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Enderle on TomTom - Here We Go Again - Updated 2Xs
Wednesday, March 04 2009 @ 12:19 AM EST

Rob Enderle stands up to defend Microsoft, whom he assumes must have valid patents being asserted in Microsoft's patent litigation lawsuit against TomTom. He therefore wants TomTom to just pay up, and he'd like Linux folks to quit being a drama queen about it all.

So, I guess that means Enderle still doesn't understand the GPL? You think?

Linux folks are not going to be moving on. This TomTom litigation is an attack on Linux, and it will be vigorously treated as such. Period.

In any case, I will answer only one statement of Enderle's. The rest you can 'enjoy' on your own, like his statement that enthusiasm for Linux is fading, which Steve Ballmer himself contradicted the other day by saying that Linux is now a bigger threat than Apple.

Here's the part I will answer:

The Linux folks need to move on. The open source folks in Microsoft have taken positions of power and it is unlikely Microsoft will intentionally attack open source or Linux again unless the status quo changes dramatically away from Microsoft, and Microsoft starts to fail. Neither seems likely in the next five years.
Serdar Yegulalp at Information Week interviewed Keith Bergelt of the Open Invention Network, and here's what Bergelt had to say:
"The message that Microsoft has been putting out over the last year to 18 months, thanks to their presence in open source forums and Sam Ramji, is that a lot of that effort is not more than rhetoric, and that their behaviors are the same. The inclusion of patents and the targeting of Linux, whether it's by design or not, is provocative.

"And it's unfortunate, because any of the work they were doing to develop a better manner of comportment and integration within the community will be for naught. It also solidifies the resolve of the community to support Linux users and the rights of them to use Lx. Irrespective of whether TomTom has other [patent] issues, this is a separate action. This action, by dragging in those Linux-targeting patents, is just more of Microsoft being Microsoft, and underscores how far they still have to go to be accepted by the open source community." In a situation like this, I asked, what could they say that would help show others they're not going on a Linux headhunt? "Nothing. You're judged by what you do, not what you say."

OIN will obviously be at the forefront of any defense against any attack on Linux, so what he says ought to provide sufficient notice that the Linux-targeting patents in this litigation will not be ignored by the community. Whoever is advising Microsoft needs to update the database.

Oh, that brings to mind the latest on Oracle and Red Hat. Matt Asay says Oracle's Unbreakable Linux is "not denting Red Hat":

Even as the global server market contracts by 14 percent, and Linux server sales decline 7 percent (Windows dropped 17.8 percent), according to IDC, Red Hat's Linux server business is swimming against the current.

A February 11 Piper Jaffray report ("Red Hat Inc.: Buy. Survey Shows Red Hat Will Be a Top Share Gainer") says its "survey of 89 domestic Oracle applications customers indicates that Red Hat is gaining IT budget share."

Asay is surprised. I am not. Integrity might be in short supply in the usual business world, but people still look for it when they can find it, and that's why all the attacks on Linux and FOSS fail in the end.

Cluestick for you, Microsoft. You see, it's like this: there is no Brand X integrity. You either have it or you don't. And people know it when they see it. There is an essential fairness to true FOSS companies. People like that. You might give it a try some time.

Cluestick for Enderle: did you notice in the server space Windows dropped 17.8% compared to only 7% for Linux? You might want to update your article to reflect those facts, speaking of fading enthusiasm.

Snort. Like *that* will ever happen.

Update: The Power of Microsoft Money -

Here's the problem with taking Microsoft money, whether for conferences or for employment or in patent peace deals: once you do it, you have to justify it. Worse, it blunts what you used to know as clear as a bell, namely that Microsoft is what it is. And next you'll start telling folks that the community should treat Microsoft like anyone else, without discrimination. And then finally, you'll find yourself quoting Rob Enderle approvingly.

It's so sad to watch, but that is not at all the final chapter. The final chapter is, after you take the money and dance around to try to justify it, you end up road kill by the side of the road, because Microsoft was never your friend. We tried to tell that to Novell when it decided to smoke the peace pipe with Redmond. It never works out. Yoo hoo. Sam Ruby and you Apache guys. Cluestick.

