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LinuxWorld: Lingering patent threats worry open source experts

Experts say the future looks bright for Linux, but some caution that there could be a struggle ahead as powerful enemies could be planning an attack on open source.

BOSTON -- At the LinuxWorld Conference & Expo 2005, there's ample proof that Linux, along with many of its open source relatives, has achieved business viability. But there's an undercurrent of worry that software patents and licensing could, in the near future, be used to inhibit open source development or cause Linux to fracture.

Or worse, author and open source advocate Bruce Perens said, "Technically, there are people with the means and the motivation to shut down open source software, especially Linux."

Linux flies business class

"The community has a responsibility to shepherd a licensing process that guarantees a bright future," said Martin Fink, vice president of Hewlett-Packard's Linux division. During his keynote address Tuesday morning, Fink provided an overview of the growth of Linux and open source, comparing it to the growth of the commercial airline business.

"Much as the low-cost airlines forced the established airlines to reinvent themselves, so too is the open source software industry forcing the proprietary software industry to reinvent itself and reinvent its business models," Fink said.

Unfortunately, that new business model may be one that includes litigation for the purpose of turning a profit. Perens said he has noticed "signs that Microsoft is massing up its troops for an intellectual-property attack." He said, "They're visibly hiring intellectual-property engineers. They're say they're for looking at prior art, but I think they're for looking at existing infringement."

Turbulence in the flight of the penguin

Both Perens and Fink were enthusiastic about the technological advances and the widespread enterprise adoption of open source, but they have somewhat different views about the value of software patents and the dangers posed by them.

Some people in the open source community object to software patents, with the reasoning that development is an art, and patents "infringe on artistic integrity," Fink said. Conversely, he said, corporations view patents as a way to recoup their financial investments.

"For me, software patents are just a fact of life," Fink said. Patent law exists in modern society, and refusing to patent intellectual property leaves the inventor exposed for absolutely no good reason. "For some, it might feel like selling out if you do that," he said. "But you just have to comfort yourself by knowing that it's what you do with the patent that matters, not the fact you have one."

The spectre of what Microsoft might do with patents worries Perens, and he thinks that Sun Microsystems is preparing to reap the spoils of war. "I think that [Sun] has been positioning [itself] to be the party you run to once the intellectual property assault on Linux starts," Perens said. "I suspect that Sun knows something about Microsoft's intellectual property plans that we don't know."

The danger posed by patents

"I see a cloud on the future," Perens said. He believes that the open source community has not yet figured out how it can be legally sustainable in the face of software patenting as it is implemented in the United States and in Europe in the future.

Perens explained that pervasive software patenting could subject open source developers to lawsuits from proprietary companies that want to do away with their competition. "The way the law is written in the United States, we could be shut down by a sufficient number of software patent lawsuits," Perens said.

Perens pointed to a 2003 economic survey by the American Intellectual Property Law Association that showed costs of as much as $3 million to defend a patent-infringement lawsuit. "Now obviously any open source project faced with that is just going to have to just throw in the cards and settle under whatever terms they can," he said. That usually means signing the copyrights in question "over to the aggressor covenant with them not to develop software in that area again without a proper patent license."

IT professional Nathan DiGiovanni said he thought patents could have a "chilling effect" on the industry. However, he believes that the open source community is savvy enough to outmaneuver legal restraints in the long run.

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"I think we would have to adapt, but I don't see anything stifling the industry forever," said DiGiovanni, who does IT work for Roxbury, Mass.-based nonprofit TecsChange. "I doubt that software patents could hold us down for long."

Protecting the future

Fink, who is chairman of the Open Source Development Labs and chair of its intellectual property subcommittee, said licensing is at the core of what makes open source work, but that it needs to be simplified. Last August at LinuxWorld San Francisco, Fink called for the Open Source Initiative (OSI) to stop approving new licenses. Yet, between then and now the number of open source licenses has grown from 54 to nearly 60.

Licenses should not be approved, as they currently are, simply on the compliance to a specification. Instead, a new license should only be approved if it furthers innovation to open source business models. Granting licenses too generously presents "a clear and present danger to the very core of what makes open source work," he said. "If this is the path the OSI continues to choose, I think it's choosing a path toward irrelevance."

While Perens appreciates the work that big vendors, such as IBM and HP, have done to champion the legal rights of open source, he thinks they should be doing more. On the other hand, he also urges the open source community to not depend solely upon big vendors to fight its legal battles.

"What worries me about the show floor is we're only seeing the business side," Perens said. "Without the community side, without the side that is emphasizing freedom and the ability of the little guy to participate in innovation -- without that, we don't have a moral high ground."

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