The Mystery Deepens: Sinister Views on the TomTom Case

When we wrote about the Microsoft-TomTom lawsuit a week ago, we thought we had pretty much covered the spectrum of perspectives flying around the blogosphere.

But then Jeremy Allison, a leader of the Samba project, posted a comment on Glyn Moody’s original Open… post that seems to have changed everything.

“What people are missing about this is the either/or choice that Microsoft is giving TomTom,” Allison began. “It isn’t a case of cross-license and everything is ok. If TomTom 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*.”

In short, Allison concluded, “this is intended to force TomTom to violate the GPL, or change to Microsoft embedded software.”

‘Blatant Violations of the GPL’

Moody posted an update to further digest Allison’s comments, later adding a link to further thoughts on the matter from Computerworld’s Steven J. Vaughan-Nichols, who apparently had an email conversation recently with Microsoft’s very own Horacio Gutierrez, the newly minted corporate vice president and deputy general counsel of intellectual property and licensing.

According to Gutierrez — via Vaughan-Nichols — Microsoft has long been asking companies using Linux and open source software to sign FAT patent cross-licensing agreements, but it has then put those licenses under non-disclosure agreements — which is why no one has apparently known about them.

“Thanks to TomTom’s resistance, Microsoft has been forced to admit that they’ve already been selling patent protection to open-source using companies,” Vaughan-Nichols concluded. “Regardless of how the Microsoft/TomTom case turns out, this is something that open-source companies and non-profit organizations must address. These continuing and blatant violations of the GPL cannot be allowed to stand.”

‘A Lot More Worrisome’

In other words? Microsoft’s motives may be even more shocking than many had imagined. The result? You guessed it: A virtual stampede of new comments throughout the blogosphere.

“That seems to be the missing smoking gun that nobody else caught, and I’d say that Jeremy Allison ought to know,” wrote tuxchick on LXer.

“I agree, this new revelation makes this whole thing a lot more worrisome,” added softwarejanitor.

“Therefore, it is our right, nay, our duty to users everywhere to violate those bits of intellectual property at every possible opportunity until it becomes such a legal nightmare for these companies that they are forced to back down,” wrote Anachragnome on Slashdot, where more than 350 comments had appeared in about 24 hours. “Anything less would be uncivilized.”

“I know this is no Rosa Parks moment, but it still very much necessary for the long-term viability of computing as we know it,” Anachragnome added. “Just say no to data format patents. These people are no longer playing fair. WHY SHOULD WE?”

‘Microsoft Will Really Fight This Hard’

Another view: “You can see why this is HUGE for Microsoft,” wrote MarkvW. “If they win, they get some money from TomTom and they put a scare into the Linux community. If they lose because their software patents are no good, then Microsoft’s whole software patent edifice is gravely jeopardized.

“Microsoft will really fight this hard,” MarkvW predicted.

Bloggers on Digg picked up on both Moody’s and Vaughan-Nichols’ posts as well, bestowing more than 1,000 Diggs and almost 200 comments between them.

It soon became clear the conversation was far from over, so we couldn’t resist doing a little more digging around.

‘Microsoft Wants Linux Gone’

“I don’t think that’s what’s happening,” Montreal consultant and Slashdot blogger Gerhard Mack told LinuxInsider, responding to Allison’s assertions. “So far none of the agreements has prevented any of the companies from distributing GPL code. I’m sure Microsoft would be only too happy to tax whoever takes code TomTom distributes as well.”

On the other hand: “It really does look like Microsoft wants Linux gone, and TomTom is in their crosshairs first,” Slashdot blogger yagu countered.

“Microsoft won’t get any money (in their context of ‘money’) from this deal, but it’s not what they want,” yagu told LinuxInsider. “They want to infect the Linux community with their contaminated licensing schemes, and while no one is looking or paying close enough attention, muddy the notion of Open Source enough to scare corporate America from taking a chance with technology for which they may end up in court against Microsoft.”

In short, “Microsoft couldn’t win the technological superiority argument, so this is their second best tactic,” yagu concluded. “It’s a powerful one. And they’re willing to spend the time and money to carry it out.”

Next on Microsoft’s list of targets? “tivo (Linux) and Android phone (Linux),” he predicted.

‘Why Is TomTom Even Bothering?’

On the other hand, ‘it should be quite easy for a company to have the FAT patents invalidated simply because the FAT structure is obvious, thereby making it unimplementable as a patent,” Slashdot blogger hairyfeet asserted. However, “even if one chose not to use that argument, there is plenty of prior art, as FAT and its extensions are simply a tree hierarchy and there are plenty of prior instances of tree hierarchy before FAT.”

What’s puzzling, hairyfeet told LinuxInsider, “is why is TomTom even bothering at all? The USB standard allows for ANY file system to be used. As a USB device, the SSD could be formatted with FAT, NTFS, Ext2/3, anything at all.”

Of course, “by trying to lock up the ONLY file system that works on all three major OSes, MSFT is basically forcing a ‘Microsoft Tax’ on all other manufacturers of operating systems and embedded devices,” hairyfeet added. “I frankly am shocked that Red Hat hasn’t jumped in on this, as it would be a good chance to get FAT removed as a threat once and for all.”

Benefits Galore for Redmond

The TomTom case is too complicated to boil down to just one thing, blogger Robert Pogson told LinuxInsider.

By suing a “little guy” like TomTom, Microsoft stands to benefit in many ways, Pogson noted:

  • “They can induce a revenue stream at almost no cost to themselves.
  • They can destroy TomTom unless the world rallies to support.
  • They can acquire TomTom as part of embrace, extend and extinguish.
  • They can persuade any other hold-outs that they are serious.
  • They can push others off using GPL software because of the apparent patent encumbrance they put on code in the kernel drivers.
  • They can push a cloud of FUD over any more adoption of GNU/Linux, which they feel is getting out of hand.
  • They can cash in on a patent that will soon expire of old age. They have seen with Vista that they cannot compete against their own standards so they desperately need to monetize these old patents ASAP.
  • They can attempt to drive a wedge through the FLOSS community: some will want to drop VFAT while others will want to waste energy fighting M$,” he explained.

‘Monopoly In Flames’

Microsoft is “trying desperately to continue to control the market while their monopoly is in flames and crashing around their ears,” Pogson added. Simply delaying “the decline of the cash cow is money in the bank to them, so this works temporarily.”

Of course, in the long run, “GNU/Linux is a cooperative product of the world, and they will only convince the world not to do business with them in the future,” he added.

“If there is any justice, the patent issues in this suit will be kicked out as matters of law — not in dispute — as the patent law is clear that ideas are not patentable,” Pogson concluded.

After all, “information technology is all about ideas,” he added.

1 Comment

  • In 1998 Microsoft Chairman Bill Gates accused the government’s lead attorney, David Boies, who conducted the deposition, of being "really out to destroy Microsoft" and "really out to take all the good work we’ve done and make us look very bad." A government official involved in the case said: "The government is not trying to destroy Microsoft, it’s simply seeking to compel Microsoft to obey the law. It’s quite revealing that Mr. Gates equates the two."

    And so Microsoft is at it again, daring the courts to choose between destroying the law and destroying Microsoft. Whatever the arguments may be, by filing against TomTom Microsoft has effectively pulled the pin from their legal grenade and have lobbed it into the center of the open source community.

    War is an unpredictable business, and Microsoft has clearly escalated their behavior to the level of outright warfare. As President of the Open Source Initiative and as a witness for the States against Microsoft in their anti-trust remedy trial, I offer this perspective:

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