They drew first blood, sir!

[Edvard]

I have a feeling this is going to get ugly...

Has Microsoft fired its first shot in the patent war against Linux?

While Microsoft will vehemently deny it, a lawsuit filed earlier this week by Microsoft against in-car GPS maker TomTom represents the first shot fired  in the Microsoft vs. free software war.

http://blogs.zdnet.c...3650&tag=nl.e539

[40hz]

To me, this whole incident seems to be a vintage Ballmer move.

I think MonkeyBoy flipped out and decided to do something to make people pay more attention to him now that Mr. Bill has moved towards the background.

But I'm guessing that Microsoft now realizes it has put its hand in a vise, and will be looking for a quiet way to claim victory through an undisclosed out-of-court settlement with TomTom.

They've hinted as much in some of their statements that followed the filing.

Otherwise, they're going to face the risk of having each of the patents they're claiming infringement on being reviewed by the courts. And if this does goes to court, Microsoft faces the very real possibility of having those eight patents revoked or more narrowly defined.

I think TomTom knows that and is calling their bluff.

It will be interesting to see if TomTom has the fortitude and financial resources to see it all the way through. But again, I'm guessing that TomTom will ultimately work out some token licensing deal with Redmond (like Novell did) just to get it out of the way.

----

 
If I were a conspiracy buff, I'd argue that this lawsuit was a smokescreen to hide their ongoing "Embrace, Extend, Extinguish" campaigns. This is especially a problem in the virtualization market. Check out this bit of news:

Citrix Ruins Xen for Linux

The latest announcement from Citrix is one which was covered yesterday and here is the press release from the company. There is nothing particularly shocking there.

Ignition Partners and Citrix were apparently used for their relationships with Microsoft to bring over Xen to Microsoft’s side. Having planted influence/cronies inside XenSource, Microsoft then ‘bought’ it using a partner [1, 2], only to hand it over back to Microsoft, over time [1, 2, 3]. The saga can be summarised as follows:

   1. Former Microsoft employees (Ignition Partners) put money in XenSource, which other companies have come to depend on as means of enabling GNU/Linux and choice

   2. At least one crony was put in charge of Xen (former Microsoft General Manager)

   3. XenSource was sold to Citrix without resistance

   4. Microsoft took Xen’s agenda from Citrix, which was crowned Microsoft Partner of the Year (2008) after buying XenSource

According to Parallels, it’s not surprising that Xen is no longer what it used to be, which leads to a cascading effect (companies dependent on Xen.org).

    “I make the further prediction that Citrix will stop developing XenServer altogether since it is not needed to make XenApp work. This will signal the eventual end of XEN. You really have to applaud Microsoft’s Server group here: XEN could have been a serious competitor to them, but instead it ended up being a partner and technology provider. Now, when the difficult economic climate could have created considerable opportunities for the open source XEN offering, it is instead largely out of the picture due to its relationship with Citrix, and by extension with Microsoft.”

Link to whole story: http://boycottnovell...pit-it-out-strategy/

 

[zridling]

Microsoft doesn't change, and the obstacles they put in front of innovation with regard to patents are predictably tired. Moreover, according to Jeremy Allison:

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.

________________________________________________
For more background on how Microsoft could end up losing their own patents on this, check out the Bilski case result for what could be history repeating itself.

[CWuestefeld]

This is a sort of war between Microsoft and the OSS folks. I can understand your annoyance with Microsoft, but why isn't this accompanied by an exact mirror back to the GPL zealots? If the GPL forbids any sort of compromise, don't they deserve every bit as much blame as Microsoft?

I imagine that MS never expected to prevail in a real lawsuit. Legally they must continue to protect their intellectual property, else they lose it. It needs to be preserved for this ongoing battle.

