TomTom 2: FOSS Copying SCO and Microsoft While Proving Steve Jobs Right

Rob Enderle

A few days ago I tried to make the point that Microsoft going after TomTom, a manufacturer of GPS systems that is on the verge of bankruptcy, was not intended as a shot across Free and Open Source Software's bow. Of the eight patents in question, only three appeared to concern the FOSS folks (why a GPS company would need to use long file names in a GPS device is beyond me at the moment), and I can't see any evidence that would suggest that, if FOSS didn't exist, Microsoft would have filed the action any differently.

 

FOSS folks sold me, during the SCO days, that they were sincere in their claim that if they used code that belonged to someone else and it became a problem, they would simply stop using it. I saw zero risk to open source from Microsoft, but I'm seeing a lot of FUD coming out of the FOSS side, and now I'm getting concerned.

 

In short, it seemed ironic that I was saying don't worry, and the very people who supposedly supported FOSS (by the way, I'm refusing to use FLOSS until the naming hell that open source is in ends) were saying that Microsoft, the largest and best-funded software company in the world, was about to go to war against folks using Linux. This is in sharp contrast to a few years ago when Microsoft was making the noise and Linux supporters were generally saying don't worry. (To be fair, some still are.)

 

I see no evidence that Microsoft is gearing up for war, but it looks like FOSS folks are trying to goad Microsoft into one. And I'm quite sure Linux users don't want to be used as cannon fodder this year by anyone just to make what may be an invalid point on software patents.

 


Software Patents

 

If you drill down to the comment section of this earlier piece, you'll see it filled up with folks arguing for and against software patents. While I'm in agreement that the U.S. patent system is currently far from perfect, I also agree with Chief Justice of the Supreme Court Rehnquist that software can be patented under current law. And I believe, based on the foundation for the law, that software would have intentionally been included had it existed when the law was written. That position appears to be currently backed by the U.S. Supreme Court, but only by a 5/4 majority, which is hardly a ringing endorsement. So things could change. I'm just not aware of anything near-term that's likely to get to the Court that would force such change.

 

I'm also not seeing anything out of Microsoft to suggest it is altering its broad current policy of interoperating with Linux and aggressively licensing rather than litigation. TomTom appears to be a point problem with a company that has violated a number of Microsoft's GPS patents and has refused to license them legally. So far, I've seen no one argue that Microsoft's filing would have been any different had TomTom not been using Linux. It appears text book to me, and FOSS had similar problems with TomTom before.

 

However, I'm concerned that the tactics FOSS appears to be using sound a lot like those used by SCO, suggesting one may be becoming the other.



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Mar 12, 2009 2:27 AM obvio capitao obvio capitao  says:

FOSS folks sold me, during the SCO days, that they

were sincere in their claim that if they used code that

belonged to someone else and it became a problem,

they would simply stop using it. I saw zero risk to

open source from Microsoft, but I'm seeing a lot of

FUD coming out of the FOSS side, and now I'm

getting concerned.

What part of "implementing a feature does not mean copying existing code" you didn't understand?

The Open Source community have wrote millions of lines of code to interoperate with Microsoft technologies: read and write Word documents, read and write to FAT filesystems, etc.

That code is Open Source code, and Microsoft does not have copyright for that.

In short, it seemed ironic that I was saying don't worry,

and the very people who supposedly supported FOSS ...

were saying that Microsoft, the largest and best-funded

software company in the world, was about to go to war

against folks using Linux. This is in sharp contrast to a

few years ago when Microsoft was making the noise and

Linux supporters were generally saying don't worry.

The real irony is that you are always repeating the message that interests Microsoft.

First you repeated that Linux was infringing SCO's IP. Now, you're saying that Linux infringes Microsoft's IP. "But don't worry!"

Yeah right.

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Mar 12, 2009 5:19 AM Rob Enderle Rob Enderle  says: in response to obvio capitao

Ah I see you must have the Bill Clinton problem but instead of not knowing what 'is' means you don't know what 'if' means.   In short it means I didn't write that SCO or Microsoft owns Linux code.  Please learn the meaning of the word it will help reduce future misunderstandings particularly with law enforcement. 

