Analyzing Microsoft's Linux Lawsuit

jammag writes "Open source advocate Bruce Perens takes a close look at Microsoft's lawsuit against TomTom (discussed here last week), which involves an implementation of the Linux kernel, and calls it essentially a paper tiger. He notes: 'the technologies claimed in the 8 patents involved are so old and obvious that it's fair to say they have a high "Duh!" factor. There's an anti-trust angle to this suit that could blow up in Microsoft's face. And there's a high probability that some or all of the patents involved are invalid, due to recent court decisions.' Although the legal expense for TomTom to defend itself in court could be astronomical — meaning they may be forced to settle — in Perens' view Microsoft is aware its case is weak, yet hopes for a PR victory at limited cost." And reader nerdyH adds speculation from Open Innovation Network CEO Keith Bergelt that Redmond's action could be retaliation for TomTom's spurning a Microsoft acquisition bid in 2006.

Comments

question

[nomadic]

Why do we get so many legal analyses on slashdot from non-lawyers?

Re:question

[Sj0]

Why are there so many analyses of technology in law magazines done by lawyers?

Because our demographic demands it. There's only a few NYCLs in the community.

Either we get law analysis by techies, or we don't get anything.

Re:question

[omar.sahal]

considering Bruce Perens consults on avoiding licence issues for a living we can take his words seriously.
I know this is a bit vague, but as we already have initiatives for collecting of patents could there be a pool of cash collected from donors (as in small amounts of monthly donations from any interested individuals). Any company could then fight patent trolls by then putting in a nominal amount into the fund and getting support from the fund to protect its self against bodies trying to sue it. The threat of having to settle despite a week claim would then disappear, and Linux would be helped.

Re:question

[ozphx]

Because the legal analysis will go along the lines of "While asshattery on MS's behalf, they will likely win or force Tomtom to settle". This isn't something the Slashdot demographic wants to hear.

Re:question

[Bruce Perens]

Lawyers have generally been reluctant to do this because they can get in special kinds of trouble.

Re:question

[tuxgeek]

OSDL has implemented a legal defense fund for this purpose.
http://www.osdlab.org/en/Linux_Legal_Defense_Fund

I'm not sure how it works but I believe you can make donations to them (tax deductible?) specifically for the purpose of defending OSS developers against lawsuit from litigious douche bag companies such as M$, SCO, and various other patent trolls.

Re:question

[nomadic]

I don't know about this, LT has a tendency to go off on rants about things outside his sphere of expertise (and it shows).

Re:question

[soren202]

Are you denying that Microsoft is in the wrong on this one? I don't really think there's anyway to justify this move, as, basically, they're doing it to either gain money or hurt open source, as I'm fairly sure they won't lose anything in the long run if they don't pursue this case.

I'm not saying that all of Slashdot's anti-Microsoft articles are justified, but, really, considering how outright douchey this move is, can you really say the slant is unjustified?

Re:question

[Anonymous Coward]

Except some of us lawyers didn't begin as drunken poli-sci majors, we began as Comp Sci majors. And some of us might still think sladotters are arrogant in their assumptions re: legal issues.

Seriously, you don't just start commenting out parts of code when something doesn't work, do you? No, you try to understand it first and then try and debug it. From the comments I've seen over the last several years, slashdotters have done little to understand legal matters and instead spout vitriol from their soapboxes, coming across no better or of more reliable opinion on something outside their field than Richard M. Zealot.

While I don't think engineers would have any difficulty parsing the law - I didn't have any trouble with the materials in law school other than the outdated Rule Against Perpetuities - far fewer slashdotters have put in the time that is required to understand legal theory than those that comment (and often get modded +1 insightful).

Re:question

[Bill, Shooter of Bul]

No, but since I've reimplemented fat from scratch on an alternative ( unfortunately non-free) platform, I have some understanding in the technical underpinnings of Fat. By your logic, I can't comment on the legal side because I'm not a lawyer. Then how can a lawyer comment on the technical difference between say fat 12 and fat 16 ? When a legal issue touches on something that involves something other that pure law, there has to be a communication between the experts in that field and the lawyers. The layers might not understand all of the technical details, and the experts might not understand all of the legalities, but they have to come be able to understand and discuss some of the stuff outside their expertise if a fair judgment is to be reached.

