Original URL: http://www.theregister.co.uk/2009/02/26/microsoft_tomtom/

Microsoft trades goodwill for TomTom Linux satisfaction

Skeptics' 'told-you-so' moment arrives

By Gavin Clarke

Posted in Applications, 26th February 2009 06:11 GMT

Analysis It looks like Microsoft finally did it. It has filed a lawsuit over alleged infringement of its US patents by Linux and open source.

Today, the company filed suit against in-car, voice-activated navigation specialist TomTom NV and Tom Tom, Inc. And according to TechFlash, three of the eight patents Microsoft has contested relate to TomTom’s implementation of the Linux kernel. The other five relate to Microsoft’s own software. TomTom uses its own OS Linux, under GPL and LGPL.

Never mind that TomTom was running Windows and GPL code. It seems Microsoft took exception to the way TomTom had actually built its GPL’d Linux code.

Microsoft said it has turned to the courts having attempted to “engage in licensing discussions” with TomTom for “more than a year.”

In a clear sign of how much flak Microsoft knows it’s in for, Microsoft carefully steered clear of any mention of Linux in its press announcement of the action.

A statement from Horacio Gutierrez, corporate vice president and deputy general counsel of intellectual property and licensing, made no mention of open source or Linux. He focused on IP.

Only later did Microsoft’s spokespeople mention open source, saying this was nothing personal against open source. According to a well-groomed statement on TechFlash and All About Microsoft:

“(O)pen source software is not the focal point of this action. The case against TomTom, a global commercial manufacturer and seller of proprietary embedded hardware devices, involves infringement of Microsoft patents by TomTom devices that employ both proprietary and open-source software code.”

Open source might not be the focal point, but that won’t matter to the open-source community. Further, this statement shows just how Microsoft thinks it can separate the world of IP statements from the world of its day-to-day dealings with open source — and just how wrong it is.

For those in the open-source community long skeptical of Microsoft’s increasing out reach, TomTom is their “told you so” moment.

Bradley Kuhn, Software Freedom Law Center policy analyst, told The Reg Wednesday evening: “It’s a good moment for people to take a step back and re-think how friendly Microsoft is to open source.”

To Kuhn, people should remember that whereas patents in software are antithetical to free and open source, they’re the bread and butter of Microsoft’s business model — a model that’s not changed.

Kuhn said he’s been “very troubled” by how much people in the free and open-source world have become accepting of Microsoft just because it’s given money to organizations like Apache Software Foundation (ASF), when just two years back chief executive Steve Ballmer threatened Linux over unspecified Microsoft patents in Linux and open source.

Long Time Coming

The claim of Microsoft patents in Linux surfaced in 2004, when Ballmer misquoted a PubPat study and claimed Linux violated 228 patents. In 2007, Microsoft followed up telling Forbes that Linux and open source violated 235 patents: 42 in the Linux kernel, Linux graphical user interfaces violated 65, Open Office 45, various free/open e-mail programs violated another 15, and assorted, sundry free/open-source software programs violated 68 Microsoft patents.

Since then, Microsoft’s been diligently squaring away patent protection and licensing deals with Linux companies. The starting point, and summit, was the 2006 deal with Novell.

TomTom has been a long time coming.

According to Microsoft’s complaint, TomTom either took the Red Hat road to signing Microsoft patent protection licensing deals and decided there was no case to answer or wouldn’t agree to Microsoft’s terms. Among its claims, Microsoft is seeking damages from TomTom.

Whatever the merits of Microsoft’s case, and no matter how much Microsoft has insisted “this is not about Linux,” the case will erase hard-won gains Microsoft’s made in the open-source community. The noise storm that’s coming will overwhelm progressive voices in Microsoft’s open-source team and poison the atmosphere they must enter at events like EclipseCon and the O’Reilly Open Source Convention (OSCON).

That’s important.

Those voices have been on the front line of reaching out, getting open-source on side and technologies optimized to and helping interoperability with Windows. They will meet the kind of skepticism that first greeted them, and there will again be a reluctance to co-operate.

This will potentially hurt and slow further optimization and interoperability between Windows and Linux.

The question for the community will be: why should they deal with a group whose influence takes second place to Microsoft’s overall objectives of protecting patents and selling Windows? This at a time when Microsoft has been reaching out to open-source developers to help plug-ins and models that will extend Visual Studio 2010 and its new Oslo modeling platform.

“The [Microsoft] goal is to fight open source and free software, and I’ve never seen a change in that goal despite what Sam Ramji [director of Microsoft’s open-source development lab] and others have said,” Kuhn said.

The question of Microsoft’s priorities will also re-ignite dormant questions over things like Microsoft’s OSI-approved licenses. Potential users of code licensed under these will again wonder whether and when Microsoft can change the terms of the licenses to suit its objectives.

All these questions will play out against the backdrop of why Microsoft picked specifically on TomTom. Linux has seen rampant adoption among consumer device manufacturers because the code’s accessible and low-priced, unlike Windows. The case will re-awake suspicions Microsoft is using the courts as another weapon in a broader strategy to defeat Linux.

This will be a critical time for Microsoft and the community.

The only thing that’s brought both sides together has been pragmatism: the need to make each others’ technologies work better together, for the sake of their respective developers, and to help grow each others’ ecosystems and technical capabilities. Everything else is competition.

That pragmatism will now be put aside. The fall out from this case threatens to have a chilling effect on Microsoft’s dealings with the community — hurting its own technology expansion — and hurt the vendors, end users and developers that must work with both open source and Windows. ®