When I used to code I would use code to implement a feature.  Evidently you must use something like pixie dust, please, in the future if you create software using something like 'pixie dust' let me know right off it will save us a lot of time otherwise I'll mistakenly assume that when you remove a feature you remove code.  I'm afraid I don't know how to remove 'pixie dust'.  You could call Tinkerbelle   You know with her if you really believe   Doesn't work that well with other things I'm afraid.

Irony is not when someone repeats a message that says there is no risk when there really isn't one.  Irony is when someone that supposedly supports something tries to hurt it, like say making up and spreading FUD on Linux when you appear to be trying to defend it.  

Finally I never realized that Linux folks were using FAT32 for Windows interoperability, it may explain a lot of things.  You see Microsoft started to move to NTFS around 1997 and you may have better luck actually working with that.  I'm sure some of the Novell guys could explain why you don't need FAT32 to work well with NTFS.  If you can't find one of them I'm told the BSD folks and some high school students also know that FAT32 is obsolete.

I am so sorry, had I known you would so badly misunderstand what I wrote... 

So, to be clear, I didn't say that SCO or Microsoft actually owned anything, I believe that features and code are related, that I'm not being ironic, and that Linux would do just fine without an old obsolete Microsoft file system.  

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Mar 13, 2009 1:35 AM Rob Enderle Rob Enderle  says: in response to Jacques Leger

Ah, so the sequence of events is I write something, you miss characterize what I write, I point it out, you then go back into my past to pull something out of context to show that I may have thought the same thing 6 years ago.   You'd probably do well in politics; and that isn't a compliment. 

I'm sure there are a lot of things I've written over the years you could take out of context to make a point but I'll know you did so what's the point?   And even if it was in context, that was then, this is now.   I'm not running for office.    I've often thought that folks that do this kind of thing find winning an argument more important than getting to the truth.  For a group founded on a transparency like concept like "Open Source" you'd think the truth would be more important wouldn't you? 

As to your last point, I do know what the truth was but it seems clear you do not.  I was just saying the evidence was compelling and history proved that out.  They attracted over $100M in investment, IBM (who has one of the strongest legal teams in the world) was unable to stop the case (until Novell proved they owned the code in question).  Just because the evidence is compelling doesn't mean you will win a case.  It simply means you have one and I wanted to make sure folks covered their collective butts just in case. 

Reply
Mar 13, 2009 1:46 AM Jacques Leger Jacques Leger  says: in response to Rob Enderle

They attracted $100M from who?  Microsoft...

Now as for the truth... the truth is you backed the wrong horse then... just as you are doing so now.

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Mar 13, 2009 2:20 AM Rob Enderle Rob Enderle  says: in response to Jacques Leger

You know you can actually use something like Google to look stuff up. I think, given how wrong you have been in this string, being critical of a mistake I may have made in 2003 is kind of ironic. A better word might be Hypocritical.

To be clear the horse I'm on is the one, this time, that says there is no risk to Linux and that anything else is FUD. The horse you are on is the same one SCO was on in 2003 that suggests there is a huge risk and people need to anticipate being sued. It didn't work for SCO I doubt it will work for you or your employer but if it makes you more money to FUD Linux, good luck with that.

Reply
Mar 13, 2009 3:13 AM Jacques Leger Jacques Leger  says: in response to Rob Enderle

I could never do better than the master FUDster and author of "Free Software and the Idiots Who Buy It."

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Mar 13, 2009 3:45 AM Anonymous Insider Anonymous Insider  says: in response to Jacques Leger

Oh yes, I like debate and confrontation! Specially if debate and confrontation is with OSS advocates who normally lose when presented with facts.

You referred to Rob's keynote speech from August 3, 2004: link.

In a previous discussion, "Is Microsoft Targeting Linux Through Tom Tom? Oh Please", I presented 5 items that should be considered when a company purchases 'free software':

1. Support tax (hidden support costs)
2. Fragmentation
3. Fanatical element among users
4. Patent issues
5. Copyright issues

If you go back to that discussion, none of the OSS advocates was able to provide a good argument against those 5 issues.

Rob said in August, 2 3004:

"Free Software and the Idiots who buy it

"The topic I'm finally getting to is Free Software and the Idiots who buy it and I imagine that many of you were wondering when I would get to this point. My reputation is to always give more then expected and I'm trying to maintain that rep.

