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

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