Microsoft: Litigate on FAT, and you'll be the next Unisys

Remember "Burn All GIFs" from 1999? In 2009, the Open Source mantra of choice could very easily turn into "Destroy all FATs"

If you've been following the news in the Linux community, you've probably heard that Microsoft is currently in a lawsuit with Dutch GPS maker TomTom over what is believed to be a refusal on TomTom's part to cross-license long file name support in Microsoft's FAT32 technology.

The Linux kernel, which is released under the GPL2 Open Source license issued by the Free Software Foundation, is used in all TomTom portable GPS devices (and in many other consumer electronics products). The Linux kernel also has the native ability to access media which are formatted with FAT16 and FAT32 (vFAT) filesystems, which were originally implemented by Microsoft for the MS-DOS 3.0 and Windows 95 OEM Service Release 2 operating systems for use as mass storage in hard disk drives.

Today, FAT32 is most frequently used as a format to store data on USB thumb drives, flash memory cards for digital cameras and digital media players (such as Secure Digital, MMC, Sony MemoryStick and CompactFlash) as well as for storing for map information and Points Of Interest (POI) on portable GPS devices, such as the TomTom.

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Until now, Microsoft has never pursued any vendor with patent litigation who has used Linux and FAT32 in a consumer electronics product. According to Open Source evangelist and SAMBA developer Jeremy Allison, on a recent comment on Glyn Moody's open source blog, that's because of back-door, secret cross-licensing agreements that were established between the vendors and Microsoft concerning the infringing patents in question which would preclude that from happening.

Be it as it may, according to Allison,  all of these have occurred without the knowledge of the Free Software Foundation (FSF) which originates the GPL2 license. Although such a scenario has never been tested, were the FSF to become aware of such a secret agreement, they would immediately prohibit the vendor from using the Linux kernel in any of their products, as a patent cross-licensing agreement described above would constitute a severe GPL2 violation. In Allison's own words:

What people are missing about this is the either/or choice that Microsoft is giving Tom Tom.

It isn't a case of cross-license and everything is ok. If Tom Tom or any other company cross licenses patents then by section 7 of GPLv2 (for the Linux kernel) they lose the rights to redistribute the kernel *at all*.

Microsoft has been going around and doing these patent cross licensing deals with companies under NDA's so they never come to light for *years*.

That was the whole point of the Novell deal - Microsoft lawyers finally thought they'd found a way to *publicly* do these cross licensing deals and get around the GPLv2, but the GPLv3 put paid to that.

Tom Tom are the first company to publicly refuse to engage in this ugly little protection racket, and so they got sued. Had Tom Tom silently agreed to violate the GPL, as so many others have, then we'd only hear about a vague "patent cross licensing deal" just like the ones Microsoft announces with other companies.

So TomTom decided that it didn't want to participate in such back-door negotiations, and Microsoft went after them. Good for TomTom for not violating the GPL2, but now that this has all become public, if TomTom is forced into licensing the FAT32 patents as a result of Microsoft's legal action, it could forfeit the use of Linux in their products in the future. Which may be exactly what Microsoft wants, as it covets entry into the automotive technology industry, particularly with navigation systems.

Also Read: Who Should Software Freedom Sue on FAT32 (Dana Blankenhorn)

All of this FAT32 patent nonsense all sounds eerily familiar to me. Does anyone remember back in 1999 when Unisys owned the LZW compression algorithm patents, and decided to enforce their patent with every company that used LZW in a product to generate GIF images? Individual websites and end-users became concerned that this litigiousness would extend to smaller fry, so almost overnight, everyone convertedfromGIF to JPEG, and the "Burn all GIFs" campaign was born. Unisys also attempted (eventually unsuccessfully) to prove that their compression algorithm also covered JPEG -- so the Open Source community went out and created the PNG (Portable Network Graphics) format.

Unisys became a pariah in the Open Source community, their patents for LZW expired, and when they entered the Open Source consulting business years later, they lost all of their credibility and many companies and individuals refused to work with them as a result.

Unisys has still never completely recovered from this. As a former Unisys employee I can speak with authority about this, because every time I used to talk to my friends in the Open Source community about what we were trying to do with Linux and Open Source in our professional services business, I would get the usual "Hey, weren't you the guys who..." preamble.

End of discussion.

If this litigious behavior from Microsoft continues, I don't see why consumer electronics manufacturers which use embedded Linux couldn't just go and standardize their own flash memory filesystem equivalent to PNG. After all, there are other perfectly good file system formats that could be used to store data on SD cards and other flash devices, such as UBIFS and LogFS, which are even more efficient and more resilient at storing data. UBIFS and LogFS also have the advantage of being journaled, whereas FAT32 is not.

The downside of this of course is that FAT32 file system access is built into every PC and every Mac, and to access data on flash storage devices stored in an alternative format, you'd have to develop and distribute new driver software for those platforms. However, like Adobe's Flash Player or Acrobat Reader, which are 3rd-party software plugins, if the software drivers are released with enough consumer electronics products, it could make FAT32 obsolete and completely irrelevant.

Should the consumer electronics industry create an alternative flash media file system format that is free from Microsoft patent licensing? Talk Back and Let Me Know.

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