TomTom Can License FAT Without Violating the GPL

dp619 writes "Capped per-unit royalties make FAT licensing agreements permissible under the GPL, and SD Times has found that Microsoft's public license policy caps royalties at $250k. If the royalties are capped — as they seem to be — TomTom should be able to license FAT without violating the GPL. And if that is the case ... TomTom needs some serious explaining to do as to why they aren't licensing FAT. That said, Microsoft still needs to explain why it just cannot say that folks won't violate the GPL if they license FAT under its terms."

No lawsuit likely, here's how it actually works.

This story is nonsense.

First, to be sued you have to have someone willing to sue you. That would be the copyright holders of the GPL code that can't be distributed. They are:

Werner Almesberger
Gordon Chaffee
Wolfram Pienkoss
OGAWA Hirofumi

Those are the listed authors of the vfat code in the Linux kernel.

I don't see why those folks would want to sue TomTom. In general the kernel team isn't interested in suing to enforce the GPL, and the only person to bring such a suit, Harald Welte of gpl-violations.org, isn't involved with this code.

One of the possibilities in this case is that other companies than TomTom want to see the patents in question invalidated, and don't want to see TomTom bought by Microsoft, and will help TomTom with funds, etc. Whatever agreements go on about that will happen behind closed doors.

TomTom probably would not want to pay a capped royalty of a quarter million for something as bad as the FAT patents without at least exploring any less expensive paths to invalidate the patent. Like the Doctrine of Laches, for example. That code has been in the kernel longer than the usual Laches interval, which in general would hand MS and automatic loss.

Less expensive ways to win, in this case, may also mean "with someone else's money".

A capped royalty payment is in general NOT in compliance with the GPL version 2. What is "fixed" in GPL3 is the Novell loophole of licensing customers of the other company rather than the other company directly. Microsoft is not required to offer TomTom a license that uses the Novell loophole. Whatever they offer TomTom may still be out of compliance with GPL2. But that doesn't matter if the developers don't want to sue.

Jeremy is either being misquoted (likely) or he's a bit off-base this time.

Re:No lawsuit likely, here's how it actually works

You're correct Bruce, I'm off base this time. I got contacted by the writer this morning who told me that the SFLC had told him that a fixed cap would work with GPLv2. So being in the middle of coding something (ie. not paying enough attention), and remembering the fixed price we paid to get access to the EU Workgroup Server docs, I just agreed that it sounded like this would be a work-around for v2, but not for v3 where section 11 is much stricter about patent licensing (explicitly the bits about extending the license downstream), and bingo - there goes the story with the quote. You know how these things go :-(. My fault, and I'll be more careful in future.

Looking closely at the license here:

http://web.archive.org/web/20060207034921/http://www.microsoft.com/mscorp/ip/tech/fat.asp [archive.org]

the devil is in the details. Someone just mailed me a comprehensive analysis and agreeing to this license, even with a royalty cap, would violate GPLv2 in several ways.

There is a field of use restriction : "Pricing for other device types can be negotiated with Microsoft."

Modification restrictions: "devices are fully compliant with certain required portions of the Microsoft FAT file system specification"

and a per-manufacturer limit: "a cap on total royalties of $250,000 per manufacturer".

So yes, I got it wrong and this license is in no way GPLv2 compatible.

Sorry for the mistake. Blame me, not the journalist who was just trying to get his story.

Jeremy.

Re:No lawsuit likely, here's how it actually works

Thank you, Jeremy. I suspect you may be a bit out on a limb on the GPL compliance angle, too. As you can see above, there are only a few people who are direct copyright holders of the code that exercises the patent. The rest of the kernel isn't at issue. I think those four may be the only people with standing to sue. The question then is: does suing deter Microsoft, or only deter TomTom from embedding Linux in their device?

Obviously how TomTom conducts itself will be important. If their CEO has an on-stage hug with an MS executive and actively helps Microsoft circumvent the GPL, that would probably irk some developers. If they get bought by MS, they'd probably start embedding WinCE. If they just try to go on doing business as well as they can without allowing themselves to be a mouthpiece for a Microsoft FUD initiative, the key copyright holders might not have a reason to object. I would feel better about TomTom, though, if they hadn't had to be dragged into GPL compliance. But my experience is that companies usually commit GPL incompliance out of ignorance and bad process rather than intent.

Thanks

Bruce

Re:Why not?

GPL developers suing TomTom over their copyrights would not get the chance to invalidate the patents. Their suit would be a copyright case. It's TomTom who can invalidate the patents if they decide to fight Microsoft that way. It's not even clear that they have to take the trouble, they could show that the vfat code has been in the kernel long enough for the Doctrine of Laches - which says you lose the right to assert your patent if you wait for the market to develop first - to apply.

