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

Apr 18, 2009, 08:01 (3 Talkback[s])
(Other stories by Bradley M. Kuhn)

"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 valid to all recipients of patent-practicing GPLv2'd code from TomTom, or downstream from TomTom.

"It's certainly possible Microsoft either capitulated regarding the unenforceability of its patents on the GPLv2'd software in question, or granted a license to all recipients. 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 a patent license from Microsoft, because otherwise, how was TomTom able to distribute under GPLv2 § 7? (Note that all redistributors of Linux could consider themselves downstream from TomTom, since TomTom distributes source on their website.) If no such license existed, TomTom would then be caught in a violation -- at least in my (perhaps minority) reading of GPLv2.

"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."

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