Who should Software Freedom sue on FAT32?

Who should Software Freedom sue on FAT32?

Summary: 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 it comes out that Microsoft had secret cross-licensing deals with all those other guys which violate the GPL.

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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?

  1. Go after Microsoft and we crank up the "Star Wars" music. Software Freedom may win but it will take years.
  2. 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.
  3. Sue both Microsoft and the licensees over the issue of the secret cross-licensing agreement.
  4. 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?

Topics: Operating Systems, Linux, Microsoft, Open Source, Software

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179 comments
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  • What did MS do wrong?

    They are not bound by the GPL. They are free to license their technology to anyone they want, under terms agreeable to both. (I assume there might be some Federal restrictions there, but I don't think we crossed that line).
    And MS isn't bound by the promises of the licensee. That is the licensee's problem.
    So how could you go after them?

    The OSS companies that chose to play both sides? Yep, shoot away.
    mdemuth
    • Plenty of possible causes

      Tortious interference with contractual relations, contributory infringement of copyright, all that. American law is, after all, chock-full of potential causes of action; you can sue someone for breathing. The challenge isn't suing, it's winning the suit.

      Or, in the case of Microsoft, surviving long enough in the face of the legal expenses to even have a chance of winning.

      The amusing part is that a lot of the case law was established by Microsoft themselves.
      Yagotta B. Kidding
      • In that case

        The OSS crowd would be better off aiming at the patents, and seeing if they could get them invalidated.
        Or, just maybe, coming up with their own solution of a file system, so that they didn't have to make these deals.
        I love a group that says with fury and bluster "We don't need Microsoft!" then turns around and cuts back alley deals with Microsoft because they can't come up with a better solution.
        I find that to be the amusing part.
        mdemuth
        • Brilliant suggestion

          [i]Or, just maybe, coming up with their own solution of a file system, so that they didn't have to make these deals.[/i]

          Boggle.

          Let's do a quick check: Microsoft supports two filesystems: FAT and NTFS. The only positive thing about either is that they're the only filesystems that Microsoft supports.

          Linux? JFS, ZFS, EXT2/3/4, ReiserFS, MinixFS, BFS, and several others. At least two were specifically designed for use with flash devices and have journaling capability optimized for flash.

          Why use FAT? Only one reason: for compatibility with Microsoft, which appears to be incapable of supporting other filesystems.

          The problem is legal, not technical.

          [i]I love a group that says with fury and bluster "We don't need Microsoft!" then turns around and cuts back alley deals with Microsoft because they can't come up with a better solution.[/i]

          Which group are you talking about? Novell? When did they, as you put it, bluster that they don't need Microsoft?
          Yagotta B. Kidding
          • I'm talking about

            the OSS companies that made illegal licensing contracts with MS.
            Anyone taking a licensing deal (in a back alley kind of way) while pretending to support the GPL.
            Seems there are a few of them. They are the amusing ones.

            Novell, like TomTom, seems willing to stand up and be above board. Something to be admired.

            As for compatibility, I remember years ago when I unfortunately had to deal with Apple computers ( and not just on a network), I bought software that would allow me, on a Windows PC, to read Mac formatted disks. It wasn't from MS, it was provided by someone that could write code.
            If you can't write the needed software to be usable on a Windows box, piss off. MS owes you nothing, and you can fail on your own.
            but of course, that is what most OSS does.
            And then they cry that MS didn't do it for them.
            mdemuth
          • Usually I'd agree with you

            "If you can't write the needed software to be usable on a Windows box, piss off. MS owes you nothing, and you can fail on your own."

            But file systems are a special case. They aren't just software, they are software that allows you to read software out of storage. A Linux userspace file system driver (FUSE) could be written for Windows, but instead of just distributing a TomTom update file you copy to a flash drive, you would have to distribute an installer that required admin privileges to install. This is highly suboptimal.

            Microsoft should not be allowed to restrict access to the very files you create in their operating system. They aren't a monopoly by definition, but they are in practice, and therefore need some restrictions on their anti-competitive behavior.
            colinnwn
        • OSS file system

          It exists, or should I say "they exist" but the monopoly that Microsoft was allowed to establish has successfully defeated all of the better file systems that have been promulgated. Few of these better file systems have any need for de-fragmentation.
          Update victim
      • stop kidding yourself and others

        TomTom could use the version of linux under GPL 2.0.

        It was open source who called this upon themselves by making GPL 3.0
        BrutalTruth
        • Huh? Linux DOES use GPLv2!

