Microsoft goes after TomTom -- and Linux

Microsoft's decision to sue TomTom International -- and in the process take on Linux -- isn't likely to affect your use of Linux. As of now, that's the consensus among experts.

But if Microsoft wants a fight -- oh boy, is the open-source community ready for it.

First, it should be noted that Microsoft is claiming its lawsuit, made public this week, isn't really about Linux or open source. Horacio Gutierrez, Microsoft's corporate vice president and deputy general counsel of intellectual property and licensing, said that while "three of the infringed patents implicate open-source code ... open-source software is not the focal point of this action."

Nonetheless, Andrew Updegrove, a partner at Boston law firm Gesmer Updegrove is concerned that Microsoft has been getting more aggressive about approaching companies and their use of Linux. "I've received e-mail in the past from people that Microsoft has approached, alleging Linux infringement and saying 'You better get a license from us, or else,'" Updegrove said.

On the other hand, moving aggressively against Linux "doesn't make sense to me, because I can't think of any reason why they should move now and several reasons why they should not: the [European Union] is still on their tail regarding browsers (and Gooble [sic] just joined in against them), and there's a new administration in town in Washington -- why test them at this point in time, rather than lie low and watch for awhile and see whether antitrust enforcement is back in town?"

Updegrove isn't the only one who's puzzled by Microsoft's move. Eben Moglen, a Columbia University law professor and co-author of the primary open-source license -- the General Public License, Version 3 (GPLv3), called it "a little mystifying. The FAT (File Allocation Table) patents aren't the strongest ammo in anyone's gun. This will do harm to their free-software co-existence process, which has had some viability. This will harm Microsoft credibility with free software.

"My job is to keep the community safe from aggression," Moglen said. "We need peace and that implies co-existence."

And if Microsoft wants to make a fight of it? "I'm sure that all free software parties, both community and corporate, will join together to formulate a measured, united response," added Moglen.

That's exactly what the Linux Foundation and the Open Invention Network seem to be doing. Jim Zemlin, the Linux Foundation's executive director, wrote in a public blog: "Right now, the Microsoft claim against TomTom is a private dispute between those two entities concerning GPS mapping software. We do not feel assumptions should be made about the scope or facts of this case and its inclusion, if any, of Linux-related technology."

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But if Microsoft wants to push the matter, "The Linux Foundation is working closely with our partner the Open Invention Network, and our members, and is well prepared for any claims against Linux," he said. "For now, we are closely watching the situation and will remain ready to mount a Linux defense, should the need arise."

Jay Lyman, an analyst at The 451 Group, thinks that the lawsuit isn't really about open source. "I think it's interesting that Microsoft is going out of its way to say that this is not aimed at open source," he said. "It also stressed that it is 'TomTom's implementation of the Linux kernel' that's the focus of the infringement suit. Think back to when Microsoft announced its agreement with Novell and there were subtle indications about the value of IP protection from Microsoft for Linux users. That has largely died down and now the company is going to great lengths to minimize the focus or even mention of Linux and open source, not only in its response to me and others, but in its press release and court filings."

So what is Microsoft up to then? "I've been hearing about vigorous competition in both the automotive IT and GPS spaces, so perhaps this has more to do with staking out some ground there, as well as continuing the company's IP licensing strategy and business."

Said Updegrove: "The only reason to maybe have some concern is Linux-based netbooks and mobile devices -- that is a real concern to Microsoft, especially after their last quarter's numbers. That could be a reason why they might want to fire a load of FUD across the bows of the marketplace, particularly since many of the device makers are smaller companies that presumably don't have the kinds of in-place cross licenses that a Dell or HP would have in place with them."

Stephen O'Grady, a RedMonk analyst, is more cautious. He doesn't think "this is the long-awaited patent offensive against Linux that it's being made out to be in some quarters. That said, I strongly suspect that the circumstances around the litigation are anything but accidental. ... Microsoft understands well that it is walking a fine line between compelling respect for its patent portfolio and triggering a massive legal battle."

Gutierrez insists that the case is just about TomTom. "Our intention is to enter an [intellectual property] licensing agreement with TomTom. As we have said before, we are committed to licensing our IP on reasonable terms. But in the most exceptional cases, when a pragmatic business solution is not attainable, we will pursue litigation to protect both our innovations and the partner companies who license these innovations from us."

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All Microsoft wants, he said, is for TomTom to do what other companies have done. "We have taken this action after making a good faith effort for more than a year to resolve this matter amicably with TomTom," Gutierrez said. "Other companies that utilize Microsoft patents have licensed and we are asking TomTom to do the same. TomTom is highly respected and important company, and we remain open to quickly resolving this with them through an IP licensing agreement."

If TomTom doesn't cooperate and the case does go to trial, Updegrove thinks Microsoft could be in trouble. "Now that Microsoft, finally, after so much posturing, has identified some of its patent claims, those claims will be subjected to a level of scrutiny the likes of which has never been seen before. One way to bust a patent is by revealing 'prior art' -- in layman's terms, evidence that someone else developed the same technology before, or that the patented invention could reasonably be inferred by one skilled in the trade.

"If there is a shred of prior art on the planet, it will be found and made available to the court," Updegrove said. "One need only look to the abysmal experience of SCO to see how much blood, sweat and tears (and, in that case, an unparalleled amount of folly, as well) can be spilled in tilting at Linux. With SCO vanquished, plenty of trained troops itching for another fight."

One of those troops, Pamela "PJ" Jones, editor of Groklaw, is ready to go. Jones thinks that after the Bilski case knocked out the legal foundation to many business process and software patents, Microsoft would be foolish to take these patents to trial. "What makes you assume they are valid in the post-Bilski world?" Jones wrote. "Don't even get me started on obviousness. Let alone who really 'invented' that stuff. This may turn out to be an opportunity, frankly."

So, will Microsoft actually push its case if TomTom doesn't cooperate? If it does, it could well end up being a battle over IP in Linux -- and that's a battle at least some open-source supporters are more than ready for.