It may be too late for some, but I hope you understand now why I'm a GPL girl. Other licenses that allow proprietary companies to grab the code and make it its own can lead to the project selling out, once personal or project goals overarch community goals. It's a temptation into selling out. In fact, I'd go further and say that for some, it's why they chose something like the BSD license, because they hope for some money. Nothing wrong with money, honorably earned. But it's not FOSS values to sell out for mere money. There's no papering that over.

The Apache guys stood up to Microsoft in the SenderID matter, and I'll never forget that they did that, and they did it in defense of the GPL. But in truth, it's only the GPL license that keeps people honest, inside and outside the community, in the long run. Yes, some GPL projects or companies might *try* to sell out, not that they ever think that's what they are doing, but the GPL limits how bad things can ever get. Novell and Microsoft learned that for themselves. A GPL project is protected by the license, no matter what individuals might lust to do.

Here's why Enderle, and Matt Asay, are wrong to write about the TomTom situation as just business as usual. Asay even wrote this:

Ultimately, Microsoft is suing because it believes TomTom violates its patents, with the primary concern being TomTom's GPS patents, not those related to Linux. It's probably time for the open-source world to acknowledge that Microsoft has other priorities that don't involve killing open source, however much that may be part of some Microsoft veterans' strategic vision.
So what? Who cares what Microsoft's *primary* goals are, if it is suing over two patents it told the world affect Linux? And I certainly think there can't be anyone in the community who thinks the FAT patents are anything but laughable. So why defend them? Why pretend that using patents this way is anything but awful? Yes, proprietary companies have created and implemented a sick and destructive patent system, one that even they are asking legislators to change. But Linux can't ever join them in that system. The GPL stands in the way.

Well, you may say, then Linux must grow up and join the patent club. No. The patent club has to change to allow this operating system to compete on a fair playing field. Red Hat ably explained some of the reasons why in its amicus brief submitted in In Re Bilski. Here's a snip, to get you started:

The open source model produces software through a mechanism of collaborative development that fundamentally relies on communication of ideas by large numbers of individuals and companies. To understand this model, it is helpful to understand how software is made. Software begins as plain text "source code." Programmers write and edit source code in human-readable programming languages that allow specification of software features and behavior at a high level of abstraction. Software is commonly distributed in machine-executable "object code" form, produced by "compiling" the source code of the software. Since object code consists of unintelligible strings of 1s and 0s, software is effectively unmodifiable unless one has access to its source code.

A good example of an open source project is the Linux operating system kernel, which is one of the most commercially-important open source programs and which is a core component of Red Hat's flagship product, Red Hat Enterprise Linux. The Linux kernel contains several million lines of source code. A worldwide community of hundreds of contributors, including many employees of Red Hat, collaborate via the Internet in developing and improving the Linux kernel.

Open source uses a combination of technological and legal means to facilitate collaborative development and commercial exploitation. Typically, an open source package originates as a community-based project that makes its software publicly available in source code form, under licensing terms that grant very broad, royalty-free copyright permissions allowing further use, copying, modification and distribution. The Linux kernel, for example, is licensed as a whole under the GNU General Public License, version 2, the most widely-used open source license. In making source code available and conferring broad copyright permissions, open source differs significantly from traditional proprietary software. A vendor of proprietary software generally develops the software entirely in-house and provides only object code to the user under severely restrictive licenses that allow no rights to copy, modify or redistribute that code. Such vendors retain the source code as a trade secret.

The open source development model has proven to be highly effective in producing software of superior quality. Because there are many developers working as collaborators, innovation happens rapidly. Because of the many who volunteer their time, and the availability of the source code under royalty-free licenses granting generous modification and distribution rights, the cost of producing and improving software is low. Software bugs and security problems are quickly identified and remedied. Moreover, because users have access to the source code, those users can diagnose problems and customize the software to suit their particular needs.

The open source development model originated in the early 1980s. From that time to the present, open source software has been in a constant state of innovation. Software patents, however, have not in any way promoted the innovations of open source. At the time when software was first released under open source licenses, software patents were relatively few in number and case law appeared to limit their availability. See Diamond v. Diehr, 450 U.S. 175, 18586 (1981). By contrast, it was settled that copyright law covered software. Thus the early innovators of open source software had no reason even to consider obtaining patents on their work. Moreover, since at least the early 1990s open source developers have been broadly united in their opposition to the patentability of software.

