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TomTom Settlement Aftermath: Get the FAT Out - Updated
Wednesday, April 01 2009 @ 04:03 PM EDT

The Linux Foundation's Jim Zemlin got the same message from the TomTom story that I did: just get rid of Microsoft's FAT LFN filesystem:
The technology at the heart of this settlement is the FAT [LFN] filesystem. As acknowledged by Microsoft in the press release, this file system is easily replaced with multiple technology alternatives. The Linux Foundation is here to assist interested parties in the technical coordination of removing the FAT filesystem from products that make use of it today.
OK. Sounds like a plan. There clearly is no "new" Microsoft, and they have evidenced now a lack of interest in any real interoperability with FOSS. Bruce Perens offers a list of applications to watch out for:
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.

Ah, yes. Mono. Once again. And OOXML. Might governmental agencies wish to particularly take note of OOXML in light of the TomTom settlement? I would think so. And .NET and Silverlight. Perhaps you can think of others.

More of the message from Zemlin:
In the last several days Microsoft has shown that despite claims of acquiring a newly found respect for open principles and technology, developers should be cautious in believing promises made by this “new” Microsoft. When it counts, it appears that Microsoft still actively seeks to undermine those technologies or standards that are truly open, especially when those technologies pose a significant threat to their business.

Yesterday, Microsoft announced with a formal press release a settlement of a nuisance patent case filed against a smaller company. Despite Microsoft’s protestations to the contrary, the press release makes it clear that the motivation behind this case was the fear, uncertainty and doubt Microsoft hoped the suit would create around the use of Linux. Linux is, not coincidentally, one of Microsoft’s strongest threats in the server, embedded and desktop computing arenas as evidenced in recent remarks make by its CEO Steve Ballmer.

But the settlement of this suit only proves two things. First, the software patent system in the US needs reform. The need for reform stems from why common functionality like this (which is neither innovative nor novel) was granted a patent in the first place.

Second, it proves that, even apart from this larger issue, this case is a non-event. The technology at the heart of this settlement is the FAT filesystem. As acknowledged by Microsoft in the press release, this file system is easily replaced with multiple technology alternatives. The Linux Foundation is here to assist interested parties in the technical coordination of removing the FAT filesystem from products that make use of it today.

There is another silver lining here. We read the outcome of this case as a testament to the power of a concerted and well-coordinated effort by the Linux industry and organizations such as the Open Invention Network, the SFLC and the Linux Foundation. This was not merely a typical David vs. Goliath story. This time David aligned itself with the multiple slingshots of the Linux community. Microsoft relented as soon as TomTom showed they were aligned with that community and ready to fight. The system is working.

There is one other fact clear from this case. Microsoft does not appear to be a leopard capable of changing its spots. Maybe it’s time developers go on a diet from Microsoft and get the FAT out of their products.

More from Perens:
Microsoft and TomTom have settled their patent lawsuit in a way that leaves Microsoft's FAT patents active as a threat to other companies. ...

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." ...

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.

He goes on to compare the workaround to the Novell deal, and I disagree that they are identical or that TomTom was disrespectful to the GPL. It did its best.

But let's face the simple truth. The Linux kernel guys have a role to play too. If they had upgraded the kernel to GPLv3, that would have been the end of this kind of Microsoft nonsense. I would very much like them to seriously reconsider their position now. FOSS legal eagles can only do so much with one hand tied behind their backs. While you are thinking it over, please consider Microsoft's announced goal: that FOSS applications run on Microsoft, not on your kernel. Think deep thoughts, please, and think strategically. What is *most* important at this particular time in history? It's your decision, of course, but take a look at the landscape, will you?

And I have a message for OSI and the Apache guys and anyone trying to push the idea that Microsoft should be treated just like everyone else because it's trying to be more "open" now: No. It isn't.

Wake up. Microsoft should be treated like Microsoft.

It is what it is. It is what it always has been.

Microsoft asked recently to be judged by its actions, not its words. OK. The TomTom settlement *is* Microsoft actions. We watched it, and we judge them by it.

Can you think of other things to add to Perens' list? We did that somewhat in a piecemeal fashion on other articles, but I'd like it all in one place, right here, so anyone wishing to avoid FAT, now that they've seen Microsoft in action in this litigation, will be informed. As for justice, there is that old saying, the wheels of justice grind slow, but they grind exceeding fine.

Update: Steven J. Vaughan-Nichols has a response from Dan Ravicher of PubPat and Software Freedom Law Center. He's not positive that the GPL wasn't violated, and points out we can't know one way or the other without actually seeing the agreement:

Daniel B. Ravicher, executive director of the Public Patent Foundation, a nonprofit legal services group that tracks the patents system, said he isn't sure the settlement meets the GPL's legal requirements.

"Without being able to review the specific terms of the agreement, it's impossible to say whether this is a good or bad thing. And, while it is possible to settle a patent infringement case in a way that allows the continued distribution of the allegedly infringing code under the GPL, again, without seeing the specific terms of this agreement, one can't say whether such is the case here or not."

In any case, Ravicher continued, "regardless of the settlement, the lawsuit brought by Microsoft was a severe escalation in patent hostility toward the Linux kernel specifically and free/open-source software in general. And the entire community should still be thinking about ways to address that threat."

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