I you dislike the battle, you certainly can't blame Microsoft without blaming the Gnu folks as well. But since there clearly is a competition between these two parties, it also seems odd to blame them for using the tools that we, as a society, have given them. The real solution to this is to get your darned legislators to change the regime of intellectual property. (and really, the legislators are just such a bunch of a$$holes, especially lately, is there any reason not to just get rid of the lot of them?)

[40hz]

(and really, the legislators are just such a bunch of a$$holes, especially lately, is there any reason not to just get rid of the lot of them?)

-CWuestefeld (March 01, 2009, 10:28 AM)

Well ...we do have the best government money can buy. 

And Corporate America just hates to walk away from an investment that's been paying big dividends since Ronald Regan, so... 

[Edvard]

This is a sort of war between Microsoft and the OSS folks. I can understand your annoyance with Microsoft, but why isn't this accompanied by an exact mirror back to the GPL zealots? If the GPL forbids any sort of compromise, don't they deserve every bit as much blame as Microsoft?

-CWuestefeld (March 01, 2009, 10:28 AM)

Hell. No.

The sort of behind-the-back card tricks and shenanigans that Microsoft does so well are exactly what the GPL is trying to stop.
"Ah, but", you may say, "the GPL limits your freedom."
Freedom to what? Freedom to accept a knife in your back?

In a war between Blue Team and Red Team (I'll keep away from good guys vs. bad guys rhetoric...), if Red Team builds a wall to stop Blue Team from invading, looting and claiming territory, of course you would be accused of keeping Red Team in at the same time you're keeping the Blue Team out.
You could also say that if Red Team hadn't built that damn wall, Blue Team wouldn't have attacked so brashly. Sure, but you'd stand a good chance of waking up one day with your children stolen from their beds, your wife ravaged in the pantry and Blue Team shrugging and saying "What? It was in the contract, remember?"
Sorry, but I'll side with Red Team on this one.

Kudos to TomTom. I hope they win. Damn I hope they win.

[CWuestefeld]

The sort of behind-the-back card tricks and shenanigans that Microsoft does so well are exactly what the GPL is trying to stop.
"Ah, but", you may say, "the GPL limits your freedom."
Freedom to what? Freedom to accept a knife in your back?

-Edvard (March 02, 2009, 11:25 AM)

That's an absurd characterization.

Microsoft says: "You can do anything you please with our technology, but you must pay us for the right. If you don't want to pay, go invent your own way to do it."
GPL says: "You can only do the things we say you can do, but we'll never charge you for the right. If you need to use it differently, go invent your own way to do it."

I believe that's a pretty accurate simplification. And from this, it's very hard to say that one side is angelic while the other is evil.

Now, if you add onto my GPL (over)simplification: "Oh, and if you decide to pay Microsoft at all then you can't use our stuff, even if you're following all of our other rules", I just can't see how the GPL folks can come looking like white knights.

[Edvard]

Your simplification is fairly accurate, but that's not exactly what's happening.

Microsoft says: "You can do anything you please with our technology, but you must pay us for the right. If you don't want to pay, go invent your own way to do it."

They did. They invented a filesystem that was read-write compatible with the FAT filesystem. Now Microsoft is coming down on one small company that uses it in hopes to force their hand. What are they trying to force them to do?
Pay Microsoft for using someone else's free product, for one thing. That's the knife in the back.

Now, if you add onto my GPL (over)simplification: "Oh, and if you decide to pay Microsoft at all then you can't use our stuff, even if you're following all of our other rules", I just can't see how the GPL folks can come looking like white knights.

What is the conflict here? Microsoft has EULA's and nobody reads them but everybody knows that all they mean is that you follow Microsoft's rules when you use their software. Understood.
The GPL has rules also, and this is one of them.
Deal with it.
In order to guarantee your freedom to use the software as you see fit, they have to put in a restriction that says you can't restrict anybody else's freedom to do the same. Get it?