Re:question

[Bill, Shooter of Bul]

Very good point. At the time of the Novell - Microsoft pact, I was arguing with Bruce here on Slashdot over how evil/ not evil it was and I generally sided with Microsoft. Well, not anymore. I've replaced Suse with another distro that does not have a pact with Microsoft, and am no longer convinced that microsoft is a gentle giant. It is clear that they are abusing their monopoly in this act. And I was a defender of Microsoft (at times) in the anti trust case in the late 90's. This is much much worse in my eyes than bundling IE with windows ever was.

Re:question

[m.ducharme]

There's also the fact that most lawyers know that giving any kind of legal opinion based on someone's article (or worse yet, a summary) is a mug's game. I'm in law school, and I've noticed that some of the hardest concepts for us new students to internalize is that

1) matters like this are almost always more complicated than they appear to be from the outside,
2) there are likely unseen (by us) details that may be crucial in determining the case,
3) ultimately, the law is what a judge and jury says it is (within certain limits that vary depending on circumstances), and
4) there are many, many situations where there isn't really a right answer.

Lawyers learn painfully that in a situation like this, looking in from the outside, one has to make so many assumptions about facts, law, etc, that an opinion rendered here is practically meaningless. With that being the case, why bother stating anything here more complicated than a basic background of the law? Especially when your opinion is going to be accorded a great deal of weight by the others here, which leads to the kind of problems you suggested to the GP.

Re:question

[erroneus]

There are PLENTY of pro-Microsoft people here. I was pro-Microsoft... was. But still, I know where they are coming from. Microsoft has been involved in some pretty ugly dealings. The whole OOXML thing should leave no doubt in anyone's mind the problems with Microsoft's behavior. But here's the problem that allows people to continue not despising Microsoft:

People think that Microsoft is a "corporate machine" and that it's faceless actions, while despicable, are the blameless actions of a machine and not directed or influenced by the people in the position to make the choices and directions responsible for for said despicable actions. People also think that "corporations are required to act in the interests of the shareholders" even though time and time again, corporate leaders do whatever they want even when it is in the face of shareholders crying out for a change in direction. This is a myth and has always been a myth.

No. The whole reality is that companies are run by people. If the company is known for despicable acts, then it is the people who run the company that are responsible for those despicable acts. The corporation is a shield legally, but not a shield morally. We know what they do and we know many of those responsible.

And by calling something a "bias" does not mean there is something inherently twisted or wrong with it or that by holding a particular position on an issue that they are not balanced in their perspective. Let's say I am biased against putting live human babies into wood chippers. Does my bias make my perception that this is "wrong" somehow disqualify me from making a sound judgement on the subject? I'm willing to bet that just about every last reader here who has read my position that putting live human babies into wood chippers is a bad idea will agree with me too. So are we ALL "biased" on the issue?

But here's the deal. We know that killing babies is bad. We are alive and everyone loves babies...especially live ones. So without much deliberation in our minds, we can conclude quickly that it's wrong to kill babies. Now what about open source versus closed source? Well let's look at the facts that we can all understand:

1. Open Source means we can look at the source and a few of us will know what we are looking at, but someone other than the author(s) will be able to look at it (and compile it) to determine whether or not it is doing what it is supposed to be doing and not hiding any secrets.

2. Closed sources means we cannot look at the source code of the software people are using. While it is rare that a company will sneak in secret and/or undesirable behaviors into binary-only distributed software, we know for a fact that it can and does happen. That it has been done by many of the most prominent names in the software business in fact is well known. This is more than enough proof to me and to most people with a clear thought in their head that closed source software offers a risk that open source seeks to eliminate -- the risk of secret and/or undesirable behaviors programmed into software.

