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

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 agreeme