And the Open Source community, as well, should understand where the cards lie. The Novell-Microsoft strategy is back, indeed it was never gone, and Open Source projects aren't safe from Microsoft and its patents. As I told Sam Ramji, Microsoft's public face for Open Source, the other day: I'm sure things would be different if you were running the company, but you aren't. We're seeing the same old tactics Microsoft has used against Linux and Open Source from its earliest days: promoting fear, and litigation rather than innovation. There's no "new face of Microsoft." It's the same old company.

Much of the fault for Microsoft's FAT filesystem being a de-facto industry standard lies with companies outside of Microsoft that have been willing followers for too long. When removable storage like USB sticks came about, those companies thought of Microsoft's floppy disk filesystem as a sort of standard, already supported by both Microsoft and Apple. By using it, their devices would "just work", and they'd not have to concern themselves with software. So, as a result, pretty much everything that appears in the filesystem browser when you plug it in a USB port (MP3 players, cameras, etc.) uses the FAT filesystem to do the job.

VC Larry Augustin contends, and I agree, that it's time for that to stop. The industry must turn to a royalty-free filesystem for removable devices, and it's an excellent time to do so: an increase in the size of FLASH memory devices will require a conversion from FAT32, which won't accomodate larger devices, to something else. One of the many Open Source filesystems that are licensed with liberal terms, and that already handle extremely large disks and long filenames, would do.

Microsoft and Apple won't have to pay royalties or deal with the GPL, and neither will anyone else. Microsoft doesn't really have to accept this for it to work. A filesystem driver will give Microsoft systems real interoperability, rather than the Microsoft flavor. What we need to collect now is some resolve, among various industry players, to break from the past.

Unfortunately, they haven't broken so far. The "something else" the industry has selected for the next removable media filesystem so far is really the same thing: ExFAT, an even-more-patented Microsoft technology derived from the previous FAT filesystem. This is the choice of the SD Card Association for the new SDXC cards. I previously portrayed that choice with the statement: SD stands for "Shooting Downwards." Hopefully they'll wake up now. Augustin suggests a "Get the FAT Out" campaign similar to the movement against GIF files years ago, when Unisys attempted to enforce a patent royalty on the use of pictures on the internet.

Besides the industry's too-easy acceptance of Microsoft technologies that later turn out to have patent royalties, the Linux Foundation and the Open Invention Network have some blame to take as well. Both organizations operate attempts to mitigate the effect of software patenting on Linux and other Open Source software without really solving the problem. The way to solve the problem is to eliminate software patenting. But IBM, the world's largest patent holder, is on the boards of both organizations. Thus, you aren't going to see any substantive effort against software patenting come from either organization. And the "feel-good" projects they run divert attention from the real solution.

Among the feel-good projects are an effort to improve the "quality" of patents with two Peer-to-Patent programs that attempt to use volunteers to point out "prior art", the fact that something's been invented before, and a Defensive Publication program for pointing out the existence of unpatented inventions before they can be patented. They've also created a financial resource to support the defense of non-profit developers.

Unfortunately, these programs don't have legal teeth, they're easy for a patent holder to avoid or overturn. The financial resources aren't available to the businesses being sued, and aren't deep enough to pay for more than just a few cases. So, these programs make the Open Source folks feel that someone's working on the problem, and give the companies something positive to talk about when asked about software patening and Linux, but they don't solve the problem. Their greatest effect is that they deter other efforts that might actually help.

The peer-to-patent programs even endanger the Open Source developers that work on them, because those developers are exposed to patent text, and the United States has a penalty for looking. If you knowingly infringe a patent, you pay three times as much in lawsuit damages than if you had never looked at the patent. So, volunteers on the peer-to-patent program can get their Open Source projects into trouble, if the project's work happens to exercise one of the patented principles they examined in the past.

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