The risk I describe is virtually the same risk posed by many commercial food products. Many people are catching on to the notion of being aware of what goes into our food and fortunately, many laws are on the books designed to increase the availability of this information to the public in hopes of protecting the public. (And isn't it interesting that the dairy industry has been trying to get the definition of "organic" changed so that their industrial milk can also use the term on their labels even though they don't match the classical definition of the term as we generally accept it to mean? It is clear the interests of "big dairy" are more important to big dairy than the interests of big dairy's customers.)

The interests of closed source software suppliers are more important to themselves than the interests of the users who use their software. (let's call it a "bias" shall we?) It has been demonstrated on numerous occasions

Re:question

[TechForensics]

Whether M$ is wrong or right, it makes sense for them to start with a weak defendant and nonimportant patents. If they win because they are big and Tom Tom gives up, they establish a precedent that being a monopolist does not prohibit their asserting patents to crush a smaller competitor, and they start to build a bedrock of patents that are fire-tested and fire-proof. By taking gradual steps M$ may do successfully what it could not by locking horns with Big Blue.

Targeting Linux?

[transporter_ii]

Would there be any difference in how Microsoft handled this case if TomTom had used FreeBSD instead of Linux?

transporter_ii

Re:Targeting Linux?

[Bruce Perens]

In that case, Microsoft could have come out with a product incorporating the BSD code, while suing other users of that same BSD code. This happened with JMRI.

Re:Targeting Linux?

[transporter_ii]

Interesting. Doesn't that assume that TomTom made the code in question public, which they wouldn't have to do with a BSD license?

I checked and FreeBSD, as well as a long list of other operating systems will mount a FAT32 partition. With FreeBSD it is just mount with "-t msdos,' which will let it mount FAT floppies, FAT16, and FAT32 partitions.

Of course, I'm sure you know this. What I'm just trying to figure out is if they are going after TomTom because they use Linux, or if they would be going after TomTom regardless.

Thanks,

transporter_ii

Re:Targeting Linux?

[Bruce Perens]

Doesn't that assume that TomTom made the code in question public, which they wouldn't have to do with a BSD license?

No. You don't need to look at any code to determine that it's mounting an SD card with a VFAT filesystem. Just look at the card. That's all MS needs to assert the patent. But in any case, it's easy to look at the code in most embedded systems, and certainly on TomTom. All of their proprietary code is on the SD card too.

The enemy of my enemy . . .

[MarkvW]

Tom Tom, from what I've read, has been a bad open-source citizen. Nevertheless, all Linux users have a shared interest in defending Linux against FUD. It would be so cool if the Linux community swarmed this problem. "The enemy of my enemy is my friend" seems to apply here. If MS is squashed here, there much less likely to go after even smaller businesses and people.

Re:The enemy of my enemy . . .

[zappepcs]

I think you are probably right, but for different reasons. If the Linux and F/OSS community swarmed this problem with viral PR for TomTom (thus against MS and proprietary IP litigation happy megolithics) it would possibly change how small companies are seen. Care would need to be taken that the PR is aimed at promoting goodness of Linux and F/OSS in general. You couldn't really do an "Hi, I'm a Mac" ads, but that would be the idea. Viral because there is no big financial war chest to draw from. What the Internet did for political candidates, it perhaps could do for F/OSS and GNU/Linux in particular.

"Intel Inside" would pale next to a well done "Linux Inside" advert.

So, coming to the aid of TomTom via the promotion of F/OSS and statements against the financial and business crippling effects of litigation, how it drives up prices for consumer goods, limits research/development etc. and so on would go far to help TomTom. Launching the goodness campaign in response to the TomTom lawsuit would be a good start, but it would need to continue for some time. The goal being that F/OSS is seen as a better choice than proprietary software; that open hardware and standards improve things, not cheapen them. On and on, We'd have to show who the enemies are, publicly and without prejudice. There are many organizations already working at this, it just needs to go viral.

DOJ Needed

[b4upoo]

This type of law suit in which the righteous party is forced to settle because of legal costs is exactly why Microsoft needs criminal sanctions. It is also exactly why stiff punitive fines should be levied against Microsoft. Hundreds of billions would be appropriate.

