March 6th, 2009

Is TomTom testing Microsoft's patent cross licensing agreements?

Posted by Adrian Kingsley-Hughes @ 1:34 pm

Categories: In the news, Legal, Linux, Microsoft

Tags: GPL, Licensing Agreement, Patent, TomTom, Agreement, Microsoft Corp., Service Management, Linux, Open Source, Operating Systems

Is Microsoft’s lawsuit against TomTom a sign that its attempt at locking down Linux through the use of patent cross licensing agreements is starting to fail? And thanks to TomTom, we know know that Microsoft has been using cross licensing agreements to undermine GPL.

Computerworld’s Steven J. Vaughan-Nichols had an email exchange with Microsoft’s corporate vice president and deputy general counsel of intellectual property and licensing Horacio Gutierrez and uncovered something very interesting:

Gutierrez said, “We have a history of licensing the patents in this case through patent cross licensing agreements with other leaders in the car navigation space, including Kenwood, Alpine and Pioneer, and through our FAT LFN (File Allocation Table/Long File Name) patent licensing program, where we have 18 licensees to date.” This is being done under Microsoft’s FAT LFN File System Licensing Program.

When asked specifically if “there are companies using Linux and open-source software, which have signed FAT patent cross-licensing agreements, such as the ones, which TomTom has refused to agree to?” Gutierrez replied, “Yes, other companies have signed FAT patent licenses, both in the context of patent cross licensing agreements and other licensing arrangements.”

Why haven’t you heard of this before? It’s because Microsoft and the companies that have put these licenses under NDA (Non-Disclosure Agreements). So, while we now know there are at least 18 FAT LFN licensees, we still don’t know which companies have signed such deals.

Why haven’t we heard about these licensing arrangements before? Because these licenses are protected by Non-Disclosure Agreements (NDAs), and this is important because companies that have entered into these agreements with Microsoft cannot legally continue to distribute their code under GPLv2 or v3. Bottom line is that if you cross license, you lose the right to redistribute the Linux kernel. With 18 FAT LFN licensees, we know that there are at least that many GPL violators out there.

Side thought - What will the open source community do about GPL violators?

So, companies turn to Linux and open source rather than use Windows in order to be able to save money and modify the code, then Microsoft comes along and ties them up to secret agreements designed to erode open source and slow down progress by preventing GPLed code that’s been improved on and modified from being released back into the wild.

It seems that TomTom had to choose between signing up to Microsoft’s secret agreements and violate GPL, or stick to its principles and risk a Microsoft lawsuit. We know what path the in-car navigation company took.