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[OT]: A Big Fly in the Open-Source Soup

Ok, yes I know sending things from Slashdot isn't nice, but it's
rather interested in "BSD license" in the press in this manner.


By Stephen H. Wildstrom

A Big Fly in the Open-Source Soup

Linux is burdened with too much intellectual-property uncertainty
for many companies to embrace and develop it further The open-source
movement has had a remarkable run of success that has seen software
such as the Linux operating system and the Apache Web server emerge
as major challenges to Microsoft (MSFT ). However, the movement is
now facing a crisis. At its heart is a question that has been around
from the very beginning: How does software owned by everyone and by
no one survive in a world where copyrights and patents shape the
legal landscape? The question is being forced on a number of fronts,
and if open source is to play an important role in software's
future, the issue will have to be dealt with decisively.

 Linux, the most important piece of free, open-source software,
began as the effort by a Finnish college student, Linus Torvalds, to
create the functional equivalent of the Unix operating system,
developed and then owned by AT&T. Intellectual-property questions
about Linux came to the forefront after the SCO Group (SCOX ), which
acquired the Unix trademarks, launched a series of lawsuits against
alleged infringers of its rights.

 POTENTIAL INFRINGEMENTS.  The central case, a 2003 suit against
IBM (IBM ), an important corporate promoter of Linux, has
degenerated into a messy contract dispute with no
intellectual-property issues left on the table. SCO's threats to sue
companies that use Linux have almost entirely evaporated.

 But now another problem has surfaced. Open Source Risk
Management, a new outfit that indemnifies its customers against
infringement claims, found in a review of Linux code that the
operating system potentially infringes on 283 patents. Although IBM
declared it would make no effort to enforce its 60 patents involved,
some are held by Linux foes, including 27 by Microsoft.

 The potential patent infringements pose no immediate threat to
Linux.  Such disputes typically take years to resolve, and courts
rarely issue injunctions against alleged infringers. But the
uncertainty is taking a toll. In the most significant response to
date, the city government in Munich, Germany, has suspended a
massive transition of desktop computers from Microsoft Windows to
Linux, pending clarification of the patent situation (see BW Online,
8/9/04, "Will Legal Fears Freeze the Penguin?").

 "ETHICAL POLLUTION"?  Most patent disputes are settled with
licensing agreements, but this is a tough course for Linux to
follow. With no single owner, the closest thing it has to a central
authority is the Open Source Development Lab -- but the organization
has no way to pass any licensing fees on to users. Perhaps the best
approach would be if major Linux distributors, such as Red Hat (RHAT
) and Novell (NOVL ), and companies for whom Linux is strategically
important, such as IBM and Hewlett-Packard (HPQ ), could set up a
fund to deal with potential patent issues.

 But open-source proponents also have to get their own
intellectual-property house in order. The development of open-source
software is increasingly dominated by corporate interests that, one
way or another, want to use Linux, Apache, and other open-source
products to make money.

 But a slew of backers see open-source software as part of a
social and political movement that's frankly anti-corporate. Richard
M. Stallman, founder of the Free Software Foundation and a man who
commands enormous respect among software developers, argues in the
essay Why Software Should Not Have Owners: "The system of owners of
software encourages software owners to produce something -- but not
what society really needs. And it causes intangible ethical
pollution that affects us all."

 MURKY MODEL.  That view doesn't get a very sympathetic hearing
at, say, IBM headquarters. But Stallman's thinking suffuses the GNU
General Public License (GPL), a document that governs the
distribution of Linux and many other open-source programs. The GPL
not only requires that any programs licensed under it be freely
distributed but also that any modifications made to the software, or
any other software derived from it, are themselves automatically
covered by the GPL.

 Unfortunately, the GPL is hardly a model of clarity, and few
disputes involving it have gotten to court, so case law has done
little to clarify its meaning. This is causing reservations as more
and more companies consider using GPL-covered software to develop
either commercial programs or software for their own use. Apple
(AAPL ), for example, rejected Linux as the basis of Mac OS X in
favor of another open-source, Unix-like operating system called
FreeBSD, largely because the licensing terms were less restrictive.

 What exactly constitutes a "derivative work" automatically
covered by the GPL? "The truth is we don't really know, and there
are reasonable arguments on both sides," Jay Michaelson, co-founder
of software company Wasabi Systems and a lawyer and a programmer,
wrote in the May issue of the Association for Computing Machinery's
journal Queue.  "Some people argue that the GPL as a whole isn't
even enforceable....  At the end of the day, the unfortunate reality
is that developers should check with the companies' legal
departments before proceeding with any GPL-related development
because the requirements may vary on a case-by-case basis."

 RELIGIOUS FERVOR.  Bright as it is, the future of commercial open
source might be considerably brighter if Linux and other programs
went to a more commerce-friendly license with fewer complexities and
ambiguities than the GPL. There's plenty of precedent. The BSD
license, the Mozilla Foundation license used for browsers, and the
Apache license all provide for free distribution of code and source
code with fewer restrictions than the GPL.

 That would be tremendously controversial in the open-source
community, where the GPL sometimes seems more like an object of
religious veneration than a legal document, but it would be good for
all concerned.

 Wildstrom is Technology & You columnist for BusinessWeek

Copyright 2004, by The McGraw-Hill Companies Inc. All rights reserved.