This widespread opposition is not surprising, because the open, collaborative activity at the heart of open source is fundamentally at odds with the patent system. Patents exclude the public from making, using, or selling patented inventions. An open source developer seeks to contribute code to the community -- not to exclude others from using the code. The exclusionary objectives of the patent system are inherently in conflict with the collaborative objectives of open source.

This conflict is more than theoretical. Open source software developers constantly face the hazard that the original code they have written in good faith might be deemed to infringe an existing software patent. It is impossible for a developer to rule out this possibility, because there are now more than 200,000 software patents, and those patents cannot possibly be searched and cleared at reasonable cost. Because of the abstract nature of software patents, determining whether even a single software patent claim is infringed is particularly difficult, even for experts in computer science, and experts often disagree. See, e.g., J. Bessen and M. Meurer, Patent Failure 201-03 (2008). The complexity of software projects (open source and otherwise) is such that a single computer program is likely to implement numerous forms of functionality that could possibly be deemed to infringe large numbers of unknown patents. Since code may infringe any number of patents, there is always some possibility of a patent lawsuit that could cost millions of dollars in attorneys' fees and that could result in court orders that effectively nullify the broad grant of rights in open source licenses.

In short, the patent system is not the source of innovation in open source software. Because the system does not reward open source innovation and creates litigation risks for the innovators, the system can only hinder innovation.

See why Microsoft's attack on TomTom is so serious? Do you see why accepting it as just business as usual is so dangerous? If not, you might like to read the book referenced in the filing, Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk by James Bessen & Michael J. Meurer. Chapter 9 is the chapter about software patents, but Chapter 1, available online, explains some of the reasons that the patent system particularly does harm when it comes to software:
Critically, software patents do seem to exhibit some marked differences from other patents when it comes to litigation costs. Software patents are more than twice as likely to be litigated as other patents; patents on methods of doing business, which are largely software patents, are nearly seven times more likely to be litigated. And, despite being a relatively new area for patenting, software patents accounted for 38 percent of the total cost of patent litigation to public firms during the late 1990s. This does not appear to be a temporary problem that is dissipating as the Patent Office adapts—the probability that a software patent will be litigated has been increasing substantially rather than decreasing.

Why are software patents more frequently litigated? In a word, abstraction. In chapter 9, we will elaborate upon what we mean by “abstraction” and how it affects patent notice, but for the present consider that software is an abstract technology, and this sometimes makes it more difficult, if not impossible, to relate the words that describe patent boundaries to actual technologies....

Nevertheless, there are two major reasons why abstraction poses a particular problem for software. First, as we will discuss in chapter 9, the Court of Appeals for the Federal Circuit has tolerated more abstraction in software patents than seems warranted by these patent doctrines. Second, software is inherently more abstract than other technologies. Indeed, it is well known among computer scientists that software technologies (algorithms, system structures) can be represented in many different ways, and it might be difficult to know when alternative representations are equivalent. This means that the technology claimed in a patent can be difficult to distinguish from alternatives; it might be hard to know whether a given patent claims an invention that is different from previous inventions, or whether an allegedly infringing program is different from the claimed technology. If computer scientists cannot unambiguously make these distinctions, there is little hope that judges and juries can do better.

Although not all software patents suffer from abstract or overly broad claims, software technology is especially prone to these problems. Indeed, software patents are much more likely than other patents to have their claim construction reviewed on appeal—an implicit indication that parties to lawsuits have fundamental uncertainty over the boundaries of these patents. This uncertainty leads to more frequent litigation and substantially higher litigation costs.

Software patents are not just like other patents. The problems of software patents—problems arising partly from the nature of the technology and partly from the way the courts have treated this technology—are a substantial factor in the overall poor performance of the patent system. The problem of implementing patent law to deal with abstract patents appears to be particularly stubborn and is unlikely to go away unless it is addressed directly.

