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Experts: Microsoft's FAT licensing terms might violate GPL


By David Worthington
March 12, 2009 — 
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.

Under the original FAT licensing program, pricing was US$0.25 per unit with a cap on total royalties of $250,000 per manufacturer, according to what had been posted on Microsoft’s website from 2003 to July 2006. A Microsoft spokesperson could not explain why they were removed or whether those terms were applicable to the 18 agreements outlined in the lawsuit.

In a statement to SD Times, David Kaefer, Microsoft’s general manager of intellectual property licensing, said, “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.” Kaefer did not say if any of those agreements were open-ended.

Jeremy Allison, a cofounder of the open-source Samba project to extend Microsoft capabilities onto other platforms, said that the fixed price licensing Microsoft is describing would not be GPLv2 compatible.

The Linux kernel, which TomTom uses for its devices, is licensed under GPL v2. The GNU operating system that Linux is built out of is licensed under GPL v3.

GPL v3 violations are another possibility, because under the license, software may not be distributed if the distributor gives up a portion of his or her revenue in exchange for patent rights.

"Everyone that made such a deal with Microsoft should have had good GPL advice and considered alternatives, such as not making the deal," said Moglen. "I'm not sure what people did or didn't do. Some companies are careful with a deep legal bench, but I'm sure some people got hustled [by Microsoft]."

He cautioned that licensees might one day discover their agreements being publicized by Microsoft. "Microsoft is trying to work itself toward having a large number of businesses enrolled into taking licenses that they would be better off refusing. It could go public and say, 'You too should take a license.' "

In doing so, Microsoft is financing itself through patents, because the company's software does not meet engineering and global business requirements, said Moglen.

"They want to get paid for the other guy's stuff while they go through the torturous process of transforming Windows so that it is agile," said Moglen. "Given Microsoft's history and structure, that will be a wrenching and potentially fatal task [to Microsoft, if it fails]."


Related Search Term(s): Microsoft, open source, TomTom


Share this link: http://www.sdtimes.com/link/33327
 

Comments

03/12/2009 05:18:55 PM EST

Just more BS from MS.

United Statesztevenzon


03/16/2009 01:49:18 PM EST

omg quit cryin about MS. if you had intellectual property, you would want paid for it too. quit throwing stones at a company that obviously does well since no one else can compete with them.

United StatesQUITCRYINABOUTMS


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