March 7th, 2009
Who should Software Freedom sue on FAT32?
Once upon a time I was going to be a lawyer.
One reason I didn’t go that way was to avoid running down rabbit holes like the one our own Jason Perlow offered us Thursday. (This puzzle called Down the Rabbit Hole is now on sale over at Legendary Toys.)
Microsoft owns FAT32, but it didn’t appear to pursue its rights against companies that supported FAT32 in their Linux thumb drives and consumer electronics.
Until the TomTom case. At which point Jeremy Allison of Samba says Microsoft had secret cross-licensing deals with all those other guys which violate the GPL.
So the question becomes, who should Software Freedom sue?
- Go after Microsoft and we crank up the “Star Wars” music. Software Freedom may win but it will take years.
- Go after all the Linux licensees who signed the secret cross-licensing deals. But then what is the remedy? The natural response of a licensee would be to drop Linux, and if Microsoft is offering a better solution you’ve just sued yourself out of business.
- Sue both Microsoft and the licensees over the issue of the secret cross-licensing agreement.
- Go after both sides through regulatory agencies like the FCC.
I’m inclined toward number three myself. If you and I sign a deal to violate someone else’s contract I don’t see how a court could allow that deal to be enforced. But I do have to prove secrecy — I can’t just claim I didn’t know.
These are not questions for a patent lawyer, which is what Software Freedom is looking to hire. It seems more a matter of contract law and discovery. But if you can’t prove secrecy you have lost time and money, which Microsoft could then take action against you to recover.
This is not something you can just innovate around. Microsoft clearly invented the technology at issue. Linux created a way to support it, and Microsoft chose to sign deals with those who put that support into hardware.
TomTom can easily find itself between a rock and a hard place. Make a deal with Microsoft and you violate your deal with Linux. Refuse and Microsoft sues you out of business.
Given that TomTom is Dutch, the dispute also goes before the U.S. International Trade Commission. Does that mean it can also go before the European Union, which has proven itself unfriendly to Microsoft in the past?
So we have a choice between contract and patent law, a choice of jurisdictions, and a choice of recommended remedies.
Which way would you go, if you were Eben Moglen?
Dana Blankenhorn has been a business journalist for 30 years, a tech freelancer since 1983. You can follow Dana on Twitter. See his full profile and disclosure of his industry affiliations.
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| 03/08/09