"As you would expect, with this background and this position on Linux, I'm relatively conservative and incredibly skeptical of Free. I hear Free I want to look at the small print. I don't understand how people can go on "Free" Vacations which have at their core an incredibly painful sales process that locks you into a "timeshare" you could have bought for a fraction of the price on the web. Isn't a time share always "used"?

"If someone tells you something is free they are probably lying, and you should place one hand securely on your wallet. In the example above the "free vacation" actually costs relatively valuable vacation time, if you buy the damn thing you paid a premium for it, and you are now on a list that will result in unwanted calls that will continue into the late evening until you die. Free my as*."

Sorry, I don't see any fallacies or FUD in Rob's words.

Instead, fallacies and FUD are usually spread by OSS advocates when they play with the word 'free', it doesn't matter if it's free as in freedom or free as in beer.

Just ask Examinetics (formerly Exemplar International, Inc.) what they think now of XM Network. I'm sure they're really upset at being locked with that piece of 'open source and free software'.

As Rob said, free my as*!

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Mar 13, 2009 3:47 AM Rob Enderle Rob Enderle  says: in response to Jacques Leger

It is funny you would bring that speech up and point out that I wrote it.  The purpose behind that speech was to showcase that Groklaw was lying about what they were seeing at the time.  It is the only speech I've ever written out and actually read.  That was so I could point to the text and line by line show that what Groklaw said I said was either untrue or made up.   Apparently it is still serving a similar purpose.

The fact that you would pick that talk to make your point is true irony.  It wasn't about FUD at all, it was about showcasing to a number of reporters I knew that what they were reading was probably largely made up.  

But, in the future, it would be nice if you actually commented on something I actually wrote here.   It would also be nice if you argued from the facts.  

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Mar 13, 2009 4:44 AM Anonymous Insider Anonymous Insider  says: in response to Anonymous Insider

Problems with Linux

1. Support tax (hidden support costs)

Quote: "Robustness and Performance - If you start looking at Linux very critically, I think you'll find that often something gets confused and you end up going to the command line to repair it and that's something we have to fix..." Havoc Pennington, Red Hat.

(to listen to the quote, fast forward to minute 7:07 of part 1 a in the links provided below)

Havoc Pennington talks about the Linux desktop, January 17, 2004:

Introduction [45.6MB WMV]
Part 1 a
Part 1 b
Part 2 a
Part 2 b
Slides [PDF]

Things haven't changed much since Havoc gave that speech.

In fact, Linux is much more fragmented now. The different versions of the Opera Web browser is the classic example, link. And fragmentation is indeed a problem, not a feature!

Throughout Havoc's speech, you'll find elements to support the other 3 problems with Linux mentioned above.

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Mar 13, 2009 8:43 AM Jacques Leger Jacques Leger  says: in response to Rob Enderle

" So, to be clear, I didn't say that SCO or Microsoft actually owned anything...

"Really ?????

You said on July 7 2003:

"I saw what appeared to be a word-for-word copy of about every third line of code in the central module of the Linux kernel," said Enderle of Giga Information Group, who viewed the alleged code violations two weeks ago. "The lines of code contained typos, misspellings and even copyright disclaimers. It appeared to constitute a violation of the license."

Enderle said the CELF companies are "probably betting that much of this will be resolved before they reach the point where they have to make a huge commitment." But if the legal plot thickens, he said, many large corporations will back away from Linux. "If I'm a manager in a large, branded company, the last thing I want is very visible litigation that puts my company's brand name at risk," he said.

You also said on the same day:

"The 1,500 companies who received letters from SCO about potential infringements should be worried, big time," said Rob Enderle, a research fellow for the Giga Information Group (Santa Clara, Calif.). Based on what he saw, Enderle said, "The evidence appears to be very compelling."

Back that you were certain... and we know how true that turned out to be.

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Mar 15, 2009 5:53 AM Anonymous Insider Anonymous Insider  says: in response to Jacques Leger

"I could never do better than the master FUDster and author of 'Free Software and the Idiots Who Buy It.'"

