So, what if TomTom chose to rewrite namei_vfat.c, which isn't very long or complicated, and take those copyright holders out of the picture? They could GPL the result, but the only party with standing to sue them over the FAT patent might then be themselves.
We have a federal appeals court ruling in Jacobsen v. Katzer, the model railroad software case, that says a GPL developer does have an economic interest and is harmed by violators of the license. We have the precedent we need.
I don't think there's anything magic about source code that would disable the Doctrine of Laches. There is ample evidence that the source code has been compiled and used in a commercial context for more than a decade. Microsoft has not asserted its rights against the producers of namei_vfat.c despite the fact that it has been clearly visible to Microsoft for a long time. I think that's all you need to build a Laches case.
If TomTom just licenses the patents and does not attempt to tell anyone what they can and can not redistribute in a way that is contradictory to the GPL, I am not clear that all kernel developers would have standing. TomTom could inadvertently give standing to others by doing something stupid like adding written terms that are in conflict with the GPL.
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.
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.
"placing restrictions" would mean written license terms beyond those in the GPL. It's a different section of the license from the part about patent rights. I don't see that it would apply in this case.
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.
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.
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.
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.
Given our legal system, isn't that something we should be worried about? In other words, someone (MS in this case) can hold entire market segment(s) hostage, if it prevails, even via an out-of-court settlement.
Yes. I've been trying to get other people to think about this for 10 years or more.
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.
Be sure to write bruce at perens dot com if you come up with something. I don't think it's a matter of being right or wrong at this point, but putting all of the clues together. I don't claim to have all of them.
I'd think that, at this late date, we could sell CD-size USB sticks for less than 50 cents. Perhaps we can't beat the price of mass CD manufacture, but we can sure beat the price of writable ones, and come close enough to the mass CD price that it becomes a small fraction of the product cost.
Still alive? Wow! The Bush administration made it known they weren't interested in pursuing this case, and as far as I was aware, there was little movement in 8 years.
Tosh. Tankers pull up to the oil platforms to be filled with oil. There are a few that are very close to the shore that can pipe their oil in, but the far offshore ones have no other way of transporting the oil than to fill a ship with it.
Smileys are appropriate because of course that's the Broken Window Fallacy. Oil operators are supposed to, collectively, keep recovery staff on retainer and ready to go at the harbor. So, I think they get paid whether there's an emergency or not. I don't know all of the details. A lot of them seem to be firemen.
If you'd seen all of the work it took to clean San Francisco Bay up from one oil ship that just bumped a bridge pier, you'd not be writing that. Months of intensive work, then about a year of oil turning up in nooks and crannies that had to be scrubbed out.
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So, what if TomTom chose to rewrite namei_vfat.c, which isn't very long or complicated, and take those copyright holders out of the picture? They could GPL the result, but the only party with standing to sue them over the FAT patent might then be themselves.
We have a federal appeals court ruling in Jacobsen v. Katzer, the model railroad software case, that says a GPL developer does have an economic interest and is harmed by violators of the license. We have the precedent we need.
6 years is the commonly accepted interval. But Laches cases have been won for as little as 1 year.
I don't think there's anything magic about source code that would disable the Doctrine of Laches. There is ample evidence that the source code has been compiled and used in a commercial context for more than a decade. Microsoft has not asserted its rights against the producers of namei_vfat.c despite the fact that it has been clearly visible to Microsoft for a long time. I think that's all you need to build a Laches case.
If TomTom just licenses the patents and does not attempt to tell anyone what they can and can not redistribute in a way that is contradictory to the GPL, I am not clear that all kernel developers would have standing. TomTom could inadvertently give standing to others by doing something stupid like adding written terms that are in conflict with the GPL.
I've only got Debian around here so I can't check Red Hat. But I suspect that, on the advice of counsel, they ship the vfat code.
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.
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
"placing restrictions" would mean written license terms beyond those in the GPL. It's a different section of the license from the part about patent rights. I don't see that it would apply in this case.
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.
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.
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.
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.
Yes. I've been trying to get other people to think about this for 10 years or more.
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.
It might be better to ask, is there anyone to whom this patent doesn't look trivial, and then why?
Be sure to write bruce at perens dot com if you come up with something. I don't think it's a matter of being right or wrong at this point, but putting all of the clues together. I don't claim to have all of them.
I didn't say that, and you didn't read the article, so kindly go do so and say something more clueful next time.
Lawyers have generally been reluctant to do this because they can get in special kinds of trouble.
I'd think that, at this late date, we could sell CD-size USB sticks for less than 50 cents. Perhaps we can't beat the price of mass CD manufacture, but we can sure beat the price of writable ones, and come close enough to the mass CD price that it becomes a small fraction of the product cost.
Still alive? Wow! The Bush administration made it known they weren't interested in pursuing this case, and as far as I was aware, there was little movement in 8 years.
Tosh. Tankers pull up to the oil platforms to be filled with oil. There are a few that are very close to the shore that can pipe their oil in, but the far offshore ones have no other way of transporting the oil than to fill a ship with it.
Smileys are appropriate because of course that's the Broken Window Fallacy. Oil operators are supposed to, collectively, keep recovery staff on retainer and ready to go at the harbor. So, I think they get paid whether there's an emergency or not. I don't know all of the details. A lot of them seem to be firemen.
I'm not concerned with non-operational ones if the well has been properly capped. Operational ones have to be offloaded - to tankers.
If you'd seen all of the work it took to clean San Francisco Bay up from one oil ship that just bumped a bridge pier, you'd not be writing that. Months of intensive work, then about a year of oil turning up in nooks and crannies that had to be scrubbed out.