Slashdot

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.

Just switch file systems. Seriously, why the hell are you using FAT anyway.

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.

...

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.

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.

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.

Question : Don't you have to show that you've been harmed in order to bring a lawsuit? I'm not a lawyer, but I always thought that in order to sue somebody, you had to be damaged by them.

Now, let's say Tom Tom or any other company ponies up to Microsoft and distributes some piece of hardware bundled with Linux, and that's obviously a violation of the GPL. Clearly Tom Tom broke the license and they are not entitled to distribute it.

The question is, is the GPL owner harmed?

Well, one could make the argument that the answer is no, as everyone who actually had a Tom Tom device could in fact obtain the GPL code for themselves, and could update the code in the device. In fact, a person owning a Tom Tom might perhaps just state that a replacement in deed, because, if the Tom Tom GPL code is the same as the code it would be replaced with, which it has to be, then a physical act of copying the code over to make it legal is silly.

What this could be then, would be really Microsoft trolling for the ultimate legal showdown, which is thus: Microsoft makes a bunch of noise but ultimately gives Tom Tom a vfat license, rendering Tom Tom in default of the GPL. Somebody sues Tom Tom, at which point, Microsoft's pocketbooks open up and they support Tom Tom in the lawsuit, arguing that, well, because any person who is distributed the GPL by Tom Tom, can get it from somewhere else, Tom Tom's infringement is actually academic.

Thus, the attack would be, you can't be damaged by someone redistributing your GPL code against the terms of the license, because the person they are distributing it to can get it directly from you, and the GPL is actually worthless.

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.

Just what we need... Microsoft offering legal opinions about GPL enforcement.

Here's how TomTom can get off the GPL hook, no matter what terms they come to with Microsoft:

1. Write a library, from scratch, that implements VFAT and is covered by the patent license they get from Microsoft.
2. Take VFAT out of their Linux kernel.
3. Use FUSE to mount their VFAT volume, via the user-mode library that they wrote. Or, alternatively, compile the library from #1 into all of the TomTom applications that run under Linux on the TomTom hardware, and give the apps access to the raw volume, and don't even mount the VFAT volume. Essentially, VFAT would be just an application file format they use, with the file being the raw disk volume.

The engineering effort for this would be easy.