1998-12-29 Linux 2.2.0 bug summary

1999-01-21 Linux 2.2 More More Source code

2000-07-23 Linux, what's currently broken

2001-01-04 Linux 2.4 More More Source code
2001-11-30 Linux, what changes are needed? Related
2001-12-18 The direction Linux is taking

2002-01-28 A modest proposal -- We need a patch penguin More
Eric Raymond's quote: "The fact that Linus *does* have to pass on all such patches, and is dropping a lot of them them on the floor, is the clearest possible example of the weaknesses in the present system."
2002-02-07 Janitor weekend
2002-06-26 Buried alive in patches: Picking up the pieces of Linux 2.5 [PDF]

2003-07-24 Kernel Janitors: State of the Project [PDF]
2003-12-17 Linux 2.6.0 Source code

2004-02-17 Improvements in kernel development from 2.4 to 2.6
Paul Larson's (IBM) quote: "Historically, there never was a formal source code management or revision control system for the Linux kernel. It's true that many developers did their own revision control, but there was no official Linux CVS archive that Linus Torvalds checked code into and others could pull from. This lack of revision control often left gaping holes between releases, where nobody really knew which changes were in, whether they were merged properly, or what new things to expect in the upcoming release. Often, things were broken in ways that could have been avoided had more developers been able to see changes as they were made. "
2004-08-03 Free software and the idiots who buy it More

Reply
Mar 15, 2009 10:00 AM obvio capitao obvio capitao  says:

FOSS folks sold me, during the SCO days, that they were sincere in their claim that if they used code that belonged to someone else and it became a problem, they would simply stop using it.

What part of "implementing a feature does not mean copying existing code" you didn't understand?

When I used to code I would use code to implement a feature. Evidently you must use something like pixie dust, please, in the future if you create software using something like 'pixie dust'

It's funny to hear this from the same guy who doesn't know the difference between Java and Javascript...

I'll try to put a different emphasis so you can understand it:

"Implementing a feature does not mean copying existing code".

It is possible to implement feature without the need to see, much less copy other's code.

Microsoft protects their code with copyright; they shouldn't protect general principles to avoid competition.

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Mar 15, 2009 10:08 AM obvio capitao obvio capitao  says: in response to Rob Enderle

Finally I never realized that Linux folks were using FAT32 for Windows interoperability, it may explain a lot of things.  You see Microsoft started to move to NTFS around 1997 and you may have better luck actually working with that.  I'm sure some of the Novell guys could explain why you don't need FAT32 to work well with NTFS.  If you can't find one of them I'm told the BSD folks and some high school students also know that FAT32 is obsolete.

Most flash drives ship preformatted with the FAT or FAT 32 file system. Not because these file systems are any good (as you admitted above), but because of the ubiquity of this file system, which allows the drive to be accessed on virtually any host device with USB support.

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Mar 16, 2009 11:09 AM Rob Enderle Rob Enderle  says: in response to obvio capitao

So?  You can reformat a Flash Drive. In addiiton, to my knowledge, GPS slolutions while they do use Flash memory don't use the kind of USB drive you are actually talking about. 

This is the kind of thing that makes me wonder about OSS, what flows through is "if I want to use it I should be able to and will" this seems to come with an implied "or else" if the owner doesn't agree.  Reminds me of cattle ranchers in the 1800s, you opened you land to the cattle or they burned your place down. 

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Mar 16, 2009 11:21 AM Rob Enderle Rob Enderle  says: in response to obvio capitao

True, and I didn't say it did, but if you are found to be illegally using the IP from someone else you will have to recode to get around the problem.  In this case the feature is long file name support for FAT32, just remove the long file name support (you probably don't need it in a GPS system anyway) or remove FAT32, there are newer file systems you can use that will probably work better.  Either way you will have to recode.   Or you can license. 

I used to share a lab, we had to do this kind of thing all the time (or at least advise others to do it). It's part of ensuring that you don't get sued. 

The process is change the law first then do things differently, or challenge the IP in court and do things differently, or don't use stuff that belongs to someone else.  It isn't to steal and then complain when you get caught that the world is unfair.  The last is a given, you still have to play by the rules. 

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Mar 16, 2009 11:28 AM obvio capitao obvio capitao  says: in response to Rob Enderle

This is the kind of thing that makes me wonder about OSS, what flows through is "if I want to use it I should be able to and will" this seems to come with an implied "or else" if the owner doesn't agree.

