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Usenix president: Patent challenges will invade open source landscape

There's no rest on the horizon for the lawsuit-weary open source community, said Marshall Kirk McKusick, president of the Usenix Association, a Berkeley, Calif.-based advanced computing user group. Battles over the ownership of software code are just starting, and software patents will be a minefield waiting for the unwary developer or user. In the conclusion of this two-part interview, McKusick explains the dangers of using the General Public License (GPL), how Usenix members are protecting themselves and their companies from IP suits, and why banning open source could damage the IT industry.

 If you are modifying GPL software, and you are not giving your changes back because you are trying to protect your intellectual property, you are at a grave risk of losing that intellectual property.
Marhsall Kirk McKusick
PresidentUsenix Association

What are the dangers for enterprises in using the GPL or "GPLed" software?
If you use it simply as a standalone thing, like you get Apache and use it, you are probably in no danger whatsoever. You could have trouble if you start making changes in the Linux kernel and try to firewall your changes.

Maybe you use a loadable device driver to get a nugget of software to allow your hardware to interact. Maybe there are huge amounts of functionality in the device driver that have nothing to do with running the hardware. But, by isolating that nugget in a so-called loadable module, you think that you are safe from the GPL, and you think that you are not going to have to hand that out.

You're wrong. If the GPL holds up, you are going to lose, and your software is going to die. It will get sucked in, and everybody else, including your competitors, will get their hands on it. If you are modifying GPL software, and you are not giving your changes back because you are trying to protect your intellectual property, you are at a grave risk of losing that intellectual property. If that is something that really bothers you, if it is going to crush your business if you lose that IP, you shouldn't be using GPLed software.

Right now, we are not seeing that scenario being tested; but the reason that you are not seeing it tested yet is that there hasn't been a financial reason to do so. Somebody who wants to do a TiVo knock-off can say: 'It will cost me $10 million to develop this software myself from scratch, or $2 million for a lawsuit to force TiVo to give me theirs so I can use it.' At that point, the $2 million for the lawsuit begins to look like a viable business strategy. If it starts to look like a viable business strategy, then the company with that plan will probably get funded. Then, we will find out exactly where the line gets drawn on the GPL. In your opinion, why should usage of GPL and open source not be limited or sanctioned by the U.S. legislature?
It would put the U.S. at a considerable competitive disadvantage. The U.S. legislature can pass rules that apply to U.S. companies, but those rules are just local ordinances. They don't apply to companies in Europe, China, Japan or anywhere else in the world. So if we hobble using software in our country, then the businesses that want to use it are simply going to move elsewhere. Using the technology is not going to stop happening. Stem cell research is a classic example. The U.S. clamps down on it, so some of the best researchers on that subject are moving to Europe or Japan. So we are losing and not stopping anything.

I think the same thing would happen if the U.S. hobbles open source. It is just going to move offshore. Why aren't more corporate IT groups/executives making a big stink about the possible legal handcuffing of open source licenses and software?
I think many of them don't feel that open source software is important at this time. Sure, there is talk about how Linux is making its way into the Fortune 500, but I don't think those companies yet feel they can't live without it. A few years down the road, it will be a bigger whoop for them because it will be more entrenched and the alternatives will become significantly more expensive.

Also, business people probably don't feel threatened by it. The big vendors have said that they are sure of their positions in this lawsuit. Some are willing to indemnify their customers. That is all they really need to hear.

Now, let's face it, if someone threatened to yank Windows, the business people would be crying loudly because they deeply depend on that software.


Read part 1 of this interview with Marshall Kirk McKusick  


Concerned about your use of the GPL? Read an attorney's point of view

What are Usenix members doing to protect their companies against SCO-related and/or IP infringement threats?
Usenix members are and have been trading information on strategies to deal with the problem. Some say they're putting their heads down and hoping SCO doesn't notice them. Others describe going to their vendors and asking for indemnification. Overall, people see these messages and get information and see some options and that they're not alone. What IT/software legal wrangles do you see coming in the future?
I think patent lawsuits will be a big issue. A lot of software got patented in the '90s that really shouldn't have been patented. Increasingly, companies are grabbing patent portfolios and going after other companies with them. The problem is that if you are sued, even if you are in the right, it is very expensive to prove that point.

In the last few years, it seems that the patent office is finally beginning to curb some of the really aggressive software patents. That's largely because they give existing patents priority, and they have already handed out a lot of bogus patents. So, they are using those bogus patents to prevent other people from getting similar bogus patents.

Only in the last few years has the patent office used people with computer science degrees as patent examiners. Up until now, the patent examiners who reviewed software patent applications had degrees in electrical engineering, not computer science. Computer science just wasn't on the list of required degrees for patent examiners until recently. Isn't that appalling? What are your thoughts on software patents, in general?
To my mind, patents are the way big businesses win out over the smaller ones, because they can afford the cost of patents. The software that came out in the '80s and early '90s was cottage industry software created by an individual who wrote a piece of software and then started marketing and selling it. He'd start as a one-man band and then create a small company.

This kind of developer/entrepreneur is going to have a hard time paying upward of $100,000 just to get the patent. Often, the cost of getting the patent is three times the cost of developing the product in the first place. Naturally, a big company is working on a different scale when they do software development and has money to get patents. It has been known to happen that a big company gets a patent on what a small entrepreneur has created.

I am not against patents, in general, but I think patents are most appropriate when there is a huge amount of capital expenditure by the inventor, as in the development of drugs. In software, sometimes the patent costs more than developing the software, and I begin to question the usefulness or effectiveness of a patent at that point.

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