By the way, Patently-O has the amicus briefs submitted in support of Bilski's appeal [PDF]. Blech. My personal OMG favorite: Anne Barschall's, who wrote:
The Supreme Court appears to have some “prejudice against electronic devices [as evidenced by] both Benson and Morse.” Its not magic, it is engineering. You can’t see electricity or quantum particles but that does not make them abstract ideas.
However, one detail: you can't patent electricity or quantum particles. Thank heavens. Someone would, if you could. Then they'd sue us every time we turn on a light. No. When we recharge our iPods. Now, *there's* a business plan.

That's what people used to say about Linux and standards, that Linux had to accept RAND terms that in effect exclude the GPL. Business-as-usual people have so much trouble comprehending that a new development model requires a change in the old ways. The standards world now has a clue, thanks to the OOXML saga, where Microsoft finally rewrote its terms to permit the GPL to be included. The EU Commission also understands that systems that make it impossible for Linux, offered to you under the GPL, to compete must change to allow Microsoft's number one competition to compete.

Is that hard to understand? And now the patent system will also have to bend to allow Linux and other FOSS projects to compete. Obviously, Microsoft understands how patents can protect a monopoly from Linux and other competition. Otherwise, its lawyers would have reasoned that adding the FAT patents to litigation against a GPL-using company wasn't worth the damage it would do to Microsoft's reputation. But it did add those two patents. Why? And for that matter, once it saw the reaction, why not drop them, if they are not central to Microsoft, as some are claiming?

There is something else I think Matt forgot to factor in. His article talks about how TomTom can't afford to defend itself in the litigation. If it can't afford to defend itself, can it afford to pay Microsoft for licenses on questionable patents? If not, why sue *them*? What exactly *is* Microsoft's goal in bringing litigation against this particular company, instead of financially healthier companies? It can't be money.

You tell me.

I think it's because it thought TomTom would easily roll over. Maybe roll over and die. Then that would strengthen Microsoft's position with respect to the questionable patents. It could then tell new targets, "Others have licensed these patents. You need to too."

Microsoft probably doesn't want to have to sue everyone and their dogs. That's expensive. It wants to quietly get money from folks too afraid or too naive to fight. Remember when Microsoft was going around asking people if they had a "Samba license"? That's what I heard, anyway. Some fall for tactics like that. Matt knows that, or a couple of years ago, he did:

And Matt Asay, vice-president of business development at Alfresco, a Britain-based open-source software company, wrote in InfoWorld's Open Sources blog that Microsoft "wants to kill open source through whisper campaigns."

Nobody needed a Samba license, and in due time the EU Commission took care of that problem. Why? Because instead of selling out, Samba stood firm. Unless the rest of the community does likewise, instead of justifying Microsoft, they'll buy you off, one by one, and that will be that. Microsoft already told you that's what they want, to have open source running on Windows. Is that the dream? Your dream? If not, why enable them? Samba and Red Hat have *proven* that you don't have to sell out. It's no accident that both understand the value of the GPL and adhere to its terms.

If Microsoft doesn't mean to target Linux, let them drop those two patents. If they don't drop them, don't pretend that Microsoft isn't attacking Linux. It is.

TomTom will get the community's support. It has mine. I came out of my semi-retirement, so to speak, where I was basically closing Groklaw down, thinking it wasn't needed any more. Now I'm here, and we'll be covering this case a la our coverage of SCO v. the World. TomTom will not be standing alone. So, if you find any prior art, please send it to OIN's Linux Defenders 911. I've seen your comments. There seems to be quite a lot found already, but keep it up, and even if you leave the information here in comments, please also report it to Linux Defenders 911, so lawyers can evaluate what you find.

Bruce Perens suggests another solution -- stop using this Microsoft-patented technology:

Now, why would anyone want to pay Microsoft for the right to use this lackluster technology? After all, there were better filesystems before MS-DOS came along, and there are much better ones today. It's not because of the technology, but because of Microsoft's dominance of the computer business.

FAT was the filesystem provided by Microsoft systems, and thus it was on nearly all floppy disks. Apple implemented FAT to be compatible with Microsoft. Later on, all USB sticks and SD cards had to use it if they were to work with Windows. So, most removable storage came preformatted with FAT out of the box. Others implemented FAT to be compatible with Microsoft, and it became the de facto "standard" for removable media. But a standard with embedded patents, for which Microsoft is now demanding royalties.

