TomTom/Microsoft: A Wake-Up Call for GPLv3 Migration

Thursday 16 April 2009 by Bradley M. Kuhn

There has been a lot of press coverage about the Microsoft/TomTom settlement. Unfortunately, so far, I have seen no one speak directly about the dangers that this deal could pose to software freedom, and what our community should consider in its wake. Karen and I discussed some of these details on our podcast, but I thought it would be useful to have a blog post about this issue as well.

Most settlement agreements are sealed. This means that we won't ever actually know what TomTom agreed to and whether or not it violates GPLv2. The violation, if one exists, would likely be of GPLv2's § 7. The problem has always been that it's difficult to actually witness a v2§7 violation occurring (due in large part to less than perfect wording of that section). To find a violation v2§7, you have to discover that there were conditions imposed on [TomTom] ... that contradict the conditions of [GPLv2]. So, we won't actually know if this agreement violates GPLv2 unless we read the agreement itself, or if we observe some behavior by Microsoft or TomTom that shows that the agreement must be in violation.

To clarify the last statement, consider the hypothetical options. For TomTom to have agreed to something GPLv2-compliant with Microsoft, the agreement would have needed to either (a) not grant a patent license at all (perhaps, for example, Microsoft conceded in the sealed agreement that the patents aren't actually enforceable on the GPLv2'd components), or (b) give a patent license that was royalty-free and permitted all GPLv2-protected activities by all recipients of patent-practicing GPLv2'd code from TomTom, or downstream from TomTom.

It's certainly possible Microsoft either capitulated regarding the unenforceability (or irrelevancy) of its patents on the GPLv2'd software in question, or granted some sort of license. We won't know directly without seeing the agreement, or by observing a later action by Microsoft. If, for example, Microsoft later is observed enforcing the FAT patent against a Linux distributor, one might successfully argue that the user must have the right to practice those Microsoft patents in the GPLv2 code, because otherwise, how was TomTom able to distribute under GPLv2? (Note, BTW, that any redistributor of Linux could make themselves downstream from TomTom, since TomTom distributes source on their website.) If no such permission existed, TomTom would then be caught in a violation — at least in my (perhaps minority) reading of GPLv2.0

Many have argued that GPLv2 § 7 isn't worded well enough to verify this line of thinking. I and a few other key GPL thinkers disagree, mainly because this reading is clearly the intent of GPLv2 when you read the Preamble. But, there are multiple interpretations of GPLv2's wording on this issue, and, the wording was written before the drafters really knew exactly how patents would be used to hurt Free Software. We'll thus probably never really have complete certainty that such patent deals violate GPLv2.

This TomTom/Microsoft deal (and indeed, probably dozens of others like it whose existence is not public, because lawsuits aren't involved) almost surely plays into this interpretation ambiguity. Microsoft likely convinced TomTom that the deal is GPLv2-compliant, and that's why there are so many statements in the press opining about its likely GPLv2 compliance. I, Jeremy Allison, and others might be in the minority in our belief of the strength of GPLv2 § 7, but no one can disagree with the intent of the section, as stated in the Preamble. Microsoft is manipulating the interpretation disagreements to convince smaller companies like Novell, TomTom, and probably others into believing that these complicated patent licensing deals and/or covenants are GPLv2-compliant. Since most of them are about the kernel named Linux, and the Linux copyright holders are the only ones with power to enforce, Microsoft is winning on this front.

Fortunately, the GPLv3 clarifies this issue, and improves the situation. Therefore, this is a great moment in our community to reflect on the importance of GPLv3 migration. The drafters of GPLv3, responding to the Microsoft/Novell deal, considered carefully how to address these sorts of agreements. Specifically, we have these two paragraphs in GPLv3:

If, pursuant to or in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of, a covered work, and grant a patent license to some of the parties receiving the covered work authorizing them to use, propagate, modify or convey a specific copy of the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.

A patent license is “discriminatory” if it does not include within the scope of its coverage, prohibits the exercise of, or is conditioned on the non-exercise of one or more of the rights that are specifically granted under this License. You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a discriminatory patent license (a) in connection with copies of the covered work conveyed by you (or copies made from those copies), or (b) primarily for and in connection with specific products or compilations that contain the covered work, unless you entered into that arrangement, or that patent license was granted, prior to 28 March 2007.

Were Linux under GPLv3 (but not GPLv2), these terms, particularly those in the second paragraph, would clearly and unequivocally prohibit TomTom from entering into any arrangement with Microsoft that doesn't grant a license to any Microsoft patent that reads on Linux. Indeed, even what has been publicly said about this agreement seems to indicate strongly that this deal would violate GPLv3. While the Novell/Microsoft deal was grandfathered in (via the date above), this new agreement is not. Yet, the most frustrating aspect of the press coverage of this deal is that few have taken the opportunity to advocate for GPLv3 adoption by more projects. I hope now that we're a few weeks out from the coverage, project leaders will begin again to consider adding this additional patent protection for their users and redistributors.

