Patents emerge as an open source issue

The SCO group may not be the threat it once was, but IP (intellectual property) concerns were front and center at the LinuxWorld Conference & Expo in San Francisco last week. Conference speakers called for changes to U.S. IP law and the way the open source community manages itself.

Red Hat CEO Matthew Szulik opened the show with a call for the reform of U.S. patent and copyright law, saying that U.S. IP policy represented a “growing threat” to Linux.

“The current process of not requiring full disclosure of software and source code allows copyright registration to create an unnecessary threat, … causing potential unconstitutionality in how U.S. copyright is awarded,” Szulik said.

Szulik’s warning was underscored by news last week that the City of Munich, Germany, was delaying its highly publicized Linux migration because of IP concerns. Munich Mayor Christian Ude said his city was still backing the Linux initiative but was delaying the client portion of the rollout due to concerns about proposed European Union patent legislation, according to a statement posted on the City of Munich Web site.

An analysis of the Linux kernel, sponsored by insurance company Open Source Risk Management (OSRM), found that 283 software patents — 27 of which were owned by Microsoft — could potentially be used as the basis of a patent lawsuit against Linux users or distributors.

Patent lawsuits on average cost about $3 million to defend, according to Dan Ravicher, the author of the OSRM study. 

Nick Donofrio, IBM’s senior vice president of technology and marketing, took up the patent issue in his keynote address, calling on the IT community to rally together and establish procedures that can help avoid patent infringement claims and to work to resolve issues as they arise.

Donofrio vowed that IBM, which owns 60 of the patents discovered in the OSRM study, would not use its patents to harm Linux. “We have no intention of asserting our patents against the Linux kernel, unless, of course, we are forced to defend ourselves,” he said.

Although SCO may have achieved widespread notoriety by questioning the integrity of Linux’s IP, the company has not made much money from its claims. In its most recent quarter, revenue for the company’s SCOsource initiative, which pursues such claims, dropped to a mere $11,000 — a tiny fraction of the $3 million to $5 million in legal bills the company is spending each quarter.

Red Hat’s Szulik was dismissive of SCO during the show, describing the company as “the industry’s version of the Sopranos” — in reference to the Mafia family portrayed in the HBO drama of the same name — and saying that the company’s numerous lawsuits had not slowed down Linux’s momentum.

Although this was the first time IP issues have received such high-profile attention at LinuxWorld, vendors have clearly been aware of them for years. A June 2002 Hewlett-Packard memo that was recently leaked to the press stated, “Microsoft is going to use the legal system to shut down open source software.”

The threat of patent lawsuits is by no means limited to open source software, said Dion Cornett, an analyst at Decatur Jones Equity Partners. “Vendors have looked at this issue; they’re not going to be blindsided by it. And based on the work done so far, they’re comfortable proceeding.”

— Additional reporting for this article provided by Ed Scannell