25 February 2009

Has Microsoft's Patent War Against Linux Begun?

It's been in the air for ages, and now it's happening:

Microsoft filed suit against TomTom today, alleging that the in-car navigation company's devices violate eight of its patents -- including three that relate to TomTom's implementation of the Linux kernel.

...


Five of the patents in dispute relate to in-car navigation technologies, while the other three involve file-management techniques.

Presumably those are the three that relate to Linux, in which case this is likely to have broader implications than just the in-car navigation market.

Here's a nice statement of how Microsoft views all this:

"Microsoft respects and appreciates the important role that open-source software plays in our industry and we respect and appreciate the passion and the great contribution that open-source developers make in our industry," Gutierrez said. He said that respect and appreciation is "not inconsistent with our respect for intellectual-property rights."

In other words, Microsoft "respects and appreciates" open source until it actually starts to replace Microsoft's offerings, in which case the charming smile is replaced with the shark's grimace.

It may not be a coincidence that Gutierrez has just been promoted to the rank of corporate vice president: could this legal action be his way of announcing the direction he and Microsoft will now take in the battle against Linux?

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31 comments:

Anonymous said...

If you look at this in the context of the recent Brother/MS agreement and others you realise how important this case is. It draws back the curtain a bit on Microsoft's tactics against Linux. I really hope this case goes the distance. It will be interesting to see what happens.

What I don't know about the average patent agreement is whether there is a clawback clause if the patent is later shown to be null and void. Somehow I doubt it, with Microsoft's legal team, but if other companies are paying licensing for patents that might not survive in a post Bilski world, they would be a little peeved if TomTom win.

glyn moody said...

Yes, and I think it's significant MS has gone against a company quite distant from the free software ecosystem: it obviously wants to avoid direct confrontation.

IANAL, but I'd doubt if such clawback clauses exist.

gogo said...

Microsoft is going after a company uninvolved in OSS to convey that no company using Linux is safe.

glyn moody said...

Yes, I think that's absolutely the point of this action.

plh said...

I'm sick to the back teeth of Microsoft's (and other software patent owners') claims to and calls for “respect for intellectual property rights”. Microsoft has stolen by patent (or attempted to steal by patent application) several ideas and inventions which shouldn't have been patentable in the first place but weren't even their original inventions anyway. From memory, from FOSS alone MS parachronistically has stolen/attempted to steal: “paging up & down by page”, “RSS feed syndication/subscription”, “the Enlightenment pager”, ”arbitrary clipboard formats”, “sudo's UAC”...

“Respect” indeed. :(

glyn moody said...

Thanks - especially for the fab word "parachronistically", which I shall employ forthwith....

Anonymous said...

So you shall parachronistically adopt the new term: "parachronistically" :-)

glyn moody said...

Ha!

troy-sobotka said...

http://www.groklaw.net/article.php?story=20090226070041454

Remember, we are living in a post-Bilski world.

glyn moody said...

True, but the contours of that decision are still not entirely clear.

Jamie said...

Microsoft just get more and more pathetic.

Now only are their attempts at "open source" pathetic parodies of free software, their flagship product a bloated DRM-encrusted travesty that the corporate world has rejected, now they have a crazy man in charge, a lawyer as VP, and are set to sue the pants off everyone they can't beat fairly.

I hope Tomtom can afford better lawyers than Microsoft, however unlikely that may be.

Dave said...

Current Google result for "parachronistically", 6 pages with this as top!

Well done on finding your niche keyword! :oP

glyn moody said...

@dave: I'm famous at last!

Jeremy Allison said...

What people are missing about this is the either/or choice that Microsoft is giving Tom Tom.

It isn't a case of cross-license and everything is ok. If Tom Tom 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*.

Microsoft has been going around and doing these patent cross licensing deals with companies under NDA's so they never come to light for *years*.

That was the whole point of the Novell deal - Microsoft lawyers finally thought they'd found a way to *publicly* do these cross licensing deals and get around the GPLv2, but the GPLv3 put paid to that.

Tom Tom are the first company to publicly refuse to engage in this ugly little protection racket, and so they got sued. Had Tom Tom silently agreed to violate the GPL, as so many others have, then we'd only hear about a vague "patent cross licensing deal" just like the ones Microsoft announces with other companies.

Make no mistake, this is intended to force Tom Tom to violate the GPL, or change to Microsoft embedded software.

glyn moody said...

@Jeremy many thanks for that fascinating analysis. As you say, many - including me - had missed that.

This gets even more interesting....

Anonymous said...

>I hope Tomtom can afford better lawyers >than Microsoft, however unlikely that >may be.

Why?
I say we attack them with the group that kicked their arse last time around: Allison, Tridge, the italian laywer and the FSFe members.


On a side note, is this the end of the "they really, really like us?" wishful thinking that we've heard over the last few months? I dont know about you but I take my cues from what the heads of companies say, not what lower management does. And NOTHING that Ballmer has said over the past 2 years even hints at a different path. We are told that 'there is a group working from the inside' to change the culture as if these people couldnt be fired in a minute.

glyn moody said...

