Open-Source Leaders Speak Out on TomTom Case

Now that Microsoft has leveled a lawsuit against TomTom in what many see as a shot across the bow at Linux and open-source software, open-source experts such as Bruce Perens and Jim Zemlin are weighing in with their views of the situation.

In a piece written for Datamation, Perens, who created the Open Source Definition and is the CEO of a stealth-mode startup named Kiloboot, said: "The products in question incorporate Linux, and at least one of the seven patents involved concerns a Linux kernel implementation rather than TomTom's own software. Is this Microsoft's first direct salvo against Linux?"

Moreover, like many observers, Perens notes the maturity of the patents in question:

"There are other striking features of this suit: the technologies claimed in the eight patents involved are so old and obvious that it's fair to say they have a high 'Duh!' factor. There's an anti-trust angle to this suit that could blow up in Microsoft's face. And there's a high probability that some or all of the patents involved are invalid, due to recent court decisions."

Perens asks if this is a serious suit or an effort to stir up FUD (fear, uncertainty and doubt).

"Now, why would anyone want to pay Microsoft for the right to use this lackluster technology?" he asked. "After all, there were better file systems before MS-DOS came along, and there are much better ones today. It's not because of the technology, but because of Microsoft's dominance of the computer business."

So, it's not the technology, he said. "Microsoft's market force as an effective monopoly in desktop computing made FAT ubiquitous, and Microsoft is able to muscle other businesses into paying a patent royalty for FAT despite its lack of innovation," Perens said.

Perens then calls into question Microsoft's attempts to play nice with the open-source community, noting that he believes the individuals working in the trenches on open source issues and technologies at Microsoft to be sincere, but that he has doubts about the goals of Microsoft senior management regarding open-source technology.

"They have not turned over a new leaf, and still remain insincere about their involvement in open source," Perens said.

Making it plain, Perens said:

"I don't believe Microsoft was ever attempting to be sincere. A perceived involvement in open source by Microsoft, along with highly paid mouthpieces like Novell to chime in for them, is giving Microsoft the ability to speak for open source in government circles, short-circuiting the legislation we need to defend ourselves from software patents or to establish a level playing field on which open source and proprietary software can compete fairly. That's their true interest."

The answer is legislation, he said. Perens said legislation is needed to "clean out the software patent system. Developers need to be able to make and sell software without the threat of patent-related extortion. We must unite both proprietary and open-source developers - who are equally at risk - to work for this cause, if we're to have a hope of being heard by legislators."

Meanwhile, Jim Zemlin, executive director of the Linux Foundation, called on Linux and open-source proponents to do three things in light of the Microsoft lawsuit: Calm down, hope for the best, and prepare for the worst.

In a statement to Linux Foundation membership and a general position to all concerned, Zemlin said:

"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. Any patent litigator will tell you that the path between asserting a claim under a patent and an actual, final determination that the patent is (1) valid and (2) that the claims of the patent are actually infringed is an extremely long road. If this case is in any way directed at Linux (in fact, Horacio Gutierrez, Microsoft’s corporate vice president and deputy general counsel of Intellectual Property and Licensing, has specifically stated that it isn’t), the Linux ecosystem has enormously sophisticated resources available to assist in the defense of any claim that is made against Linux."

Zemlin then said he hopes Microsoft will realize that its case only serves as a burden on the industry and the software giant will rethink its approach here.

However, if not, Zemlin said:

"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. We have great confidence in the foundation they have laid. Unfortunately, claims like these are a by-product of our business and legal system today. For now, we are closely watching the situation and will remain ready to mount Linux’s defense, should the need arise."