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Foolproofing Open Source

By Stuart Cohen Imagine Bill Gates sends you an e-mail asking how Microsoft (MSFT) can improve the software license for Windows. He wants to make sure the legal language works better for your business.

Imagine that.

Well, that's exactly what is about to happen with Linux. It's yet another reminder of how Linux and open source are different -- but also good for business. Patents, intellectual property, and software licenses matter in open source. And the legal news on open source continues to be good for companies, consumers, governments, and developers of software.

STRONG FOOTING. Any discussion of open-source software and the law begins with software licenses. The GNU General Public License (GPL) is the world's most widely used open-source software license. It continues to be a very good license for different kinds of software.

The competitors to Linux and open source always stress the risk that users and companies face if they use this software to run their business. You may be surprised to learn that the GPL has never been successfully challenged in court since it was introduced in 1991. That's a very good thing to know if your business runs Linux.

The influence of the GPL extends far deeper than explaining the rights under which tens of millions of people can use software such as Linux. More than 70 percent of all open-source software relies on the GPL.

COURTING CONFUSION. Guess what? In the coming months, your company may very well hear from those involved in updating the GPL. The next version of the license is being drafted now under the direction of the Free Software Foundation. This may be the first time in history that customers themselves have been asked to help define the terms of a software license this important and widely used. That's good for everyone. It also gives another meaning to the "give back" provisions of the GPL. It's a practice that other software creators may want to embrace, I think.

Many advocates of open source, however, have been criticized for the proliferation of too many software licenses. I believe this criticism is justified. Part of my job as the CEO of Open Source Development Labs is working with the development community, large customers of Linux and open-source software, and global information-technology vendors to tap leading legal experts in the industry to try to halt this practice.

Who cares about a lot of licenses? You should. The large number of licenses can create confusion among users of open-source software and add unnecessary costs for customers and vendors alike, hindering adoption of Linux and open-source software.

"PATENT COMMONS." The nonprofit Open Source Initiative (OSI), the official shepherd of open-source licenses, has certified 57 different licenses. Our general counsel is working with them to find a way to rationalize the number. If there were 10 licenses, the problem would be manageable. If there were five licenses, the problem wouldn't exist (five licenses cover 90% of open-source software on the market anyway). Unfortunately, at 57 licenses and counting, we have a problem that we have to face.

The other controversial issue in open source involves patents. Software patents are always a concern for developers and customers of proprietary and open-source software alike. The American Intellectual Property Law Association estimated the price tag to defend a typical software-patent lawsuit at $3 million.

At OSDL, we don't have an immediate solution to this vexing problem for the general software industry. But we applaud recent steps taken by companies such as IBM (IBM), Nokia (NOK), Novell (NOVL), Red Hat (RHAT), Sun Microsystems (SUNW), and others to pledge many of their software patents to a "patent commons" for the benefit of the open-source community.

STRENGTH IN SHARING. More than 3,000 patents have been pledged to date. We expect many more to follow.

The idea is that a pool of software licenses and software patents (issued and pending) are held in something like a virtual trust for the benefit of both developers and users of open-source software. In general, the vendors who make this pledge are promising not to litigate against people and companies whom they might otherwise sue. These pledges help reassure companies who run open-source software in their business.

We like this idea so much that we're about to take it one step further. We're establishing an OSDL patent commons project that aims to centralize the good works of these vendors, as well as future individuals and organizations who may wish to pledge patents.

INVITATION TO BILL. By establishing and maintaining a central repository with a library and database, we want to remove the logistical and administrative challenges both for those who pledge patents and those who use open-source software. We would hope that a one-stop commons -- overseen by a nonprofit, vendor-neutral, and trusted friend -- helps everyone.

The patent commons project is another demonstration of how open source and Linux encourage contributions and sharing for the benefit of consumers and business. While I don't expect Bill Gates to really ask his customers for input on the software license for Windows, I do encourage him to consider a contribution to the OSDL patent commons project.

Who knows, perhaps one or two of the 50 million lines of software code in Windows XP may infringe on an open-source patent? Stuart Cohen is the CEO of the Open Source Development Labs

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