So what all this means is:
If TomTom signs the deal, they will lose their right to sell their GPS units with GNU software unless they use a different filesystem. That's the rules.
If Microsoft loses this suit, then we will finally have a sane definition of how their patent applies to real-world application of the FAT filesystem.
If Microsoft wins, then they will have established an authority over the FAT filesystem in general not just their code for it. So then everyone developing or distributing GPL software will suddenly lose the right to freely distribute software that uses the FAT filesystem. That will be a new rule.
After that? Anything else Microsoft deems fair game to assert ownership over in hopes that Linux and GPL software in general will collapse under the legal strain.

[40hz]

GPL says: "You can only do the things we say you can do, but we'll never charge you for the right. If you need to use it differently, go invent your own way to do it."

I believe that's a pretty accurate simplification.

-CWuestefeld (March 02, 2009, 12:16 PM)

I think you've kind of missed the entire point of GPL with your 'simplification.'

The GPL doesn't say you "can only" do anything. What it does say is that there is basically one thing you won't be allowed to do.

The rest of it is a pile of verbiage and clarifications put there to close some loopholes, and generally keep people from trying to find new ways to get around it.

That "one thing" you're not allowed to do is to release a proprietary closed-source product if you have incorporated GPL code into it.

If you release something to the public (as opposed to just using it yourself, or internally  like Google and others do) you must also release your source code. That is not to say you can't sell your product to a customer. All it says is that the source code for your product must be released for free and unrestricted use by anyone who wants it.

And this requirement extends to everything that incorporates GPL code. GPL is not an "anti-business' measure as some would argue. It applies just as equally to publicly released freeware.  Some freely distributed distros and applications recently ran afoul of this requirement and were made to comply.

-----

For anyone who is interested in reading the GPL (as opposed to just being told what it says) the full text can be found here: http://www.gnu.org/licenses/

Except for one person, I have yet to meet anyone who has had a philosophical problem with the GPL after they've actually read it.

And in case you're wondering, this person's 'problem' was that she (and her attorney) couldn't figure out a legal way to violate the GPL for a commercial product they wanted to do.

----

 And from this, it's very hard to say that one side is angelic while the other is evil.

-CWuestefeld (March 02, 2009, 12:16 PM)

Well, I can't speak for the white knights and angels, but I agree with you that Microsoft is not evil.

The whole problem comes down to Microsoft and FOSS living in two entirely separate universes. Their respective world views are so incompatible that no amount of discussion or compromise is ever going to resolve their differences. So why bother?

Perhaps the best outcome would be a form of parallel software evolution. It worked for marsupial/mammal development here on Earth, so it's not like it would be without precedent.

All both sides need to do is keep their claws sheathed, and it just might work.

[f0dder]

For anyone who is interested in reading the actual GPL (as opposed to just being told what it says) the full text can be found here: http://www.gnu.org/licenses/

Except for one person, I have yet to meet anyone who has had a philosophical problem with the GPL after they've actually read it.

-40hz (March 02, 2009, 03:20 PM)

Make that two. I used to think the GPL was cool back when I was ~18, but I've grown older and wiser (or was that wizened?)

[40hz]

For anyone who is interested in reading the actual GPL (as opposed to just being told what it says) the full text can be found here: http://www.gnu.org/licenses/

Except for one person, I have yet to meet anyone who has had a philosophical problem with the GPL after they've actually read it.

-40hz (March 02, 2009, 03:20 PM)

Make that two. I used to think the GPL was cool back when I was ~18, but I've grown older and wiser (or was that wizened?)

-f0dder (March 02, 2009, 03:26 PM)

Hey f0dder!

All I can say to that comment is: Uh-huh.

But if you like, I'd be happy to put the two of you in touch with each other.  

