Four Takeaways from the Microsoft-TomTom Settlement

Whatever one thinks about open source software and software patents, the recent settlement of Microsoft's patent infringement lawsuit against TomTom illustrates that both are here to stay and that conflicts between owners of intellectual property rights (IP) at the intersection of the two can be resolved in the usual way.

To be sure, five of the eight Microsoft patents at issue in the case had nothing to do with the open source Linux operating system used in TomTom's car navigation devices.  Microsoft stressed that its lawsuit was not the beginning of an assault on Linux(1),  and Jim Zemlin, executive director of the Linux Foundation, characterized it as "a private dispute" and urged others not to jump to the conclusion that it was anything more(2). Nonetheless, the lawsuit – and its quick settlement – may tell us something about the ongoing evolution of the tech industry and how open source software (OSS) figures within it.

What does the Microsoft-TomTom settlement mean for tech companies and their customers?  Here are four takeaways:

Takeaway 1: Open source software is not an IP-free zone.

There is a great deal of confusion among non-lawyers about the applicability of intellectual property (IP) rights to OSS. Perhaps contrary to popular opinion, the OSS model is based upon the existence of IP rights.

The most commonly used OSS license is Version 2 of the GNU General Public License, or GPLv2. As explained in the GPLv2 itself(3),  it relies upon the existence of and ability to enforce copyrights, as does any software license. All licenses grant users a subset of the rights held by the software's creator, so long as users comply with the obligations and restrictions found in the license. For example, like other "copyleft" OSS licenses, the GPLv2 requires users to make any improvements (and related source code) available to the world only under the GPLv2, just as the original creator of the software chose to do. OSS also can be protected by patents, and it can infringe patents that protect other software.

The Microsoft-TomTom settlement is further evidence that sophisticated developers and distributors of OSS understand that OSS is not an IP-free zone. A settlement is not an admission of liability, of course, but TomTom's decision to settle quickly, on terms that require it to stop using some of Microsoft's Linux-related patents and shield its customers from lawsuits for infringement of other Linux-related Microsoft patents, presumably is a tacit acknowledgment that Microsoft's infringement claims need to be taken seriously.

1. See Q&A: Microsoft's IP Chief on TomTom, Linux and Patents (last visited Apr. 8, 2009).

2. See Note on MIcrosoft TomTom Suit: Calm Down, Hope for the Best, Plan for the Worst (last visited Apr. 8, 2009).

3. Paragraph 5 of the Preamble to the GPLv2 says, “We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software.”  See GNU General Public License, version 2 (last visited Apr. 8, 2009).

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