Open source confronts IP issues

The SCO Group’s legal wrangling with IBM and threats directed at customers likely will have reverberations throughout the open source community beyond just the Linux operating system.

As Linux and other open source software, such as the popular Apache Web server, challenge commercial products, open source technologies face an increasing number of IP (intellectual property) threats.

In the latest example, Lindon, Utah-based SCO last week terminated its Unix System V contract with IBM, thereby putting a major crimp in the company’s ability to sell its Dynix/ptx operating system.

Much of SCO’s case against IBM appears to rest on its rights to derivative works, specifically the code that SCO had licensed to Sequent Computers. Sequent was subsequently bought by IBM, which in turn used that code in Unix-based products it has released since.

“SCO feels that the offending code is now so interspersed with the 2.4 and 2.5 [Linux] kernels, that it will be impossible to effectively remove it. They believe the only way for it to be rectified is to go back to the 2.2 kernel and start all over again from there, and that is never going to happen,” said Al Gillen, vice president of system software research at IDC in Framingham, Mass.

IBM, for its part, filed a countersuit against SCO that accuses SCO of violating the GNU GPL (General Public License) that governs Linux. By bringing up the GPL, IBM’s complaint raises the possibility that the SCO/IBM case could prove whether or not the software license behind Linux is enforceable, something that has not yet been settled in a court of law.

“Some issues around patents, copyrights, and licenses will, to some degree, perhaps make Linux a victim of its own success,” said Gordon Haff, an analyst at Illuminata in Nashua, N.H.

Indeed, open source advocate Bruce Perens said earlier this month that SCO’s lawsuit with IBM was a distraction from a far more dangerous threat to the Linux operating system, namely software patents.

“SCO is nothing [compared to] the threat that open source developers face from software patents,” Perens said.

Concerns about software patents are one of a number of IP growing pains that open source developers are beginning to feel as the popularity of their projects brings them into the sights of commercial rivals who play by different rules than the open source community.

It is common practice, for instance, for commercial software companies to register “defensive” software patents that can be used either to deter litigation from rival companies or to form the basis of a countersuit. But because so many open source developers find the idea of software patents anathema, open source projects tend to exist without this kind of defense. And because their source code is available to anyone who cares to inspect it, open source projects have an exposure to IP snoops that proprietary software products simply do not have.

“Software patents aren’t a good thing, and so we don’t really want to participate in this,” said Greg Stein, chairman of the Apache Software Foundation (ASF) in Forest Hill, Md.

Stein said that the strong contributor agreement that Apache developers must sign offers his project solid protection against IP claims.

“SCO could certainly [bring a lawsuit against] any open source project. But … if you look at what SCO is trying to do, they are trying to extort money, and you can’t really do that to a nonprofit charity,” Stein said, referring to ASF.

Still, the software patent issue is not the only IP question confronting the maturing open source movement.

“Open source, frankly, is an area where there are a lot of IP issues looming,” said Jeffrey Neuberger, an IP lawyer at the New York law firm Brown, Raysman, Millstein, Felder, and Steiner, and who has provided legal counsel to the Eclipse project. “Patents [are] just one of them. Copyright is another. [In terms of] the enforceability of these open source licenses, there are a lot of working issues.”

Whether Microsoft or others follow in SCO’s steps may ultimately depend on SCO’s success, observers say.

“People are watching this case carefully,” Neuberger said. “I think IBM has a strong incentive not to give SCO the image of success here, because I do think it would encourage other people to bring cases against IBM and others.”

Some observers fear that major vendors will bring lawsuits against open source projects. “Of course, the big looming threat is Microsoft. They’ve got a huge number of patents; they’ve got armies of lawyers; they’ve got the strategic incentive,” said Eric Raymond, president of Open Source Initiative.

But both Perens and Neuberger said that the next IP attack on open source would most likely be from a small company, not unlike SCO, with a patent claim it feels could be a revenue generator, and not from a major company. Even Microsoft, which is threatened by Linux, Apache, and Samba, is unlikely to pursue a direct attack, such as SCO’s. “I expect that Microsoft will try and find other proxies to do their dirty work for them,” Perens said.

One Linux company executive claimed Linux will emerge stronger from the SCO lawsuit, no matter the outcome. “I can guarantee that if Linux contains code that’s offensive to SCO, the open source community could replace it within weeks,” said SuSE Vice President of Corporate Communications Joe Eckert.