That goes completely against what you wrote before

So, to be clear, I didn't say that SCO or Microsoft actually owned anything

Ooops...

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Mar 16, 2009 11:34 AM Rob Enderle Rob Enderle  says: in response to obvio capitao

Not at all, I didn't say in the origonal piece they owned anything, I'm responding to what you wrote. 

You are, along with others, saying that Microsoft owns this stuff.  They may, I'm not an IP attorney.   What I'm saying is it doesn't matter to the health of Linux.  I can't argue that without taking into account the position that you are taking. 

You can tell the difference between a position you took and one I took right?

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Mar 16, 2009 11:48 AM obvio capitao obvio capitao  says: in response to Rob Enderle

The process is change the law first then do things differently, or challenge the IP in court and do things differently, or don't use stuff that belongs to someone else.  It isn't to steal and then complain when you get caught that the world is unfair.

1) Microsoft writes code and sells software licenses.

2) Nobody looked at Microsoft code to implement interoperability features in Linux. On the contrary: Microsoft makes interoperability as difficult as possible.

3) TomTom didn't use Microsoft code. They used Linux.

4) Now, Microsoft accuses TomTom of "stealing" their IP?

Do you think that's right? (Well, you did think that SCO was right, so I suppose I know the answer...)

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Mar 16, 2009 12:43 PM Rob Enderle Rob Enderle  says: in response to obvio capitao

It is interesting how you don't really respond to what I write but recast it.  I wrote about the process for Tom Tom to take, you write about what you think Microsoft did.  We aren't on the same point at all. 

Now to your points.  1 and 4 are a given.  2 is not true, Microsoft currently leads in interoperability.  We can argue whether that is a forced march or not, but the EU has been very clear on this and has indicated they feel Microsoft is in compliance at the moment here, but no other vendor I follow is working harder at Interoperability than Microsoft.  Tom Tom, for instance, doesn't appear to interoperate well with anyone.  

3.  We don't know whether Tom Tom used Microsoft code or not, that isn't in evidence.  They are being accused of violating Microsoft IP and they use Linux, both can be true without the IP they use being part of Linux.  The Linux leadership has long argued that if they violated Microsoft's IP, and it were proven, they would remove the offending code.  But, unless the connection is made between what Tom Tom did, and it is found that Microsoft owns it, no action need be taken.  Neither have happened yet. 

In addition, much of what they are accused of using, at least 5 of the patents alleged to be violated, have nothing to do with Linux.   Of the last three, none are critical to the survival of Linux and most are viewed as obsolete.  In addition, these patents may not be enforceable, FAT itself appears to be in the public domain and long file name support would seem to be an obvious addition.   The strength of the action, therefore, resides in the GPS patents which appear to belong to Microsoft and not reside in Linux.

So the right response should be, nothing to see here folks, move on.  Which is my position.  There is no risk to Linux from this action.  The FUD seems to be coming from the FLOSS folks this time, and the irony is that Linux, not Microsoft, appears to be the target.  When you see this you wonder about the agenda behind it. 

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Mar 17, 2009 4:18 AM obvio capitao obvio capitao  says: in response to Rob Enderle

Not at all, I didn't say in the origonal piece they owned anything, I'm responding to what you wrote.

You are, along with others, saying that Microsoft owns this stuff.

Microsoft is suing TomTom for alleged intellectual property, you say they are right, and we are the ones saying that Microsoft owns this stuff???

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Mar 17, 2009 5:18 AM Rob Enderle Rob Enderle  says: in response to obvio capitao

They have the legal right to take Tom Tom to court, the case will determine the outcome.  It doesn't appear that Tom Tom will make it to court, they are losing money too fast and have warned they can't pay their bills.  

But yes, read what is being written.  If Microsoft doesn't own this stuff than there clearly is no risk to Linux.  I'm saying there is no risk to Linux, you folks disagree. 

In short, if you didn't believe Microsoft owns this stuff in the first place you'd ignore them.  That's not what you are doing is it? 

Or put another way, I see no risk to Linux regardless of ownership of the IP.  You see risk and can't unless you believe Microsoft owns this stuff.

So yes and I too find this very strange.

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