wrote blogger Robert Pogson, for example. “If you want to spread FUD, this will do.”

‘It Was Nice Knowing You’

Similarly: “My own take is that Microsoft wants to put out an ebook reader, which will probably use Amazon’s patents,” wrote Slashdot’s autophile. “So Microsoft probably told Amazon, ‘Nice patent portfolio you got here. Be a shame if it burned down. You should have insurance!'”

Then again, “So long Amazon, it was nice knowing you,” chimed in Richy_T.

It soon became clear that this was one bit of news bloggers couldn’t leave alone for long, so Linux Girl grabbed her Quick Quotes Quill and headed to the blogosphere’s new Prickly Patent Grill for some more insight.

‘Probably FAT32, Which Bit TomTom in the Butt’

“We have no way to know what patents Amazon needed, and they do a lot of things that don’t involve Linux such as DRM and Windows ‘in the cloud’ hosting,” Montreal consultant and Slashdot blogger Gerhard Mack told LinuxInsider. “I really wish there were a SLAPP-type law against alleging patent infringement without mentioning what patents are being infringed. Such a law would stop a lot of FUD in its tracks,” he said.

“I’m willing to bet this all comes down to Microsoft’s patents — probably FAT32, which bit TomTom in the butt,” Slashdot blogger hairyfeet suggested.

Amazon “may feel it is less costly to throw money at M$ than to fight them, but that is short-sighted,” Pogson told LinuxInsider. “Look at the cost of IBM granting M$ a monopoly on the early PC. It seemed like a simple business decision but was soon a millstone around IBM’s neck, with M$ shaking them down for ever-higher license fees.

“What will M$ demand from you next time, Amazon?” he added. “Your first-born? What will you do then?”

‘There Is Something in This for Them’

Still, “Microsoft has never successfully proven any patent infringement against Linux,” noted Barbara Hudson, a blogger on Slashdot who goes by “Tom” on the site.

“That should say it all. It’s not like Microsoft isn’t an expert on patent infringement — they’ve certainly been convicted of it often enough.”

Indeed, “Amazon isn’t the kind of company you can push around with the threat of lawsuits everybody knows you can’t win,” Slashdot blogger Mhall119 asserted. “Nor are they stupid enough to agree to a payment instead of just agreeing to cross-license their mutual portfolios.”

More likely are “either a Microsoft iPad competitor or some new e-book software for WinMobile 7,” Mhall119 told LinuxInsider. “Either way, expect it to let you purchase items direct from Amazon. There is something in this for them, probably more so than for Microsoft.”

‘A Much Grander Plan’

It’s clear Microsoft does have an anti-Linux agenda, Slashdot blogger Eldavojohn told LinuxInsider.

Yet “if you scratch the surface even a little, I believe there is a much grander plan unfolding between the two that toes the line of what is legal in the realm of locking two companies together to lock out everyone else,” Eldavojohn agreed.

It’s not clear which or how many patents Amazon and Microsoft are sharing, but there is a full spectrum of possibilities, he pointed out. Most likely is that “a moderate amount of patents are being shared in addition to a lot more going on behind the scenes about adoption and agreements betwixt Amazon and Microsoft to ensure their strength against competitors.”

The companies “have stood together before to oppose interoperability, but it’s entirely possible that they have agreed to be interoperable with each other in order to ensure their unobstructed existence in the reader market,” he explained.

‘Unlikely Bedfellows’

“With Amazon providing the DRM’d, limitless content via an already vibrant market, Microsoft could implement the AZW with DRM on the Courier and everything else,” he noted. “Amazon, on the other hand, would benefit by being ensured that anyone using the Courier or a Microsoft product is gently guided to the Amazon store for purchases.

“This pairing of unlikely bedfellows could put both Amazon and Microsoft ahead of Apple or Google or anyone in the reader market for many years — maybe permanently,” he concluded.

The “beautiful thing,” in fact, “is that if they can make it look like this licensing agreement is what is locking Apple, Google and everyone else out of the loop, then all Google or Apple has to do is agree to exorbitant fees in order to become part of the game. It keeps them perpetually behind,” Eldavojohn concluded.

“Then neither Amazon nor Microsoft can be pinned with Sherman Act/Antitrust lawsuits,” he added, “as everything is legitimately this way because of the burden of intellectual property.”

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