Microsoft vs Tomtom: Is this Ragnarök?

Frantic cries have been heard from all around the FOSS community since the announcement that Microsoft has taken patent infringement action against a distributor of the Linux kernel. Tomtom, an extremely successful Dutch company which sells GPS navigation devices is being sued by Microsoft for infringing on patents it holds, some related to mobile computing, others to the FAT file system. It’s the latter that is disturbing the Linux community, as the Linux kernel implements compatibility with the FAT file system and indeed it is the Linux kernel in some of Tomtom’s devices that Microsoft is accusing of infringing its FAT patents. Horacio Gutierrez, Microsoft’s senior intellectual property lawyer characterised the alleged  infringements this way:

“Yes, well, three of the eight patents in this dispute read on the Linux kernel as implemented by TomTom. The other five relate to car navigation proprietary software used by TomTom.”                   

Words like these bring back terrible memories of Microsoft’s – and particularly Microsoft CEO Steve Ballmer’s –  past statements in this area. Back in 2004  Ballmer told the Asian Government Leaders Forum in Singapore that Linux infringed on “over 228″ software patents and that

“somebody will come and look for money owing to the rights for that intellectual property…”              

Journalists seeking clarification of Ballmer’s comments at the time from Microsoft’s PR department were told that Ballmer was referring to a 2004 study by Dan Ravicher  that identified 283 potential software patent infringements within Linux. Ravicher responded that Ballmer was misreporting the essence of the report, which was that any operating system would necessarily infringe the 283 patents in question (Ravicher did not list them) and that therefore Linux was in no greater danger of infringement than any other operating system. The report was commissioned and published by a firm called Open Source Risk Management, who coincidentally were just about to start selling insurance for users of Linux who feared being hit with unexpected patent fees. Ravicher is now Legal Director of the Software Freedom Law Center, a law firm that specialises in helping authors of FOSS.

Of course this was not the only piece of horse-spooking that Microsoft has engaged in over the years. In May 2007 senior Microsoft lawyers Brad Smith and Horacio Gutierrez (sound familiar?) told Fortune Magazine that Linux infringes on 235 Microsoft-owned software patents and that:

“This is not a case of some accidental, unknowing infringement… There is an overwhelming number of patents being infringed.”       

Shortly after this Microsoft announced a deal with Novell that would protect customers using Novell’s SUSE Linux distribution from patent action by Microsoft – the obvious implication being that customers of all other Linux distributions must therefore be at risk (OSS Watch covered this issue and the Free Software Foundation’s reaction in our description of the GNU GPL v3 here).

So is the current climate of fear really warranted? Probably not. For a start, Gutierrez himself is at pains to say that this is not the beginning of the earth-shattering IP showdown that Linux users have been fearing for years:

I should say, Microsoft respects and appreciates the important role that open-source software plays in our industry, and we respect and appreciate the passion and the great contribution that open-source developers make in our industry. That appreciation and respect is not inconsistent with our respect for intellectual-property rights. Partnership with all technology companies, including those that adopt a mixed-source model, must be built on mutual respect for IP rights — rights that we all rely on for driving innovation and opportunity.Now, this case is against TomTom, and it involves infringement of Microsoft patents by TomTom devices. Each case is different, and this one is specifically about the use of software by TomTom in its devices.        

(from here.) In the past it has clearly been a strategic aim of Microsoft’s to cast doubt on the legality of Linux. The Microsoft quotes mentioned above were without doubt intended to make potential Linux users think twice about where they should spend their money. With the Tomtom case – in contrast – Microsoft seems to be at pains to go further than it needs to in calming Linux users about the potential for broad litigation against their chosen operating system. Just note the contrast between the Gutierrez of 2007’s Fortune article and the Gutierrez of 2009’s Tomtom-related interview. There seems to be a genuine movement towards playing down the implied threats of the past.

 Why has this happened? It’s almost impossible for an outsider to say.It is clear that Microsoft’s former strategy of implying that Linux was about to disappear under storm of patent infringement suits did not significantly affect Linux uptake. The Linux community adapted through initiatives like the Open Invention Network – a patent-holding organisation supported by Sony, Novell, Red Hat, IBM, NEC and Philips that licenses its IP at no cost to anyone who agrees not to assert their own patent rights against Linux. Of course, if you choose to assert your rights against Linux, the OIN will closely examine your products to make sure that none of their patents are embodied in them. In practice it’s this kind of ‘sue-me-and-i’ll-sue-you’ standoffs that prevent all-out patent war in the IT sector, and the number of patent-holding corporations with a stake in Linux now makes it potentially as risky to sue as any other single large technology player – maybe riskier given the added liability of blogosphere backlash and community hatred for any moves against FOSS. 

When OSS Watch spoke to OIN’s then-CEO Jerry Rosenthal in 2007 he believed that they would probably never have to actually sue a big player like Microsoft. So while the Microsoft-Tomtom case probably does not herald the the final Microsoft campaign against FOSS, it will be interesting to see whether OIN sees it as sufficient reason to look into enforcing their own patents against Microsoft. Tomtom must be hoping that they do. 

