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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."
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.
Bruce Perens.
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 (which applies to the Linux kernel), these are some quotes from the License:
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?
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 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.
Citation needed? Here it is: Federal Patent Court declares FAT patent of Microsoft null and void
These same two patents were also invalidated in the U.S. for a while, but they were subsequently upheld after an appeal.
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
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.
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.
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.
Bruce Perens.
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
Bruce Perens.
Worse than that, they would be playing right into Microsoft's hands, scaring device developers away from Linux towards WinCE.
How... odd. Enderle is always good for a chuckle. Like this paragraph:
Heh. Enderle. All concerned for FOSS. A big believer in the honesty of FOSS developers. That's rich.
I see another problem with this and that is that it shoots a hole in the GPS licensing. What good is open source if you still have to pay royalties to patent trolls in order to use it?
What do patent trolls have to do with anything? Let's say you are young enough to still go to school, and there is a school bully who threatens to beat up anyone who uses a computer that doesn't run Windows. So what good is GPL licensing? (I assume you meant GPL and not GPS). What good is a license to MacOS X, when Apple can't protect you from getting beaten up?
This whole GPL angle on the TomTom case is nonsense. TomTom uses Linux under the GPL license. Linux is either infringing on Microsoft's patent, or it isn't. If it is, that is not TomTom's fault. So TomTom gets blackmailed. They either pay or they don't. Whether they pay or they don't doesn't affect whether Linux is infringing on Microsoft's patent or not. Payment doesn't mean that TomTom admits Microsoft's patents are valid, it means they want to avoid a court case. Even if TomTom admits Microsoft's patents are valid, that isn't binding on anyone.
As long as TomTom puts all the code on their website, and doesn't itself add restrictions to its use, I can't see how they would be violating the GPL. Sure, they can tell you about this bully boy who forced them to pay money, and the bully boy could go after you as well. But the patent infringement, if there is one, is there in all Linux versions.