By Stephen H. Wildstrom
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.
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?").
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."
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."
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