Toward the goal of convincing GPLv2 users to switch to GPLv3, I should explain a bit why special patent licensing deals like this are bad for software freedom; it's not completely obvious. To do so, we can look specifically at what TomTom and Microsoft said in the press coverage of their deal: The agreement protects TomTom's customers under the patents …, the companies said (Microsoft, TomTom Settle Patent Dispute, Ina Fried).

Thus, according to Microsoft and TomTom, the agreement gives some sort of “patent protection” to TomTom customers, and presumably no one else. This means that if someone buys a GNU/Linux-based TomTom product, they have greater protection from Microsoft's patents than if they don't. It creates two unequal classes of users: those who pay TomTom and those who don't. The ones who don't pay TomTom will have to worry if they will be the next ones sued or attacked in some other way by Microsoft over patent infringement.

Creating haves and have-nots in the software licensing space is precisely what all versions of the GPL seek to prevent. This is why the Preamble of GPLv2 said: any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary.

Further to this point, in the Rationale Document for the Third Discussion Draft of GPLv3, a similar argument is given in more detail:

The basic harm that such an agreement can do is to make the free software subject to it effectively proprietary. This result occurs to the extent that users feel compelled, by the threat of the patent, to get their copies in this way. So far, the Microsoft/Novell deal does not seem to have had this result, or at least not very much: users do not seem to be choosing Novell for this reason. But we cannot take for granted that such threats will always fail to harm the community. We take the threat seriously, and we have decided to act to block such threats, and to reduce their potential to do harm. Such deals also offer patent holders a crack through which to split the community. Offering commercial users the chance to buy limited promises of patent safety in effect invites each of them to make a separate peace with patent aggressors, and abandon the rest of our community to its fate.

It's true that one can blissfully use, redistribute, sell and modify some patent-covered software for years without ever facing a patent enforcement action. But, particularly in situations where known patents have been asserted, those without a patent license often live in fear of copying, modifying and sharing code that exercises the teachings of the patent. We saw this throughout the 1990s with RSA, and today most commonly with audio and video codecs. Microsoft and other anti-Free Software companies have enough patents to attack if we let them. The first steps in stopping it are to (a) adopt GPLv3, LGPLv3 and AGPLv3 with the improved patent provisions, and (b) condemning GPLv2-only deals that solve a patent problem for some users but leave the rest out in the cold, and (c) pointing out that the purported certainty that such deals are GPLv2-compliant is definitely in question.

Patents always remain a serious threat, and, while the protection under GPLv2 has probably been underestimated, we cannot overestimate the additional protection that GPLv3 gives us in this regard. Microsoft clearly knows that the GPLv3 terms will kill their patent aggression business model, and have therefore focused their attacks on GPLv2-licensed code. Shouldn't we start to flank them by making less GPLv2 code available for these sorts of deals?

Finally, I would like to draw specific attention the fact that TomTom, as a company, is not necessarily an ally of software freedom. They are like most for-profit companies; they use FLOSS when it is convenient for them, and give back when the licenses obligate them to do so, or when it behooves them in some way. As a for-profit company, they made this deal to please their shareholders, not the Free Software community. Admittedly, their use of the FLOSS in their products was done legitimately (that is, once their GPLv2 non-compliance was corrected by Harald Welte in 2004). However, I do not think we should look upon TomTom as a particularly helpful member of the community. Indeed, most of the patents that Microsoft asserted against TomTom were on their proprietary components, not their FLOSS ones. Thus, most of this dispute was a proprietary software company arguing with another proprietary software company over patents that read on proprietary software. Our community should tell TomTom that if they want to join and support the FLOSS world, they should release their software under a FLOSS license — including software that they aren't obligated to do so by the licenses. Wouldn't it be quite interesting if TomTom's mapping display software were available under, say, GPLv3?

(Added later): Even if TomTom fails to release their mapping applications as Free Software, our minimal demand should be a license to their patents for use in Free Software. Recall that TomTom countersued Microsoft, also alleging patent infringement on TomTom's patents. TomTom has still yet to offer a public license on those patents for use by the Free Software community. If they are actually not hostile to software freedom, wouldn't they allow us to at least practice the teachings of their patents in GPL'd software?

0Update: Andrew Tridgell pointed out that my verb tenses in my hypothetical example made the text sound more broadly worded than I intended. I've thus corrected the text in the hypothetical example to be clearer. Thanks for the clarification, Tridge!

Posted on Thursday 16 April 2009 at 11:46 by Bradley M. Kuhn.

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Both previously and presently, I have been employed by and/or done work for various organizations that also have views on Free, Libre, and Open Source Software. As should be blatantly obvious, this is my website, not theirs, so please do not assume views and opinions here belong to any such organization.

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