Unanswered

[HollyMolly-1122]

Is there an equal position for Microsoft and OpenSource community in the court? - Definitely not! OpenSource community should ask in the court to review Microsoft's initial position which is not fair ! OpenSource has their source open to the entire world, so even Microsoft can sneak for possible "patent breaks", but Microsoft has CLOSED source code, so nobody knows - are there any patent breaks or not. Is this equal position: if one player play with open cards, but another has rights to play with closed cards and asks judge to look closer only that player with open cards? At least at the court both parties should be equal and should come up with source code just because of there is no other options.

The answer is obvious.

[lostmongoose]

...and calls it essentially a paper tiger

It's really simple to fight then. They need a scissor lizard!

Re:The answer is obvious.

[Culture20]

...and calls it essentially a paper tiger

It's really simple to fight then. They need a scissor lizard!

I counter-counter with rock lobster, but their scissor lizard is tapped, so they take direct damage.

Re:Well, if Bruce Perens, legal expert said that..

[styrotech]

I know this wasn't what you were getting at, but he didn't say Linux has nothing to worry about (did you read the article?). Even if there isn't much substance behind the patent claims themselves, the article points out there is still plenty to worry about with these kinds of cases.

Re:FAT translation

[Peaker]

I think these translation tables *are* how long filenames are implemented within FAT file systems.

EFF as a friend of the court?

[shentino]

This case of david versus goliath sounds worthy of the EFF's attention...or soemthing.

Tomtom needs help, not because he's right, but because he's an ally.

MS is up to no good here, as usual.

1) If MS wins, FAT implementations will get smacked down quickly due to the effect of a cascading precedent. This includes linux mounting a floppy disk OR a flash drive OR a camera OR... need I go on?
2) If MS forces a favorable settlement, the chill factor will freeze out competitors
3) If MS settles out, we get nothing
4) If MS loses the case, we have victory.

Anyone who can call MS out as bullshit and back it up, get in touch with TomTom AND his lawyers post haste.

Re:Well, if Bruce Perens, legal expert said that..

[Bruce Perens]

I didn't say that, and you didn't read the article, so kindly go do so and say something more clueful next time.

Re:I'm no leagal wizz but...

[Bruce Perens]

It might be better to ask, is there anyone to whom this patent doesn't look trivial, and then why?

Re:Yes, but...

[gravos]

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.

It's hard to argue with this, even for MS apologists. When everybody is almost forced to use a system that you invented just because you invented it first, they shouldn't be able to use the legal system to strongarm you with it.

Re:Yes, but...

[timmarhy]

isn't "inventing it first" what innovation is?

Re:Yes, but...

[Anonymous Coward]

Inventing something is innovative, but actually using an invention for a practical purpose is even more innovative.

Patents, however, basically say that you are not allowed to do what you want with your own hands, simply because someone else came up with the idea first. Even if you both invented the same thing on opposite sides of the country, but one of you filed first, you can be screwed.

Fight Fire With Napalm : Perjury, a federal crime

[NZheretic]

IANAL but IMHO, TomTom's lawyers should:
1) request to deposition all the individual inventors named in the patents;
2) inform the inventors that they should have independent legal representation, since submitting false claims to the USPTO is perjury, a federal crime in the USA;
3) at the deposition really closely grill each inventor over each patent's prior art and obviousness;
4) then ask the inventors what advice Microsoft's patent department and lawyers gave to the inventors regarding each patent's prior art and obviousness ( Lawyer client confidentiality is not necessarily a two way street );
5) start building a case for the disbarment of any of Microsoft's lawyers who gave any advice or prodding to the inventors to ignore existing prior art and obviousness;
6) re-write many Microsoft's patent claims in technical English ( removing legal patent jargon ) and publish the result;
7) put out a call to the technical community for written and signed statements regarding the obvious nature of the patent claims;
8) fully publicise the outcomes of steps 1-7.

Re:Yes, but...

[tpgp]

all i heard was blah blah blah.

I'd consider getting new text to speech software then.

