Linux gets a bigger shield against patent attacks

The open source community should feel a little safer from software patent attacks today. The Open Invention Network (OIN), a consortium of Linux contributors formed as a self-defense against software patents, has extended the definition of Linux so that a whopping 700 new software packages are covered, including many developer favorites.

Just one hitch: The new definition also includes carve-outs that put all Linux developers on notice that Phillips and Sony reserve the right to sue over virtualization, search, user interfaces, and more.

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It’s a big expansion of Linux’s territory — dotted with some major landmines. At least they’re clearly marked.

A NATO for patents Formed in 2005, OIN was in many ways a reaction by its funding corporations — IBM, NEC, Novell, Philips, Red Hat, and Sony — to the threat to Linux posed at the time by Sun Microsystems and SCO. By pooling their patent portfolios and offering a viral scheme to attract more patents, they hoped to render members immune to software patent attacks around the Linux platform.

Using a set of cleverly worded license agreements, OIN offers any entity willing to sign its license the right to use any other licensee’s patents to defend itself against Linux-related patent attacks, provided they reciprocate in kind. The effect is to create an ever-expanding patent pool for licensee use. (It has no value in defense against companies who don’t make anything except threats — so-called nonpracticing entities or, more plainly, patent trolls.)

Of course, laying down all patents a consideration among OIN’s members. So OIN limited use of the pool of patents it gathered to the Linux System — a carefully worded list of technologies that circumscribed the interests of its chief paymasters. You can only protect yourself from attack by a patent aggressor using OIN’s patents if your software is part of the Linux System as defined by OIN.

That has been a growing problem. The Linux System definition at the heart of OIN has been a fixed list of technologies that has remained unchanged since 2005. Many of us in open source communities felt exposed and excluded by the glaring omission of key technologies — such as Java. Indeed, I worked with OIN to include OpenJDK when I was with Sun back in 2009. OIN freely admitted this was a problem, but changing it involved very extensive multiway negotiations among its members.

That’s why the news, announced Tuesday, that OIN would open its umbrella wider was so welcome. The 700 new software packages include KVM, Git, OpenJDK, and WebKit, which by themselves represent a dramatic extension of scope.

The Linux System is now defined so as to include popular virtualization and development tools. The list includes a wide range of Java tools: OpenJDK and IcedTea, GNU gcj, GNU classpath/libgcj, Apache Jakarta, Eclipse, and more. Negotiating this agreement must have been an enormous task of aligning corporate biases.

Free to attack Too bad there’s a sinister underbelly to this good news: what’s omitted. Most notably, Android — which is based on the Linux kernel — is missing from the list altogether, along with its Dalvik language interpreter. Moreover, the definition is now so broad that two of the founders, Sony and Phillips, are concerned their products will be affected and have effectively reserved the right to sue the Linux community.

Here’s the full list that Phillips and Sony have carved out, according to the new Linux System definition from OIN:

• DVR functionality
• Electronic Program Guide functionality
• DVD video functionality
• Blu-ray functionality
• The Blu-ray format
• Receiver functionality
• Wireless networking functionality
• Content matching and identification and recommendation functionality
• DRM technology
• Lighting control
• User interface technology
• Digital display technology
• Camera functionality
• Codecs
• Virtualization technology (Philips only)

That’s a broad swath of technology by any measure. Looking into the definitions of these terms, they cover pretty much everything that’s interesting on mobile phones and tablets today: search, user interface innovation, photography, movies, and the technologies that allow them to be delivered to a customer. There were carve-outs for TiVo-like DVR functions in the old definition, but these new exceptions create a canyon big enough to swallow the whole Android mobile market.

This is no reflection on the sincerity of OIN itself. The expanded definition brings the possibility of patent protection to a much wider range of open source software projects than before. I’ve previously recommended membership of OIN to both the companies I’ve worked with and the open source communities in which I’ve helped. I continue to believe it’s a valuable protection mechanism for those with the backing to use the patents in the event of hostilities breaking out.

Nonetheless, it’s worth noting that OIN’s patent pool gave no protection to Google when it was attacked by Oracle — despite both being OIN licensees — and the new carve-outs may presage a new round of conflicts. Both Sony and Phillips have fearsome software patent arsenals around consumer products. By specifically and publicly excluding them from OIN protection, they are putting us all on notice that they have no concerns whatsoever about litigation against any open source innovator straying into their market.

The bottom line is that enterprise developers can probably sleep easier now Java, Eclipse, and more are included by OIN. But if you’re working on Linux-related consumer software, you appear to have some new sworn enemies.

This article, “Linux gets a bigger shield against patent attacks,” was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.