Re:Why not?

GPL developers suing TomTom over their copyrights would not get the chance to invalidate the patents.

Worse than that, they would be playing right into Microsoft's hands, scaring device developers away from Linux towards WinCE.

Re:Why not?

Why would someone develop for WinCE? Not to troll, it just seems like a dead platform.

Re:No lawsuit likely, here's how it actually works

Certainly MS could sue anyone who they claim violated their patent and didn't buy a license. It has nothing special to do with laptops or Linux.

The question is whether they would succeed.

They actually can't, most likely

Most likely the "cap" only applies to TomTom, not other 'licensees' of the software. For example, if TomTom sold a program to another company that relies on FAT technology, and the other company develops a different product based on the same kernel, Microsoft (if they follow common practice) would require the second company to license the FAT technology, to ship a product based on it.

Unless their standard agreement would allow TomTom to sublicense the technology, and include an unlimited royalty-free license when they distribute the Linux source code that corresponds to the software they are shipping in binary form, then the "capped" license still violates the GPL.

The GPL doesn't say you can distribute software under the GPL with capped royalties.

The only way this works is if TomTom pays the full $250,000, and gets unlimited licensing for them and all recipients of the software from them.

TomTom cannot require people who receive source code under GPL terms to report when they redistribute, in order for TomTom to pay for another license. The reporting requirement would be in violation of the GPL.

See the GPL version 2 [gnu.org] (which applies to the Linux kernel), these are some quotes from the License:

We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all.

...

For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

...

tomTom has to explain nothing

They are the victim of an attempted extortion racket over a couple of bogus patents. Why on earth should extortion victims have to explain why they didn't just pay up instead of taking the bastards to court?

Several non-FAT patents involved.

The Microsoft v Tom-Tom suit covers a half-dozen or so patents, only two of them FAT-related. (Besides which, the FAT patent has been thrown out in Germany.) Most if not all of them are obvious or have prior art, like the FAT patents, and may well not hold up under Bilski. What does it gain Tom-Tom to license a (potential invalidatable) patent like FAT if they're still being sued over half a dozen others? If they have to go to court anyway, might as well try to get them all overturned - they can always offer to settle later.

Re:Several non-FAT patents involved.

German federal patent court declares Microsoft FAT patent invalid [arstechnica.com]

Re:Several non-FAT patents involved.

Citation needed? Here it is: Federal Patent Court declares FAT patent of Microsoft null and void [heise.de]

These same two patents were also invalidated in the U.S. [cnet.com] for a while, but they were subsequently upheld after an appeal. [cnet.com]

Sadly, many including the poster don't get it...

TomTom should be able to license FAT without violating the GPL. And if that is the case ... TomTom needs some serious explaining to do as to why they aren't licensing FAT. That said, Microsoft still needs to explain why it just cannot say that folks won't violate the GPL if they license FAT under its terms."

Ohh yes they will violate the GPL. I have lifted the comment below (in bold), from this [itbusinessedge.com] informed user who I trust on these issues. He also drives home the motivation behind Microsoft's actions. Take a read.

Samba maintainer Jeremy Allison pointed out in a recent blog posting by writer Glyn Moody that companies who sign up to Microsoft's licensing cannot continue to distribute their code under GPLv2.

Section seven of GPLv2 - called the "Liberty or Death" clause - states that you cannot distribute code if outside restrictions have been imposed.

"What people are missing about this is the either/or choice that Microsoft is giving TomTom," Alison posted.

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

In other words, Microsoft is eroding Linux and open source and slowing their development. A deal with Microsoft prevents GPL'd code from returning to the ecosystem whence it came, with any improvements or updates, as companies that do patent licensing deals with Microsoft must keep it in-house.

Re:Sadly, many including the poster don't get it..

Nobody got the sarcasm. The "informed user" is Rob Enderle, who is, according to his own web site, paid to take opinions by certain software vendors. Or he just psychotic. The point he is trying to make about holding back code doesn't make legal sense, because that's not in GPL compliance either.

Re:Sadly, many including the poster don't get it..

How... odd. Enderle is always good for a chuckle. Like this paragraph:

FOSS folks sold me, during the SCO days, that they were sincere in their claim that if they used code that belonged to someone else and it became a problem, they would simply stop using it. I saw zero risk to open source from Microsoft, but Iâ(TM)m seeing a lot of FUD coming out of the FOSS side, and now Iâ(TM)m getting concerned.

Heh. Enderle. All concerned for FOSS. A big believer in the honesty of FOSS developers. That's rich.

royalty free redistribution?