UK Government to level the playing field?

In May 2008 OSS Watch published a workshop report with the title “Levelling the playing field: developing a mixed economy for software procurement”. This report focussed on procurement in the Higher and Further Education sectors and recomended that we work to:

  • ensure all solutions use open standards and provide protection against vendor lock-in
  • facilitate better communication with senior managers across HE/FE as to the potential benefits and pitfalls of making use of open source solutions
  • encourage educational ICT bodies with an overview of the sector such as UCISA and BECTA to assist institutions with open source related training and knowledge
  • work to improve the ITT and PPQ processes within institutions

OSS Watch has been funded by the JISC since 2003, part of our remit has been to facilitate the appropriate adoption of open source in the sector, yet the recomendations made in our workshop were largely the same as they were in 2003. Did this mean that OSS Watch was having no effect?

I’m pleased to say that OSS Watch have had some influence on the adoption of open source in the  education sector. For example, we worked with our own funders on an open source policy which was adopted in 2004. Similarly, we worked with BECTA during the creation of the Open Source Schools project (as well as helping BECTA understand what the goals of this project were we continue to provide advice, guidance and materials to the company running the site).

However, when it comes to influencing individual procurement decisions we have struggled to have any significant impact. Put bluntly, there is very little our small team can do when faced with procurement policies and staff that are predisposed towards the incumbent suppliers products.

I was therefore encouraged when the Cabinet Office published “Open Source, Open Standards and Re–Use: Government Action Plan“. This document is intended to put open source software onto an equal footing with proprietary forms for procurement.

As with the 2004 government policy on open source we are assured that “Procurement decisions will be made on the basis on [sic] the best value for money solution to the business requirement, taking account of total lifetime cost of ownership of the solution, including exit and transition costs, after ensuring that solutions fulfil minimum and essential capability, security, scalability, transferability, support and manageability requirements” and “The Government will use open standards in its procurement specifications and require solutions to comply with open standards. The Government will support the development of open standards and specifications.”

However, this new document goes a small, but important, step further.

It states “Where there is no significant overall cost difference between open and non-open source products, open source will be selected on the basis of its additional inherent flexibility.” Many commentators have, so far, missed the importance of this statement. The key is in the acknowldgement of “additional inherent flexibility”. This is over and above the flexibility provided by the adoption of open standards.

This “additional inherent flexibility” is a result of having access to the source code. Closed source software can adopt open standards, but they still provide a form of lock-in since there is only one source of customisation and maintenance for that product. When the source is freely available one is able to shop around various support providers in addition to selecting from various interoperating products.

The introduction of competition through open standards is clearly a step in the right direction. However, competition between software providers is also desirable. This is a topic I cover when presenting at procurement related events, and is something OSS Watch believe is very important given that requirements for software usually change as an organisation matures. These changes may not be aligned with the business model of the current support provider.

I’m also encouraged to see that the document identifies a number of actions including “develop clear and open guidance for ensuring that open source and proprietary products are considered equally” (action 1). This is a very complex issue and is something OSS Watch have been trying to do in the education sector for some time.

The problem is that open source and closed source solutions cannot be compared using the same techniques. Whilst the software products themselves can be compared on a feature by feature basis, the softer aspects, such as quality of support, security, flexibility and sustainability of the solution cannot be easily compared like for like. Consequently, it is necessary to change the procurement process itself before any real impact will be seen. Simon Phipps of Sun Microsystems suggests one potential model for a level procurement playing field through adoption led approaches, and warns about how the existing process can be gamed.

Further to the need to change the procurement process we must also ensure our workforce has the necessary skills to evaluate and engage with open source software. Without this skillset policies and action plans will fall on deaf ears, who is going to implement them? I discuss this in my November post “We have an open source future – or do we?

Despite these concerns, I welcome this document from the Cabinet Office and encourage those with an understanding of open source and, in particular, how it should be evaluated to actively review and comment on the document using the CIO defined tag of #ukgovOSS so that it gets picked up and syndicated on a special public FOSS Aggregation page.

Building FOSS and Education links

At OSS Watch we often find that it is hard to find software developers who really understand what open source is about. All too often people think it is simply a way of licensing software.

It is true that the licence is extremely important, critical even. But it is also true that on its own, an open source licence is not sufficient to create good software (surprise!). For good open source software we also need to understand how to manage and engage with users and (if we are lucky) the developer community. This requires a set of skills not commonly taught as part of a typical computer science or software engineering degree. Yet learning to manage a succesful open source project is not difficult.

Recently OSS Watch have been working on some plans to start solving this problem. More accurately, we have been looking at ways to bring together the excellent work of others and tie it into formal education and work based learning. These plans are still solidifying, but they are progressing well and we now have a very impressive line up of collaborators, ranging from little old OSS Watch all the way up to some of the heavyweights of the open source software world.

Many of these  people, and some others, will be meeting at a pre-FOSSDEM EduCamp. Anyone interested in these issues should consider signing up for the event which is likely to be both useful and fun.