-----

BTW: I don't think you meant wizened.
(At least not if that's your real picture up on http://f0dder.reteam.org/  )

From Websters

wizened

Pronunciation:

    \ˈwi-zən also ˈwē-\

Function:

    verb

Inflected Form(s):

    wiz·ened; wiz·en·ing Listen to the pronunciation of wizening \ˈwiz-niŋ also ˈwēz-; ˈwi-zən-iŋ also ˈwē-\

Etymology:

    Middle English wisenen, from Old English wisnian; akin to Old High German wesanēn to wither, Lithuanian vysti

Date:

    before 12th century

intransitive verb : to become dry, shrunken, and wrinkled often as a result of aging or of failing vitality

transitive verb : to cause to wizen <a face wizened by age>

Now that you're wiser, you'd best stick with: 'wiser'.

[f0dder]

40hz: I actually did (tongue-in-cheek) mean wizened, although figuratively and not physically

[40hz]

To me, this whole incident seems to be a vintage Ballmer move.

I think MonkeyBoy flipped out and decided to do something to make people pay more attention to him now that Mr. Bill has moved towards the background.

But I'm guessing that Microsoft now realizes it has put its hand in a vise, and will be looking for a quiet way to claim victory through an undisclosed out-of-court settlement with TomTom.

They've hinted as much in some of their statements that followed the filing.

Otherwise, they're going to face the risk of having each of the patents they're claiming infringement on being reviewed by the courts. And if this does goes to court, Microsoft faces the very real possibility of having those eight patents revoked or more narrowly defined.

I think TomTom knows that and is calling their bluff.

It will be interesting to see if TomTom has the fortitude and financial resources to see it all the way through. But again, I'm guessing that TomTom will ultimately work out some token licensing deal with Redmond (like Novell did) just to get it out of the way.

-40hz (February 27, 2009, 01:34 PM)

Sometimes I really hate it when one of my predictions turns out to be right. To wit:



Link: http://blogs.zdnet.c...2398&tag=nl.e539

TomTom pays Microsoft and settles patent-infringement dispute

Posted by Mary Jo Foley @ 9:27 am


Microsoft and TomTom have settled the patent-infringement suits (and countersuits) between the two vendors, Microsoft announced March 30.

Microsoft is not paing TomTom, but TomTom is paying Microsoft an undisclosed amount as part of the deal.

Here is Microsoft’s official statement:

    “The cases have been settled through a patent agreement under which TomTom will pay Microsoft for coverage under the eight car navigation and file management systems patents in the Microsoft case. Also as part of the agreement, Microsoft receives coverage under the four patents included in the TomTom countersuit. The agreement, which has a five-year term, does not require any payment by Microsoft to TomTom. It covers both past and future U.S. sales of the relevant products. The specific financial terms of the agreement were not disclosed.”

But what is really amazing is this part of Microsoft's statement which comes later on (emphasis added):

“The agreement includes patent coverage for Microsoft’s three file management systems patents provided in a manner that is fully compliant with TomTom’s obligations under the General Public License Version 2 (GPLv2). TomTom will remove from its products the functionality related to two file management system patents (the “FAT LFN patents”), which enables efficient naming, organizing, storing and accessing of file data. TomTom will remove this functionality within two years, and the agreement provides for coverage directly to TomTom’s end customers under these patents during that time.”

Seems Microsoft has also decided to fall back on the loophole in GPL2 that led to the creation of GPL3.

So now Microsoft claims the best of both worlds - invoking GPL when it favors Microsoft - and challenging its legality when it doesn't. George Orwell's concept of double-think has found it's true home in Redmond WA.

Of course, MS's take on whether or not TomTom's agreement with MS actually complies with GPL remains to be seen. One thing for certain. The entire FOSS legal community will be looking very closely at this one. In the end, I think TomTom is going to lose out legally  - although whether to Microsoft or FOSS remains to be seen. Either way, they're dead. (Or Microsoft will buy them, which amounts to the same thing IMHO.)



But can any of us really claim to be surprised by any of this?

 

[Edvard]

 

Smokes, I was hoping for better than this...

[40hz]

Smokes, I was hoping for better than this...

-Edvard (April 01, 2009, 01:07 PM)

Yeah. It's good to still have a dream isn't it?