Setting aside the idiocy in assuming that the patents are valid after being rejected twice by the USPTO before finally being revalidated [cnet.com] and ... [arstechnica.com]

GPL V2 Terms and Conditions [gnu.org]

11. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Library at all. For example, if a patent license would not permit royalty-free redistribution of the Library by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Library.

Microsoft does have the presidence in their favor due to the final decision of the USPTO and forcing Lexar to pay them off for their lame patents, but only a fool would simply give in to extortion.

a few relavent points...

Way back when the whole thing about fat being patented hit slashdot there were a few articles. One in particular was about nearly every camera manufacturer ponying up the dollars after the patent was uphelp... they all paid $250k to use fat (so no, this isnt new - and this was all on slashdot by the way).

Also, people keep missing the point of the patent (i.e. whats being licensed) keep an eye on whats being licensed here, its important. This is not "oh your flash card has a fat filesystem on it, you have to pay for it". Its "your device can read and write fat"... NOT THE STORAGE CARD! its the DEVICE that can read and write FAT (specifically long-file names capable FAT). Do we get what the license is for now?

Now what filesystem exactly would they switch to? joe blogs goes and downloads the update, plugs his flash card into his windows box and (formats the flash card if required - as fat or ntfs). Then plugs that into the tomtom device. Tomtom device doesnt read fat(32) and so it doesnt work...

i.e. tom tom are essentially forced to license a patent based the fact they are forced to implement fat in their device.

I personally hope tomtom fight it. from the words of (whats is possibly) the worlds most moronic OP "TomTom needs some serious explaining to do as to why they aren't licensing FAT.". You dont think Tom-tom already knew about it? you dont think they ever read the (very very public) news about it happening to the camera makers?

But in reality, it should read more like "the patent office have some serious explaining to do in order to justify why FAT was ever allowed to be patented". Those patents should never have been allowed - there is nothing remotely inventive about fat with long file names.

Re:Fuck em

Everyone uses it? you can plug in the SD card from the gps (or camera or whatever) straight into a card reader on _any_ computer from the last 10 years and it will read it. Moving away from it will be like moving from IPv4 to IPv6. Slow and messy. But necessary one day - those flash devices are getting bigger and bigger, and windows won't let you create a FAT fs bigger than 32G (though it is possible) as it gets horribly inefficient. MS is pushing exFAT, but being incompatible with FAT, they face the same problems as any other fs in this regard, and lawsuits like this one might end up biting them back.

It's about interoperability, stupid

Or just maybe it's because people expect to be able to see some files when they plug their GPS receivers into their Windows machines. If Windows had an Ext2 driver bundled with it, I wouldn't ever format a USB drive as FAT either.

Re:It's about interoperability, stupid

I concur, I kept getting blue screens all of a sudden doing something with vmware I think it was under server 2003 (my memory fails me somewhat)...

Bad memory is one of the leading causes of BSODs. You should run memtest86+ and replace any faulty units.

Re:Fuck em

That, and it's pretty much universal, (almost) everything from Amiga to Windows can use FAT.

Come on, you could have gone with z/OS and gotten extra points here.

Re:which?

IIRC it isn't about FAT, but about using long names in FAT.

Re:which?

Actually the lawsuit is over multiple patents, some of which are the FAT patents, all of which are dubious...

United States Patent 6,175,789
Beckert , et al. January 16, 2001
Vehicle computer system with open platform architecture

United States Patent 7,054,745
Couckuyt , et al. May 30, 2006
Method and system for generating driving directions

United States Patent 6,704,032
Falcon , et al. March 9, 2004
Methods and arrangements for interacting with controllable objects within a graphical user interface environment using various input mechanisms

United States Patent 7,117,286
Falcon October 3, 2006
Portable computing device-integrated appliance

United States Patent 6,202,008
Beckert , et al. March 13, 2001
Vehicle computer system with wireless internet connectivity

United States Patent 5,579,517
Reynolds , et al. November 26, 1996
Common name space for long and short filenames

United States Patent 5,758,352
Reynolds , et al. May 26, 1998
Common name space for long and short filenames

United States Patent 6,256,642
Krueger , et al. July 3, 2001
Method and system for file system management using a flash-erasable, programmable, read-only memory

Re:Fuck em

Internally, very few devices would consciously choose to use FAT...

If any of my devices consciously choose what file system to use, I have a hammer that will correct such behavior.

Re:Just drop support for short filenames

That would make it incompatible with all versions of Windows. At which point you might as well use another filesystem.

FAT files need the stupid short names. It's a requirement. You can't physically have a FAT filesystem without short names. The patents are about the fugly hack that long filenames on FAT are (which makes them compatible with short filenames; it doesn't add that capability to them).