          As cut-and-pasted from my Linux sources:

          [i] GNU GENERAL PUBLIC LICENSE
          Version 2, June 1991[/i]

          Does that look like "Version 3" to you?
          Zogg
        • The problem is Section 7 of GPL *2*, not 3.

          Section 7 is where the thorn lies, and yes, it's in GPL 2 which is what Linux uses.

          And if push comes to shove, you can't even blame the FSF for Section 7, which basically says "the GPL puts this restriction *ON TOP OF* any other legal obligations you have."

          On the face of it that's perfectly reasonable, the GPL is reminding you that their license is a further restriction on top of other legal obligations.

          Of course that pretty much kills GPL'ed software's usefulness when software patents are involved.

          The real fly in the ointment is that Section 7 forbids you from restricting downstream user rights the GPL is intended to grant--such as modification and distribution.

          But you *can't* give downstream users rights to code that isn't yours (ie patented code) so if you do use patented code (that doesn't allow non-licensed users to use it) you can't distribute GPL code because you can't grant rights.

          In a very ironic way, Section 7 *upholds* Microsoft's rights in this respect! :)
          wolf_z
          • No it doesn't

            "But you *can't* give downstream users rights to code that isn't yours (ie patented code) so if you do use patented code (that doesn't allow non-licensed users to use it) you can't distribute GPL code because you can't grant rights."

            If you use GPL product X you have to provide source code access to product X.

            If you develop an extension based on product X you can decide how to administer the source or the compiled version for yourself. Section 2 of the old GPL allows you to differentiate between GPL and content derived elsewhere.

            And since access to FAT, FAT32, NTFS, SMB and the like are all based on loose ideas of 'public domain', and none of these have been released under GPL by Microsoft I'd say arguments over GPL are pretty irrelevant. All the GPL says is that if you DO infringe patents, you're on your own.
            dgrainge
          • What part of...

            "If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or
            otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot
            distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all."

            ...do you not understand?

            Thus the GPL is (in an undoubtedly ironic twist) upholding MS's rights since MS has a patent on the code in question.

            Now, can (and should) TomTom have ripped out the offending code, compiled it seperately and licensed the patent?

            Um, except they can't do that without violating the GPL license of the person(s) who actually wrote the code.

            Now, could they create a clean-room implementation (to avoid copyright issues), compiled *that* seperately and paid the license to MS?

            That *would* work, but then you've expended a huge amount of work *that you can't turn around and sell to another company (because the patent license is only good for *your* company).

            GPL is not software patent friendly to RAND patents...
            wolf_z
          • not patent friendly at all but

            maybe many patents won't exist in post-bilski era...

            There are even a few economists that are saying the reasons for patents are actually harmed by patents today. The main reason for a patent is to spur innovation and in todays world, they don't. In fact, as far as software patents go, they retard innovation.
            jtiner
      • Grasping at straws

        and I would LOVE to see the FSF do it. They would belong to MS after its done.
        No_Ax_to_Grind
    • That's an important point

      I would think that signing a contract you know is in violation of another contract may be grounds to invalidate the contract.

      Assuming you can prove that Microsoft knew it was telling people to violate GPLv2 and not tell anyone.
      DanaBlankenhorn
      • In a sick, twisted kind of way

        I love the US legal system, for the entertainment value alone.
        Your question is, of course, assuming it was MS that wanted to keep it secret. What if these OSS companies, wanting to license the technology but knowing it would be illegal, requested it be kept secret?
        Remember, MS never told anyone to violate GPLv2. These OSS companies had several options. Those companies signing did the violating all by themselves.
        mdemuth
        • WRONG !!!

          The agreement has to be signed by both, So MS is just as guilty, actually more they have been running around saying Linux violates their patents and not telling anybody which ones, so MS is the only one that knows.
          mrlinux
          • In any event

            Microsoft's failure to sue RedHat at any time in recent YEARS for infringing on their patent (by distributing FAT32-compatible code) means that MS has ceded the patent to the Public Domain.
            akulkis
          • nope

            The courts have clearly ruled that this is not true. Look at cases like Verzion vs Vonage. Verizon did not press it's rights for almost a decade and the courts still ruled in thier favor.
            owner4
        • Who knows what Microsoft told anybody to do?

          Or NOT to do?

          NOBODY! Since when did anything from Microsoft become believable, considering their history?
          Ole Man