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Editor's Note: Something Legal This Way Comes

Feb 04, 2005, 23:30 (20 Talkback[s])
(Other stories by Brian Proffitt)

By Brian Proffitt
Managing Editor

A little blonde child kneels before the static-laden TV, staring intently at the flickering snow. With an eerily calm voice, she announces "they're he-erre."

Thus was the tagline for the 1982 movie Poltergeist, where Heather O'Rourke's character announced the coming of some malevolent spirits to their suburban California home.

This pop culture phrase resonated through my head a great deal this week when I attended the Open Source Development Labs Enterprise Linux Summit. Back in November, Linux Weekly News ran an article entitled "The Lawyers Are Coming." With all due respect to my colleagues at LWN: the lawyers are already here.

The conference's sessions focused on a variety of issues, from technical to business to legal, so it would be unfair of me to insist that the OSDL that the legal overtones to the conference was a planned outcome. But for attendees, the legal aspects of working with open source software was certainly what dominated many of the conversations I had or overheard.

I am not the first to notice this phenomenon, and certainly any reader of Linux Today will have noted the increase of legal stories in the past 18 months or so. Copyrights, infringement, and the granddaddy threat of them all, patents are all up for discussion these days. Interestingly enough, it only took one company's lawsuits to raise the specter of litigious problems for Linux and open source software.

As many of the conference attendees were lawyers, bringing this point up to them just got you patronizing looks that imparted "of course there are legal issues, little man, what else would you expect?" And, while the developers attending the conference outnumbered the legal eagles, bringing up this strong correlation between open source and the law got you replies along the lines of "that's what we're here to find out."

Thus far, with some exceptions, the legal community's response to this whole mess has been fairly restrained. That may get a chuckle, but I do think that things could be much worse. The response has been strong, but not what I would characterize as shrill. Okay, there was Open Source Risk Management's big 283 potentially infringing patents announcement during last summer's LinuxWorld but since then the arguments have settled down to a more conversational tone.

The question becomes, should the Linux community join this conversation? Undoubtedly yes, but then the question becomes how should they join the conversation?

Here's some background that may help shed light on where I stand on this one: I used to be a configuration and QA manager for a in-house development team, building code for our corporate overlords. Before that, I was a newspaper editor. These experiences have taught me an important lesson: know where your code, or your facts, are coming from.

Thus, when the legal teams come in and say that knowing the origins of your code and what licenses it has is an important step that must be a part of the development process, they'll certainly get no argument from me. In fact, I'd join that chorus. Such organizing of code is a little more work up front, but the ability to quickly trace code back through version control and straight-forward origin discovery is a great boost to development efficiency, disaster recovery, and--it seems now--legal protection. It's good practice and it's free insurance to boot.

Free insurance is always good, yet a lot of people will not take advantage of it. When I was learning to fly, my flight instructor would drill into my head over and over that when you take a cross-country flight, you should always file a flight plan, even if you are flying visually. Flying visually is not as tightly regulated as flying with instruments, when you are pretty much required to be in contact with air traffic control. (Trust me, when you are flying through some of the crap I've seen, you want these regulations.)

But on a visual flight filing a flight plan and staying in touch with ATC is optional and quite a few pilots opt not to do it. I myself am guilty of being lax about this. A sunny day, a short flight, what could happen?

Why you should file a flight plan on any flight is simple: if something does go wrong, and you don't show up at your intended destination, somebody will start looking for you a lot faster. And if you're trapped in some remote wilderness, speed is always of the essence.

If that's the only message I can impart in this week's column, that would be it. Knowledge is power and knowing the code's background can only help you, even if you believe that the chances of you ever getting sued are nil. It's free insurance, plain and simple.

Of course, there seems to be a whole new cottage industry sprouting up with new products and techniques to help you do this. I tend to view this with a cynical eye, and encourage you to be smart shoppers if you start looking at these products.

Right before I left for home, I had a brief conversation along these lines with Bernard Golden, author of Succeeding with Open Source. I mentioned to him that while the legal overtones of this conference were interesting, I could not help but wonder why it is that for all the different aspects and products of open source, it was specifically free software's GPL and Linux that was bearing the brunt of the legal concern.

After all, are the FreeBSD or OpenBSD folks getting as worked up about all this as we are? If they are, I have've heard them. Nobody's challenging the legal veracity of products like OpenOffice.org, either. This I find really interesting, since from a layman's point of view it would seem to me that of all the products that would have infringement or patent issues with a proprietary software vendor, OpenOffice.org would have the highest potential.

I am not saying that OpenOffice.org should or does have a problem with legal issues. Possibly even more than Linux right now, OpenOffice.org represents the biggest threat to Microsoft, because OO.org is cross-platform and Microsoft Office is one of Microsoft's biggest sources of revenue. Yet thus far, the FUD is being tossed at interoperability issues. This is stupid FUD, to be sure, but I keep wondering why Microsoft is avoiding such a large target?

Cynics will tell you that it's because OpenOffice.org's biggest patron Sun Microsystems is in league with Microsoft following last year's lawsuit settlement. That may be part of it, but I am more inclined to think that Microsoft is holding back based on the theory of mutual assured destruction.

Under the MAD theory, if all sides have the same weapons, they will be less likely to use them, unless they think they can pull it off so fast and so quietly that they get a slight edge. MAD applies here as well, and I would be willing to bet that it's driving the proprietary companies insane.

A simple scenario is this: Microsoft decides to sue an open source product developer for patent infringement. Whether the case has merit or not, how long do you think it would take for IBM or Novell to slap ten times that many patent infringement suits on Microsoft? Or a hundred times?

And you can forget about launching a patent suit quietly. The presence of Groklaw and a number of other sites, including Linux Today, assures that any legal action will come under intense scrutiny from the open source community. Gone are the days when civil suits were private, uninteresting events. Now they are the shone under the light of public knowledge, something that I think a company like Microsoft would definitely shy away.

The litigation and the legal protections are not going to go away. The clouds are rolling in. Does this mean you can't fly? No, you're just going to have to fly more carefully and with a little more guidance.

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