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

“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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