Microsoft v TomTom: a GPLv3 wake-up call
Free software's alarm bells ringing
Microsoft's brawl with TomTom over FAT patents has been seized on by software-freedom advocates as a wake-up call for people to adopt GPLv3.
Open-source developers can protect themselves, their customers and the cause of software freedom in general by switching code currently under GPLv2 to the updated GPLv3, the Software Freedom Law Center has said.
GPLv3 will close potential gaps in the wording of the GPLv2 that the SFLC believes Microsoft has exploited in order to tie up a patent cross-licensing deal with TomTom.
The organization believes Microsoft's been using this uncertainty to also tie off other deals with a string of open-source users, starting with Novell in 2005.
Under such deals, it seems, Microsoft has accorded to assignees and their customers a commitment not to prosecute for claimed violations of its patents in Linux and open source.
SFLC policy analyst Bradley Kuhn said Thursday Microsoft has managed to convince companies that patent protection covenants are compatible with the GPLv2. "Since most of them are about the kernel named Linux, and the Linux copyright holders are the only ones with power to enforce, Microsoft is winning on this front," Kuhn blogged.
But because the terms of deals and covenants are not made publicly available it's impossible to know whether Microsoft's patents claims are legitimate and have been upheld, or how far the patent protection clause extends to other users of the open-source software.
This helps maintain the state of uncertainty, and allows Microsoft to keep signing off deals potentially boxing in free software in general, and GPL'd code in particular.
"According to Microsoft and TomTom, the agreement gives some sort of 'patent protection' to TomTom customers, and presumably no one else. This means that if someone buys a GNU/Linux-based TomTom product, they have greater protection from Microsoft's patents than if they don't," Khun wrote.
"It creates two unequal classes of users: those who pay TomTom and those who don't. The ones who don't pay TomTom will have to worry if they will be the next ones sued or attacked in some other way by Microsoft over patent infringement."
Moving to GPLv3 removes any ambiguity, and the ability for Microsoft to come knocking, because the patent license you grant in your software is extended to all recipients of that software or recipients of works that are based on that software. ®
The Linux kernel *MUST* stay GPLv2 since a large amount of code, written by several people, does not include the "any later version" option.
In a nutshell it is arguable that GPLv2 allows for individual patent protection agreements* whereas GPLv3 does not.
So under v2 TomTom and MS are free to agree a deal whereby MS promise not to sue TomTom or their customers )explicitly of the TomTom products agreed) regarding FAT, however this agreement does not remove the threat of suing any non-TomTom party for breach of the FAT patents.
Under v3 any agreement not to sue over FAT would explicitly and irrevocably pass on to any other users of FAT using products (TomTom couls only sign this agreement if MS agreed to waive suing rights to all GPL3 parties).
Thus MS would have to decide whether to actually sue TomTom, with at least amicus backing from all other GPLv3 / FAT users or let it go. If they sue over FAT there is a very good chance they will lose (10 minutes on Google shows you plenty of prior art and obviousness). However as it stands MS have "won" a FAT patent battle in this instance and after a while they would be able to claim enough "victories" that many courts would find in their favour based simply on that.
GPL and RAND are incompatible by design
GPL software can't coexist with RAND (Reasonable And Non-Discrimintory) patents because RAND makes you pay for the right to use the patent--and that's verboten in the GPL.
Now personally I think software patents are stupid and shouldn't exist (software is mathematics). But until the laws are changed software pateints exist and are enforcable--and never the twain shall meet.
That has been Stallman's plan all along you know. Kill software patents, along with software that's sold.
The irresistable force is about to meet the immovable object. I wouldn't want to be the one between them...