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Well, the big OSDL and IBM deal later this week looks like its going to be a dud.
The rumor mill had it that IBM and OSDL (Open Source Development Labs), an organization dedicated to accelerating the growth and adoption of Linux, were preparing to rewrite the Linux kernel to counter potential intellectual property and patent assaults from Microsoft.
Wrong.
It turns out that whats really going down in Beaverton, Ore., on Jan. 25 is an open-source job development initiative, a la an incubator, by the city of Beaverton, with some state involvement.
Now, make no mistake, any news about new jobs—and in particular jobs that promote the use of open source—is good news. But its not Big News.
Its a pity, though, that the rumors werent true to some degree. Linux is going to need more protection from IP (intellectual property) and patent threats.
No, not from SCO. As Ive said several times before, while SCO thinks it has a case against Linux, I dont—and most of the experts dont think it has a case either.
But patents are another matter.
Back in August, OSRM (Open Source Risk Management), a provider of open-source consulting and risk mitigation insurance, announced that it had found that there were 283 issued, but not yet court-validated, software patents that could conceivably be used in patent claims against Linux.
Now, as Dan Ravicher, the author of that study and an attorney and executive director of PUBPAT (the Public Patent Foundation), has pointed out, “Open source faces no more, if not less, legal risk than proprietary software.”
What are those patents? We dont know. OSRM wont publicly say what the specific software patents are that might affect Linux because this “would put the whole developer community at risk,” Ravicher said, calling it the “catch 22 of patent law.”
“Patent law is meant to popularize technology, but at the same time, if you look at software patents as a developer, you put yourself at more legal risk,” he said.
Next Page: The risk of triple damages.
Triple Damages
Daniel Egger, chairman and founder of OSRM, agreed about the risk factor. “Current U.S. patent law creates an environment in which vendors and developers are generally advised by their lawyers not to examine other peoples software patents, because doing so creates the risk of triple damages for willful infringement,” Egger said.
So it is that you cant “fix” Linux, or anything else for that matter, for potential patent problems by looking for them. Is this a great country or what?
What Id like to see happen is for patents to go away. But since thats not likely to happen—darn it!—the next best thing would be for OSDL to support patent reform and an effort like PUBPATs to rid the world of unsound patents.
Come to think of it, heres another idea for the OSDL. Your membership includes such major technology powers as Cisco Systems, Computer Associates, IBM and Sun, so why not encourage all of your members to follow IBMs first steps of opening up 500 of its patents for use in open-source software?
Before IBM made its move, Novell had already said it would utilize its patent portfolio to defend against potential IP attacks on its open-source products.
OSDL, with help from some open source-savvy lawyers, could come up with a model statement for such releases.
This, taken in combination with the ongoing revision of the GPL (GNU General Public License) to address patent issues, could kill off once and for all the FUD that open-source software is somehow more dangerous than proprietary software.
What do you say, OSDL, open source-friendly vendors? Since patent-law reform wont be happening anytime soon, isnt it the least you can do to try to make what patents we can control safe for open-source development? Just a thought.
eWEEK.com Senior Editor Steven J. Vaughan-Nichols has been using and writing about operating systems since the late 80s and thinks he may just have learned something about them along the way.
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