Microsoft's lawsuit against GPS navigation device maker TomTom set off a flurry of speculation about whether or not the company had forced GPL violating terms on 18 licensees of its FAT patents. If Microsoft followed licensing guidelines that were once published on its website, and there was no requirement to track distribution, the answer might be 'no.'
From 2003 until July 2006, Microsoft published specific licensing terms for its FAT patents on its website (that information was scrubbed, but a cached copy is available on achive.org.) Those terms capped per unit revenue costs at US$250,000, and open-source legal experts (Allison, Moglen) have told me that a set maximum royalty price could be compatible with the GPL provided certain conditions were met. Unlimited per unit royalties with a requirement for tracking distribution would violate GPL v2, and any revenue sharing with its licensees would violate GPL v3.
*In my full article, Moglen noted that he cannot provide an opinion on any agreement without knowing the details. "A license which states a running royalty with a maximum *might* not
trigger the license provision because a licensee could disclose his
intention to pay the maximum and not keep track of the software. But
such a license might well trigger section 7 for other reasons, which
one wouldn't know until one reviewed all its terms," he said in a follow up e-mail*
Why Microsoft does not issue a statement to the effect that GPL terms were not violated by agreements leaves me scratching my head. If those were the terms, and the GPL was not violated, the
speculation and bad publicity would be put to rest. Given its response, I'm led to think that if GPL terms were not violated by the FAT licensing, Microsoft would issue a statement to that effect. Its silence on this issue says a lot.
Update:
David Kaefer, General Manager of IP Licensing at Microsoft, says:
"When we announced the FAT licensing program in December 2003, we indicated that pricing would be $0.25 per unit up to a cap of $250,000 for devices that use FAT for removable memory, such as flash memory cards. At that time, we also noted that some companies may wish to negotiate broader or narrower rights than our standard license for flash memory type scenarios and that pricing may vary. Today, our public pricing approach is unchanged."
I have followed up with David asking whether any of those agreements were uncapped, which would be a severe GPL violation, and received no answer. If the royalties are capped -- as they seem to be -- TomTom might be able to license FAT without violating the GPL (provided there is not a requirement to track distribution and certain other conditions are met) . And if that is the case... TomTom needs some serious explaining to do as to why it isn'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.
Update II:
The saga continues. Jeremey Allison e-mailed me again this evening stating that he has had a change of heart. "I don't think that specific license is GPLv2 compatible as is, based on the specific details in it," he said.
Read my
full report at SD Times.