So, it's not the technology. Microsoft's market force as an effective monopoly in desktop computing made FAT ubiquitous, and Microsoft is able to muscle other businesses into paying a patent royalty for FAT despite its lack of innovation, only because FAT is what Microsoft chose to put in its own systems....

There are many Open Source filesystem implementations that are superior to the various generations of FAT. Many of them are under licensing that allows proprietary software to incorporate them, and are patent-free, or grant the appropriate patent rights without charge or discrimination.

SD Card Consortium shouldn't get away with incorporating a patented Microsoft technology, to the disadvantage of many prospective SD card users, when patent-free and technologically superior solutions are available off-the-shelf. We need an Open Standard, royalty free and without discriminatory licensing, for the next generation of removable media. Whoever develops that standard can save a lot of work by choosing an existing and appropriately licensed Open Source filesystem, and starting from there.

Steven J. Vaughan-Nichols has this take:
When asked specifically if "there are companies using Linux and open-source software, which have signed FAT patent cross-licensing agreements, such as the ones, which TomTom has refused to agree to?" Gutierrez replied, "Yes, other companies have signed FAT patent licenses, both in the context of patent cross licensing agreements and other licensing arrangements."...

The most important reason why the specifics of these deals are under NDA is that any company doing a patent cross license without covering its downstream recipients, i.e. users, is a direct violation of GPLv2 section 7, and is even more explicitly a GPLv3 violation. In other words, if a company admitted to signing such a deal, it could not legally distribute software or hardware using Linux, licensed under the GPLv2, or Samba the file/print server licensed over the GPLv3.

Behind the scenes Microsoft has been threatening open-source software-using companies over patent issues for many years now. Now we know that some of these companies, when they say that company so and so agrees to cross license Microsoft patents without any further detail, we now know that some of these companies are violating Linux and other open-source software licensing.

By doing this Microsoft gets direct revenue from some open-source projects. The additional license fees also increases the cost of commercially supported open-source programs.

Microsoft has essentially been giving companies a choice: pay us under the covers, and violate the GPL, or don't pay and risk a lawsuit.

Now, thanks to TomTom's resistance, Microsoft has been forced to admit that they've already been selling patent protection to open-source using companies. 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.

Some companies may not be in violation of the GPL, by the way, depending on the nature of what they sell. But here's the beauty part about litigation: discovery! TomTom can go after some clear details during the discovery process.

Update 2: Glyn Moody has two fascinating statements, one from Harold Welte and the other from Jeremy Allison of Samba. Welte points out that he's reviewed TomTom's code, in connection with a GPL compliance action, and it's nothing at all particular to TomTom, so when Microsoft claims this is only about TomTom's particular use, that appears to be not the case:

[MS] claim that this lawsuit has no relation whatsoever to Linux, and they're only targeting TomTom's specific implementation of Linux. I have actually reviewed the TomTom kernel sources a number of times during the last couple of years as part of gpl-compliance reviews. I can tell you, there is nothing "TomTom specific" in their FAT FS code. It is the plain fat/msdos/vfat file system like in every kernel.
You can read Welte's complete statement on his blog. Here's why he thinks Microsoft is doing this:
For a number of years, I have heard rumors by various companies producing Large-quantity embedded Linux products that Microsoft is claiming the Linux kernel infringes upon their software patents, and they should sign extensive patent licensing agreements with MS.

The underlying strategy is very obvious: Make those patent licenses high enough to reduce the cost advantage of a Linux based OS over Windows CE and thereby demotivate companies from using Linux in the embedded world.

When we hear these stories, I think from now on, we need to tell. Maybe Groklaw should start a web page of each verifiable sighting, so to speak. Or maybe we should just tell the USDOJ, state attorneys general, and the EU Commission. Can you lawyers out there start thinking about whether Microsoft is inducing others to violate a valid copyright license? Cut to the chase. I'm sure if I did private deals that circumvented Microsoft's EULAs, they sue me. What's the difference?

And here's Allison's take, in a comment on Moody's article:

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.

So, it *is* about Linux, and more specifically it is about undermining the GPL, and that is why the community is reacting and will continue to do so.

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