Experts: Microsoft's FAT licensing terms might violate GPL
March 12, 2009 —
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Microsoft's current FAT file system licensing program could hobble the development and free distribution of GPL-licensed software, says an open-source legal advocate. However, licensing terms that were once published on Microsoft's website, which have since vanished, would have been compatible with the GPL.
Last week, Microsoft sued GPS navigation device maker TomTom for allegedly violating three of Microsoft’s file-system related patents by using Linux in its GPS devices. Linux supports the FAT file system and FAT Long File Names, which Microsoft licenses. Court filings revealed that Microsoft has 18 licensees—all under non-disclosure agreements—for its FAT patents.
TomTom now finds itself between a rock and a hard place. If TomTom continues to use Linux without licensing the FAT file system, it could face legal penalties. However, if it does license the system from Microsoft, TomTom could find itself in violation of the GPL, under which the Linux kernel is licensed.
While accepting a patent licensing agreement with Microsoft does not necessarily constitute a violation of GPL v2 or GPL v3, some of the FAT licensees may have accepted per-unit terms that would bar them from distributing software under the GPL, said Eben Moglen, founder of the Software Freedom Law Center and professor of law at Columbia Law School.
Under the GPL, there is an assumed right to redistribute software into the commons. A per-unit royalty agreement would require licensees to track how many copies of GPL-licensed software were distributed and to whom, something that would make downstream redistribution an impossibility, he said.
"That is not freedom under the GPL sense," said Moglen. "Under the GPL license, people should be able to distribute [into the commons] ad infinitum. If software is running a per-unit royalty, companies are not capable of distributing under the GPL."
Moglen couldn't say whether any of the 18 deals with Microsoft involve a GPL-violating term because the agreements are confidential. Further, any royalties paid to Microsoft at a flat rate, or paid up until a maximum amount (which does not require licensees to report to Microsoft about downstream distribution or redistribution), might not violate the GPL, he added.
Related Search Term(s): Microsoft, open source, TomTom
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