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


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.

FOSS Learning from SCO


SCO's aggressive litigation threats and actions mobilized the open source movement and created a backlash for the company that is near legendary. SCO threatened a large number of companies with litigation if they didn't follow rules that SCO dictated, which included sending SCO a check. One of SCO's big mistakes was going after huge national or multi-national companies -- which basically told them to piss off, wasting lots of cash it didn't have and not actually resulting in much licensing revenue.


SCO did this even though it was later clear it didn't really know how companies were using the technology. And it generally appeared doubtful, even if SCO had prevailed in the Novell and IBM cases, whether SCO could actually collect from the companies it initially targeted. For instance, Daimler Benz, one of the companies targeted, had evidently stopped using the code that SCO was concerned about years earlier.


FOSS leaders now seem to be going around saying that companies that have cross-licensed with Microsoft can't use Linux because they are in violation of the GPL, suggesting legal action will now result. Unlike SCO, they seem to be threatening small companies that make flash drives or consumer electronics (IBM, HP, Novell, Dell and most large companies that distribute Linux also cross-license with Microsoft). It sounds very similar to what SCO did, with the exception of avoiding going after large firms that can easily defend themselves.


So did they learn from SCO how to do it right? Or are they instead emulating Microsoft's bad behavior?


FOSS Emulating Microsoft


On the other hand, you could argue that FOSS leaders are now emulating Microsoft's bad years. Back when Bill Gates was still at the company, Microsoft threatened litigation against Linux broadly and yet never really took any major legal action. If you knew Gates' history, you would know why he was rabid about piracy, as that is what almost put Microsoft out of business when it was first formed. But his views were a bit out of step with the times. As a result, Microsoft was all bark and no bite and the open source folks wrote it off.


Now the FOSS leadership seems to be making broad statements about putting small Linux users out of business with the implication of legal action for violation of their licenses, even though it seems unlikely that FOSS can even afford the kind of litigation that this would require.


What I think is fascinating is that Microsoft's earlier actions may have actually accelerated Linux adoption because they focused attention on the platform, drawing support for it, and the threats weren't believed. FOSS could be vastly more credible at creating a Linux threat. In addition, the idea that they can dictate who a company can partner with, and how they are allowed to partner, is probably scary to many of these small businesses that aren't led by legal experts. It seems like Linux is starting to sound like some religions where you are free, but only so long as you agree with the leadership. It is interesting to note that while FOSS seems to be scaring folks with threats of litigation, Microsoft is offering indemnification. Fascinating contrast.


The market didn't like Microsoft's excessive control a few years ago. I doubt it will like FOSS's excessive control any better.

Wrapping Up: Power Corrupts and Apple Was Right


There is an old saying that "Power Corrupts and Absolute Power Corrupts Absolutely." Whenever any entity, be it company or group, starts feeling invulnerable, it tends to misuse the power it has acquired. The result is never very good for the market or the entity. Currently -- and be aware this is just a vocal minority of FOSS at the moment -- it appears that some FOSS leaders are reaching this point and starting to dictate the business practices of those that use their license and technology. (I should point out that Linux isn't supposed to be about ownership.)


The not too subtle, and incredibly foolish, message appears to be "if you use Linux, all your business practices are belong to us" to corrupt an old gaming joke. Or, more bluntly, you partner with whom we want and how we want or we will put you down. Mixing open source and proprietary software is a bad thing, even though many appear to do it often. In this instance, I don't think these FOSS leaders have the power they think they do, but it does provide an early warning of what likely would result if they got it.


Freedom is the important element. If a proprietary company says do it our way or else with regard to your business practices and relationships, you should change vendors. I can't see how this same response shouldn't result if Linux leaders behave similarly. Fortunately, they generally appear split, so unless the sane side goes away I'm still convinced that Linux isn't at any real risk at the moment. Let's all hope Linus Torvalds has a long life.


Apple chose BSD UNIX as the core to its OS because it -- and I mean Steve Jobs specifically (or so I've been told) -- didn't like the GPL. It would seem that, once again, Jobs was right and we may be seeing why become more evident every day.


TomTom will probably fail, but, increasingly, it may be FOSS's putting TomTom between a rock and a hard place which assured that failure. That lesson may not be lost on many people in a year when many FOSS companies are fighting for survival.