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Defending intellectual property and patent licensing is quickly becoming a hot button for proprietary and open-source software developers alike.
For many, its not a case of if but when Linux and open-source software developers will be forced to license other vendors intellectual property, regardless of how complicated it may be to execute under the GPL (GNU General Public License). As a result, enterprises standardizing on open platforms are paying closer attention to the growing risk of legal action the software could bring.
Microsoft Corp. announced last week that it will expand its intellectual property protection policy and cover all customers using current and older versions of its software. Many Linux vendors, such as Red Hat Inc. and Novell Inc., already offer limited indemnification to cover patent actions such as The SCO Group Inc. lawsuits.
But given Linuxs continued growth, customers are worried that some third-party code will eventually find its way into the operating system, over which someone could then claim patent protection.
“I really think that is inevitable. There has already been a commercialization of open source, which is evident in the increased level of sophistication across their technology stack,” David Kaefer, Microsofts director of intellectual property licensing, in Redmond, Wash., told eWEEK. “I think in the end, if you are Novell or Red Hat, your corporate customers dont want to wait 10 years and get embroiled in something that is uncertain,” Kaefer said.
Jamey Anderson, manager of Local Area Network Services at ADC Telecommunications Inc., in Minnetonka, Minn., chose Windows over Linux for that reason. “We simply arent interested in having to worry about potential legal risks of deploying Linux,” said Anderson.
According to Mark Webbink, deputy general counsel and secretary for Red Hat, the GPL states that if the licensor holds patents or has licensed patents that apply to the technology, the licensor must ensure that all downstream parties may use the software as provided by the GPL. “The solution to this is for a patent holder or patent licensee to provide an express patent license accompanying the GPL,” Webbink said.
That Microsoft and Sun Microsystems Inc. are willing to make patented technology available to open-source vendors is encouraging, Webbink said. “If proprietary and open-source providers can come together to find ways of sharing innovations, we think this is a good thing for the software industry,” he said.
But Eben Moglen, general counsel for the Free Software Foundation, in New York, does not see it this way. The foundation does not believe its going to have to start licensing others intellectual property and patents. “Microsoft has not actually stepped forward and said that anything we are doing infringes on a patent,” said Moglen. “Microsoft still has not asserted that patents govern free software. What is really fascinating is how they keep doing everything except that.”