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Sun, Microsoft OpenOffice clause not a threat

Microsoft has it in writing that it can sue for improper use of open source code, but the open source community has little cause for concern.

Once the shock wore off of last's week news that a provision in Sun Microsystems Inc.'s settlement with Microsoft Corp. would allow Redmond to sue for improper use of coding, the open source community pretty much had one thing to say to Microsoft -- go ahead and try.

From a legal perspective, it would be extremely difficult to prove that something was stolen.
Brian Liebold
CEORYT Solutions

The provision was discovered last week when the text of the settlement was made public as part of Sun's annual filing with the Security and Exchange Commission. Sun and Microsoft announced the settlement in April, but the underlying legal documents had previously been confidential, according to reports.

Under the agreement, Sun must notify Microsoft of any claims and then let Redmond deal with any court wrangling., an open source alternative to Microsoft Office, is a suite of word processing, spreadsheet, database and other programs that use an open source model. Sun provided the original code for OpenOffice from its StarOffice program, but Microsoft has a vested interested in OpenOffice.

It's finally mature enough to give Microsoft Office a run for its money, said observers and some companies have made the switch. To some, the threat of a lawsuit could be considered an open source adoption roadblock. Others said this provision will have absolutely no effect on OpenOffice.

While some in the open source community are incensed anytime the words Microsoft and open source are used in the same breath, most observers said the move is simply a procedural one allowing Microsoft to keep its options open -- like any good legal contract should. It's unlikely that Redmond is plotting to sue users or distributors of the software.

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Still, the move underscores how serious Redmond is about the threat open source programs pose to its livelihood.

"Microsoft Office is Microsoft's crown jewel and they'll protect it vehemently," said Wayne Kernochan, president of the Wellesley, Mass.-based research group Infostructure Associates. The provision, he said, is just a legal clause that protects the interests of both parties. However, it's not unreasonable for open source advocates to consider it a huge intrusion on their open source way of life.

An intrusion, perhaps, but not a serious threat.

"We're completely unconcerned about it," said Brian Liebold, CEO of RYT Solutions LLC, a Katy, Texas-based integrator of open source systems. "From a legal perspective, it would be extremely difficult to prove that something was stolen."

It would also be difficult because Microsoft currently charges for open source code embedded in the operating system.

"My point is, there's an opportunity for countersuit," he said.

Ordained minister and Linux proponent Don Parris of the Matheteuo Christian Fellowship, Charlotte, N.C., said the possibility of Microsoft suing would be rare, if not totally ridiculous.

"I don't see Microsoft going after users anytime real soon," said Parris, who runs his church's IT operations on Linux and has an educational ministry that promotes the use of open source. "I think it would be laughable if Microsoft came after our house church. I'm not sure what they would get -- beyond a big controversy."

Did Sun sell out?

While an actual suit may be unlikely, some in the open source community point the finger at Sun for selling them out. However, people who suggest Sun sent open source down the river don't really understand the open source arena, Liebold said.

"You're looking at an agreement between two violently propriety companies making a statement about open source, and they know zero about open source except that it's their biggest competitor."

Sam Hiser, co-author of Exploring the JDS Linux Desktop and was a contributor to, said this provision is nothing new and folks are simply confused about what this agreement actually means.

"There is no change whatsoever in the condition of OpenOffice,, Sun's disposition or commitment to either, the condition of OpenOffice users, or Sun's disposition toward OpenOffice users," he said. "There is no new threat, it's that same as it ever was. It was always there."

Some IT managers agree that the provision is just standard procedure and, as users of open source, shrug off all the hoopla.

"This is clearly a point of demarcation between Sun and Microsoft," said Chris Letterman, information technology manager, State of Alaska, Department of Education, Juneau, Alaska. "It would be criminal on Microsoft's side (and their shareholders) to not have included such a provision. Just because you are getting into bed with somebody, it doesn't always means you wind up with a key."

According to Sun, under the Limited Patent Covenant and Stand-still agreement, customers who use any of Sun's commercial products, including StarOffice software, receive the benefit of patent protection. This is standard practice for any commercial company. Open source products typically do not receive patent protection through such partnerships.

"Sun is strongly committed to and the settlement with Microsoft doesn't undermine its continued commitment to the community," said Manish Punjabi, group marketing manager for StarOffice in a statement. "Sun Open source software is conventionally provided without warranty and liability coverage, and is no different. is not disadvantaged by the settlement. In fact, users will eventually benefit superior interoperability with Microsoft Office."

While some in the legal community may have raised an eyebrow at the provision, they don't give it much merit.

"It would strike me as difficult for Sun to be in a position where it could support open source while contractually obligating itself to assist MS in its efforts to limit the growth of open source," said Scott J. Nathan, a litigator and intellectual property attorney based in Ashland, Mass.

Liebold said anyone who is truly into open source will not take this seriously.

The only real concern, he said, is for the poor soul who'll have to litigate this. "They shouldn't lose unless they have a really bad lawyer."

Jack Loftus and Amy Kucharik contributed to this article.

Let us know what you think about the story; e-mail: Kate Evans-Correia, Senior News Editor

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