I don't think it signals any change inside MS: there are clearly two views struggling for ascendancy, and we see them in different actions. Like with TomTom...

George said...

@Jeremy Allison -

So, you think TomTom is being brave by publicly violating the GPL?

I'm not saying MS doing it secretly is better, but you seem to be praising TomTom for brazenly breaking the law.

Where is the disconnect?

glyn moody said...

@George: isn't the point that TomTom *would* be breaking the law if they signed a licensing agreement? They're not, so they're not, no?

Anonymous said...

I would venture a guess that with Microsoft's profits probably flat-lining in desktop OS world and its server-side OS and software getting pummeled from every angle on the high-end leaves the only high-margin arena available for them in MS Office and litigation against their smaller competitors.

All this is perhaps just part of the unpublished book "Good Business Practices for Shrinking Empires", written by William Henry Gates III

glyn moody said...

Patent litigation: the scoundrel's last refuge...

Anonymous said...

I have all the appreciation for open source / free software guys (Tom Tom not being one of them). If that whole thing stays inside legal boundaries that's perfect. This is a test. If MS claims prove to be right withing current legal context... it means that that they are entitled to what they claim and Linux should change in some places.
It seems fair to me that MS choose a company that is able to face the legal threat, not some poor guys out there.
Of course the legal environment surrounding the patents is questionable but that is not to be debated in this legal fight.

Mike said...

Jeremy: Your quotes got you on The Register - /www.theregister.co.uk/2009/03/07/microsoft_protestor_returns_to_work/comments/

I find this interesting as I believe this could be aiding Microsoft's down fall - they must make a lot out if IP licensing but what happens if TomTom make a "security update" to all their products (i.e a firmware update) which reverses all of these IP claims.

They could also turn to other Microsoft licensee's and share a GPL2 or 3 based file system to remove FAT usage (say ext2).

They could give this support to ext2 to Windows (I believe this is already available).

Microsoft would then lose license fees from this IP claim as nobody would still be using FAT.

If they did this on each of Microsoft's IP claims they would really damage Microsoft by making their IP meaningless.

Just my two pence.

Mike

zyphlar said...

How could FAT be part of this? That's like EdisonCo collecting licensing fees from the Chinese for using LightBulbs(R). If Apple, *nix, and thousands of embedded systems are using FAT by license or illegally, then that's a patent that needs to expire.

Christian ter Maat said...

Breaking News: Microsoft buys TomTom?

The computers of the future will be at home/office, on our mobiles and in our cars. Microsoft dominates the home/office environment. MS went in and out of the cell phone market with various Microsoft mobile platforms. And has no position in the future car computers. Voice controlled computing while in a traffic jam! Which company should you buy Garmin or TomTom. TomTom has acquired the Tele Atlas map software, which Microsoft could use as an add-on to its regular software packages. The future is: MicroTom.

glyn moody said...

@Christian: it would make sense in theory, but I wonder how it would cope with the Linux that TomTom uses? Ripping it out might be a long-term option, but not in the short term.

Anonymous said...

I have a minor question.. Wasn't TomTom in trouble with the open source community a while back for violating the GPL? Why is it a war when MS does sues TomTom but ok if open source community does it? :P Just had to point it out.

One other thing, IANAL but.. As far as I know, if a company doesn't defend it's patents/trademarks/etc from use by others then it loses them. So if MSFT knows that TomTom is using it's patents, and doesn't do anything about it, then it loses all those licensing fees.

Last bit, statement by MSFT said it had been in talks with TomTom for over a year trying to get them to purchase licensing fees. But TomTom refused so MSFT took them to court. Noting that TomTom would be well aware of all the sympathy it would get from the open source community. Getting free support and patching it's rep all in one go. Smart, manipulative, and you suckers seem to have gone with it.

glyn moody said...

You're right, TomTom was not whiter than white, but I don't think many in the free software world were defending the company as such: it was the fact that the Linux kernel was involved.

I think the point about defending only applies to trademarks. Remember that "submarine" patents are frequently hidden until many years after people have been using them without knowing, and then sprung for greater licensing fees.

Again, I don't think you'll find many that regard TomTom with affection; the issue was that Microsoft was implicitly attacking elements of the Linux kernel.

idea stack said...

Microsoft always retain their position in the war by their huge reputation and perseverance.They are always deal with the user friendly programs.
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Anonymous said...

The thinking that MS is acting pathetically is probably very just and it's because of this that more and more emphasis should be put into more people distancing themselves from that company. One can imagine MS as a kind of British, American !) or Soviet empire with such aggressive tactics to it remaining in place / expanding at all costs and realising that gives us the clear understanding how we should deal with it - propagating our thoughts across the NET so more people can begin to realise its massive dangers for all open source and democratic principles.

glyn moody said...

yes, I think an empire is a fair comparison.