Re:Fight Fire With Napalm : Perjury, a federal cri

[Bruce Perens]

According to the assistant director of the patent office, they haven't prosecuted a perjury case since 1974. They shut down their enforcement department. So, if you lie, all you can lose is your patent. And someone else might have to spend millions, and kill his own company, to make that happen.

It seems that every part of the system is engineered to reward the person with bad intentions.

Re:Yes, but...

[Rockoon]

But TomTom has gone much farther than trying to use the ideas.. they are implementing the file system verbatim for obvious (its a standard, be compatible) reasons, and thats much worse than simply working off the ideas.

We can argue all day long that anything FAT32 shouldn't be patented from a moral standpoint, but at the end of the day there are numerous patents related to FAT32 that are still on the books, unexpired.

..certainly cannot blame Microsoft for trying to defend a patent that was granted to them, especialy if the abuser is in direct competition in a marketplace. If this was NTFS the situation would be a little more clear, but because its "the standard" FAT32, some people cannot see the similarity.

TomTom chose FAT32 for economic reasons.. they should have to pay the costs of that choice.

Only non-Windows GPS System

[Anonymous Coward]

TomTom is the only major non-Windows GPS. All the other big names are WinCE based.

Message to all vendors of small systems, use WinCE or face the consequences.

Re:Only non-Windows GPS System

[linuxrocks123]

Factually incorrect. Garmin also uses Linux; others probably do as well.

---linuxrocks123

Re:Yes, but...

[Divebus]

The TomTom I have carries a plain vanilla SD card. Any bets that it came from SanDisk (or wherever) already formatted with FAT32? I think SanDisk was one of the companies strong armed by Microsoft a while ago into buying a FAT32 license. Therefore, shouldn't the license to use said card transfer downstream? Or is it that nobody can write to a FAT32 partition without a further license? Microsoft will have its hands full if it's the latter - when The Planet attacks Microsoft in court like the RIAA.

It's not about the patents

[tsa]

I've said it before: this case is probably not about the patents at all. MS have been mapping the Earth in great detail during the past years, and now they want to take over the navigation business. What better way than to first eliminate their competition, either by buying it or, if that doesn't work, by suing it into oblivion?

Some of us are zombies, but

[Anonymous Coward]

everyone loves babies...especially live ones.

Yeah, they're soooo much juicier, don't you know!

This may interest some of you

[Sparx139]

The free software foundation sent out this email to their subscribers on the 28th of February

Looking at Microsoft's FAT patents through Bilski glasses

http://endsoftpatents.org/looking-at-microsoft-s-fat-patents-through-bilski-glasses/

Yesterday, Microsoft attacked free software and GNU/Linux users with
software patent claims against the TomTom Navigator and its
implementation of the FAT file system. But do they have a sword or a wet
rag?

With widespread support for GNU/Linux becoming a reality, are these
patent claims an attempt to chill adoption? If so, then we need to make
sure everyone knows about Bilski. Please read this story and use digg to
help raise awareness:

http://digg.com/linux_unix/Looking_at_Microsoft_s_FAT_patents_through_Bilski_glasses_2

Sign-up or ask friends to join our End Software Patents mailing list to
get these alerts:

http://campaigns.fsf.org/cgi-bin/mailman/listinfo/esp-action-alert

Thanks

Re:Yes, but...

[Divebus]

The Google G1 phone uses a 2gb SanDisk micro SD card. Lets see Microsoft pick on someone its own size.

Here's a list of Companies whose products write FAT32:

• Everyone

They could band together now and de-fang this nonsense.

Other epiphanies in history

[Dystopian Rebel]

I (...) am no longer convinced that microsoft is a gentle giant

"I am no longer convinced that the 'Mission Accomplished' banner was a good idea." -- George W. Bush

"I am no longer convinced that the Titanic is unsinkable." -- Thomas Andrews

"I am no longer convinced that striking explosives with an iron bar is a wise practice." - Phineas P. Gage.

Re:Yes, but...

[witherstaff]

OF course Microsoft is defending FAT32 - I